Halfway is simply not good enough (broken and in need of repair)

More and more often, when patients contact their doctors, they are told that the doctor is unavailable but a physician's assistant or nurse practitioner can see and treat them. Needing or desiring timely help, the patient agrees. The physician's assistant or nurse practitioner conducts an examination without the physician present, makes diagnostic determinations and often prescribes medicine, tests or treatment, which are submitted under the doctor's name. The invention of these paraprofessional positions allows for more patients to be seen, supposedly at lower cost. People who would otherwise self-medicate or forego treatment all together get, at least, some attention. But are they getting proper attention and treatment? Do patients really find this acceptable or desirable, or is it something that has been forced upon them? Are the paraprofessionals truly appropriately educated and trained? If the training and education physicians' assistants and nurse practitioners receive is enough, why do we require doctors to endure more? Are doctors over trained? Is that why health care is so expensive? There are a lot of questions that few people, if anyone, seem to have asked. Yet, the positions and practice appear here to stay, and the concept is now beginning to spread into other professions, most notably the practice of law. Ladies and gentlemen, meet the "Licensed Legal Technician."

Today, without a lot of fanfare, some states have either implemented or are considering allowing licensed technicians to take the place of fully trained lawyers in many situations. The theory is that the allowance of such para-professionals reduces the unauthorized practice of law and thus protect consumers. It also purportedly reduces the number of unrepresented litigants. It appears that Washington was the first jurisdiction to authorize licensed technicians. New York followed and Utah and Oregon are now developing similar programs. Similar to physician's assistants and nurse practitioners, the licensed legal paraprofessionals have special training and are in theory supervised, but work with their "clients" without a lawyer present or actively involved.

In Washington, licensed technicians must attend law school CLE classes and complete 3,000 hours of practicum work (a quasi-apprenticeship) and then can assist clients in various ways. They are not allowed in court. New York goes further. In 2014, New York began allowing non-lawyers, called "court navigators" to support and assist unrepresented parties during court appearances in landlord-tenant and consumer debt. Navigators are allowed to provide information, written materials and one-on-one assistance, complete court forms and other documents, and work with interpreters. In several courts, they are allowed to appear in court to argue to the court, although not representing the client - a distinction that appears more blurred than clear. They also have educational and practicum requirements before they are certified. Utah and Oregon are in the process of unveiling their programs, and it is not clear as to how much "legal work" or "in court" assistance a paraprofessional will be allowed to perform in those jurisdictions. Both of these states will also require that educational and practicum criteria be met as a precondition to certification.

All of these programs focus on certain aspects of the law, primarily consumer debt, landlord tenant and similar low-dollar, but highly prevalent, disputes. Many attorneys do not want to, or cannot afford to, offer representation in these areas that the putative clients could afford. As a result, statistics show that the vast majority of such cases pit a lawyer-represented company against an unrepresented individual. It would thus seem to appear to make sense to allow lower cost alternatives, such as the paraprofessional.

However, the same questions as those raised above in the context of the medical profession also apply here. Is it better to provide a lesser trained person to represent these currently unrepresented clients, than to have them proceed with no representation at all? If the paraprofessional is adequately trained, the answer would seem a clear yes. Again, however, if lesser credentials and lesser education and testing is sufficient, then why are lawyers required to obtain more? If they are not sufficient, then aren't states who encourage the use of undertrained persons doing their citizens a disservice? Or is undertrained better than untrained? Is perhaps questionable assistance still better than none at all?

In the ultimate analysis, the question comes back to a truism that has been oft-quoted over the last decade, if not longer. The American Legal system is too complex for, and to unfair to, the unrepresented layperson, but the costs of securing representation in today's world for many matters is prohibitive. The licensed technician may be a stop gap that provides relief to many, but it is not an ultimate solution. The system must be made more affordable for all. The problem is not limited to the low dollar consumer cases these programs seek to address. Today, even person-to-person or business-to-business disputes involving as much money as $30,000 or more cannot be pursued because the costs of doing so make proceeding a bad business decision. Arbitration, once deemed a solution to the costs and delays of the courthouse, has now evolved to the point where the typical arbitration is more expensive than court, not less, but provides less constitutional protections.

The bottom line is that our system has broken under the weight of its own costs. The paraprofessional programs recognize a problem much deeper than the purported fix. Our court system is simply inaccessible to a large portion of our population. When the courts can't be used to settle disputes, eventually self-help and vigilante justice follow.

States that are investigating licensed legal technicians do so from a noble perspective, but they miss the point. Our entire system is broken and needs to be fixed, not tweaked. The courts must be made accessible to everyone, or the "great experiment" as our system was once known, must be deemed a tragic failure, at least for all but the rich.

The licensed legal technician sounds good in principal, but it is not the answer. Providing the consumer with a lesser grade of representation than that which the company opponent can afford is simply wrong, and not a solution at all.

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©2018 under analysis distribution llc. Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis-based law firm, Riezman Berger, PC. Comments or criticisms of this column may be sent to the Levison Group in c/o this paper or direct to comments@levgroup.com

Published: Fri, Apr 20, 2018

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