June 2008

An Overview of the Proposed Legal Technician Rule

by Julie Shankland

The Washington State Supreme Court adopted General Rule (GR) 24 in 2001, defining the practice of law.1 The Supreme Court also adopted GR 25 in 2001, creating the Practice of Law (POL) Board and giving that Board the following mission:

The purpose of this rule is to create a Practice of Law Board in order to promote expanded access to affordable and reliable legal and law-related services, expand public confidence in the administration of justice, make recommendations regarding the circumstances under which non-lawyers may be involved in the delivery of certain types of legal and law-related services, enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law-related services that pose a threat to the general public, and to ensure that those engaged in the delivery of legal services in the state of Washington have the requisite skills and competencies necessary to serve the public.
 
The Practice of Law Board has worked for the past three years to meet the directive of the Supreme Court to “make recommendations regarding circumstances under which non-lawyers may be involved in the delivery of certain types of legal and law-related services.” The Practice of Law Board has also worked diligently to meet the directive of the Supreme Court to investigate complaints of the unauthorized practice of law. To date, the Practice of Law Board has investigated 167 complaints of the unauthorized practice of law; issued 94 cease-and-desist letters; and authored 11 advisory opinions.

In January 2008, the Practice of Law Board sent a recommendation and proposed rule to the Washington State Supreme Court to meet the mandate of GR 25 with regard to non-lawyer involvement in the delivery of certain law-related services by so-called “legal technicians.” This article introduces the legal technician concept and provides the background to, and an explanation of, the basic components of the proposed rule. More comprehensive information about the Practice of Law Board and the proposed rule can be found at www.wsba.org/lawyers/groups/¬practice
oflaw.

In developing the proposed rule over the past three years, the POL Board has held public hearings in Seattle and Spokane; asked for and received input from WSBA members, the WSBA Board of Governors, and the public; and convened subcommittees for each area of substantive law considered: family law, elder law, immigration law, and landlord/tenant law. Board members have made many presentations at local bar associations, section meetings, and the Access to Justice Conference. After much deliberation, the Board narrowed its focus to family law,2 and in January 2008, the Board sent the proposed rule to the Washington State Supreme Court that would provide for the creation and regulation of non-lawyers providing limited legal assistance to pro se clients in some family law matters.3 The rule is accompanied by a set of regulations4 that establish the Non-Lawyer Practice Commission to Regulate Legal Technicians.5
 
What Is a Legal Technician?

A legal technician is a certified practitioner authorized to engage in the limited practice of law as specified in the proposed rule. A legal technician is authorized to choose and prepare forms, and to give legal advice in limited areas under specified conditions and regulations. A legal technician assists pro se litigants with pre-approved forms and advises about the effect of those forms. A legal technician cannot appear in court and does not represent clients or participate in negotiations (Proposed APR B(6)). A legal technician must personally perform the work and must have a staffed office in Washington for acceptance of service (proposed APR E(2) and (3)). The proposed rule sent to the Court recommends family law as the first area of practice in which to allow legal technician involvement. The 2003 Washington State Civil Legal Needs Study shows family law as one of the highest areas of unmet need.6 The POL Board recommended family law for several reasons: the large amount of unmet legal need in this arena, the subcommittee’s recommendation that this is an appropriate area for non-lawyers, and the harm to the public Board members have witnessed in this arena due to the unauthorized practice of law by unregulated non-lawyers.

What Are the Certification Requirements? (Proposed APR C)

A legal technician must be over the age of 18 (proposed APR C (1)), be of good moral character (proposed APR C (2)), and meet both education (proposed APR C (3)) and experience (proposed APR C (4)) criteria. The technician also must comply with pro bono (proposed APR C (5) and G (2)) and CLE requirements (proposed APR G). The technicians will be tested on the RPCs as well as procedural and substantive law (proposed APR C (6)). Technicians may practice in a substantive area only after passing a test in that area. Legal technicians must prove financial responsibility, obtain professional liability insurance, and comply with the RPCs. Legal technicians will have mandatory CLE requirements imposed by the Commission.

Legal technicians must graduate from an ABA- or Commission-approved paralegal/legal assistant program. These may be associate degree programs or other programs that include a minimum of 45 quarter hours of substantive legal courses and 90 total quarter hours. Alternatively, these may be bachelor’s degree programs in paralegal or legal assistant studies, or post-baccalaureate certificate programs in paralegal or legal assistant studies. In addition to the educational requirements, certificate candidates must have substantive legal experience as a paralegal or legal assistant working under the supervision of a lawyer. Graduates from bachelor’s or ABA-approved associate’s programs must have two years’ experience; all others must have three years’ experience. Additionally, each certificate candidate must complete 20 hours of pro bono service prior to taking the certification examination.

The POL Board realized that many applicants may meet the experience requirement, but not the educational requirement. After discussion, the Board determined that the educational requirement would provide a breadth of knowledge that years of experience in one area might not. Although this may lead to a lower number of initial applicants, the Board decided that the combination of education and experience was essential to protection of the public.

Why Would We Need Legal Technicians?

The 2003 Washington State Civil Legal Needs Study,7 commissioned by the Washington State Supreme Court, established that the legal needs of the consuming public are not currently being met. Washington’s 2008 Courthouse Facilitator Programs for Self-Represented Litigants in Family Law Cases Report (Report) finds that the number of pro se litigants in family law matters is increasing (Report, pages 10 and 11).8 Additionally, the Report found that 70 percent of the courthouse facilitator customers who indicated they received assistance prior to contacting the facilitator had received assistance from family or friends first (Report, page 26). The Report also states that more than 70 percent of the courthouse facilitator clients received help with forms (Report, page 31). These studies document the need to increase access to justice in the area of family law, with specific emphasis on assistance with forms. Legal technicians could provide services for those who either cannot afford a lawyer or whose legal issues are simple and discrete enough to be completed by a non-lawyer. Technicians must refer clients to lawyers when the legal issues are beyond the scope of the technician’s authority.

Another reason cited for the legal technician rule is that non-lawyers already provide legal services and will continue to do so. Regulation of these services is important for consistent quality and protection of the public. The Board’s position is that regulation of non-lawyers will both protect the public from the unauthorized practice of law and assist prosecutors in prosecuting this crime. In a 2005 letter to the Kansas Bar Association, the U.S. Department of Justice stated: “The Justice Department and the Federal Trade Commission believe that the definition of the practice of law should be limited to those activities where specialized legal knowledge and training is demonstrably necessary to protect the interests of consumers. Otherwise, consumers benefit from preserving competition between lawyers and non-lawyers.”9 The FTC has written letters to many state bar associations and obtained an injunction in at least one instance prohibiting a bar association from unreasonably restraining competition by preventing non-lawyers from providing services, thus signaling the federal government’s interest in widening access. The POL Board believes that by actively determining areas of non-lawyer delivery of legal services and setting reasonable regulations, Washington can avoid having these decisions made by others.

Two other states already have certified non-lawyer document-assistant programs. In September 1998, California created legal document assistants.10 These assistants, who are not authorized to provide legal advice, operate in many counties. In July 2003, the Arizona Supreme Court created the Legal Document Preparers Program. This program requires all individuals and businesses in Arizona that prepare legal documents without the supervision of an Arizona lawyer to obtain a certification.11 This program has operated for almost five years. The Board studied these programs prior to developing the proposed rule and concluded that Washington’s unmet legal needs would be more effectively addressed by allowing the non-lawyers to explain the effect of the forms to their pro se litigants. Under existing law, this would constitute the practice of law and thus be prohibited conduct for non-lawyers. The legal technician rule will authorize this conduct in a controlled and regulated environment. Both Arizona and California allow the non-lawyers to practice in any substantive law area. The Board specifically decided to require legal technicians to be tested separately in each substantive area. Additionally, the Board requested initial approval of only one area of substantive law to make certain the Board and the Commission have the ability to effectively implement the program.

What Could a Family Law Legal Technician Do?

The proposed rule authorizes legal technicians to do the following (proposed APR D):

• Ascertain whether the problem is within the defined practice area of family law, and if so, obtain relevant facts, and explain the relevancy of such information to the client;
• Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;
• Inform the client of applicable procedures for proper service of process for motion papers, and proper filing procedures;
• Provide the client with self-help materials prepared by a lawyer or approved by the Commission, which contain information as to statutory requirements, case law basis for the client’s claim, and venue and jurisdiction requirements;
• Review pleadings or exhibits presented by the client from the opposing side, and explain the documents;
• Select and complete forms that have been approved by the state of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a lawyer; or forms approved by the Commission; and advise the client of the significance of the selected forms to the client’s case;
• Perform legal research and draft legal letters and pleadings, if the work is reviewed and approved by a lawyer;
• Advise the client as to other documents which may be necessary (such as exhibits, witness declarations, or party declarations), and explain how such additional documents or pleadings may affect the client’s case; and
• Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.

In the realm of family law, a legal technician could draft pleading forms in the approved areas, for example: Child Support Orders, Child Support Worksheets, Support Modification Petitions or Responses, Contested or Uncontested Dissolution Petitions and Responses, parenting plans, temporary orders, protective orders, parentage action pleadings, non-parental custody petitions or responses. A legal technician may explain third-party declarations to a pro se litigant, but cannot draft these non-approved forms, unless under the supervision of a Washington lawyer. Legal technicians may draft state-approved domestic-violence forms.

If the legal technician program is successful in family law, the Board will consider recommending that the Court expand it to landlord-tenant law, elder law, or other appropriate substantive areas.

What Are the Practice Limitations?

Legal technicians are not authorized to perform services in the following areas (proposed APR B (6), proposed APR F, and Report to the Court):

• Assisting clients where a party to the action has active military service status, unless the legal technician is under the active and direct supervision of a responsible Washington-licensed attorney;
• Contacting the opposing party or his or her attorney, or entering into negotiations with them;
• Engaging in or responding to discovery procedures, unless the legal technician is under the active and direct supervision of a responsible Washington licensed attorney;
• Drafting non-party witness declarations unless the legal technician is under the active and direct supervision of a responsible Washington licensed attorney (however, an unsupervised legal technician may explain to a client the need for and criteria of such declarations); and
• Providing services related to assisted reproduction parenting issues (RCW 26.26.210 et seq).

When applied to family law, legal technicians must refer the following matters to a Washington lawyer:

• Indian Child Welfare Act (25 U.S.C. 1901 et seq.);
• Relocations with minor children (RCW 26.09.405, et seq);
• Parenting Plan modifications (RCW 26.09.260 and 270);
• Disestablishment or rescission of parenting acknowledgement (RCW 26.26.010 et seq);
• Interstate custody — UCCJEA (RCW 26.27.010, et seq);
• Transfer of interests in real estate;
• Division of retirement benefits;
• Division of business property; and
• Contempt proceedings (RCW 26.09.160 and other applicable statutes).

What Is the Cost of This Program?

GR 25 states that the program shall be self-supporting. In working to ascertain what expenditures would be required to run such a program, the Board gathered financial information from the State Bar of Arizona program and from the Limited Practice Officer (LPO) program12 that is administered by the WSBA. While the Arizona program received a start-up grant, detailed information for the start up of the LPO program is, unfortunately, not available. The legal technician program will have start-up costs, including costs associated with developing tests, administering certification, and collecting data. The fiscal impact for start-up costs for a legal technician program in Washington will need to be investigated further, but as with the LPO program, it would have to be self-sustaining.

What’s Next?

The Supreme Court has indicated it will consider the proposed rule in November 2008. The July issue of Bar News will contain additional articles discussing the legal technician concept and proposed rule. The WSBA Board of Governors will consider its recommendation with respect to the proposed rule at its September 18–19 meeting in Seattle. If you have questions about the proposed rule or other aspects of the proposal, please contact Julie Shankland at 800-945-9722, ext. 8280, 206-727-8280, or julies@wsba.org. 

Julie Shankland is WSBA assistant general counsel and can be reached at julies@wsba.org.

NOTES
 1. General Rule 24
  Definition of the Practice of Law
  (a) General Definition: The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law. This includes but is not limited to:
  (1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.
  (2) Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).
  (3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.
  (4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).
  (b) Exceptions and Exclusions: Whether or not they constitute the practice of law, the following are permitted:
  (1) Practicing law authorized by a limited license to practice pursuant to Admission to Practice Rules 8 (special admission for: a particular purpose or action; indigent representation; educational purposes; emeritus membership; house counsel), 9 (legal interns), 12 (limited practice for closing officers), or 14 (limited practice for foreign law consultants).
  (2) Serving as a courthouse facilitator pursuant to court rule.
  (3) Acting as a lay representative authorized by administrative agencies or tribunals.
  (4) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.
  (5) Participation in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements.
  (6) Providing assistance to another to complete a form provided by a court for protection under RCW chapters 10.14 (harassment) or 26.50 (domestic violence prevention) when no fee is charged to do so.
  (7) Acting as a legislative lobbyist.
  (8) Sale of legal forms in any format.
  (9) Activities which are preempted by Federal law.
  (10) Serving in a neutral capacity as a clerk or court employee providing information to the public pursuant to Supreme Court Order.
  (11) Such other activities that the Supreme Court has determined by published opinion do not constitute the unlicensed or unauthorized practice of law or that have been permitted under a regulatory system established by the Supreme Court.
  (c) Non-lawyer Assistants: Nothing in this rule shall affect the ability of non-lawyer assistants to act under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional Conduct.
  (d) General Information: Nothing in this rule shall affect the ability of a person or entity to provide information of a general nature about the law and legal procedures to members of the public.
  (e) Governmental agencies: Nothing in this rule shall affect the ability of a governmental agency to carry out responsibilities provided by law.
  (f) Professional Standards: Nothing in this rule shall be taken to define or affect standards for civil liability or professional responsibility.
  [Adopted effective September 1, 2001; amended effective April 30, 2002.]
 2. The recommendation and scope of practice for family law legal technicians was developed by a subcommittee with the following members: Rita L. Bender and Howard H. Marshack, co-chairs, Commissioner Scott Collier, Cherie Cosper, Betty Gould, Gail Hammer, Michelle Storms, and Casey Trupin.
 3. For more detailed information on the proposed rule, regulations, and subcommittee report, visit www.wsba.org/reporttocourt/pdf.
 4. The full regulations are attached to the report to the Court.
 5. Regulation of legal technicians cannot be performed by the Bar Association, because this could lead to complaints of anti-competitive actions. As a trade organization, the WSBA cannot determine who can and cannot practice law; the Washington State Supreme Court makes that decision. The Practice of Law Board is set up directly under the Supreme Court because of the anti-competition issues.
 6. 2003 Washington State Civil Legal Needs Study, figure A, page 71. See the full report at www.courts.wa.gov/newsinfo/content/taskforce/CivilLegalNeeds.pdf.
 7. www.courts.wa.gov/newsinfo/content/task
force/CivilLegalNeeds.pdf.
 8. www.courts.wa.gov/wsccr/docs/Courthouse
%20Facilitator%20Program.pdf .
 9. www.usdoj.gov/atr/public/comments/
207619.htm.
 10. www.leginfo.ca.gov/cgi-bin/displaycode?
section=bpc&group=06001-07000&file=
6400-6401.6; www.leginfo.ca.gov/cgi-bin
/displaycode?section=bpc&group=06001-07000&file=6402-6407; www.leginfo.
ca.gov/cgi-bin/displaycode?section=
bpc&group=06001-07000&file=6408-6415.
 11. www.supreme.state.az.us/cld/ldp.htm; www.
supreme.state.az.us/cld/pdf/LDP%20AO2003-14.pdf.
 12.LPOs, or limited practice officers, are non-lawyers who are authorized to select, prepare, and complete documents in a form previously approved by the Limited Practice Board for use in closing a loan, extension of credit, sale or other transfer of real or personal property. For further information, see www.wsba.org/info/lpo.htm.