I am currently recovering from foot surgery. My surgeon’s Physician Assistant handled my pre-operative visit and my first post-operative visit. Although I would have preferred to see my surgeon, I understand that his expertise was not necessary to review lab results and give last minute pre-op instructions nor to change my dressing during the post-op visit. Nor should I pay his rate for these services. The Physician Assistant was friendly and quite competent.
Is there an analogy in the legal profession? Have we in the legal profession determined that all legal services must be delivered by lawyers? Even the legal equivalent of a dressing change? Is the corresponding price tag discouraging would-be clients from seeking legal services? Who can work toward justice for all?
Non-Lawyers Can Provide Some Legal Services
In Washington State, as I wrote about before, a new category of paraprofessionals, called “limited license legal technicians” may deliver legal services in the area of family law. Somewhere between a paralegal and a lawyer, Washington’s LLLTs cannot represent clients in court proceedings or negotiations, but can assist clients in gathering documents and explaining deadlines and documents that must be filed.
The first class of LLLTs completed the education requirements and took the three part examination this past May. Seven out of nine passed. This fall, fifteen more LLLTs took the examination and the third class of LLLTs began their classes. Whether this model ultimately provides a viable career path for LLLTs or eases the severe access to justice problem that was the animus for their creation, remains to be seen.
Other States Study Washington’s Access to Justice Model
In 2013, California began the process of exploring solutions to the justice gap. The Civil Justice Strategies Task Force Report and Recommendations include designing a pilot LLLT program in one subject that will, with the input of the state supreme court, address governance, oversight and licensing.
Similarly, the Oregon Bar Association assembled a task force that issued its report earlier this year. One recommendation is that the “legal technician” concept be explored as a means to address the justice gap. The recommendations were based on: (1) the vast need for legal assistance in low to moderate income populations; (2) a concern the legislature would act with legislation if the bar did not take meaningful action; and (3) the need to balance access to justice with protection of the public.
Moving easterly, the Minnesota State Bar Association in June adopted a recommendation to form an Alternative Legal Models Task Force to “examine the advisability of creating a new type of limited-scope certified legal provider to increase access to justice for those who cannot afford a lawyer.”
Civil Legal Needs Studies Document Access to Justice Problem
In enacting Washington’s radical program, the court relied on the state’s 2003 Civil Legal Needs Study documenting that low and moderate income residents found civil legal services unaffordable. The study aimed at the population above those eligible for legal aid. Noting that the unaffordability of civil legal services caused many folks to turn to unregulated services, the Court created the limited licensed professional to ensure that public citizens had access to legal services from trained and regulated professionals.
Events since 2003, including the severe economic recession, had greatly affected the living conditions of people in in the state, and the court decided it needed to update the 2003 civil legal needs study. In October of this year, Washington’s updated Civil Legal Needs Study was released. The goal of the survey was not only to update the nature and gravity of legal problems experienced by low income individuals and families but also to generate more information about how race, gender, age disability and other factors may affect who receives legal help, who does not, and the effectiveness of long-term solutions.
The report is sobering. The average number of legal problems experienced per household was 9.3, whereas in 2003 it was 3.3. The types of problems shifted as well. Health care problems skyrocketed: 43% of all 2014 survey respondents had at least one problem related to health care whereas only 19% reported this type of problem in 2003 when housing was the biggest concern.
One of the many disturbing items contained in the report is the finding that who you are matters for the legal help you receive. Native Americans, African Americans, people who identified as Hispanic or Latino, victims of sexual assault, young adults and families that include military members or veterans experienced a substantially greater number of problems and different types of problems than the low income population as a whole.
More than 40% felt they had little or no chance of protecting their rights or those of their families in court; nearly 60% of respondents feel they were not treated fairly in the civil justice system and about the same percentage reported that they did not feel the civil justice system was a forum to which they could confidently turn to for resolution of important legal matters.
Reading that “Many lack confidence the civil justice system can or is even willing to help people like them” and “a significant majority of low income people do not believe that they or others like them will receive fair treatment by the civil justice system” hit me in the gut. It should hit all lawyers in the gut. Although other states may not have generated survey results quantifying this reality, anecdotal evidence that a large percentage of the population feels excluded by and not treated fairly by the legal system abounds.
Justice For All?
In the executive summary to the Washington updated report, Justice Charles Wiggins says that the report challenges us to:
- ensure that low-income residents understand their legal rights and know where to look for legal help when they need it.
- squarely address not only the scope of problems presented, but the systems that result in disparate experiences depending on one’s race, ethnicity, victim status or other identifying characteristics;
- be aware of the costs and consequences of administering a system of justice that denies large segments of the population the ability to assert and effectively defend core legal rights.
The challenge applies to all lawyers. Justice for all ensconced in our Constitution, recited in the Pledge of Allegiance by students and citizens regularly, does not reflect reality. It is our job to change this. One way may be by creating new types of legal practitioners. Surely there are others. Lawyers have been the architects of change from the beginning of our country’s existence. We must do this.