CALDA Blog

Dear Members,

Here is a recap of yesterday’s meeting of the State Bar’s working group on creating of the Limited License Legal Technician.

It was very interesting — I am most impressed by how remarkably receptive they are to this whole idea. It’s important to keep in mind that they are the ones who brought up this discussion. No one is making them do this, and it’s a completely voluntary effort on their part. One can wonder about their motives, but the fact is, they are doing it.

One of the members of the Bar’s Working Group reported that they are getting a huge amount of flak from lawyers who are incredibly unhappy at the prospect of a small part of their monopoly on legal advice being broken. However, despite the flak they are receiving, this Working Group is trudging ahead anyway, at a noticeably quick pace. This “working group” is not empowered to make any actual policy changes or substantive changes to laws or procedures, but surely its recommendations will carry some weight with the full committee.

The first part of the day consisted of a very detailed discussion of Washington’s program from none other than their Bar Association’s executive director. She was very impressive, and she detailed the history, formation, and planned direction of that program. In Washington, a “Limited License Legal Technician” is able to dispense limited forms of legal advice. An LLLT can select forms, advise about rights, and interpret documents for clients. I would encourage you to read the rule that created the program by clicking here so that you can all become familiar with it, because the California Bar is using this as their inspiration for the program here. You can find it here: http://www.courts.wa.gov/content/publicUpload/Press%20Releases/25700-A-1005.pdf. Currently Washington program only covers family law, but they intend to expand it to estate planning and landlord/tenant. They considered immigration and decided against including that in their program.

Next there was a report from a lawyer who specializes in health care law. In particular, he was an expert on the role of Physicians Assistants and their interaction with the Doctors to whom they report. I think you may be able to presume what they are thinking by inviting the obvious analogy of doctors/physicians assistants and lawyers/paralegals). Now apply that analogy to the current proposal being discussed and you can see where they might be going with that. But more on that in a little bit.

Next there was a presentation from a chief person from the Law Society of Ontario (analogous to our state’s Bar Association). This was, surprisingly, incredibly relevant to our own situation here. Before implementing their program, Ontario had an incredibly large number of independent paralegals who performed work for self-represented individuals. Oddly, Ontario also did not bar anyone from appearing in court on behalf of another. A few years ago the provincial government decided that this class of professionals needed to be regulated in order to ensure quality service delivery, so it enacted a program very much like the one being discussed right now. The most meaningful part of this discussion was the detailed way in which they grandfathered the existing service providers into the new regulation regime. There was a lot of energy put on this part of her presentation.

The comments made by the members of the working group throughout the proceedings were very interesting. Here’s a quick rundown of what I perceive is going on:

Their main motivation is that they have observed that demographics are NOT on their side. The workforce of lawyers in this state is rapidly aging, and before we know it, there will be far fewer of them. In the current paradigm, this is a terrible trend, because having fewer lawyers means that legal services will become even more expensive than they are already. This subject dominated the first part of the presentation from the Washington representative, and I believe it is forefront on the California members’ minds. This is important because it shows that a large part of what they are thinking deals with entirely their own internal concerns (rather than external ones such as access to justice or us).

They actually care about increasing access to justice. They know that access is denied to most people in this state, and they want to do something about it. Don’t think I’m all Pollyanna about this — their motives may be mostly self-serving and only slightly altruistic (i.e. if they don’t do it, then it will get done by someone else), but that doesn’t matter in my mind. The fact is that they know that past efforts to bring access to justice to the under-served (80% of the people of this state) have failed miserably, and something must be done about it. We need to look past their motivations and focus on the goal.

They know who we are and, for the most part, they seem to like us. I’m talking about the new generation of lawyers who are wresting control of the State Bar away from the Old Guard of good ‘ole boys that we’ve known in the past. Many of the warriors in our group who bear scars from battles fought in the past may have trouble believing this, but these last few years of detente have caused the State Bar to consider us worthy of their friendship. Many of them (including the Deputy Executive Director) told us how much they admired us for so willingly submitting to voluntary regulation (by actively promoting CALDA and its code of ethics, which is an entirely voluntary activity and not imposed by any governmental authority). More importantly, the younger members of their group no longer see us as a threat. They know that we are helping people who would not go to them in the first place, and therefore we are no longer perceived as competition. The detente of the last decade is, in my opinion, leading to an era of future cooperation and, dare I say, friendship with the State Bar. When I say this, I am talking about the State Bar leadership itself, (not the general rank and file of lawyers in the workforce).

Does this mean we should be naive and not watch our backs? Of course not. We must always be vigilant and aware of the darker forces within their ranks. But we should also be open to new friendships and new opportunities, even with old adversaries.

This is very important: There are a couple different camps within the Working Group. Some of its members believe that the new limited license technician should work under some level of lawyer supervision. My opinion is that including any bit of lawyer supervision in this program would utterly ruin it and make it an entirely wasted effort. I was dismayed nearly to the point of leaving early until I realized that this voice was not a consensus view amongst the Working Group’s members. A strong divergent voice is obviously present: 1) In direct response to the idea of lawyer supervision, the Washington representative stated that including attorney supervision in any new program would be “pointless”, and 2) I could tell that at least half of the Working Group’s members obviously agreed with her “no lawyer supervision” point of view.

This is the most interesting and fluid part of the discussion. My opinion is that the members who want attorney supervision are less into leaving their “comfort zone” than the members who want a bolder program. Our job is to make sure that the program that is created jumps as far away from the Bar’s comfort zone as possible.

There is an air of inevitability to this proposal (at least at this Working Group level — who knows what the full Board of Trustees will do with it). But it does seem like SOMETHING is going to be done. The degree of what will be implemented is the thing in play. Whether the Bar’s consensus is brave enough to make it big and substantive (and therefore helpful from an access to justice standpoint) or so nervous that they will create a program that is light, fluffy, and meaningless remains to be seen.

The last agenda item was from Robert Hawley, deputy director of the California Bar, who went through a discussion of the past efforts by the California Bar to license non-attorneys in the 80s and 90s. He mentioned a particular a report from 1990 that was the “road map” to creating a new program today that is nearly identical to Washington’s program. This is the guide I believe they will use to move forward. When it is scanned, I’ll post it to the Forums so that everyone can take a look at it.

The last part of the day was comment from the public, which was where I gave testimony on behalf of CALDA and, as their only mouthpiece, on behalf of all of the registered Legal Document Assistants in the state.

During my own comments, I asked the Group a few questions, as follows:

- Does the Working Group envision that the proposal being discussed today will replace the existing LDA statute, or will this new program coexist with the statute?

- If the current statute is replaced, what will the mechanism be for “re-registration” of the current practicing workforce of LDAs? In other words, will it be straightforward for an existing registered LDA to be grandfathered into the new program assuming certain requirements are met?

- If the new program will co-exist with the current LDA statute, would an LDA be able to move from one program to the other program? This is pertinent because, while the Washington program apparently provides only for family law services, many California LDAs provide an array of other services, and the last thing we want is to be limited in areas where we currently operate.

- I provided a comment after hearing about the view on attorney supervision. I encouraged them to continue moving outside their comfort zones. I also asked them to ask themselves where they would envision such services being delivered. Think about it — if attorney supervision is needed, where would that happen? In a law office, that’s where! That would be entirely pointless, and the program would be “safe” and forgettable. At this point, many of the Working Group members gave enthusiastic nods of approval — in other words, many of them get it.

The Working Group clearly indicated that we would receive answers to these questions. At that juncture, we will have a much better idea of what they are thinking.

As these proceedings continue, please be assured that we will attend every meeting and provide meaningful comment — and I do think that we will have an impact on shaping this proposal. Your interests are forefront in my mind, and as we participate in these proceedings our first priority is to advocate for the rights and continued opportunities of our members.

Incidentally, all of the materials from the meeting will be available electronically soon, and when they are, I will post them to the forums.

Thanks everyone,

Ian Duncan
CALDA President