Who Accesses Justice?

This article is derived from a more expansive article published in the Seattle University Law Review, which can be found here.

A new type of legal professional

Across the United States, people in need of an attorney struggle to afford one. As a profession, attorneys have yet to achieve a comprehensive, sustainable answer to close this access-to-justice gap. American lawyers remain largely cost prohibitive. Legal aid can assist only so many of those who need but cannot afford legal assistance. Civil Gideon—the concept of a legal right to a lawyer in civil cases—remains a quixotic call for the foreseeable future. Pro bono legal assistance from private law firms or individual practitioners meets only a fraction of the demand, while challenges remain to its expansion. Courthouse help desks may (or may not) assist pro se litigants in filing the right form, but the need for their staff to remain neutral to a dispute constrains their ability to give case-specific advice and thus reduces their helpfulness. Similarly, special advocates who are not trained in law may help litigants navigate the nuts and bolts of the legal system or accompany clients to court, but they cannot advise on how a client should proceed. Even more sweeping deregulatory efforts that would allow nonlawyers to own and share in the profits of legal service endeavors, such as in the United Kingdom, have not been proven to ensure that low- and moderate-income populations will gain greater access to the courts (see “How Regulation Is—and Isn’t—Changing Legal Services”).

These shortcomings have affected the state of Washington as much as anywhere else. As exemplified in its 2003 Civil Legal Needs Study, Washington’s low-income population faces more than 85 percent of their legal needs without an attorney. An updated version of the study in 2015 revealed that the challenge continued over time—more than three-quarters of those with a civil legal matter did not seek or were not able to obtain legal help. Every day, Washington courts handle thousands of pro se litigants. In family law in particular, courts saw a spike in pro se litigants in the 1970s when divorce rates rose. Still today, many family law cases have at least one self-represented litigant. The Legal Services Corporation, the country’s largest funder of civil legal aid for low-income Americans, has consistently reported during the past several years that one-third of all cases closed by their grantees dealt with family law. Without sufficient access to affordable legal advice, it is not uncommon for pro se parties to try, at their own risk, to glean knowledge about their cases and the legal system through websites or other sources offering unauthorized legal advice.

Attorneys and judges in Washington took note. Decades of evidence of this issue, along with years of debate about the right solution, ultimately spurred the Washington Supreme Court to pass Admission and Practice Rule 28 (APR 28) in 2012, creating a whole new category of legal service provider: limited license legal technicians (LLLTs). APR 28 created a scheme to regulate, license, and authorize nonlawyers to practice law in certain contexts. In doing so, Washington became the first state in the nation to develop a model allowing nonlawyers to openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law—albeit on a limited basis. (For more on the requirements to become an LLLT, see “Becoming an LLLT” below.)

According to its main architects, LLLT Board chair Stephen Crossland and Washington State Bar Association (WSBA) executive director Paula Littlewood, the LLLT model seeks to “address the staggering unmet civil legal needs of the public in Washington” and “to curb, if not eliminate, the burgeoning prevalence of people providing purported legal services without any requisite training or regulatory oversight.” APR 28 has two objectives: (1) inhibit the unauthorized practice of law and (2) increase access to justice. APR 28 allows LLLTs to ask their clients about relevant facts, draft and review documents, inform clients about procedures and deadlines, and, most significantly, advise clients about their rights. However, Washington only authorizes LLLTs to provide advice and legal services in a limited scope compared with licensed attorneys. For instance, LLLTs cannot represent clients in court, nor can they negotiate with opposing counsel. In fact, their clients are still considered pro se in the eyes of the court. Moreover, for any issues or services not deemed within their scope, LLLTs must refer their clients to a lawyer. While the model is expected to encompass other civil legal matters, such as landlord-tenant and elder law, the license authorizes the first cohorts of LLLTs to work exclusively in family law, including cases involving domestic violence. The Washington Supreme Court and WSBA expect that LLLTs will be able to advise on more-routine cases at lower costs than lawyers, thus expanding access to legal assistance for pro se litigants who otherwise would not be able to afford legal advice.

LLLTs offer a tangible opportunity for practitioners and legal scholars to test a potential solution that has garnered much discussion: embracing nonlawyers as a means to close the justice gap in access to legal services. The model draws inspiration from the much acclaimed but difficult-to-document success of the nurse practitioner and physician assistant models in medicine (see “Addressing the Supply Problem”). While courts and advocates had previously developed more politically palatable nonlawyer models, like special advocates and courthouse clerks, the LLLT model goes a step further by allowing technicians to give legal advice without the supervision of a lawyer. Perhaps unsurprisingly, the concept faces flak alongside fanfare: Will LLLTs undercut lawyers’ market share? Will they fail to provide competent legal services? Or will their inherently limited scope stifle their value?

With the scheme up and running, we must also ask: Who gains access to justice through LLLTs? The rule giving rise to the model explicitly aims to increase access to justice, particularly to address challenges identified by the 2003 Civil Legal Needs Study, which emphasizes the hurdles facing the state’s low-income population. The scheme also describes the license to aspiring LLLTs as an “effort to make legal services more available for people with low or moderate incomes.” Meanwhile, Littlewood, one of the model’s architects, has stated that the LLLT scheme intends to target moderate-income consumers, like a family of four making $98,000 a year. Thus the model’s intended purpose leaves room for ambiguity. Will it also increase access to justice for low-income populations, as some supporters and observers anticipate?

Although the LLLT experiment has just begun in earnest, states like California, Oregon, and Utah are considering adopting the model, making it urgent to project how the model’s design will affect who gains access to justice—and who does not.

This article answers that question through original surveys and interviews conducted with LLLTs and LLLT Candidates (“Candidates”) (see “Methodology” below). The belief that the LLLT model can lower the cost of legal services to the point that low-income clients can afford them rests on at least one of several major assumptions: First, by tackling simpler aspects of the law, LLLTs can differentiate the legal market and create legal services options that lead to lower, more competitive prices overall. Second, LLLTs will not simply work for law firms charging slightly lower prices than attorneys. They will innovate legal service delivery models in the public sector, in the private sector with businesses outside of law, and by starting and sustaining their own practices using lean business models. Finally, LLLT licensing will attract talent committed to addressing the unmet civil legal needs of low-income populations. Accordingly, the analysis weighs anticipated pricing, intended service delivery models, and self-reported motivations to discern who will—or, more accurately, who will not—benefit from LLLTs’ services. The findings in this article challenge these assumptions, leaving doubt that the LLLT model will deliver an access-to-justice solution for low-income populations.

The price is right—or is it?

The LLLT model stands poised to replicate the principles that keep lawyers’ prices high, as identified by Gillian Hadfield’s classic analysis on the price of lawyers, which asks why lawyers cost so much. The answer, broadly speaking, centers on the workings of noncompetitive markets. Noncompetitive markets artificially inflate prices because they reflect what consumers will pay rather than the services’ value. In the legal profession, this results from law’s complexity, resource-intensive training, overhead costs, unpredictability of the final cost, tendency of parties to compete for greater relief, price as a signal of competence, monopoly of the state over legal professionals’ licensing and dispute resolution, and unified nature of the profession. And while LLLTs will increase competition for lawyers, they will still effectively operate within a noncompetitive market among themselves and as part of the legal market in general.

In other words, the same logic that applies to lawyers also applies to LLLTs. On the one hand, the model attempts to lower complexity and price through simplified services for simplified needs. For instance, the model lowers the cost of training, promotes unbundled services, and encourages lower costs through flat-fee pricing schemes. On the other hand, LLLTs and Candidates revealed in their interviews and surveys that the similarly high costs of doing business, the unpredictability of what it will take to solve a legal issue, the nature of parties to compete for a more favorable outcome, and the significance of colleagues’ and competitors’ prices in determining one’s own all remain stubborn obstacles to bringing down the cost of legal services. The allocation of LLLT efforts, like that of lawyers, will therefore skew toward those willing and able to pay higher prices for their services. What follows explores in more depth how some of these factors will most likely impact the pricing of LLLT services.

Rates of change?

LLLTs and Candidates often expressed doubt about how to price their services. For those who ventured estimates, most planned to charge clients on an hourly rate, as lawyers typically do, with estimated rates ranging from $40 to $175 per hour (median: $100 per hour). Some thought that they might charge flat fees as either one option or exclusively. Flat-fee estimates ranged from $300 to $2,500 per case (median: $750). Assuming a conservative average of 10 hours per case, LLLTs would charge approximately $1,000 per case whether hourly or as a flat fee. At these rates, for individuals living paycheck to paycheck, even a couple of days’ worth of assistance poses significant costs. As one LLLT put it:

Personally, I would be trying to target the moderate-means people, people like myself even. We’re certainly not poor in any way, and yet if I had to come up with $5,000 for a retainer I’d take on, oh geez. Let’s see where we can eke that out. It’s tough. That’s minimum. A family law case may be less, may be $2,500. It depends, kids or no kids. An attorney will burn through that very quickly at $250 or $300 an hour.

Assuming that potential clients would be willing to spend even half a paycheck on their LLLT services, these numbers taken with census data tell us that none of Washington’s population living at or below 125 percent of the federal poverty line could afford an LLLT. Only about 15 percent of those living at or below 200 percent of the federal poverty line could afford one. Those living paycheck to paycheck may not even be willing or able to spend that much, and varying case hours could drive the prices up even higher.

Nevertheless, LLLTs would charge lower fees at these rates than many other family law attorneys, so why would LLLTs continue to cost so much?

Still playing monopoly

The appeal of the LLLT model rests in part on the assumption that legal technicians can offer lower prices if they have less debt to pay off from their legal training. Indeed, as the cost of law school has risen, so has law school loan debt for many lawyers. Because of this, graduates often seek high-paying jobs in part to keep their prices on pace with their debts.

To combat these constraints, the LLLT model has more modest education requirements (see “Becoming an LLLT” above). Crossland and Littlewood noted in an interview that the average total cost of an LLLT education is $15,000. That number drops to around $3,000 for those with at least an associate’s degree who need to complete only the requisite law school course work. Either way, an LLLT education costs substantially less than law school for many, if not most, aspiring legal professionals, and in that sense creates less of a debt burden to pass on to their clients through higher fees.

Yet, while law school costs may impact overall costs, Hadfield’s analysis dispels a common myth: law school debt alone does not determine the high cost of law. As the above makes clear, those wishing to become LLLTs must still invest significant time and money into obtaining the requisite training before they can even take the LLLT bar exam. They must complete 3,000 hours of practice supervised by an attorney—a requirement bar associations do not ask of lawyers who complete their juris doctor. Some Candidates, especially those who did not begin their LLLT licensing process as experienced paralegals, expressed doubts and frustration about achieving the prerequisites before taking the exam. For instance, several LLLTs said that life was getting in the way of achieving their 3,000 practice hours. One revealed that her law firm needed help with administrative tasks; much of her time spent at the firm did not count toward her required 3,000 substantive hours and she had fallen behind. The LLLT scheme also does not offer financial aid, so the opportunity remains limited to those who can front the resources for the required course work. Further, the LLLT practice area exam, though arguably less rigorous than a bar exam for attorneys, does not merely rubber-stamp the credentials of those who have passed their courses. Several LLLTs have not passed on the first attempt.

Consequently, these requirements re-create the artificial barriers to entry that limit potential lawyers and thus mimic the function and effect of attorney licensing. The bar strives to ensure quality professionals, resulting in a smaller supply entering the market. Of course, when a small supply encounters large demand, prices typically rise. Even with the arguably lower training requirements for LLLTs and the flux of legal professionals the model will add to the market, we do not have reason to believe that the barriers will be sufficiently low enough or that the supply will sufficiently increase to bring costs down even lower than what LLLTs and Candidates indicated in their responses.

More people standing in line at the club will get in, but the LLLT licensing scheme continues the tradition of instituting licensing barriers to entry, in turn continuing the bar’s monopoly on legal services.

A blind bet

Law is a credence good where the expert often influences or determines the buyer’s needs, much like doctors and car mechanics. Likewise, legal consumers cannot easily assess up front the extent and quality of the service they need. Often, neither can the professionals themselves. This unpredictability makes clients vulnerable to ballooning costs as services unfold. Similarly, the adversarial system is liable to create a winner-take-all mentality that leads to one-upmanship and corresponding costs without knowing up front what you need to succeed. Consumers may use prices to anticipate the quality of the good, if you believe that you get what you pay for. Knowing this, lawyers often use prices to signal their expertise to consumers. They may also rely on prices or salaries to signal their expertise to themselves: professionals want to be paid what feels like a fair price.

The LLLT model does not change these factors. Clients will still face uncertain needs and gamesmanship, perhaps especially in family law, and so remain vulnerable in several ways. They may not know whether to agree to pay for a service when they cannot know the full cost up front. They may not know how to verify whether a charge is reasonable and appropriate for the quality of the service provided. And they may not know how to compare the quality of one person’s services with another’s. Each of these factors frustrates the opportunity for a truly competitive legal market.

Uncertainty about what it will take for a lawyer to solve a legal issue will certainly continue to drive up costs. Even lawyers struggle to tell up front whether a case will take 10 hours, 10 months, or 10 years. As Hadfield notes, “Law is not merely complex. It is so complex that it is also highly ambiguous and unpredictable. The necessity and quality of legal services are not merely difficult for nonexperts to judge; they are also difficult for experts, even the expert providing the service, to judge. This magnifies the credence problem dramatically.” This informational asymmetry leaves a client at the mercy of his or her lawyer’s pronouncement about the work and cost involved. Nowhere is this spectrum truer than in family law, where sensitivities lead to unpredictability.

Nothing suggests the LLLT model will provide greater certainty. While some LLLTs and Candidates plan to experiment with flat-fee models, the majority plan to charge their clients on an hourly basis. LLLTs’ and Candidates’ rationales for using hourly fees largely center on uncertainty about what the case will entail and a corresponding fear on the part of the professionals that flat fees will not cover the time they will ultimately spend resolving the matter. Like lawyers, LLLTs struggle to estimate the resources a given case will require. Of the 23 LLLTs and Candidates asked to approximate how much time they thought they would spend working on each case, 15 either would not venture an estimate or explained that it was too difficult to estimate because cases vary too widely.

“Each client’s case—they’re so different,” one LLLT emphasized. Time spent on the case “would depend on how complex it is,” another explained. Another Candidate added, “If I need to do research, it will take longer than if I do not . . . If there are parenting issues, it will take longer than if there are no parenting issues.” Plus, clients’ expectations can evolve. One LLLT started off using flat fees but learned that “people always want questions, they always have changes, they always have this, they always have that.” She decided to still offer a flat fee, but once she completes the documents, anything in addition “would have to be billed out at the hourly rate.”

The potential for a client’s matter to snowball becomes especially potent in family law, where the action often involves divorcing spouses or parties who know each other well enough to know how to push each other’s buttons. Tensions running high runs up legal bills. One LLLT explained that she would consider doing flat fees, but “in general, family law stuff doesn’t work like that. It’s so fluid. One day they agree, and the next day they hate each other’s guts. I think it’s safer to keep everyone happy to generally do it on an hourly basis.”

Figure 1

Those who hire LLLTs will still encounter the adversarial nature of law. In an adversarial system, having a better lawyer means you could go home with more and lose less. Because there is no way to know in advance how any two lawyers will match up, the incentive is always present for the client to pay for the best lawyer he or she can afford to hedge his or her bets.

One-upmanship also persists with LLLTs. Some of their clients’ matters may resolve out of court, such as uncontested divorces. Yet, as the uncertainty principle noted above makes clear, many if not all cases run the risk of turning contentious with one party trying to walk away with more than the other, particularly in family law. As one LLLT quipped, “It’s really easy to get married and really hard to get divorced.”

Theoretically, LLLTs could keep costs lower because of the simplicity of the issues they are trained to tackle. LLLTs’ clients may only need help on straightforward questions that can be easily outsourced and accomplished by someone who knows how to fill out the right forms or draw up an appropriate agreement. LLLTs may be particularly well situated to offer à la carte, unbundled services where they can more easily charge a set fee for a discrete task like filling out or reviewing a particular document that has to be filed. Some already plan to use such a model:

When someone would come to you, you would figure out what the solution was, what the options were, advise them, find out what they wanted to do, show them a quote for the documents that they want prepared, and it would be by document rather than by hour per se. That’s what I’m expecting most LLLTs to do. A lot of us have already talked about that. I think it works well for the population it is serving. They’re looking to save money. They want to know exactly what it’s going to be.

The LLLT model may also increase transparency about the cost of legal services. This could make their services more accessible to those who otherwise avoid lawyers because of the unknown total cost. As one LLLT described:

I know that if I want to go hire somebody like me, I would want to know how much it was going to cost, as much as possible, up front. And so, I tend to like the flat fee where they know, for this certain product, this is how much they’re going to have to pay.

The model could even make the legal market more competitive by allowing people to compare the costs for the same or similar services, or even potentially the quality of the service for the cost. The simplicity, transparency, and ability to verify quality could go so far as to build trust and satisfaction with clients who might otherwise distrust the service that lawyers would tell them they need to pay for. One LLLT received such feedback from a client:

I had a woman that came in here just to have a parenting plan prepared. She had a hearing to go to, so I assisted her in preparing her parenting plan and explained to her how she needed to file it with the court and provide working papers and what to do at the hearing and what to expect at the hearing. And then I got an email from her thanking me, and that they ended up accepting her parenting plan. So she was happy with the services that I provided. I mean, that’s not something you hear a lot in the legal world. Most of the time, you’re just like, you know… “This cost me an arm and a leg” or whatever, but she was very satisfied.

Nonetheless, the LLLTs and Candidates planning to use flat fees did not represent the majority. Some of those who do plan to use flat fees caution that they might use hourly rates when cases become complex or fraught. As one LLLT quoted above revealed, even if she merely prepares a document for someone, people always have questions and want changes. Another said she planned to use a flat fee based on how long she thought it would take her to prepare paperwork for a given case, but “that doesn’t include you calling me every other day.”

Nor does the LLLT model change the opacity about whether legal services make a difference in the first place. Legal outcomes are highly unpredictable, which makes it difficult to determine not only whether the LLLTs providing the services used the appropriate amount of time and effort to fulfill their duties to their clients but also whether the clients prevailed because of or despite the LLLTs’ efforts (see “The Access to Justice Lab”). The addition of LLLTs into the market will allow for the comparison of their outcomes and costs with those of lawyers in an attempt to evaluate whether the extent of legal training has anything to do with the quality of services, at least by those measures. But, even within the LLLT market, clients will still face the difficulty of knowing that the quality of LLLT services differs among providers but not knowing how to assess that alongside their respective prices to make a more fully informed decision about whether and whom to hire. Because of this, LLLTs can still enjoy a monopolistic advantage that allows them to charge the highest prices that clients would pay.

In theory, the LLLT model makes quality legal assistance less scarce. However, the LLLT model still functions within the contours of a legal system and market that involves complexity, competition between parties, and guesswork about the quality of the legal professionals involved. All of this drives up legal costs. Besides, the LLLT model in no way alters the state’s monopoly over coercive power to enforce dispute resolution, so issues that LLLTs handle must still pass through the state to give them force. Engaging with the formal legal system still requires litigants to spend time, money, and energy navigating the often convoluted processes, rather than offering a more efficient and less expensive alternative outside of the system, especially without the opportunity for LLLTs to negotiate with opposing counsel given their scope.

Besides, lawyers remain critical to the establishment and oversight of the LLLT scheme. Perhaps because of that it is no wonder that LLLTs’ preparation, skills, services, and deliverables suggest that lawyers have created LLLTs in their own image. Legal bar members still shape LLLTs’ classes, licensing exam, and license, and the services they can provide. All of this gives reason to question whether the LLLT model will truly disrupt the monopolistic norms and practices established and maintained by the bar for lawyers—along with the degree to which they can lower their prices to close the justice gap.

Goldilocks prices the law

LLLTs will not price their services in a vacuum. They are looking up, down, and sideways at the prices charged by lawyers, paralegals, legal assistants, and their fellow LLLTs to determine what a “fair” price looks like to customers and themselves. Doing so implies not only a price ceiling but also a natural price floor above the rates charged by paralegals and legal assistants. LLLTs’ prices can only go so low.

When one LLLT started to meet with potential clients, she found that they sometimes pushed back on whether they might be able to obtain similar services from an attorney for approximately the same cost. She shares in response that lawyers’ services might cost upwards of $200 for an initial consultation and $250 per hour after that. By comparing her costs with the estimated costs of a lawyer, this LLLT thought she could gain a client by capping what she would charge. Another works as a paralegal at a firm that deals mostly with wealthy clientele. Even there, less wealthy clients must put down a $5,000 retainer. “People can’t afford that,” she explained. “You tell them it’s going to be $500 to do all of your divorce papers and teach you how to file and how to serve and how to present yourself in court—$500 looks pretty good.” Another set her pricing parameters as somewhere “between the court facilitator reviewing your forms and paying a couple hundred dollars an hour for an attorney.” In other words, at least some LLLTs plan to charge less than lawyers to gain clients by leveraging the difference in price, as hoped and expected.

Other LLLTs plan to charge less than lawyers because they did not think they would offer the same level of services. “The reason I can charge less is because I can’t do everything an attorney can do,” one explained. To another, “access to justice” means “that there’s going to be somebody who can give legal advice on certain topics in … family law and can advise you, can draft pleadings for you, can fill certain roles, and it will be less than the hourly rate of an attorney, necessarily.” Yet she went on to elaborate that the pricing is a two-way street. She anticipated fielding questions about why someone would not just hire an attorney and why a prospective client should use her instead. To this, she planned to respond that essentially LLLTs offer a level of service more suited to the price these clients wanted to pay: “Basically, you get what you pay for.”

But LLLTs also account for rates charged by paralegals and legal assistants. For some, this happens because they previously worked in one of these roles and pursued their legal technician licensing to increase their pay. As one LLLT explained:

[In class] we had to look at this issue of pricing. I thought ultimately it’s going to be guided by the market. I’m going to be looking at what the people who are already licensed are charging, or are able to charge. The tricky part is that something like $100 to $125 an hour meets the requirement of access-to-justice affordable representation for people, and yet I’m billed out at more than that as a paralegal and have been for several years.

Another cautioned her fellow LLLTs not to undervalue their services on the basis of what they might have been paid before as a paralegal since they might have been underpaid in that role:

I will probably charge around $100 an hour. … The thing is, like I said, some paralegals are paid, as paralegals, very low, and some very high. They might see themselves, if they’ve been paid low in the past, they might not realize their value, if that makes any sense. When I was in Alaska, I was paid between $40 and $50 an hour. When I moved here, I was paid $15.50 an hour. That’s not going to cut it. Not for very long anyway.

LLLTs themselves will further influence, or at least solidify, the rates charged by their fellow LLLTs. One did not see her rates fluctuating anytime soon but expected to “confirm in time maybe what other offices would charge.” Another gauged her paralegal rates in part on the basis of what paralegals at other firms charged. “We would call around to find out what other paralegals were billing out at.” Now an LLLT, she and her firm decided to keep her rates the same for now at $110 per hour. If past actions signal future actions, they may pursue a similar price check approach for her services to see what her LLLT peers are charging.

LLLTs are looking not only to reduce their prices below those of lawyers but also to keep their prices on par with their peers while keeping their prices above those set by paralegals and legal assistants. Consequently, the LLLT model will not simply drive prices lower as the supply of legal professionals increases. Rather, as LLLTs indicate, their prices will hover above the rates earned by those already working in the legal profession supporting lawyers. The model therefore suggests that LLLTs’ prices will not race to the bottom as they also encounter forces that will float them to the top.

New players on old stages

Other costs likewise limit how low LLLT costs can go, contributing to the price floor. As with lawyers, LLLTs or their employers need to pay for business expenses such as malpractice insurance, legal research tool licensing, court costs, filing fees, and even simply office space, equipment, supplies, and utilities. LLLTs must still sustain the costs of doing business.

Some LLLTs aspire to lower costs through lean business models that minimize their expenses. One LLLT explained that she planned to work from home so that she could charge lower prices in the solo practice she hoped to start:

I don’t want overhead. I don’t intend to charge my clients very much, the same like an attorney. My attorneys [where I work now] charge $300 an hour. I’m not going to charge anywhere near that. And so, I don’t want to pay for an office, and I don’t want to commute every day. So I would work from home, and I’d meet my clients at either public facilities like a Starbucks or a library, or I would do the rental office for an hour.

At the same time, she calculated: “If I’m making over double my [current] hourly rates, and I don’t have any overhead, or very minimal overhead, I should sort of double my yearly salary…”

More commonly, LLLTs acknowledged that they would need to charge enough to cover overhead. For example, one LLLT who planned to practice on her own but team up with law firms to share office space started to realize that she would still need to pay for other expenses to get her practice off the ground:

I have started at $150 an hour. That helps cover my expenses. Eventually I’m going to have to rent my space that I have now. Right now, I’m still staying employed. I hope to become part-time employed in my office suite. Then at that time I will be required to pay part of the rent for my office. Then there’s lots of software that you need. I didn’t realize. You have to have subscriptions for those. Right now, I don’t have a full business plan, so I just kind of went with that [price].

Another LLLT put it this way:

One of the criticisms, which we have yet to really answer because this is so new, is that the LLLTs are going to have to charge close to what a lawyer charges to pay their overhead. So, it’s not really a program that’s going to help the low- to middle-income people.

If LLLTs cannot reduce their costs and attendant prices, they will struggle to close the justice gap for those with lower incomes. One LLLT summed up:

I don’t think that LLLTs are going to help with those people who just cannot afford to pay any fees at all. They’re very poor. Because there are costs to having an LLLT practice, an LLLT might be able to take on one or two pro bono cases a year, but they really need to get paid enough to pay the bills and actually make some money, make a living. So, it will be interesting to see how that works out for people, if they’re able to make a living based on the idea of what their fees are going to be.

To this end, rather than creating new mixed-industry structures, LLLTs and Candidates look like they will replicate rather than innovate existing legal service delivery models and their corresponding challenges. We see this in their responses about where and how they intend to work as LLLTs. As one LLLT put it:

A lot of us will use this license in a law firm. There are some people who will use it independently. As far as how successful will it be? I think there’s a need out there. I don’t really know how it’s going to work out; we’ll just have to wait and see.

In fact, of the 36 total respondents, 33 planned to either work for a firm or start their own LLLT practice sooner or later (see Figures 2 and 3). Of those individuals, the majority—24 participants—anticipated the possibility of working for a law firm, four of whom expected to work exclusively for a firm. The vast majority—30 participants—contemplated opening their own solo practice at some point, with some still planning to work at that point with law firms for space, referrals, or other resources. That the majority of LLLTs and Candidates indicate they will work at or with a law firm further shows that, even if LLLTs will be able to charge lower prices than lawyers at firms, they will still have to charge enough to make it worth the firms’ while or to help afford shared resources—most likely not low enough for low-income clients.

In contrast, only a few respondents planned to work solely in the public sector. And of those planning to work for a law firm, only four also planned to work for the public sector at a nonprofit, government office, or courthouse, among other options. Nor do LLLTs plan to seek work with for-profit companies outside of the law in ways that may innovate and improve private legal service delivery models. Only one noted the possibility of working outside the legal field, broadly construed. By pursuing private work at law firms and in solo practice—models akin to those already employed by lawyers—LLLTs will similarly need to charge enough to turn a profit and make a living. Their rates can only go so low.

Figure 2

Figure 3

LLLTs and Candidates acknowledge the reality of this tension. One LLLT explained that the point of the LLLT model is “really to allow poor people to get services” and “not to make your firm more money,” but at the same time she noted that firms hiring LLLTs presented only one option of how the LLLT model could play out. She recognized that “$500 is a lot to someone like that” but also thought she could help out people at or around the federal poverty level because they could come up with money from family members or by taking payment installments. Of course, borrowing the money from another source or for an extended period of time does not truly resolve low-income clients’ ability to afford legal services. The LLLT rate at the firm may make legal services more affordable relative to lawyers’, but that does not make them affordable, period, to those for whom $500 is a lot of money.

If a potential client could not afford such an amount, this calls into question whether law firms will find it worthwhile to let LLLTs serve those with low incomes. Another LLLT recognized the need for her firm to charge sustainably high prices even when all she wanted to do is help people at a reduced rate:

Because I work for this firm, I’m dictated by the firm policies and things like that, so I would have to ask the attorney [to lower prices]. I’m one who goes, “Can we lower the fees, so this person can afford it?” or “Can we do it for this much for this?” I would try to work with the client.

She wanted to start her own practice after working with the firm for a while as an LLLT but admitted that working for a firm could help her keep an eye on the bottom line: “If I had my own office, I don’t know if I would be very good, because I would want to do everything for free.” So goes the challenge for those who intend to open their own practice. They will still need to charge rates high enough to cover the costs of not only their take-home pay but also their practice and would need to limit rather than expand services to low-income litigants.

Legal paraprofessionals are still professionals

The prices offered and sectors pursued reflect, or perhaps stem from, the motivations of LLLTs and Candidates seeking this license.

Because LLLTs themselves will make the day-to-day choices about their work—like where, how, and which clients to target—they will shape the model by determining how it is carried out in practice. Accordingly, their motivations, values, and goals will shape the model, especially from these initial cohorts. Like any institution touched by human hands, the motivations of those who comprise it will knead the model into its ultimate form. The push of altruism and the instinct to leave a legacy wrestle with the pull of self-preservation and pursuit of happiness. LLLTs bring the why and in turn the how.

Why have these initial cohorts decided to pursue their legal technician license? As Figure 4 depicts, nearly three-quarters of respondents indicated that “expanding legal services to those who cannot afford a lawyer but can afford to pay something” was very important to them. The majority also said that expanding legal services in family law provided an important source of their motivation, indicating some sense of aspiring to leave their mark on the profession or help others in a moment of need. Growing professionally through both challenging work and professional mobility also served as important motivators. As one put it, her current job demanded much of her physically while she knew she was not “living up to [her] potential.” Less than half of the participants reported a higher earning potential as a key motivator. At the same time, however, more than 60 percent noted that they anticipate making a higher income as an LLLT (see Figure 5). Not surprisingly, LLLTs and Candidates acknowledge that they are more inclined to serve those with a moderate income. The vast majority indicated that they anticipated serving such clients (see Figure 6).

Figure 4

Indeed, compared with any other motivation, more LLLTs and Candidates reported that they were motivated to become LLLTs to expand legal services to those who cannot afford a lawyer but can afford to pay something (see Figure 4).

In contrast, expanding legal services to those who cannot afford a lawyer but cannot afford to pay anything was one of the least important motivations mentioned by LLLTs and Candidates. At the same time, the majority (but still notably fewer) of participants said they planned to serve lower-income clients (see Figures 4 and 6). As one LLLT put it:

I like the idea that [the LLLT model] sticks to, at least in theory: affording people who have limited access or no access to representation the opportunity to have some help. That’s what appeals to me. I’ve always been the I-want-to-save-the-world kind of person.

Yet she recognized:

Even though I passionately, naively believe in justice for all, it was kind of in conflict with, OK, how do you do that when you want to save the world but you want to make money?

She noted that the model “is supposed to be about affording people access to justice,” but when it comes down to it:

There are still going to be people out there who just can’t afford it at the end of the day. Especially with family law. You’re not going to fight about anything that’s more important than your family and your children. It’s so emotional that it’s an expensive area of law. I mean, it’s a good goal, but at the end of the day, not everybody is going to be able to afford an LLLT even. There are going to continue to be people who have to appear in court with no clue about what’s going on and hope for the best.

She concluded: “There is no fix for access to justice.”

At least, no quick fix. These legal paraprofessionals are still professionals. LLLTs and Candidates want to make an impact while making a living. They generally want to help those from both moderate- and low-income backgrounds but need to strike a balance to sustain their practice. To do so, they intend to target clients who can bring in revenue: moderate-income clients who can afford to pay something.

Figure 5

Figure 6

How low can legal prices go?

Both the initial design of the LLLT scheme and these insights from the first cohorts raise doubts that the model can increase to justice for those with a low income. Even those who want to save the world and agree that the LLLT model seeks to expand access to justice, including to the poor, do not see how they can regularly serve these lower-income clients. They want to help people and consider becoming an LLLT to be “a happy medium.” Those who see themselves working with low-income clients mostly intend to take on a case here or there or do pro bono work. One indicated that she would “be definitely committed to taking pro bono clients every once in a while,” citing that their guidelines instruct them to strive for a minimum number of pro bono hours each year. One planned to start volunteering at local legal clinics and taking on referrals from attorneys for those who struggle to afford traditional legal counsel. Another volunteered at a family law legal clinic once every six weeks for those with low or no income. Yet these are exceptions. They occur at the margins. By and large, LLLTs do not plan to serve low-income clients in their practice.

This first LLLT model in Washington essentially mimics those aspects of the current legal profession that keep lawyers’ prices high, providing little reason to believe that LLLTs will lower prices enough to close the justice gap for low-income populations. Nor do LLLTs’ and Candidates’ initial career plans indicate they will reinvent conventional legal service delivery models: most plan either to work for law firms charging lower rates or to open their own practice while keeping overhead low. Both paths require LLLTs to charge high-enough rates to cover costs and sustain their wages. Neither route capitalizes on the unique opportunity that LLLTs have to partner with industries and investors outside of law, an opportunity that does not exist the same way for lawyers under the rule of professional conduct that prohibits lawyers from sharing profits with nonlawyers. Nor does the model decrease the cost of legal professionals’ labor to the extent that government offices or nonprofit organizations could substantially expand their legal services capacity absent an increase in funding for additional hires. While most of these LLLTs and Candidates decided to earn their license to expand access to justice in family law, they still intend to target clients who can afford to pay their rates—lower rates, but not low enough for low-income populations to afford.

Without counting on these assumptions, the LLLT design does not give us reason to believe that the model can lower the costs of legal services so significantly that low-income clients will access justice any better than before. If Washington or other states hope to increase access to justice for their low-income populations with such a model, they should view the LLLT model as just that: a model. The design could be adapted in a number of ways to try to increase access to justice beyond moderate-income consumers. Providing LLLTs market research on the needs of potential consumers, explanations of how they can partner with businesses outside of the legal field, or opportunities to learn to advocate at a systemic level are just a few examples of ways that the model could help maximize legal technicians’ potential to serve low-income populations.

This is not to say the LLLT model could not prove to be a valuable tool to increase access to justice. Far from it. If the model can increase access for moderate-income consumers who could not previously afford civil legal services for their needs, the model would do its part to close the justice gap. The model and its architects have not indicated that the scheme ever intended to fully close the gap. Still, those who hope the model will increase access for low-income consumers should temper their expectations.

As the Washington experiment moves forward and we continue to learn its possibilities and limitations, LLLTs give legal practitioners and scholars the chance to pause and ask why we regulate our profession the way we do—and whether we could regulate the profession so that one day there can be justice for all.

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Becca Donaldson is a graduate of Harvard Law School and recipient of the Center on the Legal Profession’s Public Interest Research Grant.