Framing the Paraprofessional Debate

From The Practice July/August 2018
Views from both sides of the fault line

Debating the issues

The lead article in this issue of The Practice considers the economics behind limited license legal technicians (LLLTs)—an innovative new paraprofessional model originated in the State of Washington—and their prospects for improving access to justice. However, amidst all the empirical research, it is easy to lose sight of context. That is, the story of LLLTs and other legal paraprofessionals is about gaining access to a profession notorious for its exclusivity. Having approached the issue from the perspective of the paraprofessionals, it is also important to look at it from the vantage point of the profession. How are lawyers receiving these new models of legal professionals? In this article, we briefly explore how the introduction of paraprofessionals has the legal profession split.

In a series of entries in the ABA Journal, Mary Juetten outlines some of the core debate surrounding these new entrants to the legal profession (see her articles here, here, and here). Like the lead article’s author, Becca Donaldson, Juetten reached out directly to many of those directly involved in the LLLT program—the Washington State Bar Association (WSBA), lawyers, and the LLLTs themselves. Below, we highlight some of the major questions that form the debate around paraprofessionals in the legal profession more broadly, summarizing arguments of both opponents and supporters.

Are paraprofessionals qualified to provide legal services?

No: Lawyers undergo rigorous training in law school and must pass the bar exam to earn their credentials. This should remain the minimum qualifications for practicing law of any kind. Anything less puts the client at risk, and the introduction of the LLLTs and similar paraprofessional models is a slippery slope into a deregulation of legal services.

Yes: The creation of paraprofessional models will include strict education and regulatory requirements. For example, LLLTs are required to pass a set curriculum, complete 3,000 hours of relevant experience, and pass multiple exams. These are sufficient to protect the public from substandard legal help—and the corresponding regulations are proof that paraprofessionals are not harbingers of lawlessness.

Can paraprofessionals avoid creating a two-tiered system of justice?

No: Related to the first question, clients’ legal needs will remain just as complex with or without new professionals in law. Adding in paraprofessionals with less training abdicates the legal profession’s duty to protect the public.

Yes: On the one hand, the creation of paraprofessionals requires new, carefully designed professional standards—standards that guard against substandard levels of service and stratification of the justice system. On the other hand, the question presupposes that low- (and even middle-) income individuals have adequate representation in the justice system by lawyers—they do not. Therefore, a regulated paraprofessional model is meant to provide regulated legal assistance to a population that currently does not have any access whatsoever.

Do paraprofessionals represent fair competition for lawyers?

No: Given the cost of legal credentials—law school tuition and fees are now averaging approximately $47,000 per year for students at private institutions and $40,000 per year for out-of-state students at public institutions, according to U.S. News & World Report—adding this new class of presumably lower-priced legal professionals will exact an unreasonable toll on lawyers already struggling to pay off their debts and earn a living.

Yes: The legal market is not a zero-sum game. For instance, paralegals already assist lawyers and one could imagine that as paraprofessionals, they could take on more low-end work and free lawyers up to take on more high-end work.

Is there a demand for these paraprofessionals?

No: Five years after the role was created by the Washington State Court, not many people have signed up to become LLLTs—just 37 were listed in the WSBA’s legal directory as of publication. If there was a real market demand for these types of professionals, more individuals would have responded by becoming LLLTs.

Yes: There is a significant access-to-justice gap in the United States. Therefore, while the LLLT as a specific model may have challenges (see “Who Accesses Justice?”), this neither negates the overall need for lower-cost legal services nor the paraprofessional concept, properly constructed, as a feasible solution (see “Speaker’s Corner”).

What this debate means for the future

At the center of the debate lies one clear fault line. On one side, arguments for expanding the range of who can practice law highlight the potential to expand access to justice to those previously shut out. Lawyers are just too expensive for too many people, access-to-justice advocates argue, and one could envision competent practitioners of certain legal services who did not necessarily earn (and have to pay for) a J.D. and are thus more affordable. On the other side of the fault line, arguments for maintaining the exclusivity of the legal profession—only lawyers may practice law—cite protecting the interests of the public and the integrity of the profession. Laws and regulations were put in place to prevent snake oil salesmen from masquerading as trustworthy legal practitioners, and turning away from hard rules on the unauthorized practice of law starts the profession down a road it has long sought to avoid. Time will tell which side ultimately prevails, and there are certainly valid arguments on each side. Nevertheless it is important to remember that the introduction of LLLTs was informed by both sides of the debate. Future attempts to introduce paraprofessionals into the practice of law would likewise do well to incorporate the perspectives and concerns from both sides of the divide to gain traction and find success.