Colorado Studying New Limited Legal License

In an effort to address access-to-justice issues, a subcommittee will consider whether the state should license non-lawyers to provide limited legal assistance in certain practice areas.

By JAMES CARLSON

Spring 2015

In January 2008, the Colorado Access to Justice Commission report delivered a shot across the legal community’s bow.

“Colorado faces a serious crisis in civil legal representation of the indigent,” it read.

A host of strong recommendations did little to stem the problem, and six years later when the Commission released a second report, it stated that “the crisis remains no less severe.”

Colorado is not alone. States across the country are looking at new tools to address the access-to-justice issue. One option some are considering is authorizing a new legal professional to advise and assist clients with a limited scope in approved practice areas. Washington is the first state in the country to implement what it calls the Limited License Legal Technician program.

The LLLT, as envisioned by Washington’s new rule, is “a limited, narrowly tailored strategy designed to expand the provision of legal and law related services to members of the public in need of individualized legal assistance with non-complex legal problems.”

Leaders of the Washington State Bar Association told a crowd of lawyers in Denver last month that the number of unmet legal needs is rising, the number of lawyers available is falling, and that people continue to turn to online services like Legal Zoom. Paula Littlewood, WSBA’s Executive Director, said “the tidal wave is coming” whether the legal community is ready or not.

“We just want to be in charge of where we’re going,” she said.

Colorado is currently looking at the idea, as well. This spring, the Colorado Supreme Court Advisory Committee formed a subcommittee to study Washington’s program and make recommendations. The committee is chaired by Alec Rothrock, a shareholder at Burns Figa & Will who specializes in legal ethics and attorney discipline defense.

The need

The problem is stark.

In 78 percent of family law cases, one party is not represented. In 53 percent of family law cases, both sides are self-represented. And it’s not all by choice. Of those indigent parties eligible for legal aid, fully half are turned away by service providers because of lack of funding or resources. Colorado Legal Services, the main provider of civil legal representation, has roughly 50 attorneys to serve the eligible indigent population of nearly 900,000.

Meanwhile, the number of attorneys who could serve this population is going to decline in coming years. The bulk of Colorado’s attorneys are nearing retirement age, and the state’s law-school enrollment is going down.

With the understanding that access to justice is a prerequisite to equal justice under the law, Colorado will study new ways to reverse this trend.

Washington knows the problem, too.

The state is roughly the same size as Colorado, with a similar population and similar attorney numbers. Its study of the access-to-justice issue found that their state’s low-income residents encounter more than one million urgent civil legal problems every year, and 85 percent of low-income people face their legal problems without an attorney.

Washington’s initiative

Steve Crossland, president of the WSBA who spoke in Denver last month, said Washington wrote its rule with the overarching goal to serve and protect the public. “We wanted the needs to be met and any harm to be minimized.”

The new license holders will only be allowed to practice in family law. The program will expand and may allow limited licenses for those who qualify in elder law, immigration, and landlord-tenant issues.

Except under certain circumstances, the new license holders may advise and assist clients regarding motions, discovery, trial preparation, temporary and final orders, and modifications of orders. They may not appear in court or negotiate on behalf of a client, though Crossland and Littlewood said they are considering whether to allow the LLLTs into courtrooms.

By rule, an LLLT must refer a client to a licensed attorney when a matter is outside the allowed scope.

A successful LLLT applicant must accumulate at least 3,000 hours of law-related work supervised by a licensed attorney, have an associate’s degree or higher and must pass an exam. To sit for the exam, applicants must receive 45 credits in a core curriculum at an ABA approved law school or paralegal program and must earn 15 hours in domestic relations courses.

Going forward

The LLLT program is not the total solution but rather “one tool in the toolbox,” Crossland told those gathered in Denver last month.

It’s a tool many states are considering. California, Oregon and five other states are looking into it. New York’s Navigators program is already allowing non-lawyers to provide legal assistance in limited circumstances. A 2014 report by the ABA Task Force on the Future of Legal Education called for states to license “persons other than holders of a JD to deliver limited legal services.”

Colorado’s subcommittee will begin studying whether such a program is a good fit for the state when it meets later this month.

James Carlson is the Information Resources Coordinator for the Office of Attorney Regulation Counsel.