In June of this year, the MSBA Assembly adopted a recommendation to form a task force to consider whether we should support development of a new, non-attorney category of licensed legal service providers. This is an idea that has generated a good deal of apprehension among our members, many of whom are feeling economic pressure and worrying that this may result in undermining the success of their practices. These are concerns I take seriously, and I expect this new task force will too.
The purpose behind the idea for a new type of practitioner is that it will provide a less expensive alternative for legal services in some limited areas where they are greatly needed but seldom provided by lawyers due to consumer perception of lawyer affordability. Presumably, individuals with much less (and much less expensive) training may be able to offer their services at less cost to consumers, because they will not need to make the same kind of heavy investment in training that is required of lawyers.
No Preordained Conclusions
The idea for this task force comes in part from the adoption of a new category of licensed legal provider, termed the Limited License Legal Technician (LLLT) in the state of Washington. This development was not well received by the Washington bar, but it was adopted in that state over the bar’s objection. The bar’s concern about this idea comes from more than just self-interest. It reflects a valid regard for the public and desire to protect the quality control that exists in the training and regulation of lawyers. Additionally, the degree to which lawyers are currently meeting community needs for legal services varies by community.
The first thing that needs saying is that just because we are creating a task force, it doesn’t mean there is a preordained conclusion. This is an idea worthy of consideration. We are much better off being the ones to think about and propose new solutions than we would be to insist that the status quo is fine, deny the problem, and then let others take the initiative. If we help to engineer the solutions, then it stands to reason that our solution is less likely to pose a problem for lawyers and therefore more likely to succeed.
New and Different Ways to Address Justice Gap
While the Washington State “LLLT” has made this discussion timely, we must not confine ourselves to consideration of their particular brand of “solution.” Whether Washington’s approach is right for us is only one question for consideration. Others include whether we can do more, or perhaps do better. This is Minnesota after all. In the spirit of fresh thinking, we have purposely defined the title and mission of the new task force more broadly than simply considering the LLLT model. We call it the Alternative Legal Models Task Force. The term “alternative,” as we are using it here, simply means that we will look at new and different ways to help lawyers address the justice gap. Done properly, lawyers should remain the central cog in the justice machinery and the availability of any new alternatives may enhance the role of lawyers, rather than diminish it.
We want this task force to approach the subject with an open mind—balancing the legitimate business concerns of the profession with our obligation to act in the public interest.
It is my hope that this task force should be sure to evaluate alternatives with at least three criteria in mind, if there is to be any hope those alternatives will enjoy the support of the bar.
No Second-Class Legal Service
First, no alternative should risk creating a system of second-class legal service for those of limited means. Any form of non-lawyer practitioner should operate under rules, regulations and supervision to assure that their services, though perhaps narrowly circumscribed, will nonetheless be of the same quality as those provided by a lawyer performing the same services.
Second, any alternative should truly work to expand the reach of quality legal service to persons who would otherwise go without. The objective is to create solutions to the justice gap, not to undermine the services that lawyers now provide. Many lawyers successfully help address the justice gap because they manage their practices in a way that balances pro bono work with their need to make a living. If we upset this balance, we may do more harm than good in addressing the unmet legal needs of the public. If properly conceived, then the services provided under an alternative model will address the needs of a segment of the “market for legal services” that are not really in the current market due to their inability to afford a lawyer. If so, then helping them will not come at the expense of lawyers.
Third, any new provider model ought to work closely with lawyers to assure that the services they provide will make it more likely that their consumers will remain within the universe of authorized practice of law. Done properly, a new model may actually help to thwart the appeal of “quick fix” and “do it yourself” products and forms that are now advertised on TV and sold on the internet. Such alternative providers could be our allies in this sense, and sources of referral to lawyers when their client’s needs exceed the limits on the scope of their practice.
Although some member apprehension about this topic is natural, it should not serve to preclude us from doing what we do best as a profession: consider together how we can best serve the public, while also supporting one another. You may expect us to proceed with prudence and caution. Our process will be open. There will be plenty of opportunities for members to engage in discussion after any ultimate task force recommendation. My final hope is that we all participate in this discussion with an open mind, and in the spirit of our commitment to help achieve justice for all.
Michael W. Unger is President of the Minnesota State Bar Association. He is a Certified Civil Trial Specialist at Unger Law Office in Minneapolis, representing negligence victims for serious injuries and wrongful death. He is also on the adjunct faculty of the University of Minnesota Law School.