Does The ABA Care More About 'Access To Justice' Than It Cares About Members’ Access To Jobs?
The mere fact that the ABA needs to deliberate at all over the issue of LLLTs is a sharp reminder that the ABA is not fully committed to advancing the interests of new lawyers.
Young lawyers, the American Bar Association is not your union. It is not your guild. It owes no particular duty to you, nor to the “lost generation” of law school graduates, nor to current law students, nor to any lawyer. The ABA’s mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” The ABA’s official goals may be laudable, but they are not dedicated to the improvement of your job prospects or working conditions any more than they are to social welfare. The Teamsters they ain’t, kids.
The American Bar Association holds its Midyear Meeting this weekend here in Houston, Texas. Amidst the section meetings, speeches, and hobnobbing, the ABA Commission on the Future of Legal Services will debate the ABA’s stance on Limited License Legal Technicians (“LLLTs”), non-attorneys who are authorized to advise and assist clients in approved practice areas of law, such as domestic relations. Only Washington state has approved an LLLT system so far, though California and other states are actively considering similar programs. The Commission will hold a hearing tomorrow, February 7, at 2:30 p.m.
The mere fact that the ABA needs to deliberate at all over the issue of LLLTs is a sharp reminder that the ABA is not fully committed to advancing the interests of new lawyers.
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Why Are Limited License Legal Technicians Against the Interests of Young Lawyers?
LLLTs may not harm the overarching goals of society, or even those of many ABA members, but they do threaten the professional well-being of many new lawyers and law students. Compare the LLLT education requirements and subsequent professional duties to the ones currently imposed on lawyers.
LLLTs require much less education than lawyers do. Law school graduates will typically have a bachelor’s degree or higher, then 90 or more credit hours of law school. LLLTs must have an associate degree or higher, earn 45 credit hours of core curriculum through an ABA-approved law school or paralegal program, take practice area courses with curriculum developed by an ABA-approved law school, and acquire 3,000 hours of work experience supervised by a licensed lawyer.
Once an LLLT applicant receives her license, she need not work under the supervision of an attorney for most tasks, unlike paralegals and legal assistants. According to the State of Washington’s Limited Practice Rule, LLLTs can perform many of the basic services expected of an attorney, including interviewing and counseling clients, investigating cases, and preparing and filing basic documents.
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For young, small-practice lawyers, let’s be clear: an LLLT system means that individuals who spent less time and money on education can take your “bread and butter” work. Maybe LLLTs can afford to do it for less than you, since they aren’t servicing the student loan debt that you are. Even if LLLTs charge the same for services as you do, they represent even more competition in an already glutted field.
LLLTs will even compete for the attention of mentors in the legal profession. Recall that LLLTs must work for about a year and a half under the supervision of an attorney. Aspiring solo lawyers don’t emerge from law school fully formed, like legal homunculi. For many young lawyers, working for or shadowing experienced attorneys for a year or two gives them the shepherding and training they need before leading a fully independent practice of their own. LLLTs will be gunning for similar positions.
Above the Law columnist Shannon Achimalbe pointed out that the work at issue is not glamorous or remunerative. The clients are not always reliable or cooperative. I can assure you, though, that many recent law school graduates are already serving in those trenches, whether because of a personal calling toward social justice, or because of a brutal lack of options.
Notice Whose Interests Are at Stake
Washington passed its rule creating LLLTs back in 2012. Why has the ABA dragged its feet in taking a position on non-lawyer legal service providers, given that such providers threaten many young lawyers and lawyers who serve lower-income clients? Why wouldn’t the ABA presumptively oppose the LLLT system? Perhaps the answer lies with the parties who will not likely suffer because of non-lawyer service providers.
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Elite legal practitioners clearly won’t suffer under an LLLT system. Will my friends at Kellogg Huber or DOJ or clerking on the U.S. Supreme Court suffer because of the existence of LLLTs? Not a wit. Their skills will continue — rightfully — to command six-figure signing bonuses and prestigious positions. I graduated from, and now am on the faculty of, a law school that produces mostly solo and small-firm practitioners. Will my former classmates and my current students suffer because of the existence of LLLTs? You bet.
Also, notice that ABA-approved law schools may not suffer under this new system. They can enroll aspiring LLLTs. Schools will earn fewer tuition dollars from individual LLLT students than from individual JD students, since LLLT students each require fewer credits. But schools can enroll a greater number of LLLT students than JD students. If a law school can keep its seats full at any given time, it makes no difference whether those seats are full with JD students who will occupy a given seat for 90 credit hours or with LLLT students who will occupy a seat for 45. Unless LLLT students demand a lower per-credit tuition cost than JD students, then law schools will fare just fine under an LLLT system. Or, at least, no worse than they currently are.
The ABA as an organization won’t suffer under an LLLT system. The ABA already dictates policy regarding non-lawyer paraprofessionals such as paralegals. If the Washington model spreads elsewhere, the ABA would dictate policy regarding LLLTs too. The ABA will continue to wield influence if its umbrella covers LLLTs.
Does Access To Services Have To Threaten Access to Jobs?
In 2012, the same year that Washington passed the rule creating LLLTs, the American Medical Association approved a program to reduce med school from four years to three. The program expressly aimed to encourage med students to specialize in underserved, lower-paid practice areas by reducing the amount of student debt foisted upon aspiring physicians.
In order to get medical care to those in need, the AMA has tried to eliminate obstacles that have kept young physicians out of underserved fields. It hasn’t tried to eliminate physicians themselves from those fields. The AMA still fights for “physician-led teams” in health care, where physician’s assistants, nurses, and others perform vital functions, but only with doctor supervision.
The ABA wants to get legal services to those who need them by cutting lawyers out of the legal services picture. If the AMA can address its access to medicine problem by addressing the obstacles that keep young physicians out of pediatrics, why can’t the ABA address its access to justice problem by addressing the obstacles that keep young lawyers out of domestic relations practice? Why does the ABA care more about access to justice than its members’ access to jobs?
Young lawyers, the American Bar Association is not your union. If it were, the ABA would have taken a stance against LLLTs years ago.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].
