The LLLT Program in Washington State Progresses with a Comprehensive RPC Proposal

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downloadBy Brooks Holland

As many section members may know, the Washington Supreme Court in 2012 adopted a rule permitting non-lawyers to practice law as limited license legal technicians, or “LLLTs.” These LLLTs may practice law only within a limited scope of authority. For example, an LLLT may obtain facts and documents for a client, advise a client about procedures, deadlines, and filings, explain documents or exhibits received from the opposing side, and prepare certain documents and forms. An LLLT, however, may not appear in court or negotiate on behalf of a client, and an LLLT’s client remains a “pro se client.”

This LLLT rule effectively initiated a new legal profession, with the objective of increasing access to justice. To facilitate development of this program, the LLLT rule also created the LLLT Board within the Washington State Bar Association (“WSBA”). Comprised of lawyers as well as academics and non-lawyers, the LLLT Board has promulgated several important regulations in the last year. For example, the LLLT Board has set the initial LLLT practice area of domestic relations, prepared the LLLT examination, and established educational and disciplinary regulations.

One of the larger projects undertaken by the LLLT Board was to propose LLLT Rules of Professional Conduct (“RPC”). I was honored to serve on the committee that drafted these LLLT RPC, which recently were approved by the LLLT Board and submitted to the Washington Supreme Court for public comment. During the same time period, another LLLT Board committee on which I served drafted amendments to the lawyer RPC that were necessary to implement the proposed LLLT RPC. These proposed amendments to the lawyer RPC are pending before the WSBA Board of Governors for public comment and WSBA approval before going to the Washington Supreme Court.

The proposed LLLT RPC and amendments to the lawyer RPC include some significant adjustments to the Model Rules of Professional Conduct, on which Washington’s lawyer RPC have been based since 2006. Notable highlights include:

Business models: The LLLT rule raised numerous questions of how this new legal market should operate. For instance, the LLLT RPC committee extensively discussed whether non-LLLT ownership of LLLT practices better would advance the LLLT program’s access to justice mission. Imagine an LLLT kiosk at Costco or Wal-Mart. Ultimately, however, the committee decided that this proposal would implicate changes to the legal services market well beyond the LLLT RPC, changes that had not been thoroughly vetted yet. At the same time, the LLLT committee wanted to integrate LLLTs meaningfully into the current legal services market. Accordingly, the committee did not propose non-LLLT ownership of LLLT practices, but proposed that LLLTs and lawyers be permitted to partner with each other. This proposal was codified in a new parallel rule for LLLTs and lawyers: RPC 5.9. RPC 5.9 does limit LLLT co-ownership of a lawyer’s law practice to ensure that lawyers maintain independent professional judgment, such as by limiting LLLTs to minority co-ownership.

This model for joint LLLT-lawyer law practices necessitated a few other rule changes in addition to the creation of RPC 5.9. For instance, LLLTs have a fiduciary duty to a client “to the same extent as it would apply to a lawyer-client relationship.” Yet, the committee was concerned that if LLLTs have independent authority over a joint LLLT-lawyer trust account, the lawyer may not retain ultimate professional responsibility for the lawyer’s own fiduciary duties under lawyer RPC 1.15. Therefore, although LLLT RPC 1.15 would permit LLLTs to manage client trust accounts, if the LLLT maintains a trust account jointly with a lawyer, the LLLT cannot conduct transactions on the account without a lawyer signatory. In addition, LLLT RPC 5.1 includes a new subpart imposing some duties on managing LLLTs in joint LLLT-lawyer firms to ensure that the lawyers comply with the lawyer RPC.

Communications: The RPC governing communications between LLLTs, lawyers, and other parties presented significant challenges, because the LLLT rule does not precisely define whether and how an LLLT “represents” a client. The rule repeatedly refers to LLLT having “clients,” and provides that LLLTs must honor fiduciary duties and the attorney-client privilege consistent with a lawyer-client relationship. Opposing lawyers and LLLTs could interfere with this professional relationship by communicating directly with an LLLT’s client. Yet, the LLLT rule defines an LLLT as someone who “provides limited legal assistance to a pro se client.” An LLLT may not appear in court for the client, and may not negotiate or even communicate a client’s position. Opposing lawyers and LLLTs therefore cannot go to an LLLT for this information and these decisions, as an LLLT’s client remains pro se for these purposes.

As a result, the committee concluded that an LLLT does not “represent” a client fully in the way a lawyer represents clients. Thus, the committee  proposed that RPC 4.2 not prohibit an opposing lawyer from communicating directly with an LLLT’s client. Instead, the lawyer would be subject to RPC 4.3 and 4.4 when communicating with an LLLT’s client. An LLLT and opposing lawyer may communicate with each other, but they both would need to limit those communications to exclude negotiations or representation of the LLLT client’s position. Furthermore, the limitations on LLLTs’ practice authority persuaded the committee that an LLLT may not communicate directly with an unrepresented party or with a person represented by a lawyer or another LLLT, even with the lawyer or LLLT’s consent.

Conflicts of interest: The committee had to address a lot of issues relating to conflicts and LLLTs. The committee did propose that an LLLT be able to seek a conflict waiver from a client, despite concern that LLLTs’ limited practice authority may impede their ability to judge whether to seek a conflict waiver and advise a client when procuring informed consent. In one major limitation, however, LLLT RPC 1.8 would prohibit an LLLT from transacting business with a client. Conflicts, moreover, will be imputed under RPC 1.10, not just between associated LLLTs, but also between LLLTs and lawyers who associate with each other. LLLT RPC 1.11, 1.12, 1.18, and 6.5 all were tweaked to address conflict imputations in joint LLLT-lawyer practice.

Fee agreements: The proposed LLLT RPC significantly limit the fee agreements into which LLLTs may enter. LLLT fee agreements with a client must be in writing. An LLLT further may not collect a contingent fee from a client or agree to an availability retainer fee. Finally, the proposed RPC prohibit an LLLT from splitting a fee with another LLLT or a lawyer with whom the LLLT is not associated.

The proposed LLLT RPC address other important issues as well, including LLLT advertising, assistance to client’s with diminished capacity, and even terminology—associated LLLTs, for example, may call themselves a “law firm.” Comments from the public are welcome at the Supreme Court’s website. Inquiries about these RPC proposals or other aspects of the LLLT program may be directed to me or to Stephen Crossland, Chair of the LLLT Board.

Originally Published in the AALS Section on Professional Responsibility Fall 2014 Newsletter