Does family law need lawyers? // Exhibit A

In Washington, limited licence legal technicians can give legal advice in family law without a law degree. Will Ontario follow suit?

By Daniel Fish

On Wednesday December 2nd, 2015

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Drugs, weapons, designer purses — such products are mainstays on the black market. Yet for decades, in Washington State, another industry has operated underground: legal services, particularly in family law.

“People started providing legal advice who weren’t qualified, regulated or insured,” says Steve Crossland, a sole practitioner in Washington. “And the consuming public couldn’t tell the difference.”

The explanation was obvious. A decade earlier, a well-known study found that more than 80 percent of low-income Washingtonians handle legal problems without a licensed lawyer. The main reason was cost. After years of hucksters peddling cheap, unregulated legal advice, the profession took action.

In Washington, a new breed of legal professional was born (and Crossland oversaw its creation). Officially called limited licence legal technicians (LLLTs), and known locally as “triple-L-Ts,” they can give legal advice without having a law degree — for now, only in family law. To get licensed, these technicians need to work as a paralegal for 3,000 hours, and complete a special one-year program. At a cost of $15,000 USD, the program is far cheaper than the six-figure price of law school. Unlike lawyers, though, they can’t go to court or negotiate on behalf of clients.

This past summer, the first batch of LLLTs graduated from the program. One of them is Michelle Cummings, who works at a small family-law firm. “Loads of people call in who can’t afford full representation,” she says. But now her firm can offer a low-cost alternative: her.

Cummings has already helped clients prepare documents and get ready for hearings that otherwise they might have endured alone. And she can legally give advice. “When crafting a parenting plan, I can say, ‘Here’s how the court tends to rule in these situations.’”

Other jurisdictions are watching Washington. California, for instance, is considering its own version of the program.

Meanwhile, Washington is just getting started. The LLLT board has asked the State Supreme Court to let LLLTs appear in court. “Even after LLLTs do all this work with their client, once they get to the courthouse door, they have to say, ‘I’ll be in the audience. Good luck,’” says Paula Littlewood, executive director of the Washington State Bar Association. After preparing an entire case, she says, an LLLT is in fact the best person to defend it before a judge. For Littlewood, lawyers should only have a regulatory monopoly on complex work — in, say, advanced real estate or tax law — but not on court appearances.

So what does this mean for Ontario? The province is hardly a utopia: 60 percent of family-law litigants have no lawyer. Yet paralegals can’t practise family law, nor is there any LLLT equivalent. And that’s unlikely to change in the short-term. “[We are] following the developments in Washington State with interest,” Susan Tonkin, a spokesperson at the Law Society of Upper Canada, wrote in an email. “However . . . an independent review of paralegal regulation in 2012 considered this issue and did not recommend any immediate change.”

The number of people who can’t afford a lawyer is “absolutely concerning,” says Jef Moddejonge, a partner at the family-law firm Kith & Kin LLP. Still, he cautions against adopting the Washington approach too rashly. “This is a good opportunity for us in Ontario to sit back and watch how this plays out. Then we can act accordingly.”


Winter-2015-cover-smallThis story is from our Winter 2015 issue.

 

 

 


Illustration by Matthew Sabloff