Misnavigation

When Washington State took the leap by establishing the first non-lawyer legal post, the Limited License Legal Technician, it was a huge step forward in providing a lower-tier resource for basic legal advice and services.  Indeed, it looked an awful lot like my proposed Legal Practitioner, with many of the same virtues of proper training and qualification.

As Bob Ambrogi notes in an article for the dead-tree ABA Journal (that would be the same one that asked for, then decided not to print, the article on mentoring that Dan Hull and I wrote), the first graduates of the LLLT course of study are about to hit the street.

Michelle Cummings looks forward to this spring, when she expects to take on her first law client. By then, the Auburn, Washington, resident will have completed her studies and taken the state licensing examination. Provided she passes, she will begin practicing right away.

Cummings’ story could be that of any number of new lawyers looking forward to finishing law school and taking the first fledgling steps of their careers. But Cummings is not attending law school—at least not as lawyers know it—and she has no plans to become a lawyer.

Rather, Cummings is on a historic path to become one of Washington’s (and the nation’s) first limited license legal technicians. These nonlawyers will be licensed by the state to provide legal advice and assistance to clients in certain areas of law without the supervision of a lawyer.

See?  It can be done. It can happen. It wasn’t just pie in the sky dreams of providing properly trained, competent legal counsel within a very limited scope to enable an over-regulated society to survive without going broke.  Naturally, Above the Law offered commentary on Bob’s article, two posts actually, neither of which reflected sufficient thought to prove their writers could have survived Strickland scrutiny.

But then, Bob goes into New York’s well-intended, but utterly misguided, version:

“Even with whatever success we’ve had with public funding of legal services and pro bono work by lawyers, there is still a gaping hole in our system of providing legal services to the poor and people of limited means,” says New York Court of Appeals Chief Judge Jonathan Lippman, who has emerged as a leading advocate of allowing nonlawyers to provide limited services.

“We need to think out of the box and look at every possible avenue for filling this justice gap,” Lippman says. “You can get nonlawyers who are experts in a particular area of legal assistance and who can be more effective in that area than a generalist lawyer.”

Fair enough.  Certainly Judge Lippman’s intentions are pure. But as always, the devil is in the details. So, this being in New York, he formed a committee, which did what committees are best at doing.

The recommendations of this committee resulted in Lippman’s launch in February 2014 of a pilot program in which nonlawyers, called navigators, provide free assistance to unrepresented litigants in housing cases in Brooklyn and consumer debt cases in the Bronx and Brooklyn. Navigators provide a range of assistance, from general information given at help desks to one-on-one help completing legal forms and assisting in settlement negotiations.

Navigators may also accompany unrepresented litigants into the courtroom. While they are not allowed to act as advocates in court, they are able to answer questions from the judge and to provide the litigants “moral support.”

Whoa. How did this morph from “experts in a particular area of legal assistance” to “moral support”?  Who are these Navigators, and who came up with this ridiculous marketeering name which, hopefully, is being underwritten by Ford Motor Company?

New York’s navigators are generally college and law students. They must commit to volunteer for a minimum of 30 hours within three months of their training. A 2½-hour seminar and accompanying manual train them in the basics of housing and consumer-debt cases, as well as interviewing and communication skills. They receive no formal licensing.

College students with 30 hours of training? Hell, you get 50 hours of community service for farting on a subway in Manhattan.  Would that be too much to ask before you put these “experts” in a position to completely screw up people’s lives?

There is little doubt that there are areas of practice that can be adequately taught that a full law degree isn’t necessary to provide competent representation, and can offer people a less expensive substitute to lawyers.  But giving people with minimal training, no testing and no oversight a cool name like Navigators isn’t the solution.

It’s not that I don’t commend Judge Lippman for trying, even if I have serious doubts about his view that lawyer pro bono is a substitute for society taking the financial responsibility of paying for the mess it creates every time a new crime is created to end the tears of hurt feelings.  But Washington State’s answer presents a viable solution.  Giving some kid a desk and the authority to sit in a courtroom and mumble, “you go, girl,” isn’t the solution.

If we’re going to make every aspect of people’s lives subject to regulation and legal scrutiny, then we need to provide a real means for the poor to obtain competent representation, even if from a person who isn’t a full-fledged lawyer. Calling them Navigators doesn’t do it.

 

7 thoughts on “Misnavigation

  1. Steven M. Warshawsky

    I realize I’m banned, but in the event you get this email, I thought I’d point out that the NY proposal is even worse than you describe. The 30 hours mentioned in the article you quote is not for training, but is the number of volunteer hours that these navigators are expected to perform. The training program consists of a 2 1/2 hour seminar plus a manual. Experts, indeed!

    1. SHG Post author

      You are hereby unbanned, but you remain on supervised release, with usual conditions.

      You’re absolutely right, I misread the article (wishful thinking?) and grossly overstated the Navigators’ qualifications.

  2. Peter H

    The volunteer nature of the Navigator program is I think its death knell. Who would want to put in the time necessary to be able to provide meaningful help if all you get at the end is an atta boy?

    When someone can do something as a real job, they’ll have the reason to put in the work to be good at it. I bet in 5 or 10 years time, Ms. Cummings will be dishing out clearer and more competent advice than almost any new law school grad. Heck, given her decade+ as a paralegal at a firm in the practice area she’ll be licensed for (domestic relations), I bet she already knows the ropes really well.

    If you want a competent and hardworking person like that to provide legal services on a long term basis, you need to make it a viable career. A 2L behind the counter at the courthouse doing enough hours to be allowed to sit the bar would never match it.

  3. Piedmont

    This sounds an awful lot like the kind of 3L practice clinics most law schools seem to have. Having law students closely supervised by a practicing lawyer (not just a professor) has potential, as does something like a post-bac certificate. Even better is the idea of experienced paralegals or CASAs.

    As it is, it just seems like a cheaper way to have someone tell you how awesome your case is beforehand, hold your hand during the hearing, and then commiserate with your family afterwards about how wrongheaded that judge was (not that there’s not a market niche for that).

  4. EH

    This subject is really a failure of process.

    I still think there are some things which could be done by trained laypeople. And I still think that there are some people who would be much better served than they are now.

    But the problem is mission creep.

    Every non-lawyer is going to want to make more money (understandably, they’re only human) so they will tend to do things they aren’t qualified for. And there’s also pressure from the other end: plenty of NON-impoverished folks will try the DIY method; just because they have more money doesn’t mean that they actually want to spend it (or that they understand the value of doing so.)

    It seems like the people who set these programs up aren’t thinking about it very hard.

    1. SHG Post author

      There will always be some who overreach their authority and ability, but that’s true of all things. If properly trained, and imbued with a greater sense of ethics than lawyers are, the LLLT/ legal practitioner concept could help a lot of people without causing the level of damage that plagues so many other ideas.

  5. Ken Mackenzie

    The English have had a system along the lines you propose since the 1960s, through the Institute of Legal Executives.

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