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Case Note

Washington State Supreme Court Votes Against Limited License Legal Technician Expansion into Elder Law

By Lynn St. Louis, JD

CaseNote

Concern for public welfare over the expansion of the LLLT program prompts organized opposition.

The Washington Limited License Legal Technician (LLLT) program was created in 2012 by the Washington State Supreme Court and the Washington State Bar Association (WSBA). The first of its kind in the United States, the purpose of the program was to provide legal services at a lower cost to those who need legal assistance but are unable to afford a lawyer. An LLLT is not a lawyer and cannot appear in court to represent a client. The education requirements to receive LLLT designation include a 45-credit core education at a community college level (equivalent to an associate’s degree) and a 15-credit practice education portion. At present the University of Washington is the only institution offering the required educational courses through a combination of live classes and online streaming. Twenty licensed LLLTs currently work in the State of Washington.

Proposed Expansion of LLLT Areas of Practice
When the LLLT program began, it was approved to license LLLTs in the area of family law only. LLLTs in family law are authorized to assist clients with filling out court forms and gathering and filing documents in their case.

In January 2017, the LLLT Board proposed an increase of the powers available to LLLTs in the area of family law as well as the expansion of the overall program into an area they called “estate and health care law.” Areas of practice included: estate planning on non-taxable estates (up to $2,129,000 in the State of Washington); probate of non-taxable, uncontested estates; powers of attorney; uncontested guardianships; vulnerable adult protection orders; and government benefits, including Medicare, Medicaid, and disability applications, denials, and appeals, and health insurance benefits. The proposal further authorized an LLLT to represent a client in administrative hearings and present orders in open court.

The LLLT Board sought no input from the bar membership before submitting their proposed expansion. The Washington State Bar Association Board of Governors (BOG) held a meeting in Spokane on January 26, 2017, where discussion of the LLLT expansion was on the agenda. A few local attorneys learned of the proposal and attended that meeting where they spoke against the proposed expansion. Members of the BOG told those in attendance that the BOG had no power to take any action concerning the LLLT proposal directly, but that they could only pass on their recommendation (for or against the proposal) to the Supreme Court. However, there has been no indication that the BOG took any such formal position.

Opposition from Attorneys
As news of the proposed LLLT program expansion spread in the legal community, members of the bar, especially estate planning and elder law attorneys, began a very active letter-writing campaign to express their disagreement. In light of the swell of opposition, the BOG suggested that the LLLT Board hold a public meeting — the first public meeting offered by the LLLT Board itself to elicit the input of the bar membership. That meeting was held in Seattle on February 15, 2017, and many members of the bar appeared both in person and via webcast. The meeting was set for 90 minutes. Unfortunately, due to time constraints, the full extent of questions and comments were not heard.

Despite the overwhelming opposition to the proposal, the LLLT Board scheduled a presentation to the Washington State Supreme Court for March 8, 2017, to present and recommend the new expansion to the Justices for approval. This presentation was a closed-door session, though the LLLT Board reassured bar members that the Board would fairly present the concerns of the bar to the Supreme Court.

The bar membership did not rely upon the LLLT Board to communicate to the Supreme Court the opposition to the expansion proposal. Instead, members of the WSBA Elder Law, Estate Planning, Real Property, Probate, and Trust Sections, as well as NAELA and the Washington Chapter of NAELA (WAELA) sent letters to the Supreme Court Clerk and the Justices individually. These letters expressed grave concerns for public welfare over the ill-considered expansion of the LLLT program. Some letters referenced studies that illustrated that the proposed expansion areas would not benefit clients in the most under-served areas of law. Indeed, there was some indication that the chosen areas for expansion were selected for the purpose of strengthening the LLLT program financially rather than to meet the needs of an under-served population.

The Supreme Court Decision
The details of the presentation to the Supreme Court on March 8, 2017, were not made available to members of the bar or the general public. On April 3, 2017, Chief Justice Mary Fairhurst wrote a letter to Stephen Crossland, the Chair of the LLLT Board. The Chief Justice’s letter stated that although the Court had voted in favor of LLLTs in family law, the Court would not support, and therefore voted against, the proposed expansion into “elder care and health law.” Justice Fairhurst’s letter goes on to state: “In addition to relaying to you [the LLLT board] the results of our discussions, I was asked to make the following inquiries. When choosing and recommending a new area, does the Board consider its financial attractiveness to the LLLT or unmet legal needs? If there are no additional subject matter areas, can the program continue?” Those few sentences make clear the Supreme Court is concerned about the reasoning behind the LLLT Board’s choice of areas of law. It also seems to question the continued viability of the entire program.

About the Author
Lynn St. Louis, JD, is a member of NAELA and the Washington Chapter, WAELA. She has a practice in Spokane, Washington.