Stephen Daniels is a Research Professor Emeritus at the American Bar Foundation. He has published extensively on a broad range of topics that include innovation in legal education, the delivery of legal services, civil juries, trial courts, plaintiffs’ lawyers, medical malpractice, punitive damages, and the politics of civil justice reform. He has testified before congressional and state legislative committees about civil justice reform and served as an expert in cases dealing with constitutional challenges to civil justice reform.

His ABF research project, Alternative Legal Professionals, examines legal technician programs, which license non-lawyers to practice certain aspects of law in a limited capacity with the goal of expanding access to legal services at a more affordable cost. In this feature, Daniels discusses how this concept emerged, spread, and continues to evolve across multiple states.

Q: Could you provide background on your research journey relating to the legal profession, legal education, and access to justice crisis?

When I started college teaching, I taught a course on courts. I would take the students to the local courthouse to watch the small claims court, which was presided over by a judge who welcomed students to observe the proceedings and answered questions afterward.  

The students sat in the back of the courtroom and watched the creditors’ lawyers come in, each with a stack of case folders for delinquent small claims. Defendants rarely appeared and the creditors’ lawyers went through their case folders like a stack of cards and the judge dealt out default judgements. The judge told students this happens daily in courtrooms (not that he liked it). People facing judgements confront very real consequences, but if you can’t pay your bills, you probably can’t afford a lawyer. 

At the time, I also started spending time in local courts watching trials and talking with people in the courthouse. It was quite different from my graduate training, and I discovered that you learn a lot about the legal system by just hanging around courthouses. So, some of my earliest research focused on these state-level trial courts—where the legal system engages with everyday life. Watching trial courts showed me that meaningful access requires a lawyer—and pro se access is a fool’s access.  

Access to justice is a problem that’s never going away—mitigated, but never solved. It’s endemic to the way the delivery of legal services is structured. Not wanting to put down those lawyers doing pro bono or participating in other efforts to ensure access (they’re doing God’s work), but every study shows that levels of legal need in this country are beyond what any kind of legal aid or pro bono program can hope to solve.  

Not everyone is in favor of more access. Some think less is better. For instance, a key part of the “tort reform” movement is curtailing or undermining access, something Joanne Martin and I explored in our book Tort Reform, Plaintiff’s Lawyers, and Access to Justice. Plaintiff’s lawyers may not be universally loved, but their contingency fee business model is about access for those otherwise unable to afford a lawyer. That “reform” movement targeted these lawyers in ways making it harder for them to be successful, thereby undermining access for injured people. In other words, close the courthouse gates by attacking the gatekeepers.

My current research on legal technicians is more straightforward. These non-lawyer actors go by a variety of names, but it’s easier to use the legal technician name generically for immediate purposes. It’s the name used in the Washington State program, the one that started the ball rolling. 

We’re talking about trained non-lawyers licensed to practice law to some limited extent. The idea is expanding access by creating another layer of professionals delivering certain legal services at an affordable price without the supervision of a licensed attorney. The project explores how the idea of such a non-lawyer actor arose, is spreading, and is evolving. It’s a policy story—a messy one—about legal innovation, diffusion, and experimentation, and about states as laboratories for expanding access.

Q: Based on your research on legal technicians, specifically in one of your most recent articles “The Genie is Out of the Bottle,” what are some key factors contributing to the public’s current limited access to civil justice?  

In the post–Great Recession era, a set of factors animate the push for legal technicians. On the demand side, there’s a growing concern about affordability going beyond the traditional concern for the poor to the middle class. 

On the supply side, law school enrollment tanked after the Great Recession, hasn’t recovered, and may not. Cost and rising student debt are common explanations. It’s debatable exactly what role cost and debt play, but they have some effect in the minds of many concerned with access. 

Law is an aging profession with a large cohort of Baby Boomer lawyers hitting retirement age. Together with declining law school enrollments, this produces a replacement problem.  

Especially in the West and Southwest, where one finds the greatest interest in legal technicians, distance is an issue—the geography of access. Often seen as an urban issue, access is a rural and small-town issue too. Maybe there was a lawyer or two, or family law firms passed down over generations. Now, young lawyers coming out of law school aren’t interested in a small-town practice. A legal desert is the result. 

Finally, some in the practicing bar believe law schools don’t produce practice-ready lawyers. Students are prepared to go into big or medium-sized law firms in urban areas, not trained for the everyday practice making up most legal need. And the practicing bar can’t afford the cost of training them on the job. 

Regardless of what one thinks of the veracity of these issues, they are prevalent issues people discuss and rely on. 

Q: How did this idea of legal technicians to address the issue of access gain traction?  

I’m collaborating on a book project with Jim Bowers, a long-ago student of mine and now a retired political science professor. We were both taken by the comparisons being made between legal technicians and nurse practitioners. His school has a nurse practitioner program and coincidentally, one of my daughters-in-law is a nurse practitioner.

A nurse practitioner is more than a nurse, but not a doctor. In many states, they have full practice authority—usually within a particular practice area—where they can prescribe drugs, treat people, and can have a stand-alone practice. They exist because of similar problems in delivering primary care that you see in the legal arena. Like others, we wondered why we don’t have an equivalent in the legal arena? If taken seriously, it is an interesting and important idea for delivering legal services to everyday people, but a very controversial one.  

Washington State is the place to start, since its legal technician program was the first. Seeing this program, other Western states explored the possibility of initiating programs of their own, often using the nurse practitioner analogy. So, we decided to study not only how the program developed in Washington State, but how this idea traveled quickly to other states and what those states did.  

Drawing from a rich literature in political science, ours became a study of policy diffusion and innovation across states, focusing on the four corner states of Arizona, Colorado, New Mexico, and Utah. They were among the first to formally consider a program after Washington State. Specifically, our interest is in the committees or task forces created by the state supreme courts (the policymakers here) to explore and recommend, or not, a legal technician for their state. This is where the substantive action is for understanding the diffusion and evolution of the legal technician idea. 

Q: Let’s discuss the legal technician program and its development. What was the process for the program’s creation in Washington State, and its dissemination into other states?

The idea of non-lawyer actors has been discussed among access activists and others for years. Simply, the idea was in the air, but opposition from state bars and supreme courts—and from the ABA—kept the idea from becoming reality.  

This is why Washington State is so interesting. It did the impossible and marked an inflection point. After at least 10-12 years of fits, starts, changes, and at times bitter professional fights, the Washington State Supreme Court approved the legal technician program in 2012. Despite arguments for and against, a key factor for success may have been the contingent result of matters within the state bar and the Court. Specifically, a legal technician advocate became the 2011-12 state bar president; the state bar’s executive director was also an advocate; and in 2010, the chief justiceship went to another advocate concerned with access. It’s hard to say which of the three roles was the most important, but without an advocate on the court, nothing would move forward.  

Washington State’s Limited License Legal Technician program became the first to license a specially trained, mid-level professional to perform limited kinds of “substantiative law-related work” without attorney supervision. The program has its own training (including a substantial hands-on component, more than required of law students) and meaningful ethical requirements. 

It allows technicians to assist people going through divorce, child custody, and other family law matters by filling out court documents, assisting pro se clients at certain hearings, help with court scheduling, and other tasks that help clients navigate the legal system. However, they cannot formally represent clients in court. The program quickly became a model for other states. 

Q: The Washington State program was sunsetted in 2020. What happened there? Did the program address the access to justice gap? What happened to the other states’ programs?  

To make a messy story crazy, in 2020 the Washington State Supreme Court (with a slightly different lineup and a change of mind) sunsetted the program because it wasn’t doing what it was supposed to do: serve people of limited means (the traditional target for access advocates). The underlying problem was well-known, if not really addressed. 

Like most legal services, the program existed in a private market, fee-for-service system. Technicians needed to make a living. It’s not pro bono. Yes, they can charge less than a lawyer, but the most vulnerable populations still cannot afford it. As one key Court member who changed his mind argued, it became a program for people of moderate means. (Also, opposition within the bar never disappeared.)  

But is this a failure—still helping others? A legal technician I spoke with in Utah (Utah started its program in 2018) told me that she thought the Utah program is a way for middle-class people to access legal services without taking a second mortgage out on their house.  

Jim and I thought the discontinuing of the Washington State program might stop everything, but it didn’t. The legal technician idea has taken on a life of its own as states continue to address the challenges of access. Colorado, for instance, is starting its program this year—after two study committees and over eight years of effort. That new Colorado program is geared to the economic middle, not the neediest.

In a way, we’re seeing a learning process and pragmatism. States continue to see such a program as a way to help some people — those who can afford to pay something. It’s seen as a reasonable, pragmatic solution for now, while recognizing—as one Colorado official said—that it’s not the solution. What the decision-making literature calls “satisficing.”

Q: Can legal technicians still be disruptors to the legal system? You say the fee-for-service legal market is not going anywhere anytime soon, so in what ways do they challenge the current system for the better?  

The legal profession is loath to relax its monopoly over who can practice law, but it may be willing to cede some ground to legal technicians. The main effect will be in the middle to lower end of the personal services legal market, especially for lawyers in practice areas that legal technicians can enter (i.e., family law). The fear of competition in certain practice areas is a recurring theme and source of strong pushback. It’s too soon to tell whether legal technicians will displace some lawyers by offering legal services at a lower price or will simply help those who couldn’t afford a lawyer. In other words, legal technicians may end up filling a largely empty market niche (with lawyers therefore not ceding much ground). 

While the original legal technician idea envisioned stand-alone practices with all the attendant costs of running a business, early indications suggest that many technicians would not be working alone. Some firms see economic benefits in hiring legal technicians—they can provide more services using a technician, rather than a lawyer, at a lower price. If so, it would be good for the firm’s bottom line and for clients who would pay less — but bad for the younger lawyer who might not get hired.  

The state with potential for major disruption is Arizona, which created a program claiming to be closer to the nurse practitioner model. There, legal technicians can practice across a wide area of smaller matters, up to and including representing someone in the lowest trial courts. Arizona has created a whole new level of legal professionals who can do much of what lawyers do, but in a limited arena. One wonders what this means for lawyers and the schools training them if a technician with training that takes less time and costs far less can replace them. Or maybe it’s an empty market niche. 

Q: Do you think the legal system is too strong in its opposition to Arizona’s type of legal technician to see a wide spread of this kind of program? 

Washington State’s experience shows that opposition will not simply evaporate. We’re finding that it’s not a simple rational process of innovation improving the state of affairs. Success is not guaranteed, and the politics are as important—or more—as the merits. But there is a growing recognition that this particular, if partial, solution deserves serious consideration.  

In effect, Jim and I are studying an ongoing experiment in the states. Although not using the word, comments in Chief Justice Madsen’s 2012 opinion approving the Washington State program reflect this: “No one has a crystal ball. … There is simply no way to know the answer to this question without trying it.” 

###

To read more about the ABF’s Research Faculty, view our Featured Researcher archive.