By Tiela Chalmers
The State Bar currently has committees working on two proposals that would, if approved, have huge impact on the legal profession. Both committees are working on amending the legal regulatory system to address ways to expand the resources available to those needing legal help. One committee is looking particularly at tech solutions, including permitting Artificial Intelligence solutions that would automate answers to legal questions. But this blog post will focus on the one that is farther along in development – permitting “paraprofessionals” to practice some types of law, with various restrictions.
This proposal is based on pilot programs that have been launched in recent years in Utah, Arizona, Minnesota, and the State of Washington, among others. The concept is to empower those with some training to do some of the more routine aspects of law practice, and expand the market. Paraprofessionals would be permitted to hang out their own shingles, and offer (presumably at a lower rate) their services to those who are less able to pay the rates prevalent in the community. The program is expected particularly to serve those who are over-income for legal aid, but who are still unable to afford $300/hour.
Licensing and Regulation: Paraprofessionals must apply for a license, will have ongoing education requirements, and will be subject to their own version of the Rules of Professional Conduct. The overall idea is that funding from the licensing fees will pay for regulation (not unlike the State Bar’s oversight of attorneys), but it is not clear what agency would be responsible for that oversight.
Areas of law: The current proposal contemplates that the Paraprofessionals will be able to provide services in the following areas: Family Law, Consumer (Debt Collection), Housing (Landlord-Tenant) and Post-Conviction Criminal work. Paraprofessionals will likely not be authorized to appear in court, but can complete forms, draft documents, and advise clients.
Training: California’s proposal currently contemplates that only those who have a JD or a paralegal certificate will be licensed. (By contrast, in Washington the program required two years of training, one in a community college and one a series of classes at a law school.)
Concretely, what might this look like? So perhaps John Doe, a client who needs a divorce but can’t afford to pay full freight, will go to a Paraprofessional to get their filing papers completed. The Paraprofessional may file the papers, or perhaps John will, but John will be representing himself in court. If one of the issues of complexity comes up (like, it turns out that John’s ex has a pension to which John might be entitled), the Paraprofessional will have to refer John to an attorney.
Another structure might be that lawyers would hire Paraprofessionals to work alongside them, meeting with clients and explaining the law and the options to them, and completing forms and documents as needed. This would allow the attorneys to focus more time on more complex cases, or on courtroom work and ADR.
In the legal services arena, Paraprofessionals could volunteer in our many clinics, working with clients to explain their rights, draft discovery, negotiate with opposing counsel, or help complete paperwork.
What are the issues?
Concerns about this program typical focus in two areas. First, will the public be adequately protected? Or will this turn out like the situation with “notarios,” non-attorneys who take advantage of monolingual Spanish speakers (and the fact that in Spanish, that word means both ‘notary’ and ‘attorney’) to charge exorbitant rates for completely inadequate work, often costing clients their rights? Will the regulation and enforcement be stringent enough to discourage shysters, and to assist in some recovery for their victims? The State Bar has been consistently under fire for its failure to adequately police attorneys, so that might not be the best entity to take on the regulation and enforcement, but it’s not clear what other entity can, or how it would be funded.
Second, objections focus on whether the program would take away business from lawyers. In some states, lawyers have mounted serious resistance to a Paraprofessional program, fearing that faced with the choice of a less expensive Paraprofessional, clients will choose away from hiring the lawyer.
And now for my personal opinion (please note – the opinions expressed here are only my personal views, and do not represent the opinions of the Alameda County Bar Association or Legal Access Alameda):
The danger to clients is entirely about the training and regulation. If those systems are strong, then I believe the program will be strong. In a recent study done by Stanford of the experiment in Washington State, clients got better outcomes with Paraprofessionals. And this of course raises the question, better than what? People who hired Paraprofessionals (and this is true in other states as well) were overwhelmingly people who otherwise would have represented themselves. For those folks, outcomes were better, judges felt like they got the information they needed to make good decisions efficiently, and clients felt empowered.
Will the Paraprofessional program mean more competition for solo attorneys? Well, yes, and no. For practitioners who have a practice targeted at “modest means” clients, commonly charging flat fees for particular services, or offering limited scope services and brief advice models, the Paraprofessional program may constitute competition, as the target client pool will be about the same. I would expect, on the other hand, that there may be some creative referral agreements crafted between modest means attorneys and Paraprofessionals, to keep the costs of service delivery low, and the practice volume high.
For more traditional practitioners, it is expected that clients who are able to pay will choose a lawyer. Of course, if Paraprofessionals start to make a real dent in clients who otherwise could pay, my guess is that the legal market will have to adjust.
Learn more about the California Paraprofessional Program Working Group on their webpage.