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State Bar & Bar Associations,
Law Practice,
Ethics/Professional Responsibility

Oct. 14, 2021

Paraprofessionals in a new age: creative solutions for the justice gap

Those who may be opposed to licensing paraprofessionals opine that the failure of these new entrants may negatively impact public perception of the industry as a whole. That is why it is important that this is set up correctly. Accordingly, the California Paraprofessional Program Working Group’s Sept. 23 Report and Recommendations endeavors to set up a system aimed at success.

David M. Majchrzak

Shareholder, Klinedinst PC

Litigation, legal ethics

501 W Broadway Ste 600
San Diego , CA 92101-3584

Phone: (619) 239-8131

Fax: (619) 238-8707

Email: dmajchrzak@klinedinstlaw.com

Thomas Jefferson School of Law

David practices in the areas of legal ethics and litigation of professional liability claims.

Heather L. Rosing

CEO and President, Klinedinst PC

legal malpractice (specialist), business law

501 W Broadway Ste 600
San Diego , CA 92101

Phone: (619) 239-8131

Fax: (619) 238-8707

Email: hrosing@klinedinstlaw.com

Northwestern Univ School of Law

Heather serves as the chairperson of the Legal Ethics and Law Firm Risk Management Practice Group, as well as the Lawyers and Accountants Practice Group. She is an appointed advisor to the State Bar of California's Rules Revision Commission.

Paraprofessionals in a new age: creative solutions for the justice gap

Think about the last evening meal you ate. Perhaps you dined at a Michelin star restaurant. Maybe you ordered some fast food take out. Or perhaps you prepared dinner at home, using a recipe book. Each option has its benefits, and no option is right for everyone. Sometimes economics play a factor in what you may choose. Sometimes where you might want to dine is too far away. And sometimes tables are simply not available at certain restaurants because the demand exceeds availability. But you still eat because it is necessary to do so.

Likewise, it is inevitable that people across the state will have legal issues that they must confront and steps that they need to take to protect their interests. Not every issue is a bet-the-multi-billion-dollar-company proposition. Sometimes they are as simple as navigating the end of a difficult landlord-tenant relationship, creating a will, or working through a marital dissolution with modest community assets. Just as there is a need to eat, there is a need to address these situations and a host of others.

The question we grapple with as a profession and as a society is what panoply of options we offer those who are in need of legal assistance. Allowing nonlawyer legal professionals expanded abilities to assist consumers of legal services is one creative path to ensuring access to justice for all Californians. Several states already have such "paraprofessional" programs, and several others, including California, are actively considering them. And there are valid, and even compelling, reasons for this consideration.

It is indisputable that we have a significant justice gap in California and not enough lawyers to address it. Contrary to what may be assumed, that portion is not limited to the truly poor; many moderate-income individuals do not receive legal assistance, despite the desire for it. The 2019 California Justice Gap Study concluded that Californians received no or inadequate help for 85% of their problems. There are a myriad of reasons for this, including uncertainty whether it was a legal issue, a decision to simply deal with the problem without help, worry about cost, uncertainty regarding where to find help, and fear of pursuing legal action.

In addition to the consumer perspective, there is a relative certainty that the current population of legal service providers, which is limited to lawyers, is also insufficient to assist a large segment of those in need of legal assistance: individuals who simply cannot afford the average cost of legal services, which averaged $338 per hour in 2020 for a California lawyer. To address this supply issue, the state would need an estimated 9,000 more legal aid attorneys, or to have every licensed lawyer provide an additional 240 hours per year of pro bono services. In other words, a profession that is also simultaneously facing a wellness crisis would essentially need every lawyer to add roughly another hour to every weeknight they work during the year. Adding legal professionals beyond lawyers to the currently available pool would almost certainly have an impact on this rather dire situation.

Many lawyers ask the same legitimate questions about the proposal: What does it really mean to license a legal paraprofessional and will it endanger my own practice?

There is little question that a new paraprofessional licensing program would mean lawyers do not have a virtual monopoly on the provision of legal services. But lawyers know that industries are not meant to be monopolized; they have fought many an antitrust battle to establish that very point. Equally critically, many hold the view that it is unlikely that new paraprofessional entrants into our legal community would be direct competition for lawyers. Indeed, California lawyers have managed to coexist with legal document assistants since 1998, when Gov. Pete Wilson signed Senate Bill 1418. And they have also dealt with other professions providing limited legal services, such as the negotiation of real estate purchase and sale agreements.

It is anticipated that a new class of licensed paraprofessionals would largely work in the context of law firms, side-by-side with attorneys. Lawyers may even charge more for their own services because they can delegate more of their less-sophisticated work to the paraprofessionals. Clients may save money overall because of the reallocation of the workload. Far from being competition for lawyers, licensed paraprofessionals may enhance existing law practices, while at the same time filling gaps not covered by California-licensed lawyers.

Paraprofessional programs are not without precedent. A couple of months ago, in another Daily Journal article, we discussed some of the regulatory changes in Utah and Arizona, including the licensing of paraprofessionals. In its literature, Arizona compared licensed paraprofessionals to nurse practitioners in the medical field. The Arizona Task Force on the Delivery of Legal Services commented that the program goals "should be to increase access to justice and protect consumers of legal services," and noted that the effectiveness of such a program might be measured by competence and usage. The task force commented that other measures of effectiveness might include reduced burden on courts from self-represented litigants, improvements in procedural justice, improvements in litigation understanding, and improved litigant outcomes such as reduced cost for limited legal services and increased satisfaction of ultimate legal outcomes.

There is, of course, no certainty these paraprofessional programs will succeed. Washington's limited license legal technician program was voted to be closed in 2020 approximately eight years after its adoption. Though there were differing opinions on what led up to various hurdles, the effect of having but a single practice area that was never expanded and the difficulty in finding training led to having only 45 limited license legal technicians in the entire state, with only 39 listed as active as of June 2020. So, while the success of the programs like that of Arizona remain to be seen, the motives for setting up such program are well-intentioned and well-documented. And with support of the legal community, California's legal service providers should stand a good chance of avoiding such a fate. And they should be incentivized to do so.

The debate on this issue is not expected to end anytime soon, but those who are on the fence should carefully consider the plight of clients who are in the lower- to mid-income brackets. The fight is not about whether they engage a lawyer or a paraprofessional, since funding a lawyer was not a realistic option for them. Rather, the choice comes down to whether they engage a paraprofessional, represent themselves, or leave their legal issues unaddressed. Though the analogy is imperfect, dining at a Michelin star restaurant is not a viable option for many and does not even cross their mind as one that's on the table.

Perhaps less obvious, the inclusion of paraprofessionals in the legal marketplace -- even those who hang their own shingle -- can likely benefit California's lawyers by providing more exposure to legal services. Keeping in mind that only 16% of respondents attributed worry about cost to why they did not use legal services, the other major rationale -- uncertainty about whether or where to find help -- is really a marketing issue. Paraprofessionals provide not only an affordable option to those who have first-time legal issues, but are also another group to market the importance of obtaining professional legal assistance.

Those who may be opposed to licensing paraprofessionals opine that the failure of these new entrants may negatively impact public perception of the industry as a whole. That is why it is important that this is set up correctly. Accordingly, the California Paraprofessional Program Working Group's Sept. 23 report endeavors to set up a system aimed at success. It provides for specific subject matter education and training for licensure; work in practice areas of needs but with prohibitions of working on complex or risky issues; mandates for bonds, a client security fund, continuing legal education, and regulation; hearing panels for enforcement of regulation that parallels the state's lawyer disciplinary system; and work to ensure the public understand the limited scope of the paraprofessional license. The devil is in the details, and the State Bar of California has carefully considered these details already.

In an era of pandemics, wildfires, a fluctuating economy, complex and evolving laws, and a rapidly changing society, ensuring that every Californian has access to legal services is more critical than ever. Continuing to be creative, and testing out programs such as paraprofessional licensing, is important in today's environment. We owe it to the people of California who need access to our system of justice to provide them with a menu of options. 

#364629

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