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

Oct. 22, 2021

Paraprofessional opposition appears biased

I initially had no interest in accepting the Daily Journal’s request to its subscribers to submit articles either in support of or against the State Bar of California’s Paraprofessional Program. That said, I keep reading article after article from lawyers opposed to the State Bar’s Paraprofessional Program that appear biased.

Mark Baer

Mark works as a mediator and conflict resolution consultant and teaches a course on implicit bias.

I initially had no interest in accepting the Daily Journal's request to its subscribers to submit articles either in support of or against the State Bar of California's Paraprofessional Program. That said, I keep reading article after article from lawyers opposed to the State Bar's Paraprofessional Program that appear biased. My response to these articles does not imply that I support the paraprofessional program; merely that the opposition to it by lawyers seems lacking to me.

For example, Raquel Greenberg and Erin Joyce's Oct. 20 column, "Paraprofessional program will perpetuate disparities," starts as follows: "The California legal system's priority has always been public protection."

I believe that a more accurate statement is that "The California legal system's stated priority has always been public protection."

In Arash Homampuor's Oct. 4 column, "California lawyers have a duty to blow the whistle," he stated that "California has the distinction of being the only state in the country that doesn't require -- or even expect -- lawyers to 'snitch' on each other." Homampour mentioned the "extremely ignoble things" Thomas Girardi and other well-known California attorneys have done for long periods of time that were contrary to the public protection, while lawyers and the State Bar turned a blind eye.

A 2019 study found racial disparities in lawyer discipline in California. Leah Wilson, executive director of the California State Bar, said that "the state bar's discipline system needs to protect the public in a way that is fair and unbiased."

Unlike many other states, California does not specifically require lawyers to inform their clients on non-litigation options for resolving their disputes. In the absence of such a requirement, there is nothing illegal, legally unethical or otherwise inappropriate for lawyers in California not to advise their clients of non-litigation processes that might be available to them. Related thereto, consider the following excerpt from my article "The Amplification of Bias in Family Law and Its Impact" that was published in the Journal of the America Academy of Matrimonial Lawyers in 2020:

"California has no rule requiring lawyers to advise their clients of non-adversarial processes and approaches from which they could make voluntary and informed decisions. However, effective January 1, 2019, in the event that lawyers represent or consult with clients utilizing the mediation process, they are first required to obtain their clients' informed consent regarding particular risks associated with the mediation process.... On its face, this law may seem like a reasonable solution, especially considering the importance of voluntary and informed consent. However, research clearly shows that people who receive lopsided information will be biased accordingly and make decisions in accordance with such bias. This research indicates 'that people do not compensate sufficiently for missing information even when it is painfully obvious that the information available to them is incomplete.' The reason the information is 'lopsided' is because lawyers are not required to provide their clients with any other information pertaining to the pros and cons associated with any given process and approach, except with regard to this particular risk associated with mediation. As such, members of the public are 'protected' by increasing their fear of using the mediation process without providing them with any warnings of the risks associated with the adversarial process. People's biases can and do impact public policy and public policy then influences people's biases."

In an Oct. 19 letter to the Daily Journal, "Attack on use of paraprofessionals makes weak case," I incorporated a fact-checked excerpt from that same article of mine. The excerpt explained that finances are one reason why only 15% of California's population receives some or sufficient help for their civil legal issues. It included references to research showing the part of the lack of retention of lawyers involves a rejection of the services they offer.

I propose that a significant cause for the public's increasing rejection of the services lawyers offer involves how the State Bar has chosen to "protect" the public.

On top of that, as Greenberg and Joyce stated, "according to the California Justice Gap survey, Californians received no or insufficient legal help for 85% of their civil legal issues." Think about that for a moment because it means that only 15% of Californians receive some or sufficient legal help for their civil legal issues, which includes through legal aid organizations.

Is there enough time in the day for California lawyers to offer more pro-bono services to address the remaining 85%? If not, are the residents of California prepared to pay even more in taxes to fund legal aid organizations to cover that 85% of the population? Are lawyers the exclusive answer, when only one of the reasons the public is not using them for help with their civil legal issues financial? Is "access to justice" a win/lose and possibly a lose/lose paradigm? Adversarial negotiation, litigation and the adjudicative process operate under a win/lose paradigm.

As I stated in "The Amplification of Bias in Family Law and Its Impact," "the adversarial process was based upon the presupposition that it is 'the royal road to truth.' Playing to win and attempting to elicit the truth are two very different things." The first sentence of the conclusion of that article is "The importance of all of this information 'assumes that the truth matters.'"

Greenberg and Joyce set forth legitimate concerns regarding the Paraprofessional Program and admit in their article some of that which I have set forth as follows: "As the State Bar does a poor job of policing lawyers already, it is unclear how they will properly oversee paraprofessionals." What causes me to scratch my head when reading articles such as theirs is that they know such information and yet claim "The California legal system's priority has always been public protection."

Greenberg and Joyce state, "Instead of establishing this ill-considered path to justice, the State Bar must focus on licensure, regulation, and discipline of attorneys to ensure public protection." Why the binary? As I said in my letter, "these are not mutually exclusive remedies, by the way." Again, this is not to say that I do not have real concerns about the Paraprofessional Program. What I do know is that "access to justice" means different things to different people and that the research reflects that the public is increasingly coming to the belief that lawyers and the courts are not the answer to their problems, which has nothing to do with the cost of such services. Therefore, focusing on access to lawyers as the exclusive solution seems biased to me.

-- Mark Baer

Pasadena

#364737


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