California

California State Bar Is Thinking About Letting Nonlawyer Paraprofessionals Practice Law In Certain Areas

If the group is serious about improving access to justice by lowering the educational barrier to entry, they should lobby the ABA’s Section of Legal Education to adopt changes that would reduce the overall cost of law school by reducing course load or substituting work experience for academic credit.

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The State Bar of California’s Paraprofessional Program Working Group (CPPWG) is soliciting public comments on a proposal to allow nonattorney paraprofessionals to practice law in a limited capacity. They will be allowed to advise and represent clients only in limited landlord-tenant, family law, debt collection, and criminal law cases.

The goal is to provide a lower-cost legal professional to handle matters that mostly impact lower-income people who cannot afford to hire an attorney. For the most part, paraprofessionals will be regulated and disciplined like attorneys to ensure that they act ethically and competently. They will require a certain level of education, although it will likely be cheaper than attending a traditional three-year law school.

However, there is opposition to the proposal, mostly coming from practicing lawyers. They have criticized the need for the paraprofessional program as well as many of the proposals and recommendations.

One proposal would allow paraprofessionals to own up to 49% of a law practice with an attorney. The purpose is to allow both to work together. But workarounds can lead to the paraprofessional having the majority vote. For example, the paraprofessional can recruit multiple lawyers who will each own a small percentage of the firm. The paraprofessional could take steps to ensure that one of these lawyers will vote the same way as the paraprofessional, thus squeezing out the minority partners. The dissatisfied attorneys could leave, which could put the law firm in chaos and affect existing cases.

Or what if one of the attorneys suddenly dies or becomes ineligible to practice? The paraprofessional could end up being the majority owner unless the affected attorney’s interest in the firm automatically passes on to the remaining attorney partners.

Finally, co-ownership is not required for professionals to work together. In fact, without the ownership issues, all parties can separate without the hassle of going through the dissolution process.

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Another proposal would allow attorneys and paraprofessionals in the same firm to share fees. But fees cannot be shared if they work for different firms. Opponents argue that this will create the classic situation where the lawyer’s independent professional judgment will be affected due to financial incentives. Also, if the lawyer practices in an excluded area such as immigration, this can result in paraprofessionals getting a share of the profits from activities from areas of the law where they are not allowed to practice.

It is notable that the working group recommended excluding immigration law because undocumented migrants are typically people of limited means and will have difficulty hiring a lawyer to represent them in deportation proceedings. The stated reason for the exclusion was because the state did not have jurisdiction to authorize representation in federal courts. But letting paraprofessionals practice could raise the ire of the immigration bar who can put a serious dent to the access to justice narrative. There are many stories of unlicensed notarios who run fly-by-night operations, charge high fees but deliver little to no results. So they know firsthand the costly and possibly irreparable consequences of letting just anyone represent vulnerable immigrants.

It is also strange that the working group does not recommend imposing fee caps to paraprofessionals, especially since the goal is to improve access to justice. They argue that imposing fee caps would be unfair, market forces will keep prices affordable, would discourage people to become paraprofessionals, and may negatively impact the financial viability of the profession.

The market forces argument is questionable because increasing the supply of legal professionals does not guarantee lower prices. There are many law schools in California of various shapes and sizes, but an increase in the number of practicing attorneys in the state (especially in light of recently lowered bar passage scores) has not improved the access to justice problem. They probably assume that the paraprofessionals would charge less than a comparable attorney. While that might be the case, the paraprofessional will ultimately charge whatever their clients are willing to pay, even if their fees match those of attorneys.

Also, paraprofessionals are most likely going to run their own practices or partner with lawyers or other paraprofessionals. In these situations, they will need to pay overhead expenses to maintain the business. This can also affect how much they charge for their services and may not necessarily result in lower costs to clients.

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One of the dissenting members of the working group questioned the magnitude of the access to justice problem. He claimed that the access to justice report relied on by the group points out that two-thirds of the people with legal problems surveyed made no attempt to find an attorney. And it is unknown whether the remaining one-third who tried to find an attorney was able to retain one. This suggests that there may be a “knowledge gap” rather than a “justice gap” because the public does not know all of the legal resources available to them.

California already has a number of professional programs where nonlawyers can assist clients in certain matters, so the state bar and the government should make an effort to inform the public about these additional resources. In addition, there are unaccredited law schools that charge less tuition than ABA-accredited schools. Graduates of these schools, who likely have much smaller student debts, should be able to charge lower prices. Unfortunately, since most graduates of these schools are unable to pass the bar exam on the first try, there should be an effort to assist with bar exam preparation.

Lastly, it is worth noting a few positive findings from the CPPWG’s proposals. First, the education requirement for paraprofessionals is shorter and more focused. Law schools should consider adopting a similar model for those who are not interested in a traditional three-year program. If the group is serious about improving access to justice by lowering the educational barrier to entry, they should lobby the ABA’s Section of Legal Education to adopt changes that would reduce the overall cost of law school by reducing course load or substituting work experience for academic credit. Second, paraprofessionals are required to be proficient in trauma-informed representation, which will teach how to effectively deal with clients who are experiencing traumatic situations. A similar course should be available to lawyers as a CLE session or as an elective law school course.

The CPPWG’s proposal to allow paraprofessionals to practice law in limited cases is another attempt to improve access to justice. But it seems like the working group is proceeding on the questionable assumption that paraprofessionals will charge less than lawyers and with the attitude of “doing something is better than nothing.” A better solution could be to put in an effort to improve what already exists. For example, the expanded use of telephonic and video conferences due to COVID-19 could allow attorneys to operate at reduced cost and pass the savings on to their clients. Also, certain matters should be simplified or not require court appearances at all. Or courts can mediate payment plans for uncontested debt cases. All of these options should be considered before creating an expensive professional program that could end up only gaining the interest of a few people.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at [email protected]. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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