California’s debate over legal paraprofessionals is reignited

With Arizona instituting a process to let non-lawyers provide limited legal services, including in-court representation in landlord-tenant disputes, and as California faces a possible wave of unlawful detainer actions starting in January, the debate surrounding California adopting an alternative licensure process has been reignited.

Allowing paraprofessionals to serve a growing community of individuals in need of affordable representation would not only help address an unmet need but also create jobs for those who, for whatever reason, are unable to obtain a license, said Los Angeles-based Myanna Dellinger, a professor at the University of South Dakota School of Law.

"In states like California there is a huge need for legal services. But that demand is not being met by any available supply ... because most lawyers charge too much and people just can't afford them," Dellinger said.

However a coalition of nonprofit firms, including Bet Tzedek Legal Services and Public Counsel, are actively opposed to the introduction of paraprofessionals in California, especially the idea that they might advocate for low-income litigants in court. Such a program allowing for unlicensed practitioners to represent litigants in debt-related matters would widen the justice gap, not close it, Stephanie Carroll, senior staff attorney at Consumer Rights & Economic Justice, wrote in a letter to the State Bar last month.

"Allowing paraprofessionals to litigate limited civil debt collection cases will strip consumers of critical consumer protections and will institutionalize and legitimize the two-tier justice system," the letter stated. "As envisaged by the Consumer Debt Sub-Committee, limited civil debt cases -- where the vast majority of debt cases start off -- would see corporations represented by attorneys on the one hand and low-income consumer litigants defended by paraprofessionals on the other. Although debt collection complaints tend to be boilerplate ... not only are debt collection defenses myriad depending on the particular type of debt collected, but many seemingly simple debt matters can lead to affirmative counterclaims in federal court, where no paraprofessional can practice."

The State Bar has formed the Paraprofessional Program Working Group, which held its first meeting in April to discuss developing recommendations for a paraprofessional licensure program. The group is considering a few practice areas, including health care and tenants' rights, as a way of increasing access to justice for low-income immigrants. The group will deliver its final report and recommendations to the Board of Trustees by July 31, 2021.

"The Board of Trustees made exploration of a program to license paraprofessionals, whether limited license legal technicians or other paraprofessionals, a strategic objective because of its potential to help close California's significant justice gap, broadening access to legal services for low- and moderate-income Californians," Donna Hershkowitz, the bar's interim executive director, said in an email Friday. "Just as our health care system does not require every problem to be addressed by a surgeon or even an MD, consumers could benefit from a layered model of legal services."

In Arizona, those interested in becoming legal paraprofessionals would have to meet education and experience requirements, pass an abilities examination, and a character and fitness process. Successful candidates would be affiliate members of the state bar and would be subject to the same ethical rules and discipline process as lawyers, according to the Arizona Supreme Court.

While California's interest in a similar program has certainly increased in recent months, this is not the first time the bar has discussed it. In 2013, the bar formed a Limited License Working Group, which focused on allowing paraprofessionals to practice in family law.

The idea back then, according to Heather L. Rosing of Klinedinst PC, who was a member of the working group in 2013, was to expand the scope of services provided by a paraprofessional to make a meaningful impact on the justice gap, particularly in the family law arena.

"Our big challenge was that we had to balance that out with public protection, because you can't have a whole bunch of paraprofessionals running around charging affordable rates but not providing competent services," she said in April after the new working group was formed.

Also resistant to the idea of paraprofessionals advocating for renters in the courtroom, is Daniel Bornstein of Bornstein Law, who primarily represents landlords in landlord-tenant disputes and property management issues.

"While there is a goal of providing accurate and adequate representation, landlord-tenant law is really cumbersome and tricky and the idea that paraprofessionals would be able to participate in the court process, I would not be in favor of," Bornstein said. "I think there is a role for paraprofessionals to assist with documentation, which is what paralegals do already. But actually participating in public advocacy, that would not be something I would be in favor of."

Bornstein, like the coalition of nonprofit firms, said a paraprofessional program would create a two-tiered system of justice with landlords having represented professional counsel, and tenants being represented by unlicensed paraprofessionals.

The State Bar and working group is expected to hear public comments relating to the proposed program at a meeting Oct. 29.

Daily Journal Staff Writer Henrik Nilsson contributed to this article.