Paraprofessionals can help to fill the justice gap

By now, it is unequivocal that many people (if not most) in the United States — including those in California — do not have access to the legal advice or legal assistance they need to address their legal problems. Studies confirming this fact are legion and come from a variety of well-established organizations and experts — e.g., the California Justice Gap Study found that 55% of Californians at all income levels experienced at least one civil legal problem in their household, yet nearly 70% of them received no legal assistance. Access to affordable legal services is no longer a problem relegated only to the poor. Indeed, a new report from the Institute for the Advancement of the American Legal System’s and the Hague Institute for Innovation of Law’s joint US Justice Needs project provides data that shows access to justice is a problem that is impacting people from all walks of life, with serious social, legal, economic and political consequences.

A typical rejoinder to this crisis from some lawyers is to call for more pro bono work or more funding for legal aid. Unfortunately, the sheer scale of the problem far exceeds the ability for these to suffice. For example, using numbers from 2016, economist and law professor Gillian Hadfield estimated that it would cost upwards of $46 billion to provide just one hour of legal help to all the households in the Unites States currently facing legal problems. Alternatively, if every single one of the 1.3 million lawyers licensed in the United States were to take on all these problems, they would each have to put in 180 pro bono hours. Of course, the current average amount of pro bono hours lawyers provide is around 55, but that is only among the 52% who provided such services. In terms of funding, as the Legal Services Corporation’s president emeritus Jim Sandman has often said, federal funding for LSC, the largest funder of civil legal aid for low-income people, amounts to less than what Americans spend every year on Halloween costumes… for their pets.

Other lawyers suggest that the contingency-fee model provides enough access as is, and that reforms might disrupt that arrangement to the detriment of people in need. While the contingency-fee model no doubt provides some degree of access to people in need, it cannot sustainably address the current needs of the vast majority of people in the United States who are caught up in legal disputes. The National Center for State Courts 2015 Landscape of Civil Litigation study suggests that most cases in state court (64%) are contracts cases, driven by debt collection and landlord/tenant cases. Only 7% were tort cases, and 1% were real property cases. Three-quarters of cases resulted in judgments that were less than $5,200. To be clear, none of the reforms being considered in California or in other states contemplate eliminating the use of contingency fees or the contingency-fee model.

The contingency-fee model also doesn’t guarantee that all risk of consumer harm is eliminated. Trial lawyer Tom Girardi profited for years on the backs of the clients he was sworn to represent. As the Los Angeles Times reported, “Orphans, widows, a burn victim and other vulnerable clients who trusted Girardi to win them justice have instead lost millions of dollars apparently spent or otherwise misappropriated.” The Girardi example and others like it do not mean the contingency-fee model should be condemned (a single example, though egregious, shouldn’t get in the way of the lawyers who are actually helping through use of the contingency-fee model), but it might suggest that our status quo could use some improvement.

Reforming the rules surrounding who can practice law and give legal advice can make a massive difference in access to justice. Equipping professionals such as paralegals to provide limited-scope legal advice is a powerful step toward ensuring everyone, regardless of background or finances, can achieve the justice outcomes they desire.

That is why, in an effort to mitigate the problem, in March 2020 the State Bar of California Board of Trustees, as part of their primary function to “support [] efforts for greater access to, and inclusion in, the legal system,” established the California Paraprofessional Program Working Group. The CPPWG was charged with developing recommendations for the creation of a paraprofessional licensure/certification program to increase access to legal services in California. In September 2021, the CPPWG submitted its final report and recommendations, now open to public comment, that include the recommended scope of services, licensing requirements, and discipline system. These recommendations offer a new way forward for access to legal services, and the State Bar should approve them for the following reasons.

Licensing Requirements

One of the most voiced concerns about the creation of paraprofessionals is that they will provide second-rate services that could pose a greater risk to consumers. But the CPPWG recommendations take pains to ensure licensure is setting standards for competency. For instance, to be eligible for licensure paraprofessionals must first have a JD or LLM, be a qualified paralegal, or be a qualified legal document assistant. They must then take subject matter-specific classes, ethics and professional responsibility classes, as well as pretrial and court procedure and court advocacy classes. Paraprofessionals must also complete 1,000 hours of practical training over six or more months, with 500 hours of that training in the practice area they will be licensed. Lastly, in addition to a moral character determination, the paraprofessional must complete subject matter-specific testing and a professional responsibility exam that is modeled after the lawyers’ exam.

While many lawyers who oppose paraprofessional programs imagine all the harm that could come with new legal services providers, they somehow can’t fathom the idea that regulators could set ethical and competency standards and regulations to minimize risk (just as we do with lawyers). The specter of “notarios” is often conjured in this context, but that example misses the point entirely. Notarios are not regulated, nor are they licensed based on a specific set of qualifications. To the contrary, we have ample evidence to suggest that when regulated and monitored appropriately, as the CPPWG proposes, new service providers like independent paraprofessionals face no more consumer complaints or disciplinary action than do lawyers in traditional law firms (including those using contingency fees). Indeed, in Canada the Law Society of Ontario has been regulating independent paralegals since 2012. There are now around 10,000 independent paralegals in Ontario, with their own professional rules of conduct and licensing requirements. According to the Law Society of Ontario’s former strategic policy counsel, Will Morrison, about the same percentage of paralegals and lawyers are the subject of a complaint in any given year.

Discipline System

When it comes to consumer protection, discipline is often paired with licensing. For lawyers in California, potential clients can look on The State Bar’s website and look up a lawyer’s discipline history. While this does not determine whether a client will have a negative experience with that lawyer, it can put the client at ease knowing that there have been no major disciplinary issues to date.

The CPPWG has recommended a similar system for paraprofessionals by taking from the models of the attorney discipline system and the discipline system for professional licensing boards under the jurisdiction of the California Department of Consumer Affairs. Aside from warning letters, which are not considered discipline, all other intervention of disciplinary actions taken by the Office of Chief Trial Counsel will be made public. These type of disciplinary systems exist in other programs where nonlawyers can represent clients; as sociologist and MacArthur Genius Rebecca Sandefur’s research indicates, both the quality of outcomes and numbers of complaints are as good or better than with lawyers.

Scope of Services

In 2012, Washington State pioneered the Limited License Legal Technician, or LLLT, program. However, in 2020 the Washington Supreme Court ended it, concluding — with little evidence beyond the program’s ability to generate revenue for the State Bar — that the program did not effectively increase access to legal services. Many have since criticized this decision, pointing to the overly burdensome and restrictive design of the program as a key reason for its failure. And, as the Stanford Center on the Legal Profession found, in reality LLLTs provided legal services to many Washingtonians who would have otherwise proceeded without representation, expanded legal services to traditionally underserved communities, and improved legal outcomes for moderate means clients. Unlike Washington’s program, which was limited only to family law matters, the CPPWG expanded the eligible practice areas by including collateral criminal; consumer debt; employment and income maintenance; family, children, and custody; and housing — all areas which, as the CPPWG knows, are currently vastly underserved by lawyers now. Additionally, the CPPWG has recommended that paraprofessionals be allowed to represent their clients in court.

The variety of service areas and allowance of in-court representation will provide a great benefit to many who cannot afford full-service lawyers. Consumer debt, housing and family law have some of the highest percentages of self-representation and the outcomes of these cases can negatively affect people for the rest of their lives. With the creation of these paraprofessionals, litigants will have more options than ever to find someone who can help them navigate their case — all the way to the courtroom — for a price they can afford.

Conclusion

The access to justice crisis in California, and throughout the United States, is both real and large. It spans across multiple economic classes and it has a debilitating effect on those with legal issues. It is clear that legal aid, self-help, and pro bono work are not enough and that a new model is badly needed. The CPPWG’s recommendations on the creation of paraprofessionals who can help people who cannot afford full-service legal representation by a lawyer are an important step forward to closing the justice gap. These paraprofessionals will be able to help their clients in areas of law that will have monumental impact, including family law, debt collection, and housing issues — without coming at the cost of lawyers or the public. They will be well educated and trained in the specific areas of law they work in, with a disciplinary system to weed out bad apples every industry deals with. To fulfill its mission to support efforts for greater access to, and inclusion in, the legal system, the State Bar of California Board of Trustees should approve the CPPWG’s recommendations. 