State Bar’s paraprofessional program lacks statistical support

Much has been written about the State Bar of California's proposed paraprofessional program which would allow nonlawyers to practice law in certain areas unsupervised by attorneys. We add our names to the growing list of persons opposed to the program.

The goal of the program is admittedly praiseworthy: to close the purported "justice gap."

But what is the justice gap?

The phrase comes from a 2019 report commissioned by the State Bar that concluded that 85% of Californians had "unmet" legal needs.

As explained in one of the dissents to the final report, that 85% figure is misleading. The phrase "justice gap" suggests that 85% of Californians with legal needs tried to find an attorney but could not, for whatever reason, including cost. However, of the people who responded to report, two-thirds made no attempt whatsoever to find an attorney. Of the remaining one-third of respondents (those who made an attempt to seek legal help), no attempt was made to determine if they tried to find an attorney to represent them and could not do so. Thus, the report does not identify a single Californian who tried to locate an attorney and could not find one. That question was not even asked.

The proposed paraprofessional program is also based, in part, on the premise that paraprofessionals will charge lower fees than lawyers; therefore, the program will provide more Californians with access to attorneys. But the program will not regulate fees paraprofessionals will charge. Moreover, the report did not identify (or even ask) how many Californians contacted an attorney and decided they could not afford to hire that attorney. Only 15% to 22% of respondents (based on income ranges) even identified cost as a reason for not seeking legal assistance. Those 15-22% of respondents, however, included individuals with legal problems related to personal injury, employment, and consumer protection issues where contingency counsel is already readily available to them at no out-of-pocket cost. Thus, had they made an effort to locate an attorney, presumably they could have found representation (assuming their case had minimal merit).

Notwithstanding the lack of sound statistical data to support the paraprofessional program, no one disputes that California has a significant problem with large numbers of self-represented parties. Self-represented parties tend to be clustered in certain types of cases, including family law, unlawful detainer (tenants), and consumer debt (debtor defendants). The common denominator in these cases is, for the most part, contingency representation is not available.

Given that the problem is really the large number of self-represented parties in limited areas, rather than a systemic justice gap (as most people would understand that term), a more effective approach is to address this issue through better funding for legal aid programs, self-help desks, and the like. Legal aid programs already have in place professionals licensed and competent not only to handle these cases, but also to spot issues that paraprofessionals may not spot. But many legal aid programs are severely underfunded.

One question is how many currently self-represented litigants will be able to afford hiring a paraprofessional. The short answer is that the State Bar does not know. Moreover, the paraprofessional program will be populated with primarily two types of individuals: (1) J.D. holders who have not passed the California bar exam; and (2) certified paralegals. Presumably, these individuals already provide legal services to clients by working in law firms supervised by attorneys. If they decide to become paraprofessionals, they will not be adding to the number of legal service providers; they will simply be providing legal services unsupervised by attorneys. Nor is there any reliable statistical data about how many persons are even expected to attempt to become paraprofessionals.

In short, there is no statistical evidence as to how many additional providers of legal services the paraprofessional program will create, let alone how many Californians will be able to afford their services and, thus, decrease the number of self-represented parties or the purported justice gap.

But let's assume, for the sake of argument, that the paraprofessional program will increase the number of legal service providers and that some currently self-represented parties will be able to afford to hire them when they could not otherwise afford to hire an attorney. The question then becomes: Will this benefit, however marginal, be worth the cost?

We believe the answer is no.

First, the proposed paraprofessional will create a two-tiered justice system where some individuals can afford to hire lawyers and others will hire nonlawyer paraprofessionals. While difficult to quantify, it is hard to see how this improves the California judicial system. Again, increased funding for legal aid organizations and self-help desks is a better solution.

Second, the State Bar estimates that the paraprofessional program will cost at least $1.65 million to get up and running. A comparable program in Washington was cancelled after five years when less than 30 people qualified for the program. The program cost the Washington State Bar $1.4 million.

Where the $1.65 million to fund the paraprofessional will come from is far from clear. One possibility is to increase state bar dues paid by lawyers which, in economic terms, means that lawyers will be taxed in order to fund a program for their competitors. Another possibility will be to divert the $1.65 million from the State Bar's existing budget. That would mean diverting funds from areas sorely in need of funding, primarily the State Bar's enforcement division and the administration of the bar examination.

Another possibility raised by State Bar personnel is to obtain the $1.65 million from "philanthropy." However, an earlier State Bar report suggested that the bar would seek contributions from, among other groups, the Gates Foundation, Google.org, and the Chan-Zuckerberg Initiative -- all technology company-funded entities -- to fund the paraprofessional program. Accepting funding from such sources would show that at least part of the motivation behind the paraprofessional program is to allow technology companies an entry into the California legal services market. Indeed, in 2020, the State Bar authorized the formation of a second working group, the Closing the Justice Gap Working Group, whose goal is to create a "regulatory sandbox" designed to do just that.

No matter how well intended, there are significant flaws with the proposed paraprofessional program. We urge California attorneys to oppose the paraprofessional program. Public comments are due by January 12 and can be submitted here. 