Paraprofessionals are not the way to increase access to justice

Since early fall, representatives of the State Bar of California have been Zooming across the state making presentations to various county bar associations speaking about the recommendations of the bar's Paraprofessional Task Force.

On October 13, the State Bar brought this road show to San Diego. Representatives of the State Bar made a Zoom pitch to the San Diego County Bar Association trying to sell essentially this idea: We have a justice gap in California. Not just for lower-socioeconomic people in our community, but also for the middle-class and upper-middle class. The only way to solve this problem is to allow people who are not licensed attorneys to engage in the practice of law. These otherwise unlicensed people engaged in the practice of law will be called "Paraprofessionals." Trust us. If we allow nonlawyers to practice law, this vast justice gap will be closed.

As with earlier attempts by the State Bar to allow nonattorneys to practice law -- remember the push for "Limited Licensed Legal Technicians"? -- this is a bad idea. The reasons put forth by the State Bar for why we need paraprofessionals simply are not true.

Not True: There Is a "Justice Gap"

The State Bar's opinion that there is a justice gap is based on a 2019 report, "California Justice Gap Study," done by the National Opinion Research Center, which is affiliated with the University of Chicago. The report concluded that 85% of Californians with legal problems received no or inadequate legal help. But the report doesn't break that down. Did 5% receive no help and 80% receive "inadequate help"? The report doesn't define or give an example of "inadequate help." Was all this inadequate help legal malpractice? The report doesn't say. The report also does not reference or identify a single Californian who tried to find an attorney but could not.

The report did look at "why" people did not get legal help. It found that 62% did not get legal help because they did not know that they had a legal problem or affirmatively decided (perhaps against their own self-interest) not to get legal help.

These facts show that we don't have so much of a justice gap as we do a knowledge gap. People don't know their rights. People don't know that they have a legal problem. The solution to the knowledge gap is to educate the public. The State Bar should be encouraging local bar associations to educate the public.

Not True: There Is a "Justice Gap" Because Hourly Fees Are Too high

The California Justice Gap Study concluded that part of the reason there is a justice gap is because it costs too much to retain a lawyer. The report pointed out that the average hourly fee for an attorney was $323 in 2019. (The State Bar says it is $338 in 2021.)

This "average" is deceptive. No analysis was made of the range of fees. Senior partners in some large law firms are billing at $1,350 an hour. If that hourly rate was spread over that attorney and five other attorneys, those five other attorneys would have an hourly rate of $117.60 so that all six attorneys would average $323 an hour. A rate of $117.60 an hour seems much more reasonable than $323.

Furthermore, the report rebukes its own conclusion that hourly rates are too high. Only 16% of respondents said that they didn't try to get legal help because they couldn't afford it. The State Bar doesn't want you to know that -- focus on that 85% statistic!

If it were in fact true that high hourly attorney fees are creating a justice gap that can only be closed by creating paraprofessionals, then it follows that there should be a cap on the paraprofessionals fees and hourly rates. But the State Bar's task force rejected that proposal. So, no caps on paraprofessional rates, which means that if paraprofessionals are approved, they will be able to just slightly undercut attorney fees. That does not close a justice gap; it takes existing legal work away from attorneys.

Not True: There Is no Other Way to Close the "Justice Gap"

Legal Aid Societies: The State Bar says that legal aid societies are not a solution in part because the average statewide starting salary for a legal aid attorney is $67,600 a year, while the average national starting salary for a first-year associate is $155,000.

Once again, the State Bar's conclusion is deceptive. Sure, the big law may have starting salaries of $155,000 or higher, but what about those five- to 40-attorney law firms? They are more likely to have starting salaries in a $75,000 to $90,000 range. That gap doesn't seem quite as large.

Another approach to closing the justice gap is to increase funding for legal aid societies. Those groups will tell you that if they could make those $65,600 starting salaries into $75,000 to $90,000 starting salaries, they could hire and retain more attorneys.

Rebecca M. Donaldson made an extensive analysis of Washington state's us of "Limited Licensed Legal Technicians" (another name for paraprofessionals) in her Seattle University Law Review article, "The Law by Non-Lawyers: The Limit to Limited License Legal Technicians Increasing Access to Justice." She concludes that the "model's limitations bolster the argument for the continued public and private funding of legal aid in its many forms -- non-profit organizations, law school clinics and so on."

The answer to closing the justice gap is not to allow nonattorneys to practice law, but to increase funding for legal aid societies -- i.e., people who are already working for social justice.

Pro Bono Work: The State Bar demeans the idea that encouraging attorneys to engage in pro bono work can be a part of the solution to closing the justice gap. In arguing this, the State Bar goes to the extreme in saying that every licensed attorney in California would have to provide "nearly 240 hours of pro bono annually to meet the needs of all other Californians." Once again, per the State Bar, the only solution is to allow unlicensed people to practice law.

Why cannot encouraging more pro bono work by attorneys not be part of the solution to closing the justice gap?

A May 18 guest column in the Daily Journal by former California Lawyers Association president Heather Rosing and San Diego County Bar Association President David Majchrzak, "Why do pro bono? A matter of attorney ethics," makes a persuasive argument that pro bono can help. They wrote, "While there are a lot of ideas that may ultimately assist with the fundamental lack of legal assistance that many individuals and small businesses face, the fact remains that every lawyer can -- today and now -- make a personal and individual contribution by agreeing to provide pro bono legal services to someone in need." But that isn't what the State Bar thinks. And the State Bar is wrong.

Courthouse Self-Help Centers: I live in San Diego. We have a beautiful new courthouse. If you haven't had a tour of that courthouse, or other newer courthouses throughout the state, you should. Perhaps you will be as amazed as I was at how much help is available in the courthouse for regular people. Our court has -- like many other courts around the state -- set up "self-help" centers. These centers are staffed with employees who can help people pick out the correct form and fill it out properly. This seems like a great idea and one that can substantially aid in closing the justice gap.

The State Bar does not address or even acknowledge the existence of these self-help centers at courthouses and the effect that they are having on helping to close the justice gap. It is not true that only the creation of a paraprofessional program can close the justice gap.

Incentivize Public-Interest Careers: In San Diego, California Western School of Law has an incubator program. In Los Angeles, Pepperdine Law School, Southwestern Law School and UCLA's law school all participate in the Los Angeles Incubator Consortium program. And there are others throughout the state.

In incubator programs like the one at Cal Western, recent graduates are provided assistance in setting up a solo practice. They are provided with an office (usually free) and given assistance in marketing, advertising, networking, practice management and business planning. This assistance is usually provided for 18 months. For getting this assistance, the participant agrees to provide 100 hours a month of pro bono services to the legal clinic, nonprofits, and other legal aid organizations.

Not many other law schools in the state have incubator programs. These are good programs. Instead of allowing nonlicensed practitioners to undercut the hourly rates of newer lawyers, the State Bar should be doing more to help law schools establish and maintain incubator programs. Incubator programs close the justice gap, using lawyers.

Reducing the Bar Exam Cut Score: The cut score was 1440, one of the highest cut scores in the country. In recent years, it was reduced to 1390. Those who argued for this told us that by having a lower cut score, we would have more attorneys in California, and that that was a good thing.

In arguing for paraprofessionals, the State Bar says that lowering the cut score will only result in 75 more new lawyers per year. But if 75 is it, what was the big debate all about? After pushing for a lower cut score, the State Bar now says that since it will result in only 75 more new lawyers, that is a number that is too small to make any real difference in closing the justice gap.

There are two problems with that position. First, in June 2020, the Washington Supreme Court voted to shut down its Limited Licensed Legal Technician program. By May 2020, more than five-years after the program was created, there were less than 40 LLLTs in the whole state (i.e., less than eight per year). Over a five-year period with a lower cut score, using the State Bar's number of 75 more new lawyers per year, California would have 375 more lawyers.

Second, the State Bar's number, 75 new lawyers per year, is too low. In 2020 alone, the Los Angeles Daily Journal had numerous articles on what the effect would be on reducing the cut score to 1390. See "Deans and others call for lower bar exam score to be retroactive"(July 27, 2020); "Who benefits if 1390 cut score is used for provisional licenses?" (October 23, 2020); and "Law School's study questions connection between bar exam cut score and public protection." (October 15, 2020). These articles analyzed the data and concluded that anywhere from 341.81 to 386 more lawyers would have been licensed per year when reviewing various periods ranging from five to 11 years. That is over 340 more new attorneys a year. Not 75 new lawyers a year as the State Bar now professes.

Conclusion

There are many things that the State Bar could be proposing that can work to close the justice gap. But instead of doing that, the bar proposes creating a brand-new program where people who are not lawyers can practice law. These paraprofessionals:

• Will be allowed to practice law without being supervised by an attorney (unlike physician's assistants who are supervised by medical doctors);

• Will not have capped fees;

• Will be able to charge contingency fees; and

• Will be able to have an ownership interest of up to 49% in a law firm (think about this one for a minute. Nonlawyers will share attorney fees)

Creating paraprofessionals is a bad idea. Instead of wasting time and money on creating paraprofessionals -- in Washington state, they spent close to $1.5 million on their failed program -- why doesn't the State Bar spend time and money on its backlog of unresolved disciplinary cases? That backlog has increased 87% between 2015 and 2020. Maybe the State Bar should drop this idea of creating paraprofessionals and instead spend $1.5 million to clean up the discipline backlog. That sounds like a good idea. 