California: Get Ready to Embrace Paraprofessionals in the Law

Should California Get Ready to Embrace Paraprofessionals in the Law?

On September 21, 2021, the State Bar of California’s Board of Trustees gave its preliminary blessing to a proposed “paraprofessional” pilot program.

This follows a year long debate about whether California should allow paraprofessionals in the practice of law, what areas they should be allowed in, and what the licensing requirements would look like. The stated goal of these paraprofessionals is to close the justice gap.

For those of you unfamiliar with the term paraprofessionals — it is being used to describe an individual who is not a lawyer but will be allowed to practice law in a finite capacity. Currently, the proposal will allow paraprofessionals to “represent” clients in the following areas: Family Law (Debt Collection), Landlord / Tenant Law, and post-conviction criminal work. For now, they will not be authorized to appear in court. They will be limited to advising clients and helping with paperwork.

According to the State Bar website, in 2019, the State Bar of California, in conjunction with the NORC at the University of Chicago, completed the first-ever comprehensive study of the California justice gap, measuring the state’s civil legal needs and the difference between those needs and the resources available. This study found five main points:

1. There are two dimensions to the justice gap – a knowledge gap and a services gap.

2. In the past year, 55% of Californians experienced at least one civil legal problem yet 70% received no legal assistance.

3. Fewer than 1 in 3 Californians sought legal assistance to address their problems.

4. Even when experiencing problems that have a significant impact on them, most do not receive legal help; 27% of low-income Californians received some legal help, while 34% of middle-income individuals did not.

5. The most common categories of civil legal issues affect Californians at all income levels: health, finance, and employment.

As it stands, the paraprofessional program will undoubtedly help those who would’ve represented themselves and will most likely result in better outcomes. This is not a personal opinion – a recent study done by Stanford, which analyzed the paraprofessional program in Washington state, clearly showed that clients received better outcomes with paraprofessionals. This was true, for one reason; clients who used paraprofessionals would not have hired a lawyer in the first place. They would’ve represented themselves or gone to a “notario.” Notarios are often individuals in low-income, monolingual, Spanish communities who hold themselves out to be attorneys or legal professionals when they are neither. Often, they provide incorrect and downright harmful advice. Lawyers who practice immigration or family law have undoubtedly had to represent clients after notarios have done their damage, and those same lawyers ended up lamenting the fact that the State Bar doesn’t crack down.

The State Bar of California first began discussing this pilot program approximately 18 months ago, and over the past year, opened the committee floor to have comments from legal professionals and get their opinions. The results were overwhelmingly negative. Bar association after bar association stepped up to encourage their members to join the town hall meetings and voice their concerns.

The State Bar of California members, their respective bar associations, and multiple consumer advocacy groups believe this program will be harmful to consumers and will only result in inferior representation. The State Bar must have believed these comments to be disingenuous and simply made in the spirit of self-preservation because they almost unanimously approved the paraprofessional program — even though 80% of the comments from members were against it.

As you can see, the current program does not allow paraprofessionals to represent people in court and paraprofessionals are severely limited in their ability to advocate for their clients. So, on its face, current legal professionals shouldn’t feel any pressure that they are being replaced or on the verge of obsolescence, but that concern is out there and it’s very alarming for some. Are these areas of law just trojan horses to allow non-lawyers to infiltrate and eventually replace real lawyers? The elephant in the room question with this program — is this the beginning of the end?

The most analogous situation would be the medical industry. The promulgation of physician’s assistants and nurse practitioners has been a boon for hospitals and medical clinics but a tough hit for internal medicine doctors.

As patients, we’ve all most likely met with PAs and NPs before we get to meet with our doctor, many times we don’t even get to meet our doctor. We explain to the NP or PA what our problem is, and if the issue requires medication, they prescribe it and we are out the door without ever speaking to an MD or DO.

Is that the future of law?

It’s entirely possible.

One thing to keep in mind is that the requirements to become a licensed paraprofessional are quite daunting. You are required to have one of the following: a JD/LLM degree from an ABA or California accredited or Registered law school; or be a paralegal qualified under Business and Professions Code Section 6450(c); or a Legal Document assistant qualified under Business and Professions Code 6402.1(b). Then, you are required to have 10 CLE hours in 5 different categories; 1000 hours and a minimum of 6 months with 500 hours being in the practice area in which the paraprofessional will be licensed; pass a subject matter specific test, a professional responsibility exam, and a moral character background check.

Additionally, after being licensed, a paraprofessional must maintain a surety bond of $100,000.00, maintain continuous education of 36 hours every 3 years, and ensure compliance with all the paraprofessional’s rules of professional conduct.
With the above-mentioned requirements, will it even be worth it for a paraprofessional to go through all that, maintain proper licensing to then get paid less than a lawyer but perform legal work? For some, it will be worth it.

Now that the legal question has been answered, the next issue is economics. Some law firm owners look at this as an opportunity to replace lawyers. If they can find a paraprofessional who can perform the tasks of a lawyer at a lower cost, it’s in the best interest of their business to do so. Some larger firms will want to create teams, where 1 lawyer supervises 3 different paraprofessionals rather than a total of 4 lawyers. It only makes sense for business owners to look at the numbers and make decisions that are legal, ethical, but also best for the bottom line.

Some law firm owners believe this will lower the quality of care that a client receives and hope that other law firm owners make the mistake of replacing lawyers with paraprofessionals so that the quality of their services will be superior, allowing them to gain market share based on that.

This battle of the businesses is still a long way away. For now, paraprofessionals are stuck to certain areas of law and in a limited capacity. Lawyers, consumers, and all of us should keep a watchful eye on the program to see how the consumers react and how many changes the State Bar proposes in a few years. Hopefully the paraprofessional program solves its goal of closing the justice gap and both paraprofessionals and lawyers can live in harmony while consumers receive the benefits, but its very implausible that these changes end in a win-win.