Should Nonlawyers be allowed to represent clients in legal proceedings?
By Brian S. Kabateck
The legal community is embroiled in a debate over a proposal to allow nonlawyers to practice law and own law firms. Recently the State Bar of California’s Board of Trustees gave a preliminary go-ahead to a proposed “paraprofessional” program. The public now has several weeks to weigh-in on the plan. Proponents claim that changes to the law would ensure that the public, especially those in the low-income/middle-class market, has increased access to the justice system. While that sentiment is noble, there’s concern that a focus on profits and a lack of oversight will negatively impact consumer protection.
The Orange County Register recently reported that The State Bar had seized a O.C.-based business after an investigation found that the owner of the business was not licensed to practice law in the state yet was helping clients in various areas of law. The investigation also found that SoCal Latino Legal Services and Ortega Legal Services, which typically worked with mostly Spanish-speaking clients, had misled hundreds of people seeking her legal help. In one example provided, a client paid the primary owner of the business, Erika Ortega, over $2,000 for help in their legal case, even though Ortega was not allowed to provide legal services out of her scope. Ms. Ortega later cut communication with the client, leaving them to face an eviction. In October, a permanent order was granted by the court, prohibiting her from providing unauthorized legal services. Unfortunately, those who engage with those who are unauthorized to practice law are left without the financial stability to seek other professional help.
According to Bloomberg Law this is the fourth time this year the bar has seized assets from what it said were unlicensed practices.
There’s no question that underserved communities struggle to find qualified counsel and pay for legal services. In 2019, the State Bar published the California Justice Gap Study: Measuring the Unmet Civil Legal Needs of Californians, which found that 55 percent of Californians experienced at least one civil legal problem in their household each year and that people received no or inadequate legal help for 85 percent of those issues, as well as being unable or unaware of how to obtain legal aid, which led many to deal with their legal problems on their own rather than seeking an attorney’s advice. Legal services are also not always financially obtainable. Statistics show that the average hourly rate for a lawyer in the country is $284, and even the attorneys that charge far less may be too expensive for some. With this in mind, there have been recent conversations in the legal community about licensed paraprofessionals and how they can help low-income residents obtain legal services.
By definition, a legal paraprofessional is a licensed and regulated professional who can provide legal advice and representation within the authorized practice area in which they are licensed, with a designated scope of practice for each practice area. While paraprofessionals can provide legal advice and, in some instances, represent parties in court within the practice area in which they are licensed, they cannot represent parties in jury trials. In response to the report that many Californians were navigating through their legal issues without legal assistance, the State Bar proposed launching “The California Paraprofessional Program Working Group,” a paraprofessional licensure/certification program to increase access to legal services in California.
According to the report, the program would authorize qualified individuals such as law school graduates, paralegals, and legal document assistants to advise clients on a limited range of practice areas, including family and child custody matters, consumer debt, and housing. And it wouldn’t be the first to do so. States such as Washington, Oregon, Arizona, and Utah have already implemented similar programs. However, California would be the largest state to offer such services.
Some concerns about opening the floodgates to nonlawyer-owned firms are the risk of predatory and abusive behavior. Lawyers are held accountable by various state bar licensing and ethical codes, but paraprofessionals are not held to the same standards.
Opponents of the proposal argue if paraprofessionals were allowed to practice, it would most likely affect the law firms that already tend to serve the low-income/middle-class market. Others claim it could damage the public’s trust in the legal profession and put clients at risk of unqualified nonlawyers. The program would also allow licensed paraprofessionals to own a minority share in law firms, an idea that concerns many advocates.
While they may work in the same industry, paraprofessionals do not have the same training and certification as attorneys do. Their duties, responsibilities, and function in the legal system are very different. Attorneys must complete rigorous steps to practice law, including completing years of law school and passing the bar exam to obtain their qualifications. These requirements continue to be the minimum standards for practicing any law. The goal is to increase access and assistance to those most in need of legal aid, but the service should come from combined experience and training in a specific practice area. By watering down the requirements for those who practice law, it’s the clients who will suffer the most.