The California State Bar currently has before it a proposal to license legal paraprofessionals (paralegals, legal document assistants, and unlicensed J.D and L.L. M. holders) to provide legal advice and, in limited instances, represent parties in court. This proposal should it pass, could have a huge impact on providing legal resources to many Californians who are involved in a civil dispute but cannot afford legal representation. The proposal states that the legal paraprofessional will be a licensed and regulated professional who can provide legal advice and representation within the authorized practice area in which they are licensed.
How is a Paraprofessional different from a Paralegal?
The difference is paraprofessionals will be licensed to practice without attorney supervision. The key words there are “without attorney supervision.” Currently, if a paralegal were to provide legal advice on any subject matter, they are committing the unauthorized practice of law and can be fined or convicted of a misdemeanor. While the paraprofessional cannot represent a party in a jury trial or criminal case, examples of tasks they could accomplish are: Clear a debt record, file a name or gender change, file a simple divorce, create custody agreements, or expunge a criminal record.
Why do we need licensed legal professionals? – Why don’t they just get an attorney?
Let me give you a hypothetical. Fred falls and breaks his leg. He has no medical insurance, so going to the hospital or urgent care is not an option. Fred can either live with the broken leg, or he can look up videos on YouTube and consult WebMD to attempt to fix the broken leg himself. Neither of those options is desirable, but that’s exactly how the current legal arena works. Many Californians cannot afford a lawyer so are deprived of essential legal resources when confronted with a legal problem. The affected parties are typically fighting for basic needs and rights, issues like fraud, health care, landlord/tenant disputes, discrimination, government benefits, adoption, and divorce. Imagine trying to navigate these waters with little to no help, while the opposing party has access to tools and resources that you cannot afford. The playing field is not level, and the chances of prevailing are slim to none.
What is the Justice Gap?
This lack of affordable legal representation that limits an individual’s access to justice is referred to as the justice gap. Some statistics provided by the State Bar of California might help illustrate the extent of this gap:
- A majority of Californians at all income levels experience at least one legal problem in a given year, yet they receive inadequate or no legal help for 85 percent of their reported legal problems.
- Nearly 12 million California adults in households earning a combined income that exceeds the limit to qualify for free legal aid experience at least one civil legal problem in a year.
- A Californian with an annual salary of $75,000 would have to work nearly 10 hours to pay for one hour of legal services at the average hourly rate of a California attorney: approximately $340 in 2020. For comparison purposes, this salary estimate is close to the median income for California firefighters.
- To fully meet the needs of Californians currently eligible for legal aid, the state would need more than 13,000 more legal aid attorneys. That’s more than eight times the current number of State Bar-funded legal aid attorneys.
Will the paraprofessional be regulated?
Every three years, Paraprofessionals will be required to post a $100,000 bond, contribute to a client security fund, and complete 36 hours of continuing legal education, including 28 hours in their practice area. They will also be required to report the fees they charge to clients. Paraprofessionals are also required to disclose to the client that they are not a lawyer and explain the client may need a lawyer if the case goes beyond the scope of the paraprofessional’s practice. The disciplinary standards will mirror the ethics rules attorneys are required to follow. Under the California proposal, paraprofessionals would have to either complete a J.D. or LL.M; or have completed a paralegal program; or be a qualified legal document assistant. They would have to undergo coursework covering court and ethics basics, legal topics specific to their practice areas, as well as 1,000 hours of practical training, testing, and finally be subjected to a moral character evaluation.
Where is the proposal now?
The State Bar is currently gathering public comment on the proposal. You can read the full report here: https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/CPPWG-Report-to-BOT.pdf and you can submit your comments to the bar here: https://fs22.formsite.com/sbcta/jkzblts9fd/index.html. Comments are due by January 12, 2022.
After the comment period and any revisions to the proposed program resulting from that process, the State Bar’s Board of Trustees will consider the final proposal in early 2022. Any proposal approved by the Board would then go to the California Supreme Court and the State Legislature for review and approval.
Amy Jo McGuigan, a paralegal at Swanson & McNamara LLP, is the Paralegal Section’s Vice-Chair.