For as long as the modern legal system has existed, access to justice has been a factor in how it moves and who it benefits the most. California has long been a place where wealth gap disparities in the legal system are on full display.

In the face of eviction, custody disputes and debt collection — issues that millions of Californians deal with every day — there’s no question that low income residents and those living in marginalized communities could benefit from the help of an attorney, but too often are often unable to afford one. The state is also home to many lower middle class citizens who might earn too much to qualify for free legal services but cannot afford lawyer fees.

In the area of criminal justice, when defendants who are poor are charged with crimes, they can seek representation from a public defender. But in civil cases, no such legal help exists on an equally large scale.

Sure, some attorneys may occasionally take civil cases on a contingency basis with no upfront payment. But according to The State Bar of California, approximately 70% of Californians facing civil issues in 2019 did not have legal assistance. According to a 2019 report by the State Bar–Justice Gap Study: Measuring the Unmet Civil Legal Needs of Californians–health, finance, employment and housing ranked among the most common legal problems Californians face.

“Despite efforts to increase funding and provide programmatic support and coordination, the justice gap in California persists and may be growing,” the State Bar wrote in its report. “To fully assess the scope of the problem, the State Bar conducted a multi-pronged analysis of Californians’ civil legal needs and the challenges in meeting those needs.”

To combat this issue, the State Bar began working on a solution–offering low-cost, quality legal assistance, which includes licensing paraprofessionals, as well as developing online legal resources.

Though enlisting non-lawyers to help with low-cost legal services may sound like a no-brainer in California, the prospect has generated heated debate due to the way it challenges the status quo of the legal profession. Much of the criticism comes from attorneys who oppose the competition from new legal services from unqualified practitioners who are likely to offer inferior services. The state Legislature, which determines the bar’s funding each year, has also come out against these proposals from the State Bar.

Representatives for the State Bar could not be reached for comment regarding updates on the program since public comments were fielded in January.

Though California appears to be somewhat resistant, similar legal paraprofessional programs have already been launched in other states, including Washington, Arizona and Utah. Washington’s program, which started in 2012, is the oldest, though the Washington Supreme Court last year ruled that no new licenses would be issued. California would be the largest state to embrace a program of this type.

In order to pass, the plan for paraprofessionals needs to be approved by the bar’s board of trustees, the Legislature, and the state Supreme Court in the coming weeks. The bar must also address the concerns of critics who have voiced skepticism about the need for paraprofessionals and the potential harmful impact this program could have on the state’s legal system.

Studying the Justice Gap

The State Bar’s study on the justice gap revealed that 55% of Californians experience at least one civil legal problem in their household every year, but received little to no legal help for 85% of these problems–opting to find solutions on their own instead of seeking legal help. One of the key takeaways for the bar in this study was the need for a quality paraprofessionals program with thorough regulations that would allow more public access to legal services by expanding the pool of available and affordable legal service providers.

The topic of this proposed program, which has been undertaken by The State Bar’s Board of Trustees’ California Paraprofessional Program Working Group, since 2020 has focused on defining the parameters of what a paraprofessional is.

According to the State Bar, a legal paraprofessional bears similarities to a nurse practitioner in the medical field– a licensed and regulated professional who is able to provide legal advice and representation for an the authorized area in which they are licensed to practice, working for clients in a designated scope of practice for each practice area.

They differ from paralegals in that they would be licensed to practice law without attorney supervision.

Role of a Paraprofessional

So what is a paraprofessional qualified to do? One major thing is that they will be able to provide legal advice and even represent parties in court in some cases, within their licensed practice area. However, they will not be able to represent parties in jury trials.

Areas where they would be able to provide assistance would be for issues like clearing a debt record, filing a name or gender change, assisting with wage and hour claims and enforcement of judgments or unemployment claims, filing a simple divorce, expunging a criminal record, adopting a child, or resolving a landlord-tenant dispute.

“Licensing legal paraprofessionals squarely addresses the cost component of the justice gap. These practitioners would serve the significant unmet civil legal needs of Californians who do not qualify for free civil legal aid,” the bar says in their report.

Despite methods to increase the number of fully licensed attorneys–increasing legal aid funding, pro bono work and lowering the passing score on the bar exam have been implemented, the bar says these remedies aren’t enough to reach scale.

“To fully meet the needs of Californians currently eligible for legal aid, the state would need more than 13,000 more legal aid attorneys,” the Bar says. “That’s more than eight times the current number of State Bar-funded legal aid attorneys.”

Attorney Opposition

However, opponents of the proposal say that even the educational practice training and testing requirements for paraprofessionals isn’t enough to ensure quality legal help — which in some cases is worse than having none at all.

In a January letter to the State Bar commenting on the paraprofessionals program, the California Lawyers Association raised concerns about problems this program could create for consumers in areas including immigration, bankruptcy, loan modifications, general civil and family law matters, and probate.

“Sometimes the problems that have been created cannot be fixed. When [paraprofessionals] say they can, provide significant resources may be required to remedy the harm caused by the non-lawyer who provided the initial legal advice,” the organization wrote. “In many instances this results in additional costs to clients who are obligated to pay a second time, ultimately resulting in services that are far more costly. Often it is those who can least afford to pay for the services of a lawyer who are the most susceptible to the potential harm caused by non-lawyers giving legal advice.”

For the protection of the public, the State Bar says that prospective paraprofessionals are expected to meet certain requirements to practice, including payment of a $100,000 bond, contributing to a client security fund, and completing 36 hours of continuing legal education, including 28 hours of learning in their designated practice area, every three years. Once hired, any fees charged to clients must be reported to the State Bar.

Protections for the Public

All paraprofessionals must stick to a specific practice area and, if hired, must tell their client upfront that they are not a lawyer and that their client may need to hire a lawyer if the requirements for service go beyond the scope of their practice. Financially, all services should come with low-cost or free options for clients who are financially limited. When meeting with a potential client, paraprofessionals are required to disclose whether or not they have malpractice insurance, any potential conflicts of interest they might have in working on a case and also how to file a complaint with the State Bar. Should a disciplinary issue arise, all ethics rules that govern attorney behavior apply to paraprofessionals, and all disciplinary issues will be made transparent to the public.

As part of public awareness around the program, there is a plan to launch a public education campaign that will educate Californians who use paraprofessionals about how to verify that the person is licensed, the scope of their practice area, the limitations of their abilities, and how to file a complaint.

Since public comments about the program were gathered in January, revisions and updates to the final proposal will be considered by the State Bar’s Board of Trustees in the coming weeks. If given the go-ahead, the Board would then take it to the California Supreme Court to review and approve what could be one of the most heavily debated remedies for a gap in access to California’s legal system.

© The Regents of the University of California, 2022.