December 2021 Cover Story - How the State Bar’s Paraprofessional Program May Impact the Practice of Family Law

by Steve G. Hittelman

California family law, and specifically in Orange County, is going to go through a sea change with the State Bar’s proposals to allow for paraprofessionals to engage in the (limited) practice of law.

The reader should note that this was not an “if” paraprofessionals should be providing access to justice—but “how” to go about doing that. Stakeholders who anticipated providing technological alternatives (think Zoom on steroids) or championed non-attorney investment in law practices hold sway with the State Bar. Lawyers who provided dissent (including those on the State Bar’s subcommittees) were derided as protectionist or ignored altogether. For the “Final Report” issued at the end of September, however, public comments are still open and the reader is encouraged to submit their observations and opinions to the State Bar.

The State Bar working groups moved this proposal to the implementation stage—subject to the appropriate bills going through the state legislature after review by the supreme court—so family law practitioners and the judiciary should prepare for a variety of impacts on their practices and courtrooms. This article will focus on the impact the impending program will have on the practice of family law.

The Final Report recommends creating paraprofessionals authorized to practice family law. The Report provides that the “Initial Implementation” of the paraprofessionals will be in Orange County and other Northern California counties. Specifically, the Final Report specifies the scope of the services the paraprofessional can perform. As noted in the Final Report, a paraprofessional is empowered to perform the following services, with some exceptions:

  • DISSOLUTION/SEPARATION but not Nullity matters, or Petitions based on incest, unsound mind, fraud, force, and/or physical incapacity, matters involving putative spouse establishment, and the division of quasi-marital property.

What these exclusions don’t take into account, though, is how a family law case unfolds during discovery and the Declaration of Disclosure process. Certainly, the grounds for dissolution, other than “irreconcilable differences,” are complex enough that only attorneys should deal with those matters. But whether or not someone is a putative spouse, or if a spouse acquired out-of-state property during the marriage, could mean the client can no longer use the paraprofessional for their case. It is unclear in the Final Report how these exceptions are supposed to be dealt with by the paraprofessional.

  • PATERNITY but not a Petition to establish a Parental Relationship involving Family Code Section 7612(b) or (c).

Parentage cases are already complicated enough but when you have competing presumptions under the law—such as when there are sufficient facts so that there may be more than one “presumed parent” to assert parental rights, or when there may be more than two parents for the child at issue—the case is not one to be left to a paraprofessional.

  • CHILD AND SPOUSAL SUPPORT but not spousal or domestic partner support in long-term marriages as defined by Family Code Section 4336, unless included in a Marital Settlement Agreement that does not terminate or set nonmodifiable spousal support.

Of note is that there is no recognition in the Final Report that there are cases where you have a matter that would otherwise be eligible for a paraprofessional to handle but then the long-term spousal support issue comes up. The exclusions don’t occur in a vacuum but within the broader family law case. Are we going to rely upon the paraprofessional to self-report when an excluded topic arises? Will “unbundled services” by attorneys be needed? The Final Report does not indicate how those issues would be handled.

  • CHILD CUSTODY AND VISITATION except those cases dealing with the Hague Convention of the UCCJEA.

When there is a custody dispute involving interstate or international ramifications, and dealing with out-of-state counsel, then paraprofessionals are not allowed to represent the client.

  • PROPERTY DIVISION but not Qualified Domestic Relations Orders.

The reader should note the pattern of exclusions; only licensed attorneys should handle family law matters intersecting with federal law, interstate actions, international compacts, or complex public policy conflicts.

  • DISCOVERY except for Oral Depositions, Expert Discovery, or related motions.
  • UNCONTESTED ADOPTIONS, but not adoptions arising from dependency actions or where the child has been identified as protected by the Indian Child Welfare Act.
  • UNCONTESTED CONSERVATORSHIPS AND GUARDIANSHIPS, except Guardianships established in Dependency Court for parties entitled to court-appointed counsel.
  • VIOLENCE PREVENTION (CIVIL HARASSMENT, DOMESTIC VIOLENCE, ELDER OR DEPENDENT ADULT ABUSE, GUN VIOLENCE, WORKPLACE VIOLENCE, except for the in-court representation for Domestic Violence hearings involving children, and introduction or cross-examination of expert witnesses.

The language in the Final Report does not clarify if the restriction is based upon the child being a victim of violence as compared to a percipient witness to the violence.

A paraprofessional is prohibited from performing the following services:

  • Serving as court-appointed counsel in any family law proceeding.

The Final Report also “recommends” that paraprofessionals will be able to participate in trial court hearings except in child custody proceedings after an ex parte, and at violence protection hearings involving children. For those matters, the paraprofessional is limited to an in-court advisor and someone who can answer procedural questions to the judge. In addition, a paraprofessional cannot take an expert witness’s testimony or cross-examine an expert witness.

Paraprofessionals will be required to have not only general legal education, but also thirteen hours of education specifically related to family law. In addition, paraprofessionals will be required to have a certain number of hours of experience dealing with family law matters before being eligible for a license. Interestingly, the Final Report recommends attorneys be “compensated” with MCLE credit for supervision of paraprofessionals as a way to incentivize mentorships and help the future paraprofessional obtain the experience needed to assist clients in family law.

What does that mean to the client who is seeking access to justice? There really is no “run-of-the-mill” family law case and the excluded topics surface with surprising frequency. Complexities arise as the case develops either by discovery or through the disclosure process. Based upon the Final Report, family law practitioners will have to clean up those cases where paraprofessionals are either outside of their approved topics or that the paraprofessional failed to recognize. More likely, family law attorneys will be encouraged to provide unbundled services to cover those gaps that paraprofessionals cannot practice. How this new category of paraprofessional operates is still being formulated so any input through the public comments may make the difference in the impact on family law practice.

In D’Elia v D’Elia, 58 Cal. App. 4th 415, 418 n.2 (1997), the court stated:

Family lawyers do not get the respect they deserve. In terms of the potential breadth and complexity of issues which they face, family practitioners work in one of the most, and perhaps the most, exacting and demanding areas of concentration in the law. Under California’s community property laws, every item of marital property presents a host of challenging issues. Not only must the family practitioner worry about the characterization and valuation of each asset, he or she often must consider future tax consequences involved in various items of community property. On top of that, support and custody issues involve different considerations, in which a human relationship—as distinct from a discrete event—is the subject of the litigation.

It makes some sense, then, that those family law topics that are the most complex are only to be practiced by attorneys and not paraprofessionals.

Steven G. Hittelman is managing partner of Hittelman Family Law Group and is a Certified Family Law Specialist. He can be reached at steven@hsfamilylawyer.com.