by Nikki Presley Miliband and Mary-Christine Sungaila
If a State Bar proposal currently out for public comment is adopted, Orange County family law, probate (conservatorships and guardianships), landlord tenant, employment, and criminal lawyers handling criminal record expungements may soon be squaring off against licensed paraprofessionals—not lawyers—in motion hearings and at bench trials. And these same paraprofessionals may own part of their and other lawyers’ law firms.
On September 23, 2021, the State Bar of California Board of Trustees voted to submit the Final Report and Recommendations (Final Report) of the California Paraprofessional Program Working Group (CPPWG) for public comment, located at www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2022-Public-Comment/California-Paraprofessional-Program-Recommendations. This Final Report is a significant step toward allowing nonlawyers to practice law in California, forged out of concerns about access to justice and the inaccessibility of attorneys for those who cannot afford them. Orange County will be the only Southern California county in the proposed phased implementation of the program.
Several members of the CPPWG—including members of the defense and plaintiffs’ bars—dissented from the Final Report, highlighting concerns that the program was unlikely to sufficiently protect the public, and ignored or diverted funding from existing successful efforts by both legal aid organizations and the courts to address the justice gap through pro bono work and self-help clinics.
The dissenting members of the CPPWG pointed out that, even though the proposed program is depicted by its proponents as being part of “a growing nationwide movement to license nonlawyers,” in fact none of the other states to implement or consider implementing such rules went as far as these—to include so many areas of legal practice or allow for court appearances, for example. “[A] better approach,” wrote one dissenter, “would have been to address the self-represented litigant problem on a holistic basis, including evaluation of an expansion of the incredibly helpful self-help centers (which are drastically underfunded) and increased funding for legal aid associations (many of which oppose the paraprofessional program).” The State Bar of California, Final Report and Recommendations of the California Paraprofessional Program Working Group for public comment (2021) (“Final Report”), Dissent of Steven Fleischman, at 89; concerns echoed those of the Judicial Council itself at an earlier stage of the State Bar process. See Judicial Council Comment on Options for Regulatory Reforms to Promote Access to Justice (October 1, 2019).
As an author of one of the dissenting CPPWG opinions put it:
The Working Group has labored mightily and with the best of intentions to create a new licensee to help increase legal services to low-and middle-income consumers. The result is one of the largest and most expansive experiments in the legal world in decades. . . . Our legal system, while imperfect, is not so fundamentally flawed as to need a complete overhaul by creation of a non-lawyer with powers equal to that of a lawyer.
Final Report, Dissent of Carolin Shining, at 1014.
Attorneys and members of the public have an opportunity to have their voices heard by the State Bar on this important issue, which could permanently change the legal landscape in California, by submitting public comments on the various issues set forth in the Final Report by January 12, 2022.
The Proposed Paraprofessional Program
Highlights from the Final Report, which is over 1,400 pages long, include: (1) paraprofessionals will be able to provide full in-court representation of clients, with the exception of jury trials, and certain carve-outs in specific practice areas; (2) paraprofessionals and their firms will be able to hire disbarred or otherwise ineligible-to-practice-law attorneys to work for them, and graduates of ABA-accredited law schools who did not, or who do not want to, pass the bar likewise can instead seek to become paraprofessionals; (3) paraprofessionals will be able to have up to a 49% ownership interest in law firms, even in law firms that do not practice in the areas in which the paraprofessionals are licensed to practice; (4) there is no current funding source for the program, but the State Bar anticipates that the cost will be paid by “philanthropic grants” and “funders who support innovations in expanding access to justice” and/or a loan from the State Bar’s General Fund only to be repaid when/if the program is self-sustaining (in other words, using the dues paid by attorneys to create it); (5) the paraprofessional discipline system will include hearings before a panel that includes fellow paraprofessionals, with appeals to be heard by a thirteen-member Paraprofessional Licensing and Oversight Committee consisting of one judge and two attorneys, with the remainder being paraprofessionals, educators, and/or members of the public; and (6) there will be no fee caps on paraprofessionals with the exception of a one-third contingency fee cap on enforcement matters. NCBP, California Steps Closer to Licensing Paraprofessional to Provide Legal Services, Bar President, Oct. 5, 2021, https://ncbp.org/news/582847/BAR-PRESIDENT---Californias-proposed-paraprofessional-program-and-more-news-you-can-use---October-5.htm. The names being considered for these paraprofessionals include Limited License Legal Practitioner, Limited Legal Practitioner, or Limited Legal Advisor.
The Final Report outlines the parameters of the first phase of the proposed program as follows:
Areas of Practice:
Education (13 general credits needed and then additional credits for the practice area the person is seeking to be licensed):
Rules of Professional Conduct:
Implementation will be in phases. There will be a phased implementation of the programs by practice area and geography, with only Collateral Criminal, Family, and Housing initially, in six Northern California counties, three Central California counties, and one Southern California county. The target goal is to begin the program in March of 2023, after public comment, approval by the Board, approval by the supreme court, and specific legislative changes. Bar President, ABA, NCBP, October 5, 2021.
Acknowledged Risks to the Public
The Final Report acknowledges that this program will increase risks to California consumers. The Final Report (page 73) specifically notes that “the CPPWG identified the need to recommend enhanced enforcement for violations of statutes governing UPL, to counteract the potential risk of increased UPL that may arise from the implementation of the paraprofessional program.” According to the Final Report, the Regulation and Discipline Subcommittee for the CPPWG considered concerns raised by law enforcement, State Bar staff, legal services providers, and other consumer advocates, that “nonlicensed individuals may represent themselves as licensed under the new program, creating a new method to defraud the public.”
Specifically, the subcommittee identified that the following could cause increased harm to the public: (1) lack of law enforcement resources to investigate and prosecute cases; (2) lack of State Bar jurisdiction and resources to prosecute cases; (3) prosecution limited to misdemeanors in the most cases; and (4) potential client confusion regarding licensure of service providers. Based thereon, the Final Report includes the following recommended statutory changes:
During the power point presentation of the Final Report to the State Bar Board of Trustees, the CPPWG further highlighted the balancing act between increased access to justice and increased consumer risk, and proposed certain guardrails to attempt to mitigate the risk to the public
A summary of this analysis is as follows:
Bar President, NCBP ABA, October 5, 2021.
The State Bar’s Larger Efforts to Reimagine the Practice of Law
While the Final Report is a big step forward, it is hardly surprising given the State Bar’s intensified efforts, shortly after its de-unification from the organized bar, to reimagine legal representation. The stated impetus for this push is a concern that a significant percentage of Californians are not getting access to justice, and that the State Bar should act in furtherance of its mission to “support  efforts for greater access to, and inclusion in, the legal system.”
The perceived justice gap has its origin in a 2018 Legal Services Landscape Report by Bill Henderson, which led to the State Bar forming the Task Force on Access Through Innovation of Legal Services (ATILS). ATILS was charged with identifying regulatory changes that could remove barriers to innovation and enhance the delivery of, and access to, legal services. In July of 2019, the ATILS set forth for public comment numerous recommendations which included authorizing nonlawyers to provide specified legal advice and services, allowing entities providing legal or law related services to be composed of lawyers and nonlawyers, and further excepting from the unauthorized practice of law entities of technology driven services. For a more comprehensive discussion on the background of these sweeping changes, see Nikki Presley Miliband, State Bar Takes Significant Step Towards Sweeping Changes, Orange County Lawyer, July 2020, at 20.
The CPPWG and the Closing the Justice Gap Working Group are both outgrowths of recommendations from ATILS. The Closing the Justice Working Group is charged with developing a regulatory “sandbox” to evaluate possible changes to existing laws and rules that otherwise inhibit the development of innovative legal service delivery systems, which could innovate consumer technology that provides legal advice and service directly to clients. The Closing the Justice Gap Working Group’s recommendations and report are due in September of 2022.
The CPPWG was charged with developing recommendations for the creation of a paraprofessional licensure/certified program to increase access to legal services in California, which has resulted in the Final Report that is now out for public comment. The State Bar formed the CPPWG prior to the State Bar Board of Trustees’ considerations of the ATILS recommendations.
The OCBA’s State Bar Task Force
In 2018, after the de-unification of the State Bar, the OCBA formed a State Bar Task Force to monitor the ongoing changes in the legal landscape being sought by the State Bar, keep OCBA members informed of these changes, and provide thoughtful and relevant public comment in response to these proposed changes.
As our members—as well as the broader Orange County community—will be directly impacted by this most recent proposal, the Orange County Bar Association will be submitting public comment. The OCBA’s State Bar Task Force will take the lead in preparing the OCBA public comment on the Final Report, as it did with regard to the ATILS Report, which can be found here: http://www.ocbar.org/Portals/0/communications/pdfs/20190923_OCBAPublicCommentStateBar.pdf. This public comment will then be received and approved by the OCBA’s Board of Directors and/or Executive Committee before submission.
At the time this article was written, the OCBA State Bar Task Force was just beginning its research and organization of its public comment. However, a few of the issues that are likely to be raised in the public comment include:
It is important for the State Bar to hear from our individual members as well, especially individuals in the various practice areas that will initially be affected, as well as from members of the public, prior to the January 12, 2022 deadline.
Nikki Presley Miliband a past President of the OCBA, and Mary-Christine “M.C.” Sungaila, a member of the OCBA Board of Directors, are co-chairs of the OCBA’s State Bar Task Force, which seeks to educate members about the State Bar’s ongoing efforts to propose sweeping changes to the practice of law. Nikki can be reached at email@example.com. M.C. can be reached at firstname.lastname@example.org.