Licensed Paralegal Professionals: Non-Attorneys in the Courtroom?
In order to address a gap in legal services, could we see paralegals offering legal services?

by Avery Martinez
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By 2020, a handful of states across the country have taken different steps to allow non-attorneys to offer legal services to clients in certain matters. Utah, Arizona and Washington State are among the forerunners for these legal professional programs, offering different options and opportunities for licensure.

And in Colorado, one group is currently researching the possibility of paralegals becoming trained and licensed to provide legal services for the public — in family matters only, after licensure, exams, ethics requirements and more — within the state.

While nothing is set in stone, Dave Stark, chair of the Supreme Court Advisory Committee, and Angela Arkin, former Denver District Court judge, JAG arbiter and chair of the Providers of Alternative Legal Services Subcommittee, spoke with Law Week about the possibilities for licensed paralegal professionals in Colorado.

“There are many, many people in this country who simply can’t afford the kind of representation and the kinds of fees that most lawyers charge,” Stark said. “The hope is to serve that clientele with a market-based approach.”

SETTING STANDARDS

Any eventual path forward would involve training and licensing requirements. Arkin said the committee researching the topic are putting together a comprehensive proposal, “keeping in mind that these people would have to be licensed professionals.”

If the program were approved by the Colorado Supreme Court, LPPs would be legal professionals regulated by that court, Arkin said. These LPPs would have a “highly limited practice area” and required to be educated, trained, licensed, ethically compliant, annually registered and educated with CLE credits “like all legal professionals in Colorado.”

She said the LPPs would only be able to practice in the specific area of domestic relations.

The licensed paralegal professionals — referred to as LPPs though there is no formal name yet — would also have to follow ethical standards comparable to licensed lawyers, pass a written exam similar to the licensing of attorneys, Stark said. Arkin said the exam would be focused on the specific area of law and would require education and experience in this area.

The current thought on training for these LPPs would be centered around a class that could be taken at a community college, in person or online, that specifically trains for this field, Arkin said. Generally, the vision is that a person would become a licensed paralegal and through the various agencies for licensure. Then, in addition to paralegal training, the person would take classes in this specific area, ethics requirements and have a practice requirement in this area.

The practitioner would take an ethics exam and a family law exam for LPPs and have a certain level of experience in family law, before obtaining LPP licensure, she added. There is discussion of a grandfathering provision for those paralegals have been practicing for some time. Other states have included such a provision only applicable for a short number of years.

These grandfathered paralegals would still need to take an exam and qualify for licensure, but potentially not classes — on a case by case basis. It is expected that this licensing would be done through the Supreme Court of Colorado, but Arkin said that was not known for sure.

The LPPs would have annual CLE requirements, though it is unknown if it would be the same as a lawyer, and significant and solely in family law, Arkin said. It’s still unknown whether an LPP could take regular attorney CLE classes or CLEs created for their specific position. They would also have licensing fees and, like a lawyer, they must pay an annual fee, and probably an affidavit of good standing.

Arkin noted some other details and discussions are still being worked out. It is probable that these LPPs would have trust account requirements, if fees were collected from clients and fees held as lawyers do, Arkin said. Malpractice insurance was another area being researched, and it was likely some kind of malpractice coverage would exist.

The situations LPPs would be facing were what Arkin described as a “vanilla divorce.” In other words, both parties earn wages, no one has a business, no big investment accounts, no multiple properties or pensions.

The cases which an LPP could handle, at least what the committee is considering initially, would be without discovery, she added.

The committee is fairly certain that they will not propose that LPPs have “any activity in the courtroom” other than being there to support the client keeping the client from hyperventilating before the judge or translating the judge’s statements for the client, Arkin explained.

“The idea is that these folks would provide support to the person in the courtroom … and they would not be there to make argument to the court, not there to exam witnesses or anything of that sort,” Stark said. “Rather they would be there to hold their hand and to give them direction on courtroom procedures.”

The committee has a list of things they believe a licensed paralegal would not be able to handle, Arkin said. These things are situations so complicated; they can be challenging for attorneys.

“That’s a big part of this: Helping people understand the process well enough to make their own decisions about their own futures without it costing them money they don’t have,” she said.

That’s a big part of this: Helping people understand the process well enough to make their own decisions about their own futures without it costing them money they don’t have.”

Another expectation is that if one party has a lawyer and the other had an LPP, that the LPP can’t litigate, but work with the lawyer, Arkin said. The LPP could help prepare for mediation or when speaking with the lawyer, perhaps even exchange documents and provide necessary items to the court.

The thought currently is that LPPs could work in a law firm or on their own, opening their own paralegal firm, Stark said.  He also mentioned a number of other states using LPP type programs were being investigated. One such state was Utah, who has a program up and running, and the State of Arizona’s work on implementing an LPP type program.

Those approved for work in Utah are called Licensed Paralegal Practitioners, or LPPs, Arkin said. Utah LPPs are allowed to be part of firms or independent. Out of the small number of licensed LPPs in Utah, three of the four work in law firms while only one runs their own. In Washington State, from her understanding, many are independent.

By the end of 2019, there were four Utah LPPs and approximately nine others were ready to take the LPP exam earlier this year. The first class of LPPs had four people, and four others had applied for the second exam. Five others had applied for the August exam this year.

In total, and if all passed the exam, there would be 13 LPPs in Utah from their first year, Arkin said.

Opposed to Colorado, Utah has a unified bar, requiring all attorneys to be a member, and on the Utah bar website there is a page for LPPs, Arkin said.

“Their perception was, and I think they were very much correct, that there’s a huge need for these folks,” Arkin said.

UNDER-REPRESENTATION

In 2018, approximately 67% of litigants had no lawyer involved in the case at all, Arkin said.

According to the Colorado Judicial Branch’s “Cases and Parties without Attorney Representation in Civil Cases FY2018,” the number of domestic relations cases across all judicial districts totaled 34,364. Of that number, 23,810 cases had no attorney, and the case level pro se rate was set at 69%. The number of parties totaled 69,021, of which 51,646 parties were without attorneys. The party level pro se rate was at 75%.

“It’s an enormous, enormous number,” Arkin said of domestic relation cases. She added a fellow judge called it “the tsunami of cases,” meaning that each morning an overflow of domestic relations cases awaited a judge walking into work.

Many of these unrepresented litigants are wage earners, have many hoops to jump through, forms to fill out, filings to make and court appearances — and all the expectations of the court — so that both parties can have the proper information to make good decisions for their separate families moving forward.

“This is a population of folks who are not choosing between lawyer or no lawyer. They would be choosing if we’re able to create this licensed professional assistant for folks,”

“This is a population of folks who are not choosing between lawyer or no lawyer. They would be choosing if we’re able to create this licensed professional assistant for folks,” Arkin said. “They would really be choosing about going it by themselves and going it with an LPP.”

This program was designed for those who would not qualify for Colorado Legal Services, but also can’t afford an attorney. This group could range from a very short marriage to a very long marriage, but generally these are people with relatively moderate incomes and marital estates, Arkin said.

Currently, a framework is being constructed to gather feedback from the various constituencies including paralegals, attorneys, judges, educators of these professionals, community colleges and the state’s law schools. Stark added that clients would be another group.

The individuals being discussed for the LPP program were those who made above that amount and would not qualify for Colorado Legal Services, Stark said. However, these would still be individuals who could not afford lawyers at regular rates. This range could reach from between 125% of the poverty level up to 400% — possibly up to $100,000 for a family of four.

“None of this is set in stone, but we have discussed a cap on the net value of the family assets or marital estate,” Arkin said. “We are trying to come up with an amount of assets that would essentially be low enough that it really would not be the kind of case or family that would hire a lawyer and is hiring a lawyer now, arguably even for unbundled legal services.” She added Colorado was the only state she was aware of considering a marital cap.

Arkin said the value of the cap is still uncertain, but after conferring with lawyers and judges around the state, they are considering a cap of $200,000 in net assets, including property, 401(k) or other investments and subtracting debt. However, she added there are many others to speak to and information for review before making a recommendation to the court.

While Family Court Facilitators have joined the ranks and are instrumental in helping the courts, there are not nearly enough to keep up with the number of pro se parties, especially in domestic, that enter the system, Arkin said. Similarly, the Self Represented Litigant Coordinators, or SHERLOCKS, who investigate consumer related questions for pro se parties, cannot do it either.

“It’s just too many people, there’s just too many folks in our system who can’t really afford lawyers — and really find the system to be very complicated and very daunting,” Arkin said.

Many lawyers are offering unbundled legal services, and serious actions to address the topic, Arkin said, but it again is not enough to meet the need. She added she informs people about unbundled services all the time, however, many non-attorneys have never heard of such an instance.

In short, Arkin said that even if all the SHERLOCKS, FCFs, unbundled legal service offering attorneys and judges helped pro se parties, there would still be many litigants who couldn’t obtain the kind of legal assistance required for the vast majority of cases.

HISTORY

A licensed paralegal program was first investigated in 2015, Stark said. Former Attorney Regulation Counsel Jim Coyle and Stark were looking into Washington’s Limited License Legal Technicians program.

A substantive committee was formed consisting of stakeholders from across the spectrum of impacted parties — lawyers, judges, paralegals and others. This committee worked on the topic for many years until producing a report to the Supreme Court in 2019.

The court was interested in the program; however, Stark said the group was asked to take a slightly different action and investigate domestic relations matters in particular.

“One of the reasons for that is that there are so many people who try to represent themselves in domestic relations cases,” Stark said, adding that in 2018 there were about 23,000 parties who tried and did to represent themselves in such cases in Colorado.

The court saw this impact to the system and how it affects those unable to afford a lawyer and asked for a change in focus, Stark said. The court then appointed a new committee in early 2020 to start looking into domestic relations cases.

The committee hopes to propose something to the Colorado Supreme Court by next spring, Arkin said. They hope to identify and reach out for as much feedback as possible before that time.

 

This article appeared in the Sept. 28 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.