For bargain-rate legal help, something isn’t always better than nothing

(Reuters) – At first glance, allowing specially trained non-lawyers to deliver limited legal services sounds eminently sensible.

The medical profession has licensed physician assistants and nurse practitioners. Shouldn’t law have an equivalent? Because you don’t need a brain surgeon to treat your strep throat – and you don’t need a $2,465-an-hour Supreme Court advocate to handle your landlord-tenant dispute.

As my colleague Karen Sloan reports, the California state bar is moving forward with a proposal to allow non-lawyer “paraprofessionals” to offer legal advice in limited areas such as employment, family law, housing and consumer debt without attorney supervision. In some circumstances, the paraprofessionals would also be able to make court appearances on behalf of clients.

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The goal – to reduce the access-to-justice gap and make legal services more affordable – is laudable, and a handful of bar associations across the country have been experimenting with similar ideas as well.

In New York, for example, a Manhattan federal judge this week greenlighted a program that will allow non-lawyers to offer free, narrowly-tailored legal advice to low-income New Yorkers facing debt-collection lawsuits.

California’s proposed program, however, is far more expansive, triggering concerns that it may do little to increase legal representation for people of moderate means while creating new consumer protection pitfalls.

Indeed, of more than 1,000 lawyers who submitted comments to the bar on the proposal, a staggering 90% were against it.

It’s easy to attribute some of the negativity to turf protection. Who wants a new class of competitors siphoning away clients?

But that doesn’t explain the opposition by legal aid organizations, which offer free services to low-income people and don’t need to worry about losing business or protecting their bottom line.

“We see the justice gap every day,” Leigh Ferrin, the director of legal services at the Public Law Center in Santa Ana, California, told me. “We have more clients than we can help.”

In a 2019 study, the California bar found that 55% of households in the state experience at least one civil legal problem each year but receive no or inadequate legal help 85% of the time.

Ferrin and others in the legal aid community see the unmet need, but also worry that creating a new category of legal service providers will result in “what feels like a second tier of justice,” she said. The rich would be represented by “real” lawyers, while more vulnerable populations, including people of color, people with disabilities, and people who primarily speak languages other than English, might not.

Then again, as California State Bar Executive Director Leah Wilson points out, “We have a two-tiered system of justice now.”

In family law cases, for example, Wilson told me that 80% of Californians are not represented by counsel. And little wonder – the average California lawyer’s billing rate is $400 an hour. That’s out of reach not just for low-income people, but for many in the middle class as well.

Someone who earns $75,000 a year would have to work more than 10 hours to pay for a single hour of a lawyer’s time, Wilson noted. That quickly becomes untenable.

Being represented by a trained and licensed paraprofessional rather than a lawyer may not be “a completely equal playing field,” she said. “But is it better than not having the benefit of any legal representation or advice? Yes.”

Still, critics say it’s not that simple.

The bar’s mantra is that “something is better than nothing,” Horvitz & Levy partner Steve Fleischman, a member of the 19-person working group tasked with creating the paraprofessional proposal, told me.

Fleischman parted ways with his colleagues who backed the proposal, arguing in part that the program should include “reasonable limitations on the amount of fees that can be charged to consumers.”

“Given the routine nature of many of the legal services which paraprofessionals will provide, there should be some restrictions on the amount of fees that can be charged,” he wrote in written comments included with the latest draft of the proposal.

Without such guardrails, paraprofessionals could charge the same or nearly as much as lawyers, subverting the purpose of the program, Fleischman argued.

Wilson is skeptical. “Consumers will not choose to pay someone who is not licensed as a lawyer the same as a lawyer,” she said. “You don’t expect to pay the same for a Toyota as a Mercedes.”

But what if you bought a Toyota without realizing that you could get a decent car for nothing?

In comments filed with the state bar, Ferrin’s Public Law Center and 23 other legal aid groups warn that consumers may be duped into paying “for something they cannot afford, possibly without knowing there is a free or lower-cost alternative.”

In the debt collection context, for example, the legal aid groups wrote that they “frequently see low-income clients persuaded into debt settlement plans they can ill afford or paying for services they could perform themselves without any cost if they had a little guidance.”

The legal aid groups urge the bar to scrap the paraprofessional proposal in favor of alternative initiatives such as boosting programs that help self-represented litigants or incentivize lawyers to offer “low bono” services at a variety of fee levels.

The paraprofessional proposal is not a done deal. The bar’s board of trustees will consider the latest revisions to the proposal, which notably no longer allow for paraprofessionals to jointly own a firm with attorneys. If the trustees push it forward, it will still require the approval of both the California Supreme Court and the state legislature.

Over the last 40 years, Wilson told me, the California bar has floated variations of the paraprofessional concept without success. “This is the furthest we’ve gotten,” she said.

Bar leaders deserve credit for trying to close the access-to-justice gap, but there’s another legal consideration at play: the law of unintended consequences. With such high stakes, it’s imperative to get this right.

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