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Nonlawyers seeing bigger roles in helping litigants

If it was not obvious before, the impact that the COVID-19 pandemic had on court proceedings — and the subsequent backlog of cases — highlighted just how many people have legal claims. That number does not include the people who may want to file a claim but are unable to afford a lawyer. Several states are attempting to address this gap in attaining justice by allowing nonlawyers to help litigants in certain matters.

Legal representation pricing varies by state, area within the state, and subject matter. But even for relatively simple matters, the bill can quickly get out of reach even for those in the middle class as the nation grapples with inflation. Divorces in Minnesota can range from a few thousand dollars to $10,000 and upward.

Although there are several legal aid organizations and law school clinics offering pro bono services, those organizations have become incredibly overwhelmed. This leaves many people who may need an attorney with the decision to chance it and do it themselves or potentially take out a loan to get representation.

Minnesota, Arizona, Oregon, Utah and Washington all have programs that have been developed to provide a middle ground — limited legal help on certain common legal issues citizens face. Minnesota joined this initiative in 2021, greenlighting the Legal Paraprofessional Pilot Project. The Minnesota Judicial Branch noted that in certain matters, parties were without representation between half or almost all of the time. Legal paraprofessional assistance was promoted as a way for those previously unrepresented individuals to have access to quality representation. The legal paraprofessionals can provide legal advice and, in some instances, represent a client in court on landlord-tenant disputes and family law disputes.

Utah has also promoted the expansion of non-lawyer representation. Rule 14-802 of the Rules Governing the Utah State Bar permits licensed paralegal practitioner (LPP) to practice law in certain areas of licensure. These areas including certain family law matters (such as custody and support), forcible entry and detainer, and debt collection where the dollar amount does not exceed the statutory limit for small claims. In Utah small claims court, an individual can be represented by an employee of a company, or the court can give permission for a non-lawyer to represent the individual so long as the non-lawyer is not being paid. They are permitted to file certain forms, review court documents, and represent clients in mediation. However, the LPP cannot argue in court on behalf of a client.

Just recently, in July 2022, Oregon became the latest state to allow legal paraprofessionals to provide legal services in certain practice areas. The Oregon State Bar has been developing a licensed paralegal program since 2017. These paraprofessionals will be able to provide limited services in landlord and tenant cases and family law matters, which are two areas with the greatest unmet need in Oregon. Their program will go into effect next July.

As many as 10 other states are looking to implement certain programs. But not everyone is on board. In California, there has been fierce pushback against two groups exploring whether looser regulations regarding legal services could make things more equitable. One of those groups is determining whether nonlawyers can provide limited legal services. In June 2022, the California Senate Judiciary Committee amended the state bar’s annual funding bill to constrain those groups.

Washington state — the state that pioneered the Limited License Legal Technicians program in 2012 — stopped issuing new licenses in 2020. The program was the first in the United States to allow paraprofessionals to give legal advice without a lawyer’s supervision, so long as the advice was in the family law area. Washington Supreme Court Chief Justice Debra L. Stephens cited “overall costs of sustaining the program and the small number of interested individuals” as the reason for sunsetting the program. The Washington State Bar Association urged the end of the program, claiming that it cost $1.3 million to run the program from 2013-2019 while the revenue was significantly lower than that. Those LLLTs in good standing can stay licensed and provide services.

There has been pushback in Minnesota against legal paraprofessional representation in certain family law matters such as OFP and HRO cases. Organizations such as the Minnesota State Bar Association Family Law Section and Domestic Abuse Committee, the St. Paul and Ramsey County Domestic Abuse Intervention Project, and the Standpoint and the Minnesota Coalition Against Sexual Assault pointed out the complexities present in many family law proceedings. They raised concerns that legal paraprofessionals lacked the training of actual attorneys, potentially negatively impacting victims.

Ultimately, the programs in all of these states are relatively nascent. It is unclear whether they are the answer to addressing the gap in legal representation present not just in Minnesota but nationally. Nevertheless, Minnesota does have the distinction of being one of the first states to try and bridge the gap.