More States Turn To Paraprofessionals To Fill Justice Gap

By Aebra Coe | June 2, 2023, 7:02 PM EDT ·

two women seated on a column facing the viewer

North Carolina Justice for All Project co-founders S.M. Kernodle-Hodges (left) and Alicia Mitchell-Mercer are urging lawmakers in their state to establish a licensing program that would allow qualifying nonlawyer paraprofessionals to represent clients in discrete areas of law. Six states across the country have adopted such programs in recent years, with others taking steps to do the same. (Courtesy of Alicia Mitchell-Mercer)

After being asked to use her skills as a former paralegal to help a fellow congregant from her church obtain a civil restraining order against her husband, Alicia Mitchell-Mercer realized just how little help she could offer the woman as a nonlawyer.

While a magistrate had granted the woman a 10-day protective order after her husband allegedly held her at gunpoint overnight, Mitchell-Mercer said that the woman needed to appear in court to get the order extended to a year.

Given her background as a paralegal and court-appointed guardian, Mitchell-Mercer said her church contacted her in 2019 to see what help she could provide.

Mitchell-Mercer, however, was unable to offer anything more than moral support as the woman, "visibly shaking," was forced to sit six feet from her alleged abuser and to advocate on her own behalf.

"It really struck me. She was shaking so violently she dropped her paperwork while walking to the stand. I stood up to help her pick it up and was told to sit down by the bailiff. I couldn't even do that," Mitchell-Mercer said.

Mitchell-Mercer serves as co-founder of the North Carolina Justice for All Project, through which she's spearheading an effort in her home state to establish a legal paraprofessional licensing program. Such programs, which allow nonlawyer paraprofessionals to represent clients in discrete areas of law, have begun to spread across the U.S. in recent years.

The number of states implementing programs to license paraprofessionals to practice law has swiftly multiplied over the last three years, growing from two states to six and counting as courts seek ways to meet the legal needs of low- and moderate-income residents.

In 2019, Washington and Utah were the only two states that allowed paraprofessionals to seek licensing to practice in discrete areas of law, but now that list has ballooned. Even as Washington sunset its program, states including Arizona, Colorado, Minnesota, New Hampshire and Oregon have all joined Utah in embracing the licensing programs.

Licensed legal paraprofessionals, as they are typically called, usually take on legal work for clients in the areas of family law, landlord-tenant disputes and debt collection, but some states have allowed them to handle limited jurisdiction civil matters, criminal law, juvenile court and state administrative law.

The idea behind the programs is to create a new tier of legal service provider who can offer more help than a paralegal or court navigator, and is available to consumers at a lower price point than a lawyer. In many cases, the programs are an outgrowth of access to justice task forces or committees aimed at finding ways to meet currently unmet legal needs in the United States.

"This issue of who can practice law and how to provide legal assistance is intimately wrapped up in the fact that there are huge numbers of people who come to court without lawyers. The current system isn't satisfying that need," said Danielle Hirsch, interim court services director of the court consulting division at the National Center for State Courts.

The programs have not been without criticism, though, with some members of the bar strongly opposing the licensing programs on grounds that nonlawyers cannot provide the quality of services needed to meet client needs.

"What I think is that there are undoubtedly very complicated legal needs for which there is no substitute for a lawyer," Hirsch said in response to the criticism. "However, not everything is that way and we need to be resourceful."

The paraprofessional licensing programs in New Hampshire, Colorado and Oregon are brand-new, but in the other states with such programs, professionals are already licensed and, in some cases, have been practicing law for years now.

In Utah, there are currently 28 licensed paralegal practitioners, also called LPPs. In Arizona, there are 38 legal paraprofessionals, or LPs. And in Minnesota, there are 25 LPs, according to the three states' judicial websites.

In addition to the six states that have approved or implemented programs, at least five others are considering them, including South Carolina, North Carolina, New Mexico, Connecticut and California. Other states have implemented or are considering implementing similar programs to allow legal aid workers to provide certain legal services under the supervision of legal aid lawyers.

While the licensing process for legal paraprofessionals differs from state to state, typically applicants must meet educational or experiential requirements and then take exams that cover legal ethics and the areas of law they'd like to practice. They typically must also pass a character and fitness hurdle and complete continuing education requirements.

The professionals are usually regulated by the same authorities that regulate attorneys, and complaints of misconduct can similarly be filed with the state.

Even as more states begin experimenting with the idea, however, Washington state opted in 2020 to sunset its limited license legal technician program — the first of its kind in the nation — after eight years. According to a memo at the time by the state's chief justice, the small number of participants in the program didn't warrant its cost, although those who had already obtained licenses were permitted to continue practicing.

According to Lucy Ricca, executive director of the Deborah L. Rhode Center on the Legal Professional at Stanford Law School, the program's demise was due in part to onerous registration requirements that made it time-consuming and difficult to become licensed, blunting the impact of the program.

States working to implement programs now, meanwhile, are hoping to learn from Washington's example and find the proper balance between protecting consumers and avoiding overregulation that can make the programs too burdensome to participants, Ricca said.

"If you make the requirement to become a licensed legal paraprofessional so onerous it undermines the affordability and accessibility ... providers can't actually offer low-cost legal services independently on the back side," she said.

Law360 spoke to four licensed paraprofessionals in Utah and Arizona, and each expressed satisfaction with the licensing process they went through, and all felt that they were able to provide services to clients at a rate substantially lower than many lawyers in their community. The most common rate cited by the paraprofessionals was around $200 per hour, and many said they forgo the large retainers often required by lawyers.

The services, unless provided under the auspices of a legal aid organization, are generally aimed more toward moderate-income consumers, as opposed to those who are truly low-income.

"We know that middle-class Americans are a big part of this justice gap," Ricca said. "If we can have independent paraprofessionals meeting the needs of those people, that should be a high priority whether or not the fees are so low that low-income people can access them. We need solutions all across the spectrum."

Astle said she considers herself middle-income and is aware that she and her peers are often priced out of being able to hire a lawyer. Astle says many of her clients are teachers and nurses.

"There is this portion of the population that does not have access to justice, and gets stuck in the system and needs some help," Astle said. "When there's someone they can afford, that's a relief for them."

Each of the four licensed legal paraprofessionals whom Law360 spoke to practice in the area of family law, and all of them shared stories about how important it was for their clients — who otherwise would likely be unrepresented — to have someone advocating on their behalf in matters as potentially life-altering as custody proceedings or a divorce.

"These cases are truly pivotal and people are emotionally drained and frustrated because they don't know what to do and aren't familiar with the process," said Fitzpatrick, the Arizona LP. "Often they don't get needed information out when the judge asks them questions because they are flustered. At the end of the day they need that mouthpiece."

--Editing by Marygrace Anderson.

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Clarification: This story has been updated to clarify the timeline of Mitchell-Mercer's experience trying to help in an acquaintance's protective order proceeding.

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