The Case for Licensing Paralegals

A State Bar Commission has recommended that non-lawyers be allowed to give legal advice in the areas of bankruptcy, family law and landlord-tenant law.

Under the proposal, individuals licensed as “independent paralegals” would be able to do such things as fill out legal forms in uncontested divorce cases, advise clients on personal bankruptcy procedures and draft court documents to be filed in eviction cases. Paralegals, however, could not represent you in court.

The independent paralegals would be regulated by the Department of Consumer Affairs, subject to oversight by the state Supreme Court, which now oversees the regulation of attorneys. Currently, it is unlawful for any non-lawyer to engage in the practice of law.

The 10-member Commission on Legal Technicians was formed one year ago at a meeting during which the State Bar Board adopted a resolution finding that “there is an overwhelming unmet need of California residents for better access to the legal process.”

The commission’s work followed a State Bar Public Protection Committee’s 1988 recommendation that non-lawyers be allowed to render legal advice but not hold themselves out as attorneys.

This new scheme differs from the earlier proposal by proposing a strict regulatory framework, including testing and educational requirements for all licensees; full disclosure to clients of the non-lawyer status of the paralegal; a client security fund to compensate victims of independent paralegal thefts; disciplinary fines and sanctions, and even a revision in state law that would prohibit unlicensed independent paralegals from suing to collect fees.

The commission found a need for this new category of non-lawyers by reviewing several sources. A survey of “pro per” filings in courts throughout the state revealed that there are large numbers of individuals who are facing the complexities of the judicial system without a lawyer. (A pro per filing is a court case filed by a person who is not represented by counsel.) In Los Angeles for example, in October, 1989, 35% of the petitioner’s filings in family law court were in pro per. In Municipal Court in the same period, 46% of the defendants’ filings in landlord tenant cases were filed without a lawyer.

The commission also cited a 1989 nationwide survey sponsored by the American Bar Assn. that found 40% of the respondents said “they had a civil legal problem for which they did not have legal assistance in the past year.”

The commission also took note of a Washington law that authorizes non-lawyers known as Limited Practice Officers to select and prepare certain legal documents relating to real and personal property transactions. Since 1984, when the law went into effect, 1,200 licenses have been issued; only 12 complaints have been received, according to the commission’s report.

The commission’s report makes a strong and persuasive argument for developing a system to allow non-lawyers to give advice on many routine legal matters. State Sen. Robert Presley (D-Riverside) has already sponsored a bill that would authorize legal technicians in 14 specialty areas. This report, like the one before it, deserves action by the State Bar.