The Colorado Supreme Court heard public comments Wednesday on a set of rules that would allow non-lawyers to represent clients in certain family court proceedings. The court’s Advisory Committee on the Practice of Law published its first draft of formal rules earlier this year to create a licensed legal paraprofessional program, or LLP program.
On Nov. 16, the court heard testimony from 15 people including attorneys, paralegals and legal service providers. Testimony was overwhelmingly supportive of the program but asked the Colorado Supreme Court to amend certain rules. The Supreme Court also received 38 written comments from both proponents and critics of the program.
The LLP program hopes to create a legal representation market for the significant number of Colorado litigants that represent themselves in domestic relations cases. According to data from the Colorado Judicial Branch, in fiscal year 2022, nearly three out of four litigants in family law cases, or 74%, represented themselves in court. Since family law cases are often, by nature, major and life-altering proceedings for those involved, the LLP program hopes to assist people navigating the court system themselves.
As head of the judicial branch, the Colorado Supreme Court is responsible for considering and implementing any rule changes to the practice of law in Colorado. The court will likely make amendments to the rules based on the input it’s received. If approved by the Supreme Court, the judicial branch will need to develop a licensing exam and regulatory framework for LLPs before the program is officially rolled out and services are available to consumers.
What Makes a Case Complicated?
One question the court was presented with was how to define a complicated family law case.
The proposed rules would limit LLPs to only representing clients in straightforward, uncomplicated cases. But as multiple people pointed out during testimony, that’s not an easy thing to define when it comes to family law.
Under the current proposed rules, LLPs would only be able to represent clients in marital dissolution cases when net marital assets are below $200,000 and allocation of parental responsibility matters when a client’s income is below a certain level. LLPs would also not be allowed to orally advocate for a client in court or represent clients in cases involving the registration of foreign orders, motions or orders for punitive contempt, allegations of common law marriage, pre-marital or post-marital agreements, matters involving trusts or matters with contested court jurisdiction. While other states have rolled out similar programs, so far none have put asset or income cap restrictions on cases LLPs can represent.
When it comes to family law, many testified, there’s no such thing as a simple case.
“I think we can all sit here and say that family law cases are complex, no matter what your situation is,” said Amy Goscha, a family law attorney and one of the founders of Kalamaya | Goscha with locations in the Denver metro area and the western slope.
Goscha said when she was initially presented with the $200,000 marital asset cap in 2020, she supported the rule but, as the Colorado real estate market skyrocketed following the pandemic she has concerns over limiting LLP representation based on that number. “I think besides looking at the net marital asset cap and the income cap, I think also what we did is we carved out specific areas that would cause complexities.”
Concerns over defining a complex case based on a fixed dollar amount were echoed by others during testimony.
Laura Landon, a paralegal at Denver law firm Senn Visciano Canges P.C. and a member of the Rocky Mountain Paralegal Association, said she would personally be excited to become an LLP but was concerned the asset caps could exclude a significant number of litigants from the market.
“As presently drafted, I would not be permitted to represent myself or anyone I know who owns a home,” said Landon. “It’s my hope that the courts and the public see the LLP profession as more than a secondary option for low-income families. Yes, the clients include people of modest means but there’s a benefit to allowing LLPs to assist at any level.” The current asset cap, she said, could exclude middle-income clients who couldn’t otherwise afford to hire an attorney.
Natalie Knowlton, an attorney and researcher on self-representation in civil litigation at the Institute for the Advancement of the American Legal System at the University of Denver, said she hopes Colorado’s LLP program won’t become a solution only for low-income litigants.
“This program is not a subsidized legal services program but it is without a doubt an access to justice initiative. It cannot and should not be viewed only as a solution for low-income individuals,” said Knowlton. “I’m concerned that the program limitations, the cap on marital assets will exclude many consumers who can or want access to services at this price point.”
When asked by the justices what an alternative solution to the current cap might be, Knowlton said she personally believes there shouldn’t be an income cap and instead scope should be limited based on the circumstances of a case and potential proceedings.
Concerns From the Family Law Bar
In over 80-pages of written feedback to the Colorado Supreme Court on the proposed program, many family law attorneys voiced concern over the creation of an LLP program.
Their points varied, but many comments expressed fears the program wouldn’t have an actual impact on pro se rates in Colorado domestic relations proceedings, that LLPs would not be qualified to handle family law cases and that there wouldn’t be enough interest under the current requirements to build a significant number of LLPs.
While testimony to the Colorado Supreme Court was overwhelmingly supportive of the LLP program, many spoke to some of the written concerns.
One solution offered by some written comments to address representation rates would be to increase funding to legal service providers in Colorado or require private attorneys to offer more pro bono services for family law litigants.
Rebekah Pfahler, the supervising attorney of Colorado Legal Services’ family and children’s unit, testified that increasing funding to organizations like hers likely wouldn’t make the same impact as the LLP program.
“While increased funding to CLS is always appreciated and necessary, this would, frankly, not fix the problem that the creation of the LLP positions is intended to address,” said Pfahler. On top of the complicated process of getting increased funding, she said that even if she could double her current team of four lawyers and one paralegal, CLS can still only offer representation to very low-income clients.
“This shuts out a huge percentage of the population of Colorado that need assistance in family law cases but cannot afford to hire private counsel but may perhaps be able to hire an LLP to guide them through their case,” said Pfahler.
James Bailey, a shareholder at Senn Visciano Canges P.C. and experienced family law attorney, said that while he appreciates concerns that LLPs might encounter cases that are too complicated for them to handle, he believes that like attorneys they will recognize when a matter is out of their scope of practice.
“I think I’m a good attorney, I think you can hear me be arrogant on that issue. And yet, consistently, I am presented with questions that I’m not competent to answer,” said Bailey. “I think it serves us well to remember that level of complexity and that answer is what we’re looking for the LLPs to say.” Bailey added he works with family law paralegals who are knowledgeable and experienced and believes many could handle family law matters competently.
Maha Kamal, an attorney with the Colorado Family Law Project and a member of the Colorado Bar Association’s Family Law Section Executive Council, addressed concerns raised by the CBA section which was split between supporting the program and opposing it.
Kamal said she believes the licensing requirements in the proposed rules, which would require LLPs to complete higher education, have a number of law and family law hours of experience, pass a licensing exam and take continuing education, would prepare LLPs adequately.
“I know that when I entered family law, which is what I exclusively practice, I didn’t have any of that experience,” said Kamal.
She added when the medical industry opened the doors to non-doctor providers like nurse practitioners and physician assistants, there was pushback from the industry about their competency. Kamal believes LLPs could take on similar roles as NPs and PAs in the legal industry. “So I don’t think it’s a dilution of law. I think it’s actually going to enhance and complement the practice of law to have LLPs by our side and to be able to refer out to them,” said Kamal.
As for arguments over the complexity of family law, Kamal said the other option to the program is to continue to allow pro se litigants to navigate complex cases without affordable legal service options.
“We are here to serve the people,” said Kamal. “We’re not here to serve lawyers … at the end of the day, we have to focus on how the law is serving the people.”