For over a decade, Colorado has considered ways to allow nonlawyers to practice law as an avenue of addressing access to justice concerns. Now, with approval from the Colorado Supreme Court earlier this year, the state moves a step closer to allowing paraprofessionals into court to aid clients who may not be able to afford an attorney.
The idea of a nonlawyer program has existed for sometime, and multiple states across the country have instituted or attempted similar programs, as previously reported by Law Week. New York, Washington, Utah and Arizona are a few of the states, but each has different requirements, allowing different forms of practice and education.
As of last year, the Colorado Supreme Court directed the Professionals and Legal Services Subcommittee to research the possibility of allowing paralegals to become trained and licensed to provide legal services to the public — in family matters only — after licensure, exams, ethics requirements and more.
On June 3, Chief Justice Brian Boatright of the Colorado Supreme Court signed an order for PALS to develop a more detailed set of requirements for licensure of and practice by LLPs, and then create a plan to launch the program and draft rules governing the program based on their preliminary report.
“The subcommittee’s purpose is to substantially decrease the number of self-represented litigants in domestic relations cases as part of an effort to address what is commonly referred to by the bar as ‘the justice gap,’” the report states.
“The purpose of the PALS Committee is access to justice, and our hope is that we can give access to justice to the folks that are forced to represent themselves in uncomplicated domestic relations cases,” Dave Stark, chair of the Supreme Court Advisory Committee and member of the PALS committee, said.
According to the Colorado Judicial Branch’s data from 2018, there were a total of 34,364 domestic relations cases across all Colorado judicial districts. Of that, over 23,000 had no attorney involved and the case level pro se rate was set at 67%. Of the over 69,000 parties, over 51,000 were without attorneys, and the party pro se rate was 75%.
Stark said that the 75% number was shocking, and the hope of the LLP program will help to give access to justice to those individuals.
Quoting a 2017 study by the Legal Services Corporation, low-income Americans in 2016 received “inadequate or no legal help for 86% of their civil legal problems,” according to the report. Further, these individuals can’t obtain representation from Colorado Legal Services or similar programs.
“Pro bono representation has been unable to meet the legal needs of self-represented litigants, especially in family law cases, where pro bono lawyers are often reluctant to represent clients outside of their usual practice areas,” the report states.
The report has set a financial cap on LLP representation at no more than $200,000 combined net marital assets. If a case went beyond that amount, an LLP couldn’t handle the case without a licensed attorney, absent a good cause by a finding of a district court. The court could also consider the extent of access to equity in an asset to which the LLP-represented party has.
Angela Arkin, former Denver District Court Judge, JAG arbiter and chair of the Providers of Alternative Legal Services Subcommittee noted, however, that with the recent pandemic and other indicators, that $200,000 threshold could become a “moving target” adapting and moving to the economic situations of the consumer.
THE PRELIMINARY REPORT
The preliminary report from the PALS committee revealed that the subcommittee is comprised of both former and current trial and appellate judges, family lawyers, “an experienced family law paralegal/mediator,” family court facilitator, Attorney Regulation Counsel and the Supreme Court Advisory Chair.
The report outlines that the proposed program would require LLPs be licensed by the state supreme court to engage in the limited practice of domestic relations law, and that LLPs could engage in limited practice either with their own paraprofessional firm, or with a law firm.
In terms of education, qualification and training, the report states that any Colorado LLP would need one of the following degrees: a law degree; an associate’s degree in paralegal studies; a bachelor’s in paralegal studies or a bachelor’s degree in any subject plus a paralegal certificate or 15 hours’ worth of paralegal studies from an accredited school.
Beyond the simple education requirements, the LLP must complete 1,500 hours of substantive law-related experience within three years before their application — and 500 hours must be in Colorado family law, according to the report.
The LLPs would also be required to complete classes in ethics, family law (exempted by a law degree), and pass two licensing exams: the Colorado LLP Professional Ethics and Family Law examinations.
However, these educational requirements can be waived in a set transition period of three years from the date the court begins accepting LLP applications for licensure, according to the report. These LLPs must be at least 21; completed three years of full-time experience within five years before the application; 500 hours of Colorado family law; and paid the required fees.
Character and fitness are requirements of the proposed LLPs as well, according to the report. All applicants would have to undergo a review and prove they’re of good moral character with a proven record of ethical and professional behavior.
LLPs would also have to pay an annual registration fee, complete 30-hours of continuing legal education including five dedicated to professional responsibility, carry malpractice insurance, and follow, generally, the Colorado Rules of Professional Conduct for lawyers. The report suggests requiring that the conduct rules be provided to a client at the start of representation, possibly starting a discussion about the differences between LLP and lawyer representation.
The scope of LLP practice is limited to “uncomplicated domestic relations matters,” according to the report. The LLP tasks outlined in the report include client interview; post-decree motion or complaint for a temporary protection order; speaking with opposing counsel; assisting in selection of a mediator; filing documents with the court; pretrial work; completing sworn financial statements, disclosure and pattern discovery; review of documents of the other party and more.
Also, the report recommended that LLPs shouldn’t represent organizations, be precluded from filing guardianship/conservatorship actions, only be allowed to purchase other LLP practices and a prohibition on contingency fees. It also recommends similar requirements for LLPs about misconduct and disciplinary action as lawyers.
The report recommends that LLPs be required to provide pro bono services, a requirement to state they’re only an LLP, and if not working as part of a law firm include “Licensed Legal Paraprofessional” in the firm’s name.
An evaluation plan can be adopted as a piece of the larger implementation plan where relevant data could be collected and tracked starting at the time the initial LLPs are licensed and commence their work, according to the report. This could include data such as the percentage of litigants receiving legal services, satisfaction of judges on these matters and LLP performance and surveys of satisfaction from both clients and attorneys.
Arkin said that the Supreme Court’s order essentially adopted the preliminary report as a blueprint for how to proceed and kicked back how to implement what’s in the report to the PALS committee.
The process involves creating a system of licensed paraprofessionals to handle uncomplicated domestic relations cases, Stark said. To create that system quite a few things must be done, such as how to think of education and experience requirements, what kinds of ethics apply to these proposed systems and judicial coordination.
To craft the implementation plan, five working groups were created to work on different aspects of creating and implementing the system, Stark said. Each group is tasked with a different focus, and include Executive, Qualifications for Licensure, Systems in Judicial Coordination, Rules Applying to Paraprofessionals and Education and Outreach groups.
The members of the group include members ranging across the justice system from judges to paralegals and attorneys and bar associations. “We have folks really from every different corner of the justice system in Colorado, and we’re just about ready to launch into doing our work to create an implementation plan,” Stark said.
“We’re very excited,” Arkin said, adding that both the University of Denver Sturm College of Law and the University of Colorado Law School are involved in the working groups, as is the Institute for the Advancement of the American Legal System.
Arkin said that the goal was to return something on the implementation plan for approval by the Supreme Court by next fall. She added that the court wanted the process in place as soon as possible but done correctly before implementing it.