The Colorado Supreme Court is currently considering a new program that would allow non-attorneys to represent clients in certain family law cases.
While there appears to be widespread support of the rule changes which are meant to increase access to justice, among Colorado family law attorneys, opinions on the program are split.
The court will likely publish its final decision in the spring or summer which would open the door for non-attorneys who meet education and experience requirements to represent clients in uncomplicated cases.
Colorado’s licensed legal paraprofessional program hopes to increase access to justice for low and middle income residents who tend to represent themselves in family law proceedings. Data from the Colorado Judicial Branch found that in fiscal year 2022, 74% of litigants appeared pro se in domestic relations cases.
If approved by the Colorado Supreme Court, the proposed program would make Colorado one of several states that have extended limited scope law licenses to non-attorneys in hopes of increasing access to justice. States like Utah, Oregon, Minnesota, California and Washington have all rolled out similar programs that allow clients to obtain lower cost legal representation.
While talks about starting a limited license program in Colorado have been going on since at least 2015, the Colorado Supreme Court got the ball rolling on the proposed program in 2020 when it assembled a committee to consider the program and draft rules. The committee that researched and proposed rules, the Paraprofessionals and Legal Services Subcommittee, is connected to the state Supreme Court, but development of the program was done independently and any actual rule changes to the practice of law fall exclusively on the shoulders of the high court.
The committee released its first draft of proposed rules over the summer of 2022 to create licensed legal paraprofessionals, or LLPs, and the Colorado Supreme Court heard written and oral comments on the program.
Under the current proposed rules, non-attorneys who graduate with certain higher education degrees special to the law, have worked 1,500 hours in a professional legal setting with 500 of those in family law and pass a specially developed exam could become licensed to represent clients in certain family law cases. The program wouldn’t allow LLPs to represent complicated cases, which the rules define based on a client’s assets, cases involving novel legal questions and certain, specific proceedings. The court is in its final phase of rulemaking and is expected to publish any final rules on the program later this year.
While the program has gained support from many attorneys and organizations like Colorado Legal Services and the Institute for the Advancement of the American Legal System, some views on the program are mixed.
What Critics Are Saying
“My bigger concern is public policy, kind of on a macro level,” said W. Benjamin King, a family law attorney with Montgomery Little & Soran and a third generation attorney. King has practiced family law since he graduated from the University of Miami, Florida School of Law in 2014 and followed in the footsteps of his father who recently retired after a career as a family law attorney.
King wrote one of 38 letters to the Colorado Supreme Court about the program and was one of several family law practitioners who voiced opposition to the program.
Some written comments asked the Colorado Supreme Court to tweak some of the proposed rules, but a handful of comments were vehemently opposed to the program altogether.
Some letters to the Supreme Court written by family law attorneys called the proposal “an insult to our legal profession” and expressed fears LLPs wouldn’t have the extensive training from law school that attorneys do. Multiple family law attorneys voiced views that the LLP program has been rolled out in domestic relations law due to a misperception the practice is easier or simpler than other areas.
After holding two meetings on the program, the Colorado Bar Association’s Family Law Section Executive Council returned a split vote with seven of the 25 members supporting the program, six opposing it entirely, five opposing it as written and five abstaining from the vote.
King, who also sits on the CBA Family Law Section Executive Council, said while he understands how some family law attorneys could view the program as unfair to those who went through law school, his main concerns come down to potential risk for clients.
“Family law is a critical and complex area of the law,” said King. “It impacts Colorado families, maybe more so than any other type of litigation. At issue in these cases are people’s children, their finances and their property.”
King fears LLPs wouldn’t be qualified enough to represent clients when cases step into other, complicated corners of the law that attorneys are required to learn about in law school, like bankruptcy or criminal proceedings. “In my professional opinion, it’s not sufficient to allow these folks to essentially practice law while they’re studying this stuff in a vacuum just as it relates to maybe divorce or custody matters.”
King is also skeptical about the motives behind the program. For one, King believes the pro se statistic, 73% of litigants representing themselves in Colorado, might not be an accurate representation of on-the-ground pro se rates. King said it’s common for litigants to start a proceeding without an attorney, but later obtain counsel if a case doesn’t seem like it will resolve amicably.
King also said while LLPs have been advertised as an access to justice initiative, proponents have tried to sway attorneys who oppose the program by pointing out possible economic benefits of working with LLPs. “I don’t think the primary focus and concern is access to justice,” said King.
King thinks more family law litigants would seek attorney representation if there were cheaper options, but he believes Colorado should look at other avenues to increase access to justice such as mandated pro bono hours, increasing funding for legal services providers or encouraging attorneys to offer more limited scope representation in family law matters.
King said he wouldn’t support any version of the current LLP program. “It’s too high of an unnecessary risk for Coloradans,” he said. “I don’t think I could support it in any scenario.”
What Proponents Are Saying
Maha Kamal with the Colorado Family Law Project is co-chair of the committee that helped research and develop the current LLP proposal. Kamal has practiced family law since she graduated from the University of Denver Sturm College of Law in 2013 and opened her own practice in 2016, which offers unbundled legal services and sliding scale rates.
Kamal supports the program and hopes attorneys who are skeptical will keep an open mind if the Colorado Supreme Court adopts the program.
Kamal built her practice around creating affordable legal options for family law after seeing high rates of self represented litigants in family court. But she says the current lower cost representation services available, unbundled services, sliding scale rates and pro bono clinics, don’t address the larger issues at play in family law — affordability and scope of representation.
She says people in family law cases need more comprehensive representation options than what unbundled services or pro bono clinics can provide.
“Unbundled services rates vary wildly and it could be the same hourly rate as full representation,” said Kamal. “You’re not on the case, you’re on a part of the case.”
Kamal added that while she offers unbundled services, many family law attorneys don’t.
“It’s overwhelming, I think, and that’s why I think a lot of lawyers don’t offer unbundled services because you don’t have full control of the case.” She also doesn’t believe that mandating pro bono hours from attorneys would significantly change pro se rates in Colorado.
When it comes to concerns over the qualifications of LLPs in family law cases, Kamal says the current educational and experience requirements to become licensed will set them up to represent clients in domestic relations matters. “These people are probably going to be much more experienced than baby attorneys that are entering that field,” said Kamal.
Kamal said while she understands criticisms of the program from other family law attorneys, she hopes they will keep an open mind if the program is passed.
“I think that that’s a misplaced fear of the unknown,” said Kamal. “I think when the licensed professionals start coming out into our community, lawyers are going to start seeing the benefits of working with them, instead of against them.”
Amy Goscha was also part of the committee that developed the proposed LLP rules. Goscha has practiced family law since she graduated from Sturm College of Law in 2007 and opened her own practice, Kalamaya | Goscha, in 2018 which offers services in the Denver Metro area and the western slope with an office in Vail.
Goscha said while Colorado has taken steps to make navigating courts easier for pro se litigants — like online forms and self-represented litigant coordinators — it can still be challenging and frustrating for many. The frustration and confusion from representing yourself can trickle down to judges, court staff, attorneys and other parties, she said, and can cause headaches for pro se litigants down the line.
“Where I see the LLP program really helping this pro se statistic is for someone who’s not able to hire someone like me at a higher hourly rate, which is most family law attorneys, they could hire someone at a lower hourly rate to just get some assistance,” said Goscha. She added former pro se clients that come to her firm after a case wraps up are often seeking assistance fixing something they did incorrectly while representing themselves. “A lot of times, the issues arise from how they filled out the initial paperwork. And so that can create a lot of post decree disputes, which again, then costs more money and creates more backlog in the court.”
Goscha believes the current licensure requirements will set LLPs to adequately represent clients even without a J.D. but asks that critics keep an open mind to the program if it passes.
“The LLP program is not going to be able to wave a magic wand and resolve all the issues tomorrow,” said Goscha. “I think that practitioners aren’t looking at this like a start. This is a starting place. And it can be adjusted. If something’s not working, it can be adjusted.”