State eyes new legal license for family law cases
Supreme Court’s proposal has been met with controversy
Colorado might soon see a new legal profession.
The Colorado Supreme Court is considering whether to create a new legal license that would allow non-attorneys to practice some limited areas of family law.
The controversial proposal would create a new “licensed legal paraprofessional” position: licensed experts allowed to represent clients in some divorce and child custody cases. The paraprofessionals could draft and file court documents, represent clients in mediation, accompany clients to court and answer a judge’s factual questions, though they could not examine witnesses, advocate or make arguments in court.
Proponents say the program will offer litigants a more affordable option than traditional representation by an attorney and will decrease the number of people in the family law court system who appear without any representation — currently, about 73% of litigants in domestic relations matters represent themselves, according to a 197-page proposal for a statewide licensed legal paraprofessional, or LLP, program.
“The main driver here is access to justice,” said David Stark, chair of the Supreme Court Advisory Committee on the Practice of Law. “We are attempting to close the justice gap that we have in the United States, where a large segment of the population doesn’t qualify for legal aid but nevertheless cannot afford lawyers at regular rates.”
Opponents say the effort is misguided and inexperienced or unsupervised paraprofessionals could make mistakes or offer bad advice that might create more problems for litigants in the long run.
“We (would) have people giving legal advice who can’t then go and defend that legal advice in court,” said attorney Jessica Peck. “That sets people up for failure.”
The Colorado Supreme Court is soliciting public comment on the current proposal until mid-September. Under the latest proposal, a person would have to meet particular education and experience requirements and pass a licensing exam to become a licensed legal paraprofessional. Paraprofessionals would be required to complete annual ongoing education and could be disciplined and grieved like attorneys; they would also be subject to professional ethical rules.
The licensed legal paraprofessionals would be allowed to operate independently of attorneys and could maintain their own legal practices. They could represent parties in marital dissolutions only in cases where net marital assets were below $200,000, and in custody matters only if their client’s income is below an as-yet-to-be-determined limit.
The proposed rules are designed to ensure LLPs do not take on complex cases, said attorney Maha
Kamal, who co-chaired a subcommittee focused on the program proposal. LLPs would be required to decline representation and direct potential clients to attorneys in cases outside their scope.
“They’re really intended to focus on simple domestic matters, cases that involve amicable divorce, where two parties just need help getting through a separation agreement, filing,” Kamal said. “And same on the custody end… cases where the parents are in agreement as to a parenting plan and they just need assistance getting through that, or somebody to guide them through the mediation process, which is required in family law court.”
“There is a sense of elitism”
Attorney Elizabeth Bonanno, who is president of The Metro Denver Interdisciplinary Committee, a nonprofit organization focused on family law issues, said the organization hasn’t yet taken a formal position on the proposal.
Personally, she sees a clear need for the program with so many people unable to afford attorneys, but also sees potential challenges around the minimal real-world experience requirements and lack of supervision proposed for paraprofessionals — in addition to meeting educational requirements, candidates would need 1,500 hours experience in a law setting during the three years prior to their application, including 500 hours in a family law environment.
“They’re assuming most people will be working in a law firm context, but (attorney supervision) is not required. So that’s my concern, that you come out of this program and you hang your own shingle but you don’t necessarily know what you don’t know. It happens to every brand new attorney when you come out of law school,” she said, noting that 500 hours is about three months of full-time experience.
“The concern is making sure the assistance is good and the results are well thought out,” she said. “Because otherwise, the problem that happens is on the back end, when you try to undo things that were done incorrectly. That is when it becomes more difficult for people, expensive and sometimes damage has been done that can’t be fixed.”
Only a handful of other states, including Washington, Utah and Arizona, have such paraprofessional programs, according to the report. Minnesota has a pilot program underway. The fledgling programs in those states are small: Utah has just 23 licensed paralegal practitioners two years into its program with six more candidates scheduled to sit for the exam this month; Washington has about 66 licensed legal technicians in its 6- year- old program.
Paralegals in Colorado are not licensed by the state but can be certified through various trade organizations, according to the American Bar Association.
In Utah, licensed paralegal practitioners, or LPPs, can take on any clients regardless of the clients’ incomes, program administrator AJ Torres said. The state’s program is similar to Colorado’s proposal, though in Utah paraprofessionals handle not only family law cases but also debt collection and landlord- tenant disputes, among other differences.
Torres said the program faced significant pushback from attorneys and legal associations when it was proposed.
“There is a sense of elitism being an attorney and the way they view paralegals, and also a sense of market protection,” he said. “But overall what it comes down to is the goal to serve the general public. Access to justice is more important than protecting the market.”
Stark argues that licensed paraprofessionals in Colorado would not take business from attorneys, because the average LLP client would not be able to afford an attorney.
“More geared toward resolution”
Amber Alleman, one of the first four people in Utah to become a licensed paralegal practitioner when the program came online in 2019, previously spent years working as a paralegal for an attorney. She remembers potential clients often calling to seek basic legal advice from the attorney, but then balking at her hourly rate.
“It was $400 an hour, and you could almost hear people fainting on the phone,” Alleman said. “They couldn’t imagine paying $400 an hour just to know what their rights are.”
Alleman charges $100 an hour, with a typical retainer of $1,000 for simple divorces or $2,000 for a larger custody case. She said attorneys in Utah “were mad” about the new program, and some were disrespectful to newly licensed paraprofessionals.
Attitudes have improved with time and as more paraprofessionals have entered the field, she said, but attorneys can still force her off a case over even minor disagreements by moving the case outside her limited scope and forcing her clients to hire attorneys.
“If they don’t agree to what you are doing they’ll say, ‘I’m going to file a motion,’ so that (my client) has to get an attorney, because then it will go to court,” she said. “That is what they threaten LPPs with.”
Proceedings must stay fairly amicable for her to stay on the case, she said, adding that opposing parties in her cases are usually represented by attorneys or are pro se. She’s only handled one case in the last two years in which both parties were represented by LPPs.
Since 2019, there have been no complaints filed against LPPs through Utah’s disciplinary process, Torres said. About 60% work within law firms and another 40% run their own firms, he said.
Most of Alleman’s work is in uncontested divorce cases in which the parties come up with their own agreement and she prepares the paperwork, working on behalf of one client, she said. Although Utah allows paraprofessionals to sit with clients in court, she does not, she said.
“I just don’t want to do that,” she said. “My practice is more collaborative and it’s more geared toward resolution. Fighting and going to court — there are plenty of attorneys who will do that.”