A TERRIBLE SOLUTION TO A VERY REAL PROBLEM

Access to justice is an enormous issue in our country. While we pride ourselves on being a “nation of laws,” the fact of the matter is that many people are unable to equitably access our justice system. What does that mean? It means someone with a legal problem, meaning someone who could either benefit or be hurt by legal action, being able to timely and affordably access the appropriate level of legal assistance and a fair and efficient court process to resolve their issue on the merits.

What good is it to be a country that prides itself on the rule of law if many of our fellow citizens cannot access those systems of justice we have created?

Numerous proposals have been floated as to how to solve this problem: making courts more user friendly, accessible, and welcoming; increasing education and outreach so that people recognize the justice system as a mean of solving disputes that is available to them; expanding organizations like legal aid and public defenders offices that provide legal assistance to low and moderate-income individuals.

Another proposal involves allowing non-lawyers to perform some of the tasks that presently can only be performed by lawyers. There is some sense to this proposal. Bar associations do not just exist to regulate the profession, they have a long history of acting as, essentially, a trade association for lawyers and fighting to maintain their member's monopoly on performing certain kinds of services. There are some services that are far more ministerial than say conducting a jury trial that could certainly be performed by trained non-lawyers.

The California State Bar, however, has proposed the worst version of this solution. It has proposed allowing non-lawyers to offer actual legal advice as “paraprofessionals”, not merely assisting others in accessing the justice system, but offering advice that until now only a lawyer could legally offer. Think of it as similar to nurse practitioners in the medical field. The problem is nurse practitioners have significant training, not quite that of doctors, but pretty close to it. So where would we find these “paraprofessionals?” What training would be required? This is where it gets mind-numbingly stupid.

The proposal calls for the requirement of a Juris Doctorate or LLM (a masters in the law) to become a paraprofessional. Who goes to law school and does not become a lawyer? People who failed the bar exam, usually multiple times.

Now look, the bar exam is not easy, but it frankly is not that hard. If you’ve spent the time and money to attend law school and haven’t been able to pass the bar on repeated tries, you are not someone I want giving legal advice to people.

Add to that that the people this program hopes to serve are likely to be very unsophisticated clients with little experience in the legal system and you run the risk that they may not even know the person advising them is not a lawyer. It also creates further incentive for people to take on crippling debt to attend the state’s already too numerous unaccredited law schools that do far too little to prepare their students for the bar or a career in the law.

It is overall a terrible idea that serves neither the lawyers nor the public. The State Bar needs to come to its senses.