Colorado Supreme Court enacts groundbreaking framework for legal representation by paraprofessionals

With large numbers of Coloradans lacking legal representation in civil cases, the state Supreme Court enacted a new framework last week to create a category of professionals who can represent clients in limited circumstances without a law degree — and likely without the high costs of traditional lawyers.

"Licensed legal paraprofessionals" will soon be allowed to handle certain aspects of domestic relations cases, an area that includes divorces, custody matters and civil protection orders. Although the new rule takes effect on July 1, many more preparations must fall into place, including an LLP exam, professionalism course and changes to state law.

"We have to educate the judiciary," said Angela Arkin, a former trial judge in the 18th Judicial District who co-chaired the subcommittee that generated the new paraprofessional rule. "Come up with an education plan for judges and magistrates so they will know what these people can do and can’t do, and how to manage them in the courtroom and through the family law process."

Colorado joins a small group of states that allows paraprofessionals to take on some legal tasks that are normally the province of lawyers or self-represented parties. The positions are analogous to nurse practitioners in medicine and are in addition to — and perhaps a pipeline for — existing paralegals.

"This program is an extremely promising first step," said Elisa Overall, the executive director of the Colorado Access to Justice Commission. "This is the future of modern practice of law."

Washington became the first state in 2012 to enact an LLP program through its Supreme Court. Although it has since sunset the initiative due to low enrollment, approximately 91 paraprofessionals continue to practice under existing licenses there. In addition, Utah, Arizona, Minnesota and Oregon have authorized full or pilot programs, with other states also developing similar initiatives.

Arkin indicated that the drafters of Colorado's rule modeled it after Utah's. Surveys in Utah indicated both an interest from paralegals in obtaining paraprofessional licenses and a desire from people representing themselves to have some support from a legal expert.

"In Colorado and in most states, frankly, when a person goes into domestic relations court, there's only a judge or a magistrate or a hearing officer of some kind in that room along with the parties," said Arkin. "And attorneys, of course, help you do it right. Having a lawyer who knows about family law in the courtroom helps the judicial officer get information that may be necessary for the judicial officer to act equitably."

Approximately 74% of parties to divorce cases are unrepresented in Colorado, said Overall. The state's access to justice commission, following a 2021 listening tour, also heard reports of 80-85% of civil litigants representing themselves in some courtrooms.

The paraprofessional rule would enable LLPs to establish contractual relationships with clients, prepare case documents and advocate for clients in negotiations. They would also be allowed to sit with their clients during court proceedings, answer judges' questions and advise clients about the need for a lawyer to step in.

Although the exploration of an LLP program began in 2015, the state Supreme Court ordered a subcommittee in early 2020 to work on a proposal, then authorized the drafting of a rule the following year. In November, the justices held a hearing to receive comments on the proposed framework.

"While working at Denver District Court I witnessed the dire need of the litigants coming into the Court, that were mainly filing incomplete and incorrect Domestic paperwork which was causing a burden for the taxpayers and the Court staff to help these people," wrote paralegal Celeste Carpenter.

Around the same time, the Institute for the Advancement of the American Legal System, which is based at the University of Denver, released an overview of LLP programs, which it termed "allied legal professionals." It noted that Canada has enabled paralegals to engage in limited legal services for years. In the United States, however, non-lawyers who try to provide legal services are generally subject to punishment for the unauthorized practice of law.

"The three most common (LLP areas) that states are looking at or implementing are family law, landlord-tenant and debt collection," Michael Houlberg, an author of the report, said on the "Talk Justice" podcast this week. "Those are the three areas we have data on showing the highest levels of self-representation."

Arkin said the target date for providing LLP exams is January 2024. In the interim, there is a list of state laws and judicial rules that need to be amended to enable paraprofessionals to begin handling cases. The Office of Attorney Regulation Counsel — headed by Jessica Yates, who was part of the effort to develop the rules — will also need to investigate LLPs' "character and fitness."

Arkin estimated that while the majority of cases LLPs will handle are relatively straightforward, even "simple" divorces benefit from legal advice, in her view.

"This will be a legal profession. Licensed legal paraprofessional," she said. "Not all nurse practitioners want to be doctors. Not all nurses want to be nurse practitioners. I think there's a space for all these different folks who are interested in different levels of this."