NHLA Director Says Pilot Program Could Help Bridge ‘Justice Gap’ in the State
By Scott Merrill
A public hearing was held Jan. 26 on a bill that would create a pilot program for non-attorneys to provide representation for people currently underserved in New Hampshire circuit courts.
The bill would allow qualified paralegals working under the authority of a licensed attorney to represent clients who earn up to 300 percent of the federal poverty level in family court and landlord-tenant matters.
State Representative Ned Gordon, the prime sponsor of HB 1343, began his testimony by reminding the committee that until the 1980s, “virtually all” litigants in divorce and custody matters were represented by attorneys.
“Now, in our circuit courts, 80 to 90 percent of the people who appear in our family division are unrepresented,” he said, adding that while the Court has established mediation programs and attempted to make the process more understandable and user friendly, “there is no substitute for legal representation.”
New Hampshire Legal Assistance Executive Director, Sarah Mattson Dustin, who also testified at the hearing, said most people involved in Circuit Court civil cases do not have an attorney.
“In the majority of family law cases, both parties represent themselves,” she said. “[And] upwards of 90 percent of tenants facing evictions are going it alone.”
NHLA, a statewide nonprofit law firm that provides free civil legal aid to Granite Staters with low incomes, already utilizes paralegals or “paralegal advocates” as they are referred to, on numerous cases, including unemployment insurance appeals, DHHS (Medicaid, TANF, Food Stamps) appeals, Social Security (SSDI and SSI) appeals, certain immigration proceedings, and others.
One example of a paralegal currently representing clients outside of court is NHLA’s, Abdoul Fofana, who does work on the Energy and Utility Justice Project. Last winter, his work allowed a man to receive much-needed heating assistance that had been denied by a Community Action Program (CAP) in Ashland.
“He was denied assistance because the CAP was stating that because he was living with a longtime friend, he was functioning as a family unit or that they were basically roommates,” Fofana said. “Once I figured out what was going on and that they had misapplied the law—it was not the same household—they ended up amending their procedure manual.”
Gordon provided various reasons why representation in court is critical for low-income individuals and for the state’s commitment to broadening the access to justice in the state.
“Non-attorneys appearing in court are not new,” he said. “We allow police officers to prosecute cases and they’re not required to have one ounce of legal training.”
Unrepresented parties, Gordon explained to the committee, are at a disadvantage when the other party has counsel in cases before the court because they are often not familiar with court rules or procedures.
“And without representation,” he continued, “parties often make unnecessary concessions in order to avoid the court proceedings. And unfortunately, unrepresented parties do not understand the law and how it may apply to them.”
Gordon testified that the financial cost of representation often prevents litigants from receiving proper representation.
“The hourly cost in and of itself may be prohibitive,” he said. “Particularly in family court matters it’s common practice to pay a retainer before an attorney will take on a case. The cost of that retainer is $3,000 or $4,000 or maybe more just for them to be represented,” he said.
The bill provides for paralegals who are qualified with a four-year degree or a paraprofessional degree with two years of experience working in the law, to work under an attorney who is insured and subject to the rules of professional conduct in the state.
The bill, which would sunset after two years if it was found to be ineffective, would be piloted in two courts in Manchester and Berlin, two cities with high populations of underrepresented people.
Those earning up to 300 percent of the poverty rate would qualify for the program. This equals $38,640 for a one-person household, $51,720 for two people, and $65,880 for three people, according to the 2021 federal poverty level guidelines.
“There are many capable paralegals out there and I don’t see this as a situation where you’re going to see a lot of people who are non-attorneys out there representing clients,” Gordon said. “It will be under the auspices of an attorney. When I was doing this type of practice, the paralegals prepared the pleadings for me—they did everything except go to court.”
Gordon said he is aware that many of his colleagues may object to the bill because they feel the public will not be well served by people who are not formally trained.
“One thing I can say is that the Bar has known about this problem for 30 years and I’d ask, what remedy have they provided?” he said. “This is not a panacea. I don’t mean to say we can do away with unrepresented clients, but [the bill] can make a dent in it.”
A few states around the country have experimented with licensing paraprofessionals to practice law. For example, Utah launched a Limited Paralegal Practitioner Licensing Program in 2018. Washington State created, and then retired, a Limited License Legal Technicians Program. Arizona offers certification for Certified Legal Document Preparers, who are permitted to draft certain litigation and non-litigation documents.
“HB 1343 is categorically different from the Utah, Washington, and Arizona models,” Mattson Dustin said. “Unlike in those states, HB 1343 does not authorize independent paraprofessional practice.” Instead, [it] simply expands what paraprofessionals can already do in New Hampshire outside of the courtroom. It requires no investment in new state licensing infrastructure, nor development of any system for professional discipline. Instead, HB 1343 leverages the existing landscape of law practice, which is comprehensively regulated by the New Hampshire Supreme Court.
“The ‘justice gap’ is a chasm,” Mattson Dustin said. “And we ought to seek every opportunity to innovate toward a future in which more people can access the legal help they need.”