NHLA director says pilot could help bridge ‘justice gap’

A bill that would create a pilot program for non-attorneys to provide representation for people currently underserved in New Hampshire circuit courts was the subject of a NH House hearing in January.

House Bill 1343 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 landlordtenant matters.

The bill’s sponsor, Representative Ned Gordon, R-Bristol, began his testimony at the Jan. 26 hearing of the House Judiciary Committee by reminding the panel 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.”

NH Legal Assistance Executive Director Sarah Mattson Dustin told the committee that 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. “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,” on numerous appeals cases, including unemployment insurance, Medicaid, TANF, food stamps, Social Security and certain immigration proceedings.

Barriers to representation

Gordon provided various reasons 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.”

“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.

“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.

His 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 program, which would sunset after two years if it is found 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.

“I don’t see this as a situation where you’re going to see a lot of people who are nonattorneys 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.”

“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.”

Mattson Dustin said, “Unlike (models in other 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 NH Hampshire Supreme Court.”

She said “the ‘justice gap’ is a chasm, and we ought to seek every opportunity to innovate toward a future in which more people can access the legal help they need.”

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