We need to rethink how legal services are delivered to close the justice gap for those who need representation but cannot afford it.
By Constandinos “Deno” Himonas
Utah Supreme Court Justice Constandinos “Deno” Himonas helped lead his state’s effort to create licensed legal practitioners and a “regulatory sandbox” that permits innovative approaches to delivering legal services.
Ann A. Scott Timmer, Special to CalMatters
Arizona Supreme Court Vice Chief Justice Ann A. Scott Timmer headed a task force that recommended several regulatory changes adopted by the Arizona Supreme Court to innovate the delivery of legal services.
As judicial officers who are closely involved in our states’ efforts to increase access to justice, we strongly support California’s proposal to license a new group of legal professionals to help people navigate everyday legal problems.
Study after study highlights the vast “justice gap” between the need for civil legal services and the resources available to address those needs. For example, a 2020 study in Utah found that more than two-thirds of lower income respondents could not afford a lawyer if they needed one. A 2017 Arizona survey found that only 46% of households that experienced a legal problem found legal aid or a private attorney.
The situation is just as dire in California, where a comprehensive 2019 survey found that 55% of Californians at all income levels experienced at least one civil legal problem in their household. Yet they received inadequate or no legal help for an astonishing 85% of those problems.
This justice gap is unacceptable. And it’s growing.
The legal profession must consider regulatory reform if we ever hope to make progress on this long-standing, intractable problem.
This gap has real consequences for people struggling to resolve their problems, whether it’s getting a divorce or getting a conviction expunged. This gap also puts judges in the difficult position of trying to help unrepresented litigants understand complicated court rules and procedures.
Over the years, the legal profession has tried to tackle the problem by encouraging attorneys to provide pro bono service and lobbying government to increase funding for legal aid and self-help centers. While we can’t abandon those important efforts, it’s clear that these traditional solutions are barely chipping away at the problem.
Notably, Americans spent more on Halloween costumes for their pets in 2014 than the federal government spent on civil legal aid. And according to a 2016 ABA report, “U.S. lawyers would have to increase their pro bono efforts … to over nine hundred hours each to provide some measure of assistance to all households with civil legal needs.”
Something is fundamentally wrong with our system. We need to rethink how legal services are delivered. Such comprehensive overhaul requires regulatory reform.
Other professions have accomplished regulatory reform, and we should be guided by their experience.
For example, in the medical field many of us have grown accustomed to seeing a nurse practitioner instead of a doctor for routine medical care. We realize that we don’t always need someone with a doctor’s training level.
The same can be said of legal services. Our current system relies on highly trained and highly compensated attorneys. But for many common situations, a legal professional with the proper training and experience could provide appropriate advice and counsel. These situations include debt collection, landlord-tenant disputes and some family law problems.
It’s important that regulatory reform allow for shared ownership between lawyers and the other professionals who are licensed to provide legal assistance. Encouraging these partnerships will help drive down prices and ensure that a lawyer’s services are available if needed. And consumers will benefit from having access to affordable legal help.
One of the biggest challenges is overcoming opposition from the legal community itself. We understand why some lawyers might worry. This is a natural reaction when people feel their income is being threatened, even if, as here, that fear is largely unjustified.
To them, we emphasize that consumers, many of whom are our friends, family and neighbors who would be served by this new breed of legal professional, would not otherwise hire lawyers. We also remind them that our obligation is to our community and the greater good and not our bank accounts.
Indeed, the preamble to the ethics rules provides that, “The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”
And the consumer very much wants this representation. A poll in Arizona found that more than 80% of the public favored a new tier of legal service provider.
In the end, we believe that a rising tide lifts all boats, and expanding access to justice will ultimately boost the legal profession as well as the consumers who are desperate for help.