Market capitalism is not the answer to close the justice gap

There are two legal systems in California – one dispenses justice to those who can afford an attorney, the other steamrolls those who can’t. 

In an effort to close the gap in civil disputes, the State Bar of California – the agency that licenses and regulates attorneys – recently released two recommendations. One would allow software companies to market tech platforms for self-resolution of legal disputes such as divorce. The other would license a new category of legal paraprofessionals with less legal training than attorneys or paralegals and allow them to practice law without attorney supervision, which is something paralegals can’t do.  

After 15 years providing free legal services to clients with low incomes, I know the barriers to justice in California. I also know the pitfalls of allowing unregulated industries to exploit vulnerable Californians for profit. By inviting Californians to waste good money on bad legal services, the State Bar is dignifying a failure of justice we should all be fighting.

The State Bar is alarmingly off target because its recommendations ignore two of the biggest findings from its own “Justice Gap” study. Most Californians don’t know when a problem is a legal problem. And, many have concerns about the cost of legal representation. These are tremendous issues impacting our legal system, and they remain unaddressed by the State Bar.

Technology can be a helpful tool to increase access to the courts. Developed through a collaboration of attorneys, a range of organizations and UCLA’s School of Public Affairs, the online Tenant Power Toolkit assists tenants with legal documents and connects them to legal help. However, allowing tech companies and venture capitalists to turn justice into a profit-making scheme is not legal innovation. Their cost of doing business will be too steep to offer affordable legal services for families on the margins.

Just as someone representing themselves in court is no match for an attorney, retaining a paraprofessional is also a gamble. Paraprofessionals would have restrictions on court appearances, which ignores the crucial stage where legal assistance is most needed and entrenches the current inequity in our courts – self-represented litigants vs. an attorney. 

Even worse, both of the State Bar’s recommendations threaten the integrity of our legal system by allowing the provision of legal services by tech companies and paraprofessionals without legal expertise while exempting them from the ethical and fiduciary requirements governing attorney-client relationships. This startling omission reveals consumer welfare is merely an afterthought.

State lawmakers and Attorney General Rob Bonta have criticized the State Bar’s recommendations because it’s clear they will deepen the divides in our legal system. Alternatives that actually increase access to justice – including the expansion of online hearings, digital court records for convenient access, and sliding-scale fee legal services by provisionally licensed attorneys and attorney-supervised paraprofessionals – must be considered.

Innovative methods to close the justice gap are sorely needed, which is why legal service organizations push for increased access to justice through proposals like electronic court services, increased funding for legal aid and a right to counsel in civil matters such as guardianship and eviction, regardless of a person’s income. A coalition of 24 legal service organizations outlined several alternatives and improvements for the State Bar to consider. As we see it, the more attorneys and advocates working on family law issues, evictions, elder law, wage disputes and guardianship, the better. 

Ultimately, the State Bar’s recommendations invite disaster for consumers who are least able to recover from substandard legal services – seniors, non-native English speakers and low-income communities of color. Vulnerable Californians need justice, and they deserve an equal shot instead of being set up to fail.