Access to civil justice in California remains elusive. It could be an opportunity

By Alan Steinbrecher and Sean SeLegue, Special to CalMatters

More than half of California households had problems last year that are civil legal issues, but nearly 70% of them received no legal help.

That is one of the stark findings of the State Bar’s California Justice Gap Study.

The study, which surveyed nearly 4,000 California adults, spotlights a harsh reality: There is an enormous gap between the need for civil legal services and most people’s ability to access legal help.

Think this is only a problem for low-income Californians? Think again. The study confirms that California’s justice gap reaches well into the middle class. For a variety of reasons, legal services are out of reach for the majority of Californians.

Most Californians struggle with problems related to health, finances, and employment that have legal aspects. Other common problems include those around rental housing, foreclosure, wills and estates, family issues particularly involving children and custody, education issues, and problems accessing disability and veterans’ benefits.

Even when these problems have legal solutions, and even when people believe that their problem is having a significant impact on them, most simply do not seek or receive legal help.  Often that is because they do not perceive their problem as one with a legal solution, they are afraid of getting involved with the legal system, or they perceive legal assistance is too expensive.

Legal aid is available to low-income Californians. The State Bar provides funds to 100 legal services organizations that work valiantly to provide civil legal aid to low-income individuals and families. 

Thanks to rising interest rates, next year’s state legal aid funding totals a record $79 million, and Gov. Gavin Newsom’s budget laudably includes an additional $20 million to address housing and homelessness prevention.

But even when supplemented by pro bono representation, the existing structure cannot bridge the gap. The Justice Gap Study indicates that only 27% of low-income Californians received legal services when they needed them.

People above the income threshold for legal aid barely fared better: just 34% of them received legal services when needed. Interestingly, people who earn too much to receive legal aid are more likely to get limited assistance in the form of advice, help filling out forms, and support in negotiating an issue, but they are less likely to get full representation by a lawyer.

In short, the vast majority of Californians who have a problem that could be resolved or mitigated with a legal solution instead struggle alone with their problems. 

This is creating a crisis of confidence in the legal system and a situation that cries out for solutions. We need fresh thinking around delivery systems, regulatory reform that could stimulate the creation of new service models, experimentation and innovation.

Because the State Bar’s mission includes furthering access to legal services, we have a task force exploring these kinds of far-reaching alternatives. The State Bar Board of Trustees will begin reviewing the task force’s report and the hundreds of public comments it received in 2020. This is the beginning of an important dialog, already under way nationally and internationally, about potentially significant change.

We recognize that these kinds of changes can seem threatening to lawyers, but we encourage our fellow lawyers to be open-minded. 

The ideas under study target a market that is not being served by the current model. Some of the new ideas being studied, such as allowing software to perform tasks that could be viewed as the practice of law, may provide ways for lawyers to earn income by making apps and scaling them. 

Those same sorts of apps may enable lawyers to expand or grow their practices by leveraging technology, thereby creating a win-win, because more Californians will have access to legal services. All of this requires careful study and vetting, of course.

We in the legal system can and should do better for Californians. We hope that, with our partners in the other branches of government, we will.

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Alan Steinbrecher and Sean SeLegue, Chair and Vice-Chair, State Bar of California Board of Trustees, [email protected], and [email protected]. They wrote this commentary for CalMatters.

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