 |
| Chris Albin-Lackey |
Almost 1400 people and organizations submitted comments on these proposals, and the large majority are negative.[2] Critics — most of them lawyers — argue that the changes would dismantle regulations that safeguard the legal profession's ethics, competence and integrity.
Some also point out that many of the proposals present a suspicious confluence of principled goals and the financial interests of big accounting and tech firms. Is this really about modernizing the legal profession and securing better access to justice, as claimed, or is it about dismantling the legal profession's rules for the sake of corporate profit?
One of the most important and contentious ideas on the table is ATILS' proposal 2.0, that nonlawyers should be able to provide "specified legal advice and services … with appropriate regulation." This is a principled response to the dire reality that millions of Americans who have legal problems face them alone, without any kind of help.[3]
Many don't know their problems are legal in nature, or can't afford to hire a lawyer. The idea behind the proposed reform is that qualified nonattorneys could give many people the advice and help they badly need, if only it were legal. This deserves to go forward, regardless of the fate of ATILS' other proposals.
The inconvenient reality facing those of us who agree with that sentiment, is that the comments ATILS received on proposal 2.0 oppose it by a margin of about five to one. It is important to take careful stock of the criticism those comments put forward, and respond to them.
Fears of Abuse and Exploitation
The Orange County Bar Association sums up the most prevalent argument against proposal 2.0, by predicting that it would lead to "an unsuspecting and ultimately unprotected public receiving legal services from unqualified and potentially unscrupulous actors." This, of course, is the very thing existing rules barring nonlawyers from the practice of law are supposed to prevent.
Proposal 2.0 isn't a fully-fledged model so much as the outline of a big idea. A key part of that idea is that there should be careful limits placed around the scope and nature of legal services nonlawyers could provide, and that regulation is essential.
But it doesn't spell out what any of that ought to look like, beyond sketching out a few alternative approaches. The devil is very much in the details here, and if the proposal is accepted it will take work to get them right.
This approach makes sense — the bar would need to embrace the principle before figuring out how to translate it into reality, and it will take time and an openness to experimentation to get it right. But the lack of detail seems to have caused a proliferation of straw man arguments among many commenters. What many of the comments respond to is a false idea that there would be no boundaries to constrain, nor mechanisms to oversee, the practice of law by nonlawyers.
"What is next[?]" asks one commenter. "Are you going to have non-doctors performing surgery?" This kind of criticism is simply not responsive to what's actually being proposed, which — to draw out the medical analogy — is something much more akin to the licensing of nurse practitioners.
That said, there are also a range of more sophisticated critiques that do not ignore the proposal's call for appropriate government regulation, so much as express cynicism about whether the authorities are up to the job. Many describe the state as having generally failed to police and crack down on harmful, illegal practices by nonlawyers, and argue that any effort to regulate some new class of nonlawyer service providers will probably fail in the same way.
California's experience with rampant notario fraud looms large in all of this. Many commenters reference the stories of immigrants who suffer disastrous legal outcomes thanks to the ineptitude or dishonesty of notarios engaged in the unauthorized practice of law. In some comments, the notario emerges as a kind of cartoon villain, "unscrupulous and cunning," who proposal 2.0 would only serve to empower.
The larger worry here is legitimate, and it's fueled by the lack of any real vision of how regulation would work. But as some other commenters point out, the notario example may well confuse the symptom for the disease.
If legitimate legal services were more widely accessible and affordable, people would have less need to turn to unauthorized providers. As the California Association of Legal Document Providers put it in their own submission, "Unregistered rogues and notarios continue to harm consumers because there is no reasonable alternative."
In any case, the state's record on policing unauthorized practice violations isn't the right point of comparison in predicting how well it would do regulating a new class of authorized providers. The better analogy is probably the state's efforts to regulate the legal profession through the bar.
It's true that getting the regulatory piece of this reform right is vital, and it's reasonable to want better assurances that this will really happen. It's a real stretch, though, to say there's any reason to assume that it won't or can't.
Will It Work?
Would proposal 2.0 really result in more meaningful access to justice for a significant number of people? Many commenters are skeptical. The fact that California is considering something new and innovative means that that there is not a lot of evidence about its impact.
A program in New York City authorizes nonlawyer "navigators" to help pro se litigants handle their experience in court, in very limited ways. The results have been very encouraging, but this is much less ambitious than what ATILS is contemplating.[4]
Washington is the only state that already has an analogous class of "limited license legal lechnicians," or LLLTs, who provide limited legal services (though Utah is moving ahead with similar reforms and other states are considering doing the same). The results so far have been mixed.
A 2017 evaluation of Washington program found that it was appropriately designed and had great potential.[5] By one key measure, though, it has been a disappointment. Several years in, only around 40 nonlawyers have actually become licensed as providers under the new regime — a drop in the bucket next to the scale of the need.
However, it is untenable to argue — as some commenters do — that this is evidence that proposal 2.0 can't result in the delivery of more accessible services at scale. Instead, it may well be true, as Responsive Law argues in its submission to ATILS, that the disappointing scale of Washington's program is the result of "overly burdensome" licensing requirements.
Washington's model is deliberately conservative. Barriers to entry are high, including significant educational requirements and 3,000 hours of work under an attorney's supervision. And even once licensed, LLLTs' permitted scope of practice remains extremely limited. LLLTs I've spoken to also cited all of this as part of the reason their numbers are so limited — along with uncertainty as to whether the state bar will ultimately allow them to flourish or even continue to exist.
Reasonable minds can differ as to whether Washington has been right to proceed at such a slow and deliberate pace. The point is that proposal 2.0 leaves open the question of whether California should mirror that approach, or be more ambitious. It could certainly achieve more change faster, if it wanted to.
The Status Quo Is Not Acceptable
The status quo is not an imperfect system, but a crisis that has been left to fester for decades. We have built a judicial system that people cannot navigate safely on their own, alongside rules that prevent many people from getting help.
The opposition to proposal 2.0 leans heavily on arguments about the protection and best interests of these same people. Yet few commenters articulate any alternative, or even any clear sense that the crisis is real. We should all be clear that lawyers have to do more than ruminate on the special nature of their own profession, while the justice system they are a part of keeps denying justice to people because they can't get legal help.
Some of the comments opposing 2.0 argue that far more people should have access to lawyers, which is true. But in the absence of systemic changes far more sweeping than anything ATILS is contemplating, the idea that we just need more lawyers is a throwaway line and not a serious proposal.
Other unserious "alternatives" — like the vague idea put forward by several commenters that California has plenty of lawyers and people just need better information about where to find them — are insulting nonanswers to a serious problem. In public hearings held by ATILS, some participants emphasized the need for court reform, to make the courts more accessible and fair when dealing with unrepresented litigants. They are right — but that idea does not stand in any tension with proposal 2.0.
California legal aid providers are closer to the human impact of the access to justice crisis than most other attorneys. The Legal Aid Association of California's submission to ATILS opposes some of the proposed changes, but offers broad support for proposal 2.0.
It agreed that people without the extensive training needed to become an attorney could usefully provide some legal services, and noted the "potential" for nonlawyer providers such as Washington's LLLTs to "supplement and assist legal aid providers." It also cautioned that new innovations must not become an excuse to downplay the need for full legal representation, to people who need it.
That is a key point. In some parts of the country, movements pressing for a civil right to counsel are making real (if limited) gains, and it's important not to undercut that momentum.
The People With the Most at Stake Aren't at the Table
Finally, it has to be said that the debate around ATILS' proposals still mostly boils down to lawyers arguing with other lawyers. The people and communities who should benefit from these changes are talked about but not heard from.
Those of us who support reform have to realize that this isn't a tenable situation. If it this is not remedied, it will produce a result that not only lacks legitimacy, but fails to respond effectively to the needs people really have.
As the nonprofit group One Justice commented, if these reforms are to succeed, they "must be done with all Californians in mind and with participation from everyone who will be impacted by these proposed changes." ATILS has already noted the need for wider consumer and community outreach.
This is where the same broad-strokes, low-detail approach that has helped fuel the criticism of proposal 2.0 might turn out to have been a good thing. The bar should move forward. If it does, there will still be plenty of work to do filling in all the spaces that have been left blank.
There will be every opportunity to do that right — taking the important concerns critics have already put forward already to heart, and with more of the right people at the table — and take an important step towards closing America's justice gap.
Chris Albin-Lackey is legal and policy director at the National Center for Access to Justice at Fordham Law School.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] The proposals, and related documentation, can be found here: http://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2019-Public-Comment/Options-for-Regulatory-Reforms-to-Promote-Access-to-Justice.
[2] All of the comments submitted to ATILS can be found here: https://www.dropbox.com/sh/baciiaec6ecvva5/AADsmBn8-1rtkFuq_Xu8kPJwa/Public%20Comments%20Received?dl=0&subfolder_nav_tracking=1.
[3] See, for example, Legal Services Corporation, 2017 Justice Gap Report: Measuring the Civil Needs of Low-Income Americans, https://www.lsc.gov/media-center/publications/2017-justice-gap-report.
[4] See Rebecca Sandefur and Thomas Clarke, Roles Beyond Lawyers: Summary, Recommendations and Research Report of an Evaluation of the New York City Navigators Program and Its Three Pilot Projects, http://www.americanbarfoundation.org/uploads/cms/documents/new_york_city_court_navigators_report_final_with_final_links_december_2016.pdf.
[5] Thomas Clarke and Rebecca Sandefur, Preliminary Evaluation of the Washington State Limited License Legal Technician Program, http://www.americanbarfoundation.org/uploads/cms/documents/preliminary_evaluation_of_the_washington_state_limited_license_legal_technician_program_032117.pdf.