Arizona, California, Illinois, New Mexico and Utah are all at least considering fundamental changes to how the practice of law is regulated, and all are in different stages, from just beginning to explore the idea to putting it into practice.
The efforts are all aimed at improving access to justice, often allowing for nonlawyer professionals to provide certain, discrete legal tasks with the goal of lowering the cost of those services to the public, or allowing for nonlawyer ownership of law firms under the postulation that investment would spur innovation that would benefit those who can't afford legal services under the current model.
According to the Self Represented Litigation Network, state courts regularly report that 75% or more of the civil cases they handle involving divorce, custody, child support, guardianship, housing and consumer issues involve at least one self-represented litigant.
That's a major problem says Chris Albin-Lackey, legal and policy director at the National Center for Access to Justice.
"People do well in court when they have a lawyer, but something needs to be done to provide a lifeline to the huge population of people who aren't going to have an attorney," Albin-Lackey said. "That necessarily means letting nonlawyers do more with the law than they can in most states right now."
Washington state has permitted the licensure of paraprofessionals to help clients through certain family law matters since 2012, although it is currently phasing out the program, and Washington, D.C., has allowed nonlawyer partners in law firms since 1985.
There were a number of years when those two stood alone, but there has been a flurry of recent movement among a number of states that largely started in 2018 and is now beginning to come to fruition.
Additionally, in 2020 the American Bar Association passed Resolution 115, which encourages states to explore innovative regulatory models that stand to improve access to justice.
Here is an update on where access to justice-focused changes around attorney regulation stand in Arizona, California, Illinois, New Mexico and Utah.
In 2018, the Arizona Supreme Court set up a task force to explore how the state could improve access to justice through changes to attorney regulation.
The task force released a series of recommendations in October 2019 that included that the state permit the provision of certain legal services by licensed nonlawyer professionals and that it eliminate regulations barring nonlawyers from having economic interests in law firms.
At the time, the task force acknowledged there was some pushback in the legal community against their recommendations.
In January 2020, the task force conducted a statewide survey that found that 57.5% of Arizona residents surveyed supported both the delivery of limited legal services by paraprofessionals and the nonlawyer ownership of law firms. In August, the Arizona Supreme Court adopted a series of regulatory changes as a result of the task force's work.
The changes that were adopted went into effect Jan. 1. They included a licensure process — through both education and an examination — that allows nonlawyers, called legal paraprofessionals, or LPs, to provide limited legal services to the public, including being able to go into court with their client.
They also included the elimination of the rule prohibiting fee sharing and prohibiting nonlawyers from having economic interests in law firms.
Currently, individuals and organizations can go to the state Supreme Court's website and begin the process of becoming licensed to be an LP or to operate as an entity in which fees are shared among lawyers and nonlawyers, which is referred to as an alternative business structure, or ABS.
The California State Bar's board of trustees formed its Task Force on Access Through Innovation of Legal Services, or ATILS, in 2018, and in March the group released a series of recommendations to the board.
Some of those recommendations have moved forward quickly and others are still in preliminary stages of development.
One rule change stemming from the task force's work that is pending approval by the California Supreme Court is an amendment to Rule 5.4 to expand an existing exception for fee-sharing arrangements with a nonprofit organization, a measure aimed at benefiting nonprofit legal services organizations.
The topics of creating a licensure program to allow paraprofessionals to deliver certain legal services to the public, further expanding fee-sharing rules, and the possibility of lawyers and nonlawyers operating businesses alongside one another have all been taken up by two working groups.
According to a State Bar spokeswoman, both groups are charged with balancing the dual goals of public protection and increasing access to justice.
The California Paraprofessional Program Working Group held its first meeting in April and will deliver final recommendations to the board around the creation of a paraprofessional licensure program. The group is expected to deliver that recommendation by Sept. 30.
The second group, the Closing the Justice Gap Working Group, held its first meeting in January and is tasked with exploring the development of a regulatory sandbox, considering amendments to Rule 5.4 regarding fee sharing, and seeking public input on altering regulations to allow the delivery of nonlegal services by lawyers and businesses owned or affiliated with lawyers.
The group will make its final recommendations to the board of trustees in September 2022.
The Chicago Bar Foundation and Chicago Bar Association teamed up in 2019 to create a task force to probe how to create a court system that provides improved access to justice to the public.
That task force worked for around a year researching the issue before releasing a 100-page-plus report in October. Preceding the release of that report, it sought public comment on the recommendations it planned to make.
The proposed recommendations include creating a new licensed paralegal designation that would expand the services that a new category of paralegals can offer while working under the supervision of a lawyer. They also include recognizing new categories of entities that provide legal services, called intermediary entities and approved legal technology providers, which would allow lawyers to collaborate with business, marketing, technology and other professional disciplines.
Additionally, the report said, the state Supreme Court should establish a process to evaluate whether broader changes to the current limitations on ownership of law firms are necessary to spur more innovation in the delivery of services.
The recommendations are being considered by the Illinois Supreme Court, but no action has been taken on it.
A working group formed by New Mexico's Supreme Court to identify strategies to improve access to justice worthy of exploration in the state submitted a report to the court at the end of 2019.
As a result of that report, the state's justices in July created three committees to work on several initiatives to expand access to legal services.
The first is a court navigator committee, which submitted recommendations to the high court at the end of December advocating for the establishment of two pilot programs around court navigators — volunteer nonattorneys who can provide information on court procedures but not legal advice. The court has not acted on that recommendation.
The second committee is exploring how to increase the number of attorneys practicing in rural areas through recruitment and retention and has yet to release its recommendations.
The final committee is studying the feasibility of creating a licensed legal technician program. It is slated to submit a report to the justices by Aug. 1.
In late 2018, a Utah Supreme Court justice teamed up with a past president of the state's bar association and others to form a task force aimed at examining the state's attorney regulations to improve efficiency and reduce the cost of legal services.
That group proffered a report in August 2019, "Narrowing the Access-to-Justice Gap by Reimagining Regulation," that recommended changes similar to those that have been made in Arizona, with one major difference. Instead of making changes at once, the task force recommended the state take a "regulatory sandbox" approach in which changes to the current rules happen in a tightly regulated environment, referred to as a sandbox, and are then reviewed for efficacy and safety after two years.
One year later, in 2020, the Supreme Court approved the recommendations.
The regulatory sandbox program soon after moved forward through the establishment of an Office of Legal Services Innovation, which oversees the operation of nontraditional legal providers and services, including entities with nonlawyer investment or ownership.
The companies and firms participating in the program have their efforts monitored and evaluated for effectiveness, particularly as they relate to the state's goal of improving access to justice. After the two-year period of the program ends, the high court will have the option to end the program or allow it to continue.
As of January, 33 organizations had applied to participate in the two-year pilot and about 20 had been approved.
A few participants include Rocket Lawyer Inc., which will have lawyers on staff under the program, as well as LawPal, an entity that plans to offer a "TurboTax-like" platform for divorce and eviction disputes, and 1LAW, which helps clients complete court documents and offers related legal advice through tech, including chatbots.
--Additional reporting by Justin Wise. Editing by Orlando Lorenzo.