What was the impetus for this focus on access to justice in California?

Equal protection under the law is a sacred American ideal. In practice, however, the vast majority of middle- and low-income Americans faced with legal difficulties do not have the protection that this ideal holds forth. The United States, in fact, ranks 107th out of 142 countries in its citizens’ ability to access and afford civil justice; among countries in our income bracket, we are ranked 47th out of 47, dead last. California is no different. Nearly 70 percent of Californians at all income levels facing a legal problem received no legal help at all. This is an unconscionable failure of justice.

One important remedy is to change how the legal system is regulated, making it less expensive, simpler to use, and more effective, while preserving all of lawyers’ traditional commitments to integrity and the safeguarding of client interests. In the U.S., the law is governed by rigid, outmoded regulations rooted to a great degree in the 19th century. Other professions, including medicine, have successfully addressed a similar challenge in order to expand Americans’ access to critical services. The law is far behind. In the past several years, however, a growing number of states have moved forward in rethinking how legal services could be regulated to increase the diversity, accessibility, and affordability of legal services for their citizens. These states include Alaska, Arizona, Delaware, Hawaii, Oregon, Minnesota, New Hampshire, South Carolina, Texas, Utah, and Washington.

Can you talk about the access to justice situation in California?

California is not immune from this justice crisis. The Golden State’s citizens are likewise failing to get help for their legal problems.

California has a lot of lawyers, more than 250,000. We also have many great lawyers, including those working for legal aid, who strive to address this need every day. And yet, the State Bar’s 2019 Justice Gap study found that of the 55 percent of Californians who experience at least one civil legal problem in a year, 70 percent get no legal assistance. These are our neighbors, friends, colleagues, teachers, first responders, and service providers. Fewer than 1 out of 3 Californians seek legal help when they have a problem.

The vast scope of the need means that lawyers are simply never going to be enough. Imagine if the medical system allowed only doctors to provide all of the needed medical services, including drawing blood, stitching a finger, or doing an ultrasound. The system would collapse. This is what we are seeing in law. The civil justice system is dysfunctional and the implications for our state, and our country, are sobering.

What are states doing to address the justice gap?

As public awareness of the justice gap has grown, states around the country are developing innovative policy solutions to try to make legal help more accessible and affordable. These innovations include expanding the universe of who can provide legal help beyond licensed lawyers, who are generally out of reach for even middle-income people. States like Washington, Oregon, Utah, Arizona, and Colorado have authorized licensed paraprofessionals, mirroring the nurse practitioner or physician assistant role in the medical field. States like Alaska, Arizona, Utah, Delaware, and Hawaii have allowed lay community justice workers affiliated with and supervised by legal aid organizations to perform limited practice of law activities, such as providing legal advice and helping with form completion. And Utah and Arizona have moved forward in allowing nonlawyer ownership of legal practices and the corporate practice of law to scale affordable legal services provided by entities.

Is California leading the way in legal reforms to address the access to justice crisis?

Usually, progressive California is ahead of the curve. But concern about potential negative outcomes from policy innovations like these have prevented the state from even entertaining these efforts, much less leading.

In 2018, the California State Bar formed a working group to begin to think about these policy innovations and others to increase access to justice. That working group recommended further study and, in 2020, the Bar formed two additional working groups: one to study paraprofessional licensing and one to study the potential of a regulatory sandbox, a kind of testing space for entities using technology and other methods to provide legal services. We both served as appointees to one of the working groups until they were summarily shut down in 2022 by the state legislature which voiced concerns over the State Bar’s ability to protect the public.

The policy innovations happening across the country and discussed at the conference are efforts to expand the supply of affordable legal help by authorizing new types of providers of legal services. This means rethinking the well-entrenched monopoly lawyers have on that activity by narrowing the far-reaching ban on the unauthorized practice of law. It also means considering changes to how legal services are financed, including allowing ownership and financing from outside the profession to drive the kinds of capital investment we need to see transformative technological and structural change. These are big, systemic changes and they raise a lot of questions and concerns from many different groups.

Some are concerned that allowing new types of providers could hurt consumers because the services provided will be lower quality than those provided by lawyers. Some are concerned that the state regulator of legal services, the California State Bar, is not up to the task of effectively regulating additional new providers. Some are worried that allowing paraprofessionals or corporate entities to provide legal services will undermine the ability of lawyers to make a living. All of these concerns seemed to come together in 2022 and led to the legislative intervention to shut down the State Bar’s efforts.

These concerns are real and understandable, and they deserve serious attention and consideration. But they should not stop all conversation and engagement with the potential of these reforms to drive positive change. It was our hope that this conference would encourage people to think hard about what kinds of reforms could work in California and how to structure them to ensure justice is more accessible for more people while ensuring protection from harm.

What were the key themes discussed during the conference that informed the report?

The following themes emerged through the discussion and are highlighted in the report:

• The access to justice gap in the United States is real, wide, and deep. Such a significant problem requires many solutions across multiple institutions. Rethinking regulation is one approach, alongside increased funding for direct legal services and the simplification, standardization, and modernization of court process and procedure.
• There is disagreement as to how to improve the status quo. Conservative approaches would leave the current regulatory structure in place and focus instead on increasing consumer education, fully funding legal aid, and promoting lawyers’ commitment to work pro bono. Critics of this approach noted that it is unclear how such approaches would successfully address problems given the extraordinary scale of the justice gap. Other participants argued for more progressive approaches that seek to reduce regulatory restrictions to varying degrees to increase competition, diversity, and affordability in the supply of legal services, while acknowledging that data vary on the potential impact of these solutions.
• Nonlawyers already have multiple roles and a significant impact in both the federal and state civil justice system, and the evidence shows that consumers prefer having access to nonlawyers and receiving high-quality services.
• There is a great deal of distrust around the capacity and ability of existing regulators to handle any expansion of regulated providers.
• A consensus seemed to emerge that the community justice worker model, rolled out in Alaska, Utah, Arizona, and other states, could be a workable model in California under the leadership of the state’s many legal aid organizations.
• There was also a consensus that data and measurement of both the existing system and any interventions are key to advancing current efforts.

Who participated in the conference?

This conference was the first of its kind, bringing together both national thought leaders and policymakers and California leaders from all three branches of California’s government, legal aid, the bar, the Consumer Attorneys of California, and academia. Both proponents and opponents of reforming the regulation of legal services were represented. Panels and panelists walked participants through the different flavors of reform, starting with the licensing of paraprofessionals, the authorization of legal aid organizations to deploy community justice workers, and the authorization and regulation of nonlawyer-owned legal service entities. Audience members included judges, a state legislator, legislative staffers, legal aid lawyers, academics, a representative of the United States Department of Justice, leaders of the State Bar, and members of the profession. We were privileged to have the Honorable Kelli M. Evans, Associate Justice of the California Supreme Court, give the keynote address.

What impact have these efforts had on this issue?

Our goal for this effort was to expose an audience of leaders in California to policy innovations happening across the country and spur thoughtful conversations around what could be possible in California. It appears that we were successful in that goal. There is increasing interest and activity around developing a potential community justice worker program under the oversight and supervision of the state’s legal aid organizations. Such a model would allow legal aid organizations to deploy justice workers in their communities to provide limited legal assistance, including legal advice and other similar activities, to people who otherwise qualify for services from their organization. This model has the benefit of allowing the community to drive solutions and ensure that trusted community providers are developing and overseeing service provision. California’s legal aid organizations already do so much for the most vulnerable people in our state; this would enable them to dramatically increase their impact through nonlawyer staffers and volunteers.

Our Center is facilitating and participating in these discussions, and we are hopeful that California will move forward toward increasing accessibility of legal services for our citizens.