The Law Society of B.C. could do well to look to Utah for advice on how to address the province’s access-to-justice crisis caused by legal services that are too pricey and the inequity that perpetuates.
The state has embarked on an ambitious, radical restructuring of its legal regulatory system to provide more affordable services and a regulator that protects the public rather than lawyers.
The promising initiative was the product of a recent blue-ribbon working-group report — Narrowing the Access-to-Justice Gap by Re-imagining Regulation — that maintained the delivery of legal services must be dramatically changed “to harness the power of entrepreneurship, capital, and machine learning in the legal arena.”
Gillian Hadfield, the Toronto-based legal guru, was part of the high-powered committee that made the ground-breaking recommendations, considered by those in the field as perhaps the most significant action to address the access gap in years.
The top-flight academic, who was in Vancouver proselytizing earlier this year, has long argued it’s time to end the monopoly enjoyed by lawyers and dismantle regulatory barriers to provide legal help that is affordable and accessible.
The Utah Supreme Court is putting those ideas into practice — shifting the paradigm from a system regulating for lawyers to one regulating to increase access to and affordability of legal services.
Utah has established state-wide pro bono efforts, made forms and filings more easily accessible online, established Licensed Paralegal Practitioners, and piloted an online dispute resolution model for small claims.
B.C. has done the same — although it is dragging its heels on giving paralegals any real scope — and each of these initiatives takes a step toward narrowing the access-to-justice gap.
Still, they have been not anywhere near enough.
Expanding pro bono, improving legal aid and making minor regulatory reforms have been inadequate while technological disruption has exacerbated and widened the gap.
Millions experience problems with domestic violence, veterans’ benefits, disability access, housing conditions, health care, debt collection, and other civil justice issues cannot afford legal services and are not eligible for assistance from the civil legal aid system.
In the 71-page report, the experts proposed a two-tracked remedy — loosen restrictions on how legal firms are financed so lawyers can compete and innovate but also provide room for people other than lawyers to provide legal services.
That means, for instance, getting rid of bans on lawyers fee-sharing with non-lawyers (say accountants) or allowing non-lawyers to own or invest in law firms.
At the moment, mixed business models are prohibited in most jurisdictions hindering lawyers from partnering with entrepreneurs.
Within days of receiving the report at the end of last month, the Utah Supreme Court — which has constitutional responsibility for the administration of justice — unanimously adopted its recommendations.
Other states, such as Arizona, California and Illinois are mulling similar proposals. California in July published proposals to allow fee-sharing, non-lawyer ownership and the greater use of non-lawyers.
Utah, however, is blazing the trail.
Since the turn of the century, the U.K. and North America have been dealing with sadly similar crises in their legal systems — an access-to-justice gap that threatens civil society.
All of the data confirm the legal system isn’t meeting the needs of the middle-class and poor.
The courts are clogged with confused litigants who can’t afford a lawyer and have no access to any other source of legal services because of the regulated monopoly the legal profession enjoys.
In 2007, the U.K. redesigned its regulatory apparatus to increase legal competition in the marketplace, which was already far more liberal than here.
It did not have prohibitions against the unauthorized practice of law and the legal monopoly was restricted to a half-dozen services; advertising restrictions and referral fees were lifted years ago; wills, representation at tribunals and the provision of other low-level legal services were not regulated.
The U.K. was focused on increasing competition, in North America the paramount concern is access to justice.
Medicine has become a team sport: doctors, nurses, radiologic technologists, pharmacists all play. The law should be similar.
In Utah, the new system will be driven by data, monitoring, assessment and analysis “to ensure consumers access to a well-developed, high-quality, innovative, and competitive market for legal sevices.”
The first phase will see the formation of a task force to propose rule changes, establish a “Phase 1 regulator” to oversee a “sandbox” of non-traditional legal services and prepare a final report for the structure of the “Phase 2 regulator.”
In the sandbox, lawyers, law firms and proposed businesses will work with the regulator to pilot new services or new ways of working that might break current rules but appear to be safe.
These trial-and-error experiments with the baby-step process to remove regulatory restrictions and ease the historic persistent inhibition on innovation, hopefully, will lead to the right way to regulate new services.
The state hopes that phase 2 will see “some form of an independent, non-profit regulator with delegated regulatory authority over some or all legal services.”
It will be independent of lawyers but answerable to the Supreme Court.
That will be a real transformation — a regulatory system designed to not maintain the status quo but to provide affordable legal services while protecting the public from unacceptable risk and harm.
Seems like a no-brainer.