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California Should Not Bar Access to Justice

Aug. 4, 2022, 8:00 AMUpdated: Aug. 5, 2022, 8:33 PM

As we continue to learn more about the attack on the 2020 election, we are coming to appreciate as never before how critical a well-functioning legal system is for democracy. And yet, in California and nationwide, there is one fundamental way in which our system does not function well at all, and that is providing equal access to justice for those unable to afford it.

Today, only the wealthy can get necessary legal assistance. Even relatively inexperienced lawyers can cost hundreds of dollars per hour.

Unable to pay those steep rates, most people are consigned to go it alone in court, in a system designed by lawyers for lawyers. Indeed, in state courts, in a shocking three-quarters of civil cases, at least one side is unrepresented.

Many never make it into court at all. Rather, facing a bewildering system, people simply fail to act, even when they desperately need assistance. A recent California survey indicated that 85% of people get no or inadequate help for their justice problems, even when the problems involve significant, even life-altering moments, such as evictions, domestic violence, a former partner behind on child support, an employer who refuses to pay overtime, or an insurer who has denied a legitimate claim.

We ought to address this calamity using the tried-and-true methods at our disposal, including ratcheting up pro bono commitments and increasing legal aid funding, which has been slashed in recent decades.

But that’s not enough. The justice gap has grown so large that we cannot just lawyer our way out of it. Creative solutions are also needed.

The good news is that the California bar has been pursuing two big ideas that would help seriously address the access to justice problem in our state.

License Non-Lawyers for Basic Legal Work

The first innovative idea is to license the legal equivalent of nurse practitioners to help people with routine legal problems. You don’t need an actual MD to give you a strep test or splint a sprained ankle—and you don’t need a lawyer with an actual JD to help you draft a simple will or prepare documents for a straightforward bankruptcy.

We have evidence that this works. Numerous studies show that trained professionals without law degrees can furnish competent legal services. Specializing in an area of law and having experience—not law school attendance—are the primary drivers of quality.

Currently, in California, laws restrict non-lawyers’ provision of legal advice. But those laws could be relaxed. In fact, a thoughtful proposal to license certain non-lawyers to furnish straightforward legal assistance is slated to go to the State Bar Board of Trustees. Non-lawyers have come out overwhelmingly in support of the proposal, but some lawyers have raised concerns.

The second proposal is to let lawyers partner with other professionals, such as business experts, technologists, and social service workers. Working with these partners to provide more holistic solutions to widely shared legal problems, a lawyer could deliver legal services not just to one client (which is inevitably pricey), but, rather, to many at scale.

Utah and Arizona have recently moved in this direction, and the initial results are encouraging.

Bill Throws a Wrench Into Reform Proposals

Despite this promise, a bill (AB-2958) is headed to the floor of the California Legislature that throws a wrench into these reforms. By using the legislature’s power over lawyer licensing fees to prevent the bar from working on these initiatives—and by restricting the kind of changes the California State Bar committee can recommend—the bill, if enacted, would effectively send us back to square one.

We are both lawyers who teach legal ethics at leading California law schools. We have devoted our professional lives to ensuring that our law students understand their obligations to their clients and to the broader public. And we hope our students leave our courses with pride in the profession and the distinctive role lawyers play—and have long played—in American society.

As we teach our students, one thing that the rules that govern the profession say is that lawyers have “special responsibilities for the quality of justice.” Lawyers haven’t cornered the market on the provision of high-quality legal services.

Well-trained and specialized non-lawyers can make crucial contributions to effectively help people with certain kinds of legal problems. But lawyers do have a special—and formal—obligation to roll up our sleeves and address the crisis that is hurting so many in our state.

Currently, the quality of civil justice in California is in crisis. Lawyers—including lawmakers in Sacramento—have a special responsibility to fix it.

That means altering the bill moving through the California legislature, so it makes civil justice more—not less—widely available.

(This article has been updated by the authors with revisions to paragraphs four, 10 and 13.)

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Nora Freeman Engstrom is the Ernest W. McFarland Professor of Law at Stanford Law School, where she co-directs the Deborah L. Rhode Center on the Legal Profession.

Scott Cummings is Robert Henigson Professor of Legal Ethics at the UCLA School of Law.

(This article has been updated by the authors with revisions to paragraphs four, 10 and 13.)