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Gorsuch Sides with Access to Justice Reformers in New Book

Sept. 13, 2019, 8:50 AM

A growing movement to loosen state bar rule restrictions preventing nonlawyers from owning law firms has found a potential ally in U.S. Supreme Court Justice Neil Gorsuch.

Gorsuch makes a case for what he calls “access to affordable justice” in his new book, “A Republic, If You Can Keep It.” He includes an aside that he couldn’t have afforded his own legal services when he was in private practice.

His message is timely. State bar groups in California, Utah, and Arizona are simultaneously working toward opening their rules to tech companies, paralegals, and other nonlawyers in hopes of providing different forms of legal representation and solutions.

The main aim of each state is to make legal assistance cheaper and easier to access for middle-class and poorer citizens in cases where they could lose their homes, have their kids taken away, or need protection orders against domestic abusers.

“Why is it that cases in our civil justice system today drag on for so long, and the fees pile up so high, that many people cannot afford to bring good claims to court and others are forced to settle bad ones?” wrote Gorsuch in the book’s introduction.

He blames, in part, American Bar Association-modeled rules that have been in place in states for decades. He singles out Rule 5.4, the one that prohibits partnerships or fee-sharing arrangements between lawyers and nonlawyers in legal operations.

These and related rules have allowed entrenched law firms and their state bar proxies to repeatedly fight consumer-facing legal tech companies like LegalZoom and Quicken Family Lawyer, in essence so that they can keep their legal fees higher, Gorsuch wrote.
Newer legal tech startups like the ticket-fixing app TIKD have faced similar state bar challenges.

“In recent years, lawyers have used these rules to combat competition from outsiders seeking to provide routine but arguably ‘legal’ services at low or no cost to consumers,” he wrote. “Indeed, by far and away most unauthorized practice of law complaints come from lawyers rather than clients and involve no specific claims of injury.”

The U.K. Example

Several Big Law firm practitioners have argued that changing legal ownership ethics rules could endanger litigants, who could face more incompetent or fraudulent service providers.

But Gorsuch argued that the United Kingdom has fared well since 2007, when parliament changed the U.K.'s laws to permit multidisciplinary firms and nonlawyer investments in law firms. The benefits could be seen as a model for what might be gained in the U.S. by opening up the system here, he suggested.

Six years after the change, Gorsuch noted that newly formed “alternative business structures” in the U.K. accounted for only 3% of all law firms. But, he wrote, they were handling 20% of consumer and mental health work and one-third of the personal injury market, “suggesting that ABSs were indeed serving the needs of the poor and middle class.”

Gorsuch’s book passage on the topic echoes a paper he presented to the United Kingdom-United States Legal Exchange in 2015.

Indeed, Gorsuch says that as a younger practicing attorney, he was among those who would been out of luck should he have needed to retain an attorney like him for a civil court matter, and that modern-era law school graduates are in the same boat.

It may be unlikely that Gorsuch, from his perch on the Supreme Court, will be able to directly impact the ongoing state bar debates. Yet his support could be seen as a strong nod toward changing the system, reform proponents say. It also feeds the notion that some of the strongest supporters of the access to justice movement are judges who have seen first-hand the effects of increased pro se, or self-representation, and other forms of limited access to justice in their courtrooms.

“I think the judiciary is becoming increasingly vocal about the fact that the system is failing,” said Legal Services Corporation President Jim Sandman. “The system does not work for those without attorneys.”

Though many of the strongest proponents of access to justice historically have been from the mostly progressive-minded legal aid community, Sandman notes that Gorsuch is far from the only prominent conservative who backs reform. Another, he said, is Nathan Hecht, the Republican chief justice of the Supreme Court of Texas.

Coalitions are forming that include support from both legal progressives and the libertarian right, said Jan Jacobowitz, president of the Association of Professional Responsibility Lawyers. That national bar group is also studying access to justice, which she said is more accurately called “access to legal services.”

“There’s a wide range of people who can’t afford legal services,” Jacobowitz said.

The belief that fundamental changes to the nation’s self-regulated legal industry may be needed may be gaining traction, she said. “There clearly are people on both the left and the right who are in agreement on this issue.”

Gorsuch isn’t the only current Supreme Court justice to take on the access to justice issue. Justice Sonia Sotomayor cited the issue in 2016, when she said that to make the system fair, publicly paid legal representation of the type that’s already provided for criminal defendants may need to extend to civil and family court litigants.

Repeated studies have shown that civil case litigants often are representing themselves more than half the time in sensitive matters. That includes a New York study showing tenants facing eviction were without attorneys 99% of the time.

To contact the reporter on this story: Sam Skolnik in Washington at sskolnik@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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