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Guest opinion: Sweeping calls for reform could improve access to justice

The Utah Supreme Court has proposed groundbreaking changes to rules governing legal practice — changes that could transform the legal profession and improve access to justice.

The Utah State Capitol Building. The Utah Supreme Court announced on April 24, 2020, that it intends to remove restrictions on lawyers’ ability to go into business with non-lawyers.
W. Scott McGill - Adobe Stock

Thanks to the design and technology revolution, we can order groceries, file our taxes or learn a new language using a smartphone. But this revolution has barely touched the practice of law, where little beyond basic technology has evolved in recent years and people can’t get the legal advice they need.

An emerging consensus blames, in large part, restrictive rules governing law practice. These rules give lawyers a near-complete monopoly on legal work and block them from collaborating with non-lawyers to deliver legal services. Today, lawyers in Utah can’t go into business with programmers, entrepreneurs, social workers or others who could help increase efficiency, develop scalable services and offer more value to clients.

I’ve spent my legal career representing clients in civil matters, training law students and studying the justice system. This experience leads me, and many others, to conclude our legal system is fundamentally broken. For decades, we’ve tried to patch it up. But the cracks continue to grow.

Each year, half of us face civil legal problems in core areas of life, health, and financial security. But must Utahns don’t get the legal help they need, including victims seeking protection from violence, tenants whose landlords won’t fix a moldy ceiling and scrappy entrepreneurs starting a small business. All share a fundamental problem: They can’t find affordable, accessible, and appropriate legal services.

Research tells us that the most vulnerable communities in our state face civil legal problems at higher rates and are even less likely to receive assistance. A just-released report by the Utah Bar Foundation, The Justice Gap, highlights the severity of access to justice needs among low-income Utahns.

In Utah’s courts, the vast majority of cases involve a party without a lawyer. In recent data, at least one party was unrepresented in 93% of all civil cases brought in the Third District area, which includes Salt Lake City (data does not include juvenile cases). Thirty years ago, nearly every party in civil cases had a lawyer.

Today, the bulk of lawyers’ work serves large, corporate clients. The legal market serving people and small businesses has steadily declined over the past few decades. Nationally, an hour of legal service averages around $250. In the traditional legal business model, lawyers have one-to-one relationships with clients and handle the bulk of firm operations. This model is not cost-effective for most people and small businesses.

The court understands that Utah faces a crushing crisis in access to civil justice, and believes, with good reason, that some existing rules governing law practice are significant and unjustified barriers to innovation in legal practice. Many scholars, policymakers and lawyers, including this author, agree.

The Utah Supreme Court intends to remove restrictions on lawyers’ ability to go into business with non-lawyers and to create an experimental regulatory space called the “sandbox,” where lawyers and non-lawyer collaborators, such as technology and business experts, can develop and test new ways of providing legal services. Arizona, California and Illinois are discussing similar reforms.

No one knows how much and how soon the court’s proposed reforms might move the needle on making legal services more affordable and accessible. The access to justice crisis is complex, with many causes. There are no easy answers. But one thing is clear: piecemeal patches are not enough. The Utah Supreme Court’s proposals are precisely the type of bold, systemic changes needed to begin the difficult process of reforming our justice system, innovating legal practice and increasing access to justice.

Anna E. Carpenter is a professor at the University of Utah S.J. Quinney College of Law. She directs the college’s clinical programs and the Justice Lab, a legal clinic. Her scholarship focuses on the civil justice system.