Lawyers are wrong to fight efforts to close the justice gap

Facing eviction, debt collection or a custody dispute, millions of Californians who would benefit from the help of a lawyer are often unable to afford one. Many people who earn too much to qualify for free legal services but not enough to pay lawyer fees are left to fend for themselves. That means they don’t get a fair shot at justice.

While low-income people charged with crimes are entitled to representation by a public defender, there is no similar right in civil cases. Lawyers take on some civil cases on a contingency basis, requiring no upfront payment. Still, some 70% of Californians who faced a civil problem in 2019 did not have legal assistance, according to research by the State Bar of California, which licenses and regulates lawyers. Health, finance, employment and housing were the most common legal problems they faced.

So what’s the solution?

The state bar is trying to figure that out by exploring proposals to offer low-cost, quality legal assistance, including licensing paraprofessionals and creating online options. But these exciting ideas threaten the status quo and face stiff political winds from attorneys who oppose competition from new legal services, and from the Legislature, which determines the bar’s funding each year.

And, this being California, the politics come with a dash of Hollywood as well. The blowback over the bar’s mishandling of Tom Girardi — the high-profile lawyer who gained fame appearing on “The Real Housewives of Beverly Hills” and has been accused of bilking clients for decades without facing public discipline — raised questions about the bar’s credibility as a regulator. A Times investigation last year revealed that Girardi wined and dined bar officials as he faced complaints of skimming clients’ money and other unethical behavior. The bar is now investigating whether its own employees helped Girardi evade punishment.

Together, these forces threaten to derail the bar’s efforts to solve a real problem facing Californians. That would be a shame. Lawmakers ought to see the bigger picture here and empower the bar to finish the work it has started.

The bar group developing ideas for licensing non-lawyers has come up with a pilot project proposal that has received more than 1,300 public comments — many of them from lawyers who oppose it. The proposal would create a new category of licensed paraprofessionals who have less training than a lawyer. Think of them as the legal equivalent of nurse practitioners, who are trained and licensed to perform many routine medical procedures at a lower cost than a doctor.

The plan needs approval by the bar’s board of trustees, the Legislature and the state Supreme Court. As the proposal advances, the bar must address concerns critics have raised about the need to safeguard consumers.

“Reliance on paraprofessionals, who will not be required to practice under the supervision of an attorney, may in some cases have irreversible legal consequences for vulnerable Californians,” Atty. Gen. Rob Bonta wrote in a letter to the bar that requests several changes to the proposal.

The other idea is to create new tech platforms that could help people resolve basic legal issues on their own — similar to what TurboTax does for simple tax filings. The group working on this proposal is supposed to deliver recommendations in September that would likewise need approval by the board, the Legislature and the state Supreme Court. The idea involves a monitored and time-limited experiment — of maybe five or seven years — that would require changing laws and rules governing the ownership of legal businesses so that lawyers could partner with non-lawyers to launch services that would be more affordable than hiring an attorney.

An example the group has explored is the Hello Divorce website, which was launched by a Bay Area lawyer with backing from venture capital. Because California law forbids non-lawyers from holding an ownership stake in legal businesses, the site can only offer limited online services. It offers more — including advice from attorneys — to customers in Utah, which has undertaken the kind of regulatory experiment that the California bar is considering.

This would be a huge departure from the way lawyers do business in California and is also generating major pushback from attorneys who argue it would create unfair competition and put consumers at risk of fraud. Two attorneys with significant clout — the state lawmakers who chair the Assembly and Senate judiciary committees — are among those blasting the idea.

The experiment “could become an open invitation for profit-driven corporations, hedge funds, or others to offer legal services or directly practice law without appropriate legal training, regulatory oversight, protections inherent in the attorney-client relationship, or adequate discipline to the detriment of Californians in need of legal assistance,” Assemblyman Mark Stone (D-Scotts Valley) and Sen. Tom Umberg (D-Orange) wrote in a letter to the bar last month.

They told bar officials to focus on policing attorney misconduct and exploring ways to license more lawyers — making clear they are skeptical of creating a role for non-lawyers in the state’s legal system. Their opinion matters because the Legislature’s judiciary committees effectively control the bar’s budget by determining each year the dues its members pay.

Bar officials responded with a letter saying they will ask their board to consider “disbanding or suspending” the group developing ideas to allow for new legal tech platforms and partnerships. But cutting off research now would be counterproductive. The bar has been discussing the need to expand who can offer legal services since the 1980s.

The bar group should complete its research and develop a proposal. Lawmakers would still have plenty of opportunity to evaluate it, negotiate the fine points, or kill it if it doesn’t pass muster.

The government should not automatically squelch competition to industries facing challenges from innovators. It should evaluate new ideas on their merits, and act in the public’s interest. In this case, the focus must be on the needs of Californians who deserve a fair shot at justice.


https://www.latimes.com/opinion/story/2022-01-30/editorial-lawyers-are-fighting-innovative-proposals-for-more-affordable-legal-assistance-thats-wrong

Zubair Q Britania

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