Becky Kourlis and Neil Gorsuch Laud Regulatory Innovation in Utah and Arizona, Urge Other States to Take Action

September 17, 2020

On September 17, IAALS Founding Executive Director Rebecca Love Kourlis and U.S. Supreme Court Justice Neil Gorsuch published an op-ed in USA Today commending recent legal regulatory reforms in Utah and Arizona, and calling for more states across the country to make similar bold changes.

Kourlis and Gorsuch make the case that our legal system—as it operates now—is too inaccessible for everyday Americans and that legal services are out of reach. And they acknowledge that, “[a]s lawyers and judges, we cannot ignore that the problem is partly of our own making.” Lawyers have long benefited from the unique privilege of self-regulation, which has kept others from encroaching on their business; even the most basic of legal tasks can still only be performed by lawyers. “Just imagine,” the authors write, “if only the surgeon were allowed to diagnose your sore throat.” In addition, only lawyers have historically been able to own or invest in law firms, completely insulating the profession from any market competition. “Both of these longstanding practices protect the entrenched interests of the legal profession at the expense of the clients we are meant to serve.”

Yet hope is on the horizon. In just the past month, two states—Utah and Arizona—“took bold steps to increase access to justice.” In early August, the Utah Supreme Court voted unanimously to establish a regulatory sandbox—based on IAALS’ model—for nontraditional legal services providers, including entities with investment or ownership by professionals other than lawyers. As part of our Unlocking Legal Regulation project, IAALS will act as an independent third-party evaluator to analyze data collected by the sandbox, which will inform the Utah Supreme Court’s assessment of how the program will continue and develop.

And, at the end of August, the Arizona Supreme Court voted unanimously to create a new category of nonlawyer licensee called Legal Paraprofessionals (LPs), who will be able to represent clients in court. The court also approved eliminating its ethics rules that bar nonlawyers from having an economic interest in law firms or participating in fee-sharing.

Kourlis and Gorsuch explain how these historic reforms not only seek to expand access to justice, but ensure quality representation as well. In Utah, any entity that seeks to offer nontraditional legal services must first go through the state’s Office of Legal Services Innovation, which will both assess and recommend sandbox applicants as well as oversee those that are greenlighted. In Arizona, individuals interested in becoming LPs would have to meet education and experience requirements, pass a professional abilities examination, and pass a character and fitness process. Any firm owned by a nonlawyer will need to go through an application process as well as comply with a code of conduct.

And, as the authors point out, they aren’t the only ones encouraging states to think big when it comes to increasing access to affordable legal services. Both the American Bar Association and the Conference of Chief Justices issued resolutions earlier this year urging states to consider regulatory innovations to improve the accessibility, affordability and quality of legal services, while also ensuring necessary and appropriate protections for the public.

The article concludes with a powerful call to action:

“The rule of law in the United States is the envy of the world. But our system of justice is often inaccessible for the ordinary American. Arizona and Utah are seeking solutions to that problem. We hope other states will soon do the same.”

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