State Justices Stress Need for Courts to Lead the Way on Regulatory Reform

June 16, 2021

On June 9, IAALS co-hosted the first session of the Redesigning Legal Speaker Series, bringing together over 150 people to learn about and discuss the regulatory changes underway, the challenges they face, and the opportunities they provide. “Leading from the Bench—Expanding Access through Regulatory Innovation” featured a panel including Vice Chief Justice Ann Timmer of Arizona, Chief Justice Bridget McCormack of Michigan, Chief Justice Nathan Hecht of Texas, and Chief Justice Matthew Durrant of Utah. Their conversation was moderated by IAALS’ founding executive director, Justice Rebecca Love Kourlis (Ret.) of Colorado. Video of the event is available below, and a video with transcript is available here.

Justice Kourlis began the conversation by laying out the massive scope of our country’s access to justice problem. “We have historically thought about it as a problem that should be addressed by the use of pro bono time, contributions from lawyers,” she said. “We have, in the past few years, begun to understand that there is no way pro bono services can bridge this gap—that the access to legal services is deep and wide.”

And it’s not just lower-income people who lack access to affordable legal services, but the middle class and small businesses as well. In fact, studies suggest that in 76 percent of all cases filed in our country’s state courts, there is at least one litigant without representation—and that number increases to 90 percent when cases involve debt collection or evictions. Litigants navigating our court system without legal help face disproportionately adverse outcomes, and this lack of access is ultimately sowing dismissal of and distrust in our legal system.

“The solution is in our hands—the bench and the bar have the key to trying to figure this out.”

Last August, the Utah Supreme Court voted unanimously to establish a regulatory sandbox for nontraditional legal services providers, including entities with investment or ownership by professionals other than lawyers. “We have met with some resistance, certainly, from some lawyers,” said Chief Justice Durrant. “But we found that generally, the more educated lawyers become about this endeavor, the more supportive they’re likely to be.” The supreme court’s duty, he remarked, is not just to lawyers, but to the public.

Twenty-three entities have been approved in the sandbox thus far—some are owned by nonlawyers in part or completely, and some offer services by trained nonlawyers (under the supervision of lawyers). The Office of Legal Services Innovation, which oversees the sandbox, recently approved a pilot that will allow domestic violence victim advocates to provide legal advice by helping victims fill out court forms and prepare victims for court; they also approved a nonlawyer-owned entity that will be offering legal assistance through small brick-and-mortar locations in traditionally underserved areas.

Arizona is also charting the way forward when it comes to regulatory reform, although they’re taking a slightly different approach. Last year, the court voted to eliminate Rule 5.4, which barred nonlawyers from having an economic interest in law firms or participating in fee-sharing.

“[The process] was involved,” said Vice Chief Justice Timmer. “We reached out to involve the lawyers, involve the bar, so there would be no surprises dumped on their doorstep and get their input all through the process to establish the regulatory framework we now have for alternative business structures.” Alternative business structures—which do permit fee-sharing—are regulated by the Arizona Supreme Court, are subject to their own code of ethics and disciplinary system, and have the protections in place that ultimately protect the public.

“The hope is that it’s a win-win for the public and for lawyers—lawyers are no longer shackled by some of the constraints they have. They can bring in legal paraprofessionals to actually practice law in a limited sense, and expand their practice.” She expressed hope that, in states with large rural populations like Arizona, technology and remote legal services could help expand access to justice.

Chief Justice McCormack of Michigan went on to stress the need for bigger and bolder solutions to the ever-growing access to justice gap. Not only are the high numbers of people navigating the court system without a lawyer destabilizing for communities, businesses, and workforces, but they are destabilizing for the rule of law.

“We are running the risk of losing the consent of the governed if we don’t figure out a bigger play, a bigger move, to address the problems of the many people who have to navigate courts without lawyers.”

The Michigan Supreme Court recently enacted a permanent Justice for All commission, which will work toward the goal of 100 percent access to the state’s civil justice system, beginning with landlord-tenant and debt-collection cases. “If we can see successes in those kinds of legal disputes and legal problems, other than lawyers providing some services, it will help with the skeptics.”

“If we’re able to deliver to communities that, right now, we’re not delivering to, by a different model of who can provide legal services and by spurring innovation the way you do when you deregulate, I think that will be the most important sales pitch we can do. And I think selling the public—as I’ve learned from my friends at IAALS—is as important as selling the bench and the bar.”

Chief Justice Hecht of Texas then described the courts’ increasingly important role in the effort to expand access to justice. “As time has passed, and particularly in the last several decades, it’s been incumbent on the courts to take leadership roles—with the bar, with the judiciary itself, with the other two branches, and with the public—in trying to improve the delivery of justice that’s so precious to every one of us.” It is critically important to educate everyone—not just those in the legal community—about this issue. “When they are educated on it, then there is more support for the kinds of change that we’re talking about.”

Chief Justice Hecht noted that the different ways states are reimagining law in order to meet the need for legal services, including Utah and Arizona’s bold efforts, are challenging everyone to take a hard look at the legal profession in their own states. And just last year, the Conference of Chief Justices issued a resolution that “urge[d] its members to consider regulatory innovations that have the potential to improve the accessibility, affordability and quality of civil legal services, while ensuring necessary and appropriate protections for the public.”

Of course, when this resolution was passed in February of 2020, CCJ had no idea the COVID-19 pandemic was right around the corner—a national emergency which has made the need for efficient, affordable legal services all the more prevalent. “[It’s provided] an atmosphere where we can begin to look at some of these ideas that we might have said, a year or two ago, I don’t know, it’s working fine, or go away, come back, and we’ll see, but the resolution encourages the [chief justices]. They don’t need much to really look at these kinds of things that we’re talking about—again, to serve the cause of justice that we all love.”

The justices each had parting words for the audience. Vice Chief Justice Timmer, quoting the preamble for the rules of professional responsibility, said: “The legal profession’s relative autonomy carries with it special responsibilities of self-government—the profession has a responsibility to assure that its regulations are conceived in the public interest, and not in the furtherance of the parochial or self-interested concerns of the bar.”

Chief Justice Durrant remarked that the issue of re-regulation is really a civil rights issue: “Legal rights aren’t worth much unless you have the means to assert and protect them.”

Chief Justice McCormack said, “There hasn’t been a moment like this in my legal career, where so much change happens so quickly and people are open to changes in the air. And it’s not just in the profession—it’s in the communities as well. . . . This is just a really important moment for us not to waste. We can’t waste what we could get done right now.”

And, Chief Justice Hecht concluded by reaffirming the Conference of Chief Justices’ and state supreme courts’ commitment to the issue: “We take to heart the search for justice that brings people to our courtrooms, and we’re excited about these possibilities.”

We are so grateful to Vice Chief Justice Timmer, Chief Justice McCormack, Chief Justice Hecht, and Chief Justice Durrant for their insights, and to Justice Kourlis for moderating their inspiring conversation. We hope you’ll join us for the next session in our Redesigning Legal Speaker Series, which will be held in August.