Texas Proposal to Expand Legal Access Exposes Opponents' Reliance on False Narratives

At its December 15, 2023, meeting, the Texas Access to Justice Commission invited members of the bar and the public to share comments on the report and recommendations its Access to Legal Services Working Group released ten days earlier. The comprehensive 250-page report includes the group’s charge from the Supreme Court of Texas—to focus on helping low-income Texans—an overview of the access to justice crises in Texas, feedback from stakeholders in the legal profession, and three recommendations that could improve the delivery of legal services to low-income Texans. A summary of the formal written comments submitted to the Texas Access to Justice Commission can be found here and here. The feedback and comments centered around these three recommendations:

• Allow licensed paraprofessionals to engage in particular types of legal representation in certain substantive legal areas.
• Amend existing justice court rules to permit Community Justice Workers to practice on a limited basis in all types of justice court cases, if they meet certain requirements.
• Allow certified and licensed entities to provide legal services for a profit, within criteria specified either by the text of the rule, or by guidance promulgated by the Judicial Branch Certification Commission, or both.

For the purposes of the proposals in the report, “low income” is defined as at or below 200% of the federal poverty guidelines as determined by the United States Department of Health and Human Services. 

Two Recurring Narratives

Since the inception of the regulatory innovation movement, leaders have had to counter two ongoing narratives:

• The access to justice crisis only pertains to low-income people—typically people who are at or below 125–200% of the income eligibility line for free legal aid; and
• Allowing new business models and providers into the legal market will harm legal consumers.

Despite evidence debunking both narratives, they permeated the comments. To clarify why these narratives are unfounded and should not derail states’ efforts toward providing increased access to legal services, we will take another look at each unfounded narrative.

Unfounded Narrative #1: The access to justice crises only pertains to low-income people—typically people who are at or below 125–200% of the income eligibility line for free legal aid.

The breadth and depth of the access to justice gap is alarming. Some legal professionals—including some who offered feedback and public comments to the Texas Access to Justice Commission—believe the access to justice gap is limited to low-income people. However, evidence shows this belief is unfounded. It is well-documented that people above the income-eligibility line for free legal aid—and far into the middle class—also cannot access affordable legal help. Both the 2021 HiiL and IAALS US Justice Needs report and the 2022 Legal Services Corporation Justice Gap study support this finding. According to the US Justice Needs study, 66% of the U.S. population experienced at least one legal issue in the past four years, with just 49% of those problems having been completely resolved. According to the Justice Gap report, 90% of legal problems experienced by people across all income levels in the past year did not receive any or enough legal help—even when the problem would have a substantial impact on their life.

Some back-of-the-envelope math makes the extent of the access to justice crisis even more apparent. The median billing rate for a lawyer in Texas is $300 per hour. According to census data provided in the working group’s report, a Texas household earning $37,500 per year is at the 52nd percentile of income for Texas households while a household earning $100,000 per year is at the 89th percentile. Assuming a two-earner household and a 20% tax rate (combining federal income tax and FICA), someone just above the median Texas income has to work for an entire week to pay for two hours of a lawyer’s services, while a Texan just outside the top 10% of Texas earners has to work nearly a full day to pay for one hour of a lawyer’s services. Legal services under current regulations are priced more like a Lamborghini—a luxury car that few people can afford—than a Ford. 

The access to justice problem is so extensive and dire that even if all three recommendations included in the working group’s report were accepted, it would still not be enough to solve the access to justice crisis. The reality is that we need an entire ecosystem of legal service business models and providers, including these recommended solutions and probably dozens more that we have not yet contemplated. Given this reality, perhaps the question for leaders, including those in Texas, is not which program(s) should be implemented, but which program(s) should be implemented first and what is the most effective and efficient way of doing so.

Despite this stark reality, some leaders continue to narrow the focus of their regulatory innovation efforts, and many attorneys continue to strongly oppose proposals that contemplate also serving middle-income people. The private bar often cites consumer harm as the reason for their opposition, but evidence proves this narrative to also be hollow.

Unfounded Narrative #2: Allowing new business models and providers into the legal market will harm legal consumers.

Many states have made changes to or waivers of their ethics, court, or unauthorized practice of law rules to allow new business models and providers into the legal market to help low and middle-income populations access affordable legal help. Most of these states are collecting and sharing out data in some form. A summary of the data available as of October 10, 2023 can be found in this blog post. The data thus far shows that very few complaints have been filed against a new business model or provider.

Additionally, we now know that community justice workers—legal helpers specifically trained to help people who qualify for legal aid resolve their civil legal issues—are also delivering targeted legal advice and services without causing legal harm. See the written public comments submitted by Frontline Justice. According to Frontline Justice, Alaska Legal Services Corporation’s Community Justice Worker Program, which trains justice workers to provide targeted legal services in the areas of SNAP benefits, end-of-life planning, debt, domestic violence, and Indian Child Welfare Act matters, has trained over 300 community justice workers who have handled hundreds of cases with a 100% client success rate. Other community justice worker programs with slightly different focuses have been launched in Arizona and Utah. Combined, the new business models and providers in Alaska, Arizona, Delaware, Hawaii, Minnesota, Utah, and Washington have offered over 60,000 legal services with no evidence of material consumer harm. In Utah’s sandbox, where the bulk of these services are being delivered, fewer than 10 harm-related complaints have been received by the regulator to date, and all have been resolved to the satisfaction of both the involved consumer and the regulator.

The evidence thus far suggests that permitting new business models and providers such as the ones contemplated in the Access to Legal Services Working Group’s report would not automatically lead to consumer harm. If Texas were to offer an appropriate level of training, certification, and regulation with respect to the new business models and providers, the evidence suggests that the levels of consumer harm would be minimal.

Furthermore, opponents of allowing new business models often cite the importance of protecting lawyers’ professional independence as a justification for the prohibition on non-lawyer ownership of law firms. But that prohibition is not a good means of protecting that value. Lawyers’ professional independence is already protected by other provisions of the Rules of Professional Conduct. For example, Rule 1.2 requires lawyers to abide by clients’ decisions regarding the objectives of representation. Rule 1.5 imposes the duty of confidentiality on lawyers. Rules 1.6 and 1.7 prohibit lawyers from representation where there is a conflict of interest between the lawyer and the client. And Rule 2.1 requires lawyers to “exercise independent professional judgment and render candid advice” in representing a client. 

Additionally, the argument that nonlawyers would exercise improper influence over lawyers in their employ simultaneously overstates and understates lawyers’ ethical propriety. It assumes that all lawyers are saints with no possible motivation to exercise undue pressure on subordinate lawyers to act against their clients’ best interests (e.g., padding of hours, pressure to settle a contingency-fee case). At the same time, it assumes that lawyers have so little commitment to their professional obligations that they would ignore all their obligations to their clients if pressured by a nonlawyer employer.

Finally, allowing a Utah-style sandbox would provide consumers with an extra level of protection they don’t receive in traditional regulation. Traditional regulation of legal services applies to individual lawyers, not to law firms. In Utah and Arizona, where outside ownership has been permitted, regulation of individual lawyers remains in place. That regulation is supplemented by regulation of businesses providing legal services. Having both lawyers and law firms regulated protects consumers both from problems arising from an individual lawyer and from problems arising from the company through which the lawyer provides services.

What This Means for the Regulatory Innovation Movement and Access to Justice Efforts More Generally

The persistence of these two narratives suggests that both the regulatory innovation movement and the greater access to justice community have significant work ahead of them. Educating the legal profession about the true extent of the access to justice crisis remains a substantial challenge, and establishing a sense of urgency is crucial for developing a comprehensive vision and implementing necessary systems change. Therefore, regulatory innovation leaders must continue gathering and disseminating data on their initiatives. This data serves to counter unfounded fears of consumer harm with evidence and strengthens the case for change.

One new avenue through which advocates in increasing the middle-income population’s access to affordable legal help can collectively make the case for change is through the Above the Line Network (ATLN). On January 23, 2024, IAALS, in partnership with The Chicago Bar Foundation, launched ATLN—a community of leaders from across the United States, Canada, and beyond who are working together to transform the delivery of legal services to the underserved middle class. One of the goals of ATLN is to provide its members with an avenue through which to educate funders, the judiciary, the bar, and others on the extent of the gap in legal services and the need for more resources dedicated to serving people in the middle class, as well as to advocate for change to the judicial, legal, and regulatory systems that would transform how legal services are delivered. Learn more about ATLN and join here.