Let’s set aside controversy and talk about commonality

In a world where our disagreements often drive the narrative, I'd like to take a moment to explore areas of agreement. It is possible, even with a controversial issue like legal regulatory reform.

In 2018, the State Bar of California launched the Task Force on Access through Innovation of Legal Services and charged it with "identifying possible regulatory changes to enhance the delivery of, and access to, legal services through the use of technology." Of course, this is not news to the many readers who have been closely following these state regulatory discussions.

I, too, have been paying close attention to California's recent regulatory activity. In full disclosure, I support the exploratory work done by the task force, and now the Closing the Justice Gap and Paraprofessional Program working groups. You might be rolling your eyes, but please keep reading. (Only 957 more words.)

As an out-of-state observer, I see these regulatory reform discussions growing increasingly contentious. You likely are seeing it, too. Most recently, the chairs of the California Senate and House Judiciary Committees sent a letter to the chair of the State Bar of California Board of Trustees requesting he cease the activities of these working groups. Many supporters responded publicly, and many opponents did as well. The commonalities in these responses: We are all passionate! Even if you disagree with what someone is saying, most of us can respect the passion with which they say it. I certainly can.

But our commonalities don't stop there.

I doubt there is an attorney reading this who is not at least in some way dedicated to advancing the legal profession. Where this conversation gets tricky is in how different segments of our profession define "advancing." For some (me included), new business models and new authorized providers are the future of our service to the public. For others, the reforms under discussion will dilute the quality we deem inherent in lawyers -- to the detriment of the public. We just need more of existing providers is what I hear. Our differences in this conversation, though, do not negate the underlying dedication we all feel to the work we do and the value we bring to the public.

Relatedly, every attorney I encounter in this reform space (in states across the country) is fiercely dedicated to protecting the public. What "public protection" entails, however, is where we seem to diverge. Some attorney groups posit that protection means ensuring that only qualified, licensed attorneys are positioned to provide vital legal support to the public. Others see (or like me, they study) the current harms befalling members of the public who cannot currently access attorney services. At high rates, consumers are navigating the legal system without legal help -- but especially concerning to me are housing and family cases, which contingency-fee practice does not reach.

All of us do seem to agree that we need to protect the public from unscrupulous actors. How do you define "unscrupulous?" None of the proposals before these regulatory working groups envision unregulated providers. Nevertheless, some are still suspicious, whether due to concerns about compromised professional independence, the for-profit orientation of the providers, or other reasons.

Advocates like me don't necessarily view licensed and regulated paraprofessionals or authorized tech-based legal service providers as necessarily unscrupulous (at least not any more or less than private profit-seeking attorneys/firms or legal services priced out of reach of the average consumer). Many reform advocates are actually in favor of a tightly controlled structure of oversight and regulation for new providers and new products in the space. The "sandbox" design anticipates this. Similarly, the proposed paraprofessionals program is built around requirements for education/training, routine oversight, and, where necessary, mechanisms for discipline and rule enforcement.

Still, we all have concerns (whether about the current system and/or proposals for reform). And we are all operating in this debate without much (if any) empirical evidence. Of course, the structure of the status quo (statutes, regulations, and precedent) supports the maintenance of the status quo. But the existence of a regulation is not evidence that the harm we are trying to prevent will materialize in its absence. We don't know if independent judgment will be compromised with non-attorney ownership. We don't know if a new tier of providers will increase access. This is precisely why we have to experiment in a controlled environment.

A note, here, about the regulatory sandbox proposal. The sandbox is agnostic to the companies that operate in it. It is a vehicle for experimentation, like a pilot project. It is the role of the body regulating the sandbox to figure out what is allowed in and what isn't.

Finally, we all are also frustratingly aware of the limited resources various stakeholders are competing for to better serve and protect the public. Reform advocates (like me) are in no way opposed to the solutions these California lawmakers fell back on, like increased funding for legal aid or encouraging more pro bono. It is just that we question the scalability of these 1:1 solutions. Having studied access to justice issues for many, many years, it seems clear that we have a problem of scale. It is most certainly not an issue of effort.

No matter our differences, none of us can afford to allow our justice system to continue to drift away from the people it is meant to serve. There are major institutional implications for our society -- and the democracy that our justice system supports -- when most people in the United States, up and down the income scale, are required to come to court to make lasting decisions about their financial security, living security, and physical and mental health without any assistance. Far too many people today suffer significant adverse impacts on their lives when forced to deal with issues such as evictions, mortgage foreclosures, child-custody disputes, child-support proceedings, and debt-collection cases without legal help. Unless something changes, many, many more will join them. We need a way forward.

We all know that change is here -- and it is constant. If it doesn't manifest in the reforms being discussed by the State Bar of California working groups, then it will manifest elsewhere. Whatever it ends up being, all of us in the profession will have to navigate this together. What often keeps me up at night isn't the length of our divide but rather the degree of our likeness. The only way we will successfully navigate what is to come is by appreciating the humanity of those whose ideas are different than ours -- and we can do this by remembering the many ways in which we are aligned. 