In a commentary in the Salt Lake Tribune, Prof. Gillian Hadfield and her co-authors, Deno Himonas and John Lund, describe the value of the reforms they propose for legal regulation in the American state of Utah. All three were members of a joint Supreme Court/Utah Bar task force to address the access-to-justice gap in Utah ("Momentum is building to fix our legal system. Let’s seize it," September 20, 2019).
Read the full commentary on the Salt Lake Tribune website, or below.
Momentum is building to fix our legal system. Let’s seize it
By Deno Himonas, Gillian Hadfield and John Lund
September 20, 2019
We like to say we are all equal under the law. And in terms of our rights, that may be true, but it’s flat wrong when it comes to access to justice. Each year millions of Americans face a legal world of confusing online privacy policies and employment contracts, painful family or small business disputes, struggles with insurers and service providers, evictions and foreclosures, and more. What unites people, from poor to upper-middle class, is the fact that the vast majority muddle through all of this without any legal help.
Why in a world with so much law do so few have access to affordable legal help? The answer is very simple: lawyers cost too much and yet there’s no good alternative.
Finally, a few states are taking steps to change this. As members of a joint Supreme Court/Utah Bar task force to address the access-to-justice gap in Utah, we recently recommended reimagining how legal services should be regulated—recommendations that the Utah Supreme Court unanimously endorsed. And the momentum is building, as other states including Arizona and California, also consider bold recommendations for change.
How bad is the problem? A 2010 study in New York found that 98% of people in court facing eviction, 99% of borrowers in consumer credit matters, and 95% of parents in child support cases were in court without a lawyer. A review of cases in Utah found that, in its largest district, in 93% of all civil and family law disputes at least one party was unrepresented throughout the entirety of the case. The U.S. is ranked 99th out of 126 countries in terms of access to and affordability of civil justice. Lawyers serving ordinary people and small businesses charge an average of well over $200 an hour. How many hours could you afford if you needed help?
Lawyers don’t cost too much because they’re greedy. They cost too much because a set of rules that courts and bar associations came up with about a hundred years ago—originally intended to ensure lawyers behaved ethically—forces them to operate in a highly inefficient business model and without the capacity to embed their expertise in technologies that could drive down the cost of legal advice.
What Utah has just done is to say: enough. Time to change not just the rules governing lawyers, but our approach to regulating who and how people can access legal help. Time to build a regulatory approach that puts the interests of those who need help first. Time to make regulation a matter of evidence and a careful balancing of risks and benefits. Time to build a regulatory model that encourages innovation and brings law into the 21st century, all the while still requiring adherence to high ethical standards.
Nobody should be told, as they are now by the rules in all fifty states, that they can’t purchase a phone app that will allow them to take a picture of a legal document—an email threatening a lawsuit for copyright violation, an employment contract, a collection notice—and get some helpful information back from a human, some augmented intelligence system, or both.
The blueprint we helped put together to guide change in Utah will not do away with lawyers. To the contrary, it will create openings for lawyers to deploy their legal expertise in innovative ways. The key is changing the rules to allow new business models—new, that is, to law; they’re everyday fare in the rest of the economy. Lawyers who would like to stop running the risks of operating a small business could take jobs as highly paid senior managers in a company that offers its customers legal services in ways that cut costs and increase quality: online, with flat-fee pricing, with large enough volume to develop strong protocols to deliver a standard solution, and customized solutions when needed—think the legal equivalent of Turbo Tax. Or they could start those technology companies themselves in partnership with others who bring the business, technological, and financial chops they themselves may lack—think the legal version of Zillow.
Graduates from law school could follow some of their peers into the world of startup ventures, figuring out how to build systems and services that help millions, instead of taking a job working 2,000 or 3,000 hours a year in a corporate law firm or hanging out a shingle and billing an average of two-and-a-half hours a day. Or they could enter into a local, multi-disciplinary partnerships with other professionals —think combining family-law lawyers, counselors, and accountants in a way that reduces overhead costs and improves efficiency, making real full-service more affordable.
Today neither large legal services companies using technology and online platforms to deliver smart legal help nor local, multi-disciplinary business arrangements exist. Why? Because they violate the existing rules.
Utah is not alone in trying to change the landscape and make law much more affordable for ordinary people and small businesses. As mentioned, Arizona and California are also considering changes to the rules that would free up the business model of law and bring down the cost of legal services. We hope these efforts will bear fruit. But there’s reason to be worried.
Proposals to change the rules to benefit ordinary Americans have been made both in state bar associations and at the American Bar Association multiple times over the past three decades — all have died. This is because some lawyers are concerned that change will diminish their profession or that competition will cut into their incomes and courts have been unwilling to take a stand. We’re proud to say that in Utah the leadership for change has come from the Utah Supreme Court and many members of the Utah Bar, including a number in key leadership positions; we hope the tide is turning throughout the country. It needs to.
We either can watch the access-to-justice gap continue to grow in this country and equal access under the law become a lost precept, or we can seize on the momentum that is building for real change. We stand with Utah and for real access to justice for all.
