This is a guest post by Joanna Mendoza (@LegalDisruptor).
After over a year of meetings, research, writing and presentations to stakeholders, the California State Bar’s Access Through Innovation of Legal Services Task Force (ATILS) met for the last time on February 25, 2020. After completing two terms on the State Bar’s Board of Trustees, my six years on the Board had ended in September 2019 and my work as the California Assembly appointee to ATILS was the last and most important task.
The next day, February 26th, I was leaving on a long-planned adventure by ship across the Atlantic to enjoy two months thereafter experiencing Spain and Portugal. It seemed like the perfect way to celebrate the conclusion of my work related to regulatory reform.
When we embarked onto the ship to head across the ocean, Covid-19 was something that had really had only impacted China and a couple of cruise ships in Asia. During our two weeks across the ocean we watched the world change. When we finally arrived in Barcelona on March 13th, we had an official world-wide pandemic.
We were the last ship that allowed passengers to disembark, and the very next day Spain went into one of the strictest lockdown’s in the world. Deciding to hunker down and ride out the storm in Barcelona, gradually all our plans across Spain and Portugal were cancelled including our flight home in mid-May. We remain in Barcelona today waiting for the lockdown to lift and for international travel to improve.
So, while the world completely changed in this short time period, I was hopeful that one thing that would not be hampered was the amazing work undertaken by ATILS. The final report was completed and submitted to the Board while I was somewhere in the middle of the Atlantic Ocean. The most significant of the recommendations, the development of a regulatory sandbox, was the part of the report I was most involved in drafting.
The recommendations did not go far enough in my opinion, as it became clear that the gap in access to legal services in California as outlined clearly in the recently completed California Justice Gap Study had grown significantly. Immediate measures were needed to begin what would obviously be a long road to reverse the trend, a trend that the legal profession had failed for decades to correct despite legal aid funding increases and pro bono efforts.
Of course, those measures had only helped to assist some very low-income households, while the large majority who did not qualify for legal aid continued to seek self-help rather than the very expensive services of attorneys. As laid out rather starkly in Professor William Henderson’s report to the Board, families who need legal services were more likely to use what income they had for expenses deemed more necessary: housing, medical expense, tuition, etc. Small businesses also had limited ability to afford legal services.
As the gap between the haves and the have-nots grows in our society, the same can be said for those who have access to legal services and those who do not. And these conclusions were reached before the pandemic.
The world changed in so many ways, but with unemployment at records levels in our lifetime, small businesses threatened, and a health care crisis unfolding, the need for easily accessible and affordable legal assistance is even greater than before. The legal access crisis is growing exponentially before our eyes and the legal profession, having failed to address the problem adequately before, is not capable of reversing the trend unless real changes are adopted.
Change is scary. But failing to change will cause irreversible damage to the public and laws that we are supposed to serve and protect. The change I did not expect, therefore, was hesitation to move forward to the point that all of ATILS work was threatened to be for naught.
Since the ATILS recommendations came after so much careful consideration and research, significant public comment, and days of debate that resulted in a report that we could agree upon, I had been very much looking forward to the Board and the Supreme Court pushing forward with the regulatory scheme we had proposed. However, the first time the Board of Trustees took up the ATILS report during its meeting in March there was a very vocal group of aggrieved attorneys who considered the proposals to be a threat.
ATILS had already addressed the concerns raised by this vocal minority by proposing a measured and compromised approach to changing regulations in the form of a “sandbox” that would test potential changes and allow for the collection of data to determine whether relaxing certain regulations relating to business structures would harm the public or provide better access to legal services. Utah was already leading the way despite California having undertaken the study beforehand. Arizona was proposing to move further with the proposed abolition of Rule 5.4 with respect to non-attorney ownership of legal service providers.
California was no longer first, but in order to encourage more innovation it was important for California to offer options that could serve a large enough population to be economically feasible. Yet the Boar hesitated.
We thought our work was complete when the ATILS report and recommendations were finalized. It turned out, however, that our work had to continue in an effort to save the work we had done. The regulatory sandbox proposal was key to making a difference by allowing and monitoring one-to-many legal services that could truly make a dent in the access gap.
Adding individually licensed paraprofessionals was already approved by the Board with the formation of a new group to explore what needed to be done for such a program in California to become a reality. But such a program only provides more one-to-one type services that, while alleviating some of the problem, would not have the enormous impact that technology and one-to-many services could. And the regulatory sandbox allowing professionals who were not licensed attorneys - allied professionals who have skill sets that lawyers do not ordinarily have – to have a stake in the business model in order to encourage real innovation in the space was critical.
An effort was undertaken by some of us on ATILS to educate and explain the necessity of moving forward, even though it was just to form another group to work out the details of the sandbox before actually implementing anything. We would have loved to be more aggressive, but fear is a strong emotion and, in order to best address the fear in the legal community, we need to take incremental steps that can provide a level of comfort that the fears are not coming true.
I was particularly pleased, therefore, that what had seemed to be a block in the road to change in March was strongly set aside in the May Board meeting by a large majority vote in favor of moving forward with the ATILS recommendations. I have renewed faith that the California State Bar Board will continue to be consumer focused and not be swayed by the fear and loud concerns of a vocal minority of attorneys.
It is hard to be patient when you know what needs to happen and it cannot happen fast enough. If anything, this pandemic has only heightened the need to be innovative and find ways to serve the 80% who are not currently seeking out legal assistance.
As we sit in lockdown and ponder the future, it is my hope that the attorneys who have not yet recognized the need for real change in the provision of legal services will have the time and opportunity to understand why those of us who have carefully studied the issue are so adamant.