The power in your hands

The most dangerous threat to public health and the global economy in nearly one hundred years — and make no mistake, that’s what the COVID-19 pandemic is — obviously deserves and receives our highest-priority attention. But the existence of a truly dire emergency doesn’t render our other crises and problems any less serious, and it doesn’t excuse us from the ongoing task of trying to resolve them.

It’s a dismaying turn of events that the pandemic has coincided with and overshadowed a critical moment in the legal regulatory reform world. On March 12, the Trustees of the California State Bar postponed a scheduled vote on whether to explore even the possibility of a “regulatory sandbox,” a mechanism that would allow supervised oversight of innovative legal services provision outside the traditional legal profession. The reasons given for postponing the vote included ominous terms like “political headwinds” and the need to “consult with all stakeholders.”

Andrew Arruda, a member of the task force that recommended the sandbox experiment in California, provides more details in this post, which also asks supporters of legal regulatory reform to write the State Bar Trustees and exhort them to vote in favour of the mere exploration of a sandbox experiment in California.

The stakes are extremely high: Although Utah has approved a sandbox and Arizona seems poised to introduce similar reforms, California is a bellwether state when it comes to American legal and regulatory trends. If California rejects even the possibility of considering a sandbox, that would constitute a severe setback to regulatory reform worldwide. If California forges ahead, momentum in favour of reform would increase tenfold everywhere.

Like you, I’ve been focusing my personal and professional attention on the pandemic. I wrote about the impact of COVID-19 on our justice system earlier this week, and I’ll write more on that topic here at Law21 next week. But while the pandemic unfolds, a critical turning point in legal regulatory reform has arrived and must be dealt with. I invite you to read the letter to the Trustees that I sent this morning, and if you agree with it, to send your own message of support based on one of the templates provided here.

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Dear Trustees of the California State Bar,

My name is Jordan Furlong, and I am a lawyer, author, and legal market analyst who tracks the rapidly changing global landscape of legal services. I’m writing you today to respectfully but urgently advocate that, when the recommendations of the Task Force on Access Through Innovation of Legal Services (ATILS) return for your consideration later this year, you cast a vote in favor of exploring a “Regulatory Sandbox” to consider and review innovative legal service provision.

Seeking Solutions

I’m absolutely certain that you understand the scope of the access-to-justice crisis afflicting California residents today, and I’m equally certain that you want to see a solution to that crisis as much as anyone else. The question, as it always is in such situations, is how best to procure that solution, balancing the benefits that can be achieved against the harms that could be suffered.

My suggested approach to answering this question is to think not so much in terms of “a solution,” but of “solutions.” There is no rule that says wickedly complex and intractable problems must be resolved by the application of a single type of remedy. Indeed, our experience dictates the opposite conclusion: that the more complicated and multi-faceted the challenge we face, the more nuanced and multi-dimensional must be the array of tools and approaches we bring to bear.

In this reasoning, there is a strong parallel to be drawn to our current health crisis, the novel coronavirus pandemic. Every type of authority — government, medical, scientific — is working hard to help people avoid or delay the spread of COVID-19. We are all (or most of us, anyway) working hard to “flatten the curve.” But we are taking multiple approaches, rather than a single approach, to help resolve the problem. 

  • We are not just avoiding large public gatherings of people, we are also staying home (except to get groceries and other necessities).
  • We are not just staying home, but we are also closing schools to prevent children from unknowingly spreading infections to each other.
  • We are not just closing schools, but we are also testing as many individuals as we can and working desperately to expand our testing capacity.

Any one of these tactics would go some distance towards slowing the spread of COVID-19 and decreasing the rate of infection. But if we only engaged in a single tactic, we would quickly find it to be terribly insufficient — we would lose the battle in short order. We need multiple tactics employed simultaneously to have any reasonable hope of getting through this pandemic.

California Gov. Gavin Newsom (Photo: Rick Pedroncelli, AP)

(By coincidence, just before I finished drafting this letter on March 19, Governor Newsom issued his statewide order directing Californians to stay at home and avoid all unnecessary social contact.)

The Limits of “Lawyers-Only”

The access-to-justice crisis, while important, is of course not at the same level of seriousness as the COVID-19 pandemic. But the same reasoning, I submit, applies as well to the access crisis as it does to our public health emergency. 

Up until this point in history, we have deployed a single tactic to provide legal services: trained and licensed lawyers. We have not developed any other type or channel of service provision — indeed, we have outlawed such alternatives. To extend the analogy, it is as if we tested people for the coronavirus, but we simultaneously made it illegal to close schools or shut down movie theaters.

The result of this approach to the access problem is now so plain to see that it is virtually inarguable: Lawyers alone are insufficient to solve this crisis. We have tried — beyond any doubt, we have done our absolute best to employ one and only type of solution to the access problem, year after year, decade after decade. Yet we have not solved the crisis — indeed, we have seen it become radically worse throughout the last several years.   

We will not make any progress towards our goal of solving the access crisis unless we acknowledge this reality and deal head-on with its implications.

I am not here to tell you that giving Californians access to limited-licence practitioners, or court navigators, or AI-driven chatbots, or online interactive software for producing legal documents, is going to solve the access-to-justice crisis. I am here to tell you that unless we try to find out — unless we create the conditions for a series of controlled experiments to test our hypotheses — we will not move one inch closer to solving our problem. The “lawyers-only” approach has had 100 years to show what it can do — at this point, its failure must finally be conceded. 

Concerns and Responses

You might have legitimate concerns about the welfare of Californians who try these novel and untested methods, and those concerns are valid. Those concerns are explicitly addressed by the “Sandbox Model,” wherein alternative providers are: 

  • minutely examined and thoroughly questioned before they can interact with the public, 
  •  closely monitored and tightly regulated by a specialized oversight body during their interactions with the public, and
  • subject to subsequent data collection and assessment of their impact on the members of the public they have served.

You might also have legitimate concerns about whether these changes would pose a threat to lawyers and their livelihoods, and those concerns are valid. In response, however, I would observe that by its very definition, the access-to-justice crisis afflicts a portion of the market that lawyers do not serve

For lawyers to be threatened by these new providers, it would have to be the case that the markets and customers sought by these new providers coincide or overlap with the markets and clients served by lawyers. We know that is not the case. These are two parallel markets. Lawyers’ livelihoods will not be affected by the presence of alternative providers, precisely because they are “alternative” to lawyers.

Finally, you might have legitimate concerns about whether California is breaking precedent and moving too soon to explore the Sandbox option, and those concerns are also valid. But as you know, Utah is already forging ahead with the “Sandbox” regulatory experiment, and it seems likely that Arizona will shortly join Utah as a pioneer in American legal re-regulation. Task forces recently commissioned in Florida, North Carolina, and Connecticut, when they file their reports, seem likely to arrive at similar conclusions as did the Utah, Arizona, and ATILS task forces.

California need not fear being too early a pioneer. Before too long, it could be seen instead as too late a follower.

The Time is Now

In conclusion, I wish to urge you again to approve — not the establishment of alternative legal providers in California, not even the establishment of a regulatory Sandbox in California, but the exploration of the possibility of establishing such a Sandbox in California. It is almost literally the least disruptive and least controversial step that the Board of Trustees can take at this critical moment in time. 

I must also note that the current COVID-19 pandemic is certain to place an unbearable burden on our justice system. Courts worldwide are already finding themselves forced to cancel trials and shut courthouses. Law firms in Pennsylvania have been explicitly ordered to close their doors, and other states are sure to follow in the coming days. The justice system is going to grind to a halt, while the needs of Californians for justice and legal services in a pandemic will accelerate and metastasize. The time for action is today — right now.

Multi-faceted remedies applied simultaneously are the only way we will survive the coming pandemic. In exactly the same way, multi-faceted remedies applied simultaneously appear to be the only way to solve the access crisis. In order for us to find out whether this is correct, we have to try — to allow merely the opportunity to explore and test alternative measures. The power to try is now solely in your hands.



2 Comments

  1. Trish Blassingame

    This:

    The “lawyers-only” approach has had 100 years to show what it can do — at this point, its failure must finally be conceded.

    This is one of the most important statements I’ve read in the past 10 years. It’s time to be innovative and come up with 21st-century solutions.

    Thank you.


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