According to an announcement of a new project from the Institute for the Advancement of the American Legal System, people in the U.S. seek out lawyers for only about 16% of civil matters, and about three-quarters of state civil cases involve at least one self-represented party. IAALS’ new project, Unlocking Legal Regulation, will look at how some current regulations of law practice might contribute to this access to justice gap.
The project builds on previous research IAALS has done about the experiences of self-represented litigants. Natalie Knowlton, IAALS’ director of special projects, said Unlocking Legal Regulation focuses on “re-regulation” of ethical and professional conduct rules that govern law practice in the U.S. Proponents of reforming legal regulation say current regulations of law practice and how lawyers can conduct business also end up restricting client access to legal services.
“Many would say, including IAALS, [these regulations] are keeping both attorneys from thriving under new business practices and keeping a lot of consumers from being able to get critical legal advice or legal services that would help them move their case forward,” Knowlton said.
For example, lawyers can’t partner with non-attorneys in their businesses, such as accountants or marketing professionals, by giving them equity ownership. And they can’t work as staff attorneys offering services to the public in a business model other than a law firm.
Knowlton said a broad aim of the Unlocking Legal Regulation project is to analyze the effects of current legal services regulations on client and trade protection.
Lack of access to legal services can have different causes: Not having enough money for a lawyer is a significant reason, but other factors such as lawyer shortages in rural areas also contribute. Lucy Ricca, who is acting as a special projects advisor for IAALS for Unlocking Legal Regulation, said traditional regulations of law practice have been designed with consumer protection and risk management at top of mind, which are necessary but often don’t reflect practical realities of how they can contribute to gaps in access to legal services. Research on regulation reform recognizes the need to balance protection and risk management with access.
For example, a company such as Walmart can’t hire staff attorneys to offer basic legal services to customers in addition to their retail business. Professional conduct rules that prohibit it are designed to protect consumers from practices by non-law firm businesses such as overselling their legal services but don’t reflect that such a model could help areas with a shortage of legal services options.
Knowlton said regulations of law practice also bar lawyers from partnering with non-lawyers who could complement their business well, such as a family law attorney partnering with a mental health professional or a financial advisor. She said that can limit attorneys’ ability to focus on practicing law, especially solo practitioners, because they also have to handle the business operations of their practices.
“We have a really broad definition of the practice of law, and then we say only lawyers can do it, and then we say lawyers can only operate their businesses in these very restrictive ways,” Ricca said. “What that has done is really distort the market for legal services in a fundamental way.”
She added rules tend to be made “in advance of any realities on the ground. “We didn’t feel that the type of system that is appropriate for the 21st century.”
Ricca also sits on a work group created by a Utah Supreme Court justice and former state bar president that put together a report on regulatory reform for legal services in the state.
Among the report’s recommendations, it suggests reform that uses a “regulatory sandbox” approach, allowing testing of new legal services models in designated areas and collecting data to evaluate them.
The report suggests new regulations that loosen restrictions on business practices, such as lawyer advertising, fee sharing and referrals, and to allow for non-traditional legal services sources, including non-lawyers trained to provide limited services and technology
companies.
“It’s an incredibly bold proposal that responds directly to these concerns,” Ricca said. She added the understanding of access to justice gaps has to consider that the problem affects most average Americans, not only people in poverty.
Knowlton said IAALS’ previous research on self-represented litigants has found that most people don’t need legal help with complicated and drawn-out matters but rather help navigating intimidating court systems and “small pieces of direction and diagnostic information to help them get from step A to B to C,” she said. “And so I think that work really did form the foundation of what we’re doing on the Unlocking Legal Regulation project.”
—Julia Cardi