First Column: Technology that is primarily serving lawyers: Utah has 2 and Arizona has 7 total entities.
Second Column: Technology that either serves consumer/small business or facilitates consumer/legal provider interaction: Utah has 20 and Arizona has 16 total entities.
Third Column: Technology that facilitates lawyers finding clients or clients finding lawyers: Utah has 6 and Arizona has 5 total entities.
Fourth Column: Identified technology developments as part of a model but technology strategy or service is unclear: Utah has 1 and Arizona has 5 total entities.
Fifth Column: No technology innovation identified: Utah has 23 and Arizona has 33 total entities.
by Graham Ambrose, Rhode Center Civil Justice Fellow
Graham Ambrose, JD ’24
STANFORD, CALIF. — Leading scholars, practitioners, and judges met on February 11 and 12, 2023, at Stanford Law School as part of Stanford Law Review’s symposium on access to justice. One panel explored the fledgling movement to make legal help less expensive by rewriting the rules governing the practice of law.
The panel, which was moderated by Stanford Law Professor David Freeman Engstrom, featured Salena Copeland of the Legal Aid Association of California, Karin Martin of the University of Washington, Dan Rodriguez of Northwestern Law School, Lauren Sudeall of Georgia State Law, and Vice Chief Justice Ann Timmer of the Arizona Supreme Court.
Arizona has emerged as a national leader of this front. At the event, Vice Chief Justice Ann Timmer surveyed some of her state’s recent reforms. One of the most significant was the elimination of ethics rule 5.4, which barred non-lawyers from owning law firms.
A recent report from Stanford’s Rhode Center on the Legal Profession found that non-lawyer ownership has spurred innovation in Arizona and, at least so far, generated relatively few complaints from consumers.
Stanford Law Professor David Freeman Engstrom, an author of that report and co-director of the Rhode Center on the Legal Profession, challenged reformers to consider the extent to which lawyers should play a role in the legal system of the future. Because of their skills, education, and ethics requirements, Freeman Engstrom suggested, lawyers should be centered but equipped with technology and perhaps even non-lawyer advocates.
As Vice Chief Justice Timmer noted, and as the Rhode Center report describes in detail, Arizona has answered this challenge with legal paraprofessionals. Launched in 2021, the paraprofessionals program licenses legal versions of nurse practitioners to practice law in select contexts, including family law and criminal cases, without the threat of jail time.
Many of the newly licensed paraprofessionals in family law were formerly family law paralegals, Timmer said, and they “know that subject backwards and forwards.”
“I’ve heard anecdotally from judges that they already tried cases, and [the paraprofessionals] have been better than most attorneys they have in their court,” the vice chief justice added.
Opposition to regulatory reform remains ardent in several states, including California. (When discussing Arizona’s leadership on eliminating ethics rule 5.4, Timmer received a round of applause.) In 2020, the State Bar of California launched a working group to study possible changes to the rules that govern the practice of law. The group was convened to respond to the state’s worsening access-to-justice crisis. Last year, however, the legislature shut down the group, effectively ending the possibility of legal reforms in the short-term.
Salena Copeland, executive director of the Legal Aid Association of California, suggested that the legal regulatory reform movement learn to frame its case in terms legislators understand: dollars and cents. Because state courts need public funds to function, changes to the operation of courts must be accountable to the fiscal math that governs the rest of politics. For instance, civil assessments in California have been criticized recently for their unfairness. But courts and other state institutions rely on these fees, which generate $100 million annually.
One recent example of successful advocacy involves the effects of a driver’s license suspension. California passed a law in 2017 prohibiting the DMV from suspending driver’s license for failure to pay fines, and recently shielded some low-income people from having their license suspended for failure to pay child support.
“The reason we’ve been successful in California is because we connect it to money,” Copeland said. “Legislators will ask, ‘How much will this cost us’? And if you can’t answer that question, they’re not going to do the amazing policy work you’re arguing for.”
However, a major obstacle to reforms remains the paucity of data from state courts. Various panelists decried the “black box” of information about how courts operate, an information gap that hampers solutions.
Karin Martin, professor at the University of Washington, discussed the data shortage in the context of monetary sanctions, or the fines, fees, restitution, and other financial penalties created by the criminal legal system. Monetary sanctions include, for instance, the probation fees imposed by a local probation department either before trial or after conviction. Such fees create significant stress and financial hardship, forcing individuals with little money into hard choices like paying their rent or paying court fees.
Monetary sanctions hinder access to justice by “ensnaring people in the criminal legal system that then thwarts their ability to engage in the civil legal system,” Martin said.
But reform is tricky in part because no one knows the exact size of the problem. Only 25 states collect data on the size of criminal legal debt. “Literally half the states cannot tell you how much has been assessed in fines, fees, restitution,” Martin said. “They cannot tell you how much has been collected. They cannot tell you how many people have been incarcerated” due to these fines.
Part of the problem is that courts rely on outdated technology. But part of the problem is legal complexity. Panelists blamed overly complex court processes and systems, which frustrate litigants and multiply the difficulty of administering accessible courts.
“Law is really, really complicated—and ever more so,” noted Dan Rodriguez, a professor and former dean at Northwestern University Pritzker School of Law.
Rodriguez challenged lawyers to question the purpose and practice of legal self-regulation—whereinstate supreme courts assume, “as a matter of natural law,” the ability to control the practice of law. One consequence of this “zombie legal doctrine,” quipped Rodriguez, is that “the content of justice is determined by where you live, and that’s beyond sad.”
Ultimately, it is the public that loses most from the perception—and reality—that America’s institutions of justice fail to achieve justice. To most Americans, “courts are where bad things happen to people,” explained Copeland. “Courts are where your uncle goes to prison, where families are separated from their children, where you can lose your driver’s license in many states still, where even if you don’t go to prison, you pay fines and fees you can’t afford.”
Lauren Sudeall, a professor at Georgia State University College of Law, proposed “shrinking the system” of civil justice in a process she calls “delegalization.” In parallel to the process of “decriminalization” in the criminal justice context, delegalization would remove certain wrongdoing from the civil legal system entirely. For example, under this approach, a tenant’s inability to pay rent might be handled not through courts at all, but through social services or community-based programs.
Such a project—which, Sudeall recognized, is rife with problems and pitfalls—would require new ways of thinking about legal issues. It would also demand new humility from lawyers, who consider themselves to be problem-solvers.
“As it functions, the system is not achieving its own goals,” Sudeall said. “The legal system might not be the right place for some of these issues. Courts might not be the institution best positioned to resolve some of these questions.”
In the long run, however, it’s all about the data. Initial findings from Utah and Arizona reform efforts.
[Legal Evolution editor’s note: For today’s feature post, we are pleased to welcome Lucy Ricca and Graham Ambrose, two of the authors of the recently published Stanford Law report on the legal regulatory changes taking place in Utah and Arizona. Prior to becoming Director of Policy and Programs at the Deborah L. Rhode Center on the Legal Profession, Lucy Ricca was the founding Executive Director of the Office of Legal Services Innovation (the regulatory office overseeing the Utah sandbox). In addition, she remains a member of the Office’s Executive Committee. Graham Ambrose is currently a 2L at Stanford Law and a 2022-23 Civil Justice Fellow at the Rhode Center. wdh]
The year 2020, known to most for global pandemic shutdowns, also heralded leaps and bounds in legal regulatory reforms. Utah and Arizona approved extraordinary changes to the regulation of legal practice. Both states loosened the bans on nonlawyer ownership of legal practices and the practice of law by nonlawyers. Further, the Conference of Chief Justices issued a resolution urging states to consider regulatory innovations regarding the delivery of legal services, and the ABA approved a limited resolution encouraging consideration of regulatory innovation. Even Justice Neil Gorsuch weighed in with his support for regulatory innovation.
This year, on the other hand, has been more challenging. California’s Closing the Justice Gap Working Group, of which one of us (Lucy Ricca) was a member, was tasked with drafting a report to the State Bar’s Board of Trustees on what a California regulatory sandbox might look like. But the group became a punching bag of several of its own lawyer members as well as powerful members of the state legislature. The group was finally shuttered this past summer when those legislators forbade the Bar, or any group formed by the Bar, to work on anything having to do with reform of ownership or unauthorized practice rules. See Joyce E. Cutler, “California Restrains State Bar From Expanding Nonlawyer Practice,” Bloomberg Law, Sept 19, 2022. The ban also stopped any further work on paraprofessional licensing, a subject already addressed by a different working group that had completed and submitted its report.
Regulatory reform hit snags nationally, too. At its summer meeting, the ABA House of Delegates passed a non-binding resolution discouraging states from considering changes to the rules around nonlawyer ownership and investment. See “ABA Sides Against Opening Law Firms Up to New Competition,” Bloomberg Law, Aug 9, 2022. Although other states, including Washington and Michigan, continue to consider regulatory solutions to the justice gap, the once-substantial momentum for legal services reform seems to have stalled.
While the debates around legal regulatory reform and market liberalization continue, actual reforms proceed in Arizona and Utah. The Grand Canyon State abolished Professional Conduct Rule 5.4, allowing nonlawyers to own law firms and manage lawyers. See Robert Ambrogi, “Arizona Is First State To Eliminate Ban On Nonlawyer Ownership Of Law Firms,” LawSites, Aug 31, 2020.
Utah, by contrast, has launched a regulatory “sandbox”—or controlled policy program—in which state regulators permit designated legal entities to allow non-lawyers to practice law or to own law firms. In both states, new legal service providers are emerging. See “Enter the Sandbox: Utah’s bold new experiment in lawyer regulation,” The Practice (Jan/Feb 2021). These entities are partnering with or employing lawyers while offering new services to the public.
In our view, now is a good time to pause and ask, “What do Utah and Arizona teach us about the potential impacts of regulatory reform?” Some of the foundational questions include:
We conducted the research as part of a policy lab at the law school—a small seminar in which students conduct research on policy questions for real-world clients. In this case, our “client” was the Regulation and Practice Reform Committee of the Michigan Justice for All Commission, co-chaired by Michigan Supreme Court Justice Brian Zahra and former Michigan Bar President Janet Welch.
To begin to answer the questions raised above, we looked at two types of data. First, to understand what types of innovation are possible, we conducted in-depth, semi-structured interviews with 37 entities that have obtained authorization in liberalizing jurisdictions, half in Utah and Arizona and half in the U.K., where reform efforts are more mature. Second, to understand how much innovation may result in U.S. legal markets, and whom it may serve, we conducted a comprehensive analysis of the application, authorization, and other public-facing materials from all 57 of the authorized entities in Utah and Arizona as of June 30, 2022.
Our review led to several key insights and a more detailed understanding of what newly authorized legal service providers are doing in both Utah and Arizona.
Toward a taxonomy of innovation
We found that regulatory reforms are spurring substantial innovation in five different ways, particularly in the ownership structure of providers and in their service delivery models. In particular, we have identified five innovation types: (1) traditional law firms making changes to their capital or business structure or service model; (2) “law companies” practicing law; (3) “non-law companies” as new entrants to the legal sector; (4) intermediary platforms; and (5) entities using nonlawyers and technology to practice law.
The first four categories involve business structure reforms and are mutually exclusive, though there are entities moving from one category to another (e.g., from firm to law company or from law company to non-law company). As shown in the below graphic, however, the fifth category is a little different.
This last category (type 5) captures entities that are implementing service model innovations through the use of non-lawyers and software in order to practice law. This innovation, which is new to the U.S. legal landscape, is available only to entities authorized through the Utah sandbox.
Note that it’s possible that the entrant to the type 5 category may also be in one of the other four categories. For example, LawGeex is a law company (type 2) authorized in the Utah sandbox which is also authorized to use software to offer legal advice and guided assistance to its users (type 5).
As noted in today’s lead graphic, Arizona has limited its legal regulatory reform to alternative business structures (ABS). In contrast, Utah’s regulatory sandbox contemplates changes to the unauthorized practice of law (UPL).
Using our five-factor taxonomy, the graphic below summarizes the number of new entrants in both Utah and Arizona:
These categories show the kinds of innovations that may emerge as jurisdictions liberalize legal regulation.
Traditional firms.Traditional firms make up 35% of authorized entities across Utah and Arizona. At this early stage, the traditional outlets are all local Utah and Arizona firms taking outside investment or non-lawyer owners. Their reasons range and include recognizing and retaining nonlawyer staff and raising capital to invest in technology or marketing.
Law companies. Like traditional firms, law companies make up 35% of authorized entities in Utah and Arizona. Law companies include several familiar names: Rocket Lawyer, Legalzoom, Axiom, Elevate, Hello Divorce, and LawGeex. Each of these companies has chosen to become regulated in order to hire lawyers to practice law. This perhaps anodyne observation highlights the potential for regulatory reform to create new opportunities for lawyers to practice law for the public as salaried employees of established companies. Regulatory reform, in other words, has the potential not to replace lawyers with artificial intelligence or algorithms but to enable them to focus on what they are good at—the practice of law.
Non-law Companies. 18% of entities are non-law companies—that is, new entrants to legal markets that have set up “one-stop shops” combining law and non-law expertise or, alternatively, have begun to offer legal services as an adjunct to their primary line of business. One-stop shops are often partnerships between lawyers and other professionals, such as accountants or financial advisers, and offer holistic, multi-professional solutions for their consumers. Companies moving into law from outside of the legal services industry include Law on Call, which is the new legal subsidiary of a registered agent company authorized in the Utah sandbox.
Intermediary Platforms. Intermediary platforms are familiar offerings to the general legal industry. These marketplace companies connect lawyers to potential consumers, either through direct referral fee arrangements if permitted or through a workaround as a marketing vendor. The three intermediaries are authorized in the Utah sandbox primarily to enable the direct referral fee arrangement. One of these is Off the Record, the well-known traffic ticket marketplace.
Entities Using Non-Lawyers to Practice Law. As mentioned, the final category captures entities building innovative service models around the unauthorized practice of law (UPL) waivers available in the Utah sandbox. These include traditional firms (e.g., 1LAW, law companies (e.g., Estate Guru), and non-law companies (e.g., Law-on-Call). Also included are entities primarily targeting low-income and indigent people, including all the nonprofit, community-based organizations. One example is Rasa, a B-corporation that uses both AI-enabled software and nonlawyer providers first to help Utahns determine whether they are eligible to expunge their criminal records and then to execute the expungement process. Rasa was recently named the winner of the Access to Justice Tech award at the American Legal Technology Awards.
The big picture: key takeaways
Our survey of these service providers yields several insights.
First, lawyers are central to the work of these new entities and to the innovation taking place within them. Lawyers are conceptualizing innovative ideas and driving their development. Lawyers are participating as owners, investors, compliance officers, supervisors, and providers. Lawyers are overseeing development and training, even where the entity’s primary innovation is using software or nonlawyers to provide service.
Second, most entities across both Utah and Arizona are implementing both technological and other innovations—such as price innovations—to deliver legal services in new ways. Crucially, the primary market appears to be individual consumers and small businesses. Although there are a few entities primarily serving large corporations (e.g., Axiom and Elevate), the strong majority are serving what Bill Henderson has labeled the PeopleLaw market. This is an exciting development since we know the PeopleLaw sector has experienced significant stress and decline within the traditional regulatory landscape. See, e.g., Post 287 (collecting data on five decades of PeopleLaw decline); Post 198 (discussing need in Pennsylvania); Post 042 (showing shrinking wallet share of legal services in typical US households): Post 039 (discussing decline of PeopleLaw, including findings of Chicago Lawyers I and II studies).
Below is a breakdown by client type and jurisdiction:
As summarized in the graphic below, the Utah sandbox entities and Arizona ABSs have sought authorization to offer services across a wide variety of substantive legal areas:
A third takeaway is that addressing UPL within the reform agenda appears to be critical, at least at this stage, to serving lower-income populations. Utah offers UPL waivers to entities seeking to use software or nonlawyers to practice law under the entity’s license. Arizona’s reforms, in contrast, are directed at entities seeking to access non-lawyer ownership or investment. It’s noteworthy that the Utah sandbox contains the only entities—all of them non-profits—that report serving primarily serve indigent and low-income people.
Finally, reform efforts to this point do not appear to pose a substantial risk of consumer harm. Data and information reported by Utah and Arizona regulators indicate that authorized entities do not appear to draw a substantially higher number of consumer complaints, as compared to their lawyer counterparts. For instance, Utah’s June 2022 data reported one complaint per 2,123 services delivered, and Arizona has received no complaints. This is generally on par with the number of complaints lodged against lawyers.
Moving past the low lows
The above lessons have important implications for the future of regulatory reform, a movement that remains as urgent as ever.
Political setbacks in California and elsewhere force proponents of reform to make the case, once again, for why reform matters at all. The case is not hard to make: This country’s access-to-justice crisis continues to get worse by the year. The crisis is caused, in part, by the dysfunctional market for legal services instituted and upheld by regulations protecting lawyers from competition and innovation in the modern economy.
Opponents of reform stand by their usual arguments: allowing nonlawyer ownership or practice will undermine the ethical values and independence of the legal profession and result in lower quality legal services, leading to potentially significant consumer and societal harm, or that increased market liberalization will ultimately exacerbate the existing inequalities in access to justice.
Much about regulatory reform remains untested and unknown. But our report finds that at least some evidence does not support several doomsday predictions from reform’s opponents. See, e.g., Sherry Levin Wallach, “Why Lawyers Reject Non-Attorney Firm Ownership,” Bloomberg Law, Sept 30, 2022 (President of NYSA arguing, without evidence, that new entrants in Utah and Arizona are drawn only to lucrative areas of law already amply served by lawyers).
But more to the point, the status quo is not cost-free. The current system creates active and unaddressed harms to tens of millions of Americans who are priced out of the market altogether and never seek help for their legal problems, or who could represent themselves ably but are too discouraged or disillusioned to try. Lawyers like to think of themselves as problem-solvers. But too many lawyers seem unwilling to remove the barriers that block access to legal solutions.
At long last, it’s time to try. It’s heartening to see progress in Utah and Arizona. More data is sure to embolden other jurisdictions.
As summer turns to fall, the Filing Fairness Project is refining, testing, and implementing its theory of change. The next step in the process of building a fairer and more inclusive civil justice system is building partnerships with the next set of essential stakeholders: technology providers. To that end, we’ve been hard at work identifying, learning from, and collaborating with leading technology groups in and around the legal tech space.
The Challenge: Patchwork Efiling Tools Preventing Widespread Access
State Court Administrator and former Judge Tom Boyd (Michigan), Justice Melissa Hart (of the Colorado Supreme Court), and Justice Evelyn Wilson (of the Kansas Supreme Court) address the critical access to justice challenge.
As we’ve noted previously, new, innovative solutions are needed to help litigants, including those without lawyers, access state courts and vindicate their rights. Every year, 55 million people experience 260 million legal problems. Of those, 120 million go unresolved or conclude in an unfair way.
Filing state court documents online is very difficult (and sometimes impossible) despite readily available technology. While some jurisdictions offer technology and resources to help navigate the justice system, small differences in legal forms – and in the back-end systems through which they are filed – inhibit tech companies from scaling litigant-facing tools for nationwide or even statewide use. As a result, innovative solutions typically occur as one-off, single-jurisdiction pilots that are costly to maintain and do not spread easily to other jurisdictions.
Our Progress Thus Far: Coordination Between Disparate States
At the March kick-off, the Stanford Law School team presented on the three pillars of a successful pilot.
Beginning with a March kick-off and extending through the summer, we have worked with court leaders from six states – Alaska, Colorado, Kansas, Michigan, Texas, and Virginia – to plan a streamlined efiling approach for interested technology providers. We have also laid the groundwork to ensure that submitted litigant data is comprehensive and fileable, generating and revising (again, with the assistance of state court leaders) form fields lists that highlight common and jurisdiction-specific requirements.
Technology providers have repeatedly stressed the importance of such lists in ensuring that multi-jurisdictional efiling tool development is both possible and efficient. We are collaborating with states and tech providers to establish a formal process for updating these lists in the future.
Policy Lab students gathered after the March project kick-off. The Filing Fairness Project began as a project of the Stanford Law School Policy Labs, eventually growing into a full-fledged and long-term endeavor.
In parallel with state court coordination, we have continued the outreach with interested technology providers that began with the 2021-22 Policy Labs. Dozens of tech providers –from large, for-profit companies to small, non-profit organizations – attended a recent webinar, hosted by Stanford with state court participation, to learn how they could get involved in the Filing Fairness Project pilot. The webinar highlighted the need for innovative solutions to help individuals better navigate the state court system, including through demonstrated enthusiasm from states in expanding online access, particularly for self-represented litigants. After the webinar, attendees’ survey responses demonstrated a high degree of interest in building document assembly and efiling tools for users of state court systems.
Our Next Steps: Tech Summit Pilot Launch
The March project kick-off involved extensive collaboration within and across state delegations — mostly in the Stanford sunshine.
To begin implementing the pilot – and to build on the clear enthusiasm from both states and tech providers – Stanford has invited these stakeholders to attend a Tech Summit on October 14th to be held on the d.school campus. During this all-day working session, tech providers will receive form fields lists and efiling integration plans from each participating state, and they will engage directly with state court leaders to ask questions and begin designing pilot document assembly efiling tools.
Upon the Tech Summit’s conclusion, tech providers will commence building and testing document assembly tools that can efile court forms into multiple jurisdictions. We expect these tools to be available to the public in 2023.
Call to Action
If you are a tech provider who is interested in participating in the Filing Fairness Project Pilot, please complete this Google Form and subscribe to the CLP blog.
We write from CLP to update you on our year so far.
CLP’s academic year began with a two-day celebration of the remarkable life and legacy of Deborah Rhode. On October 15 and 16, 2021, a set of panel discussions covered a broad set of topics befitting Deborah’s wide-ranging influence and enormous impact, both academic and personal. As Paul Brest, former dean and professor emeritus here at SLS, said: “Deborah was a pioneer and leader in every field she touched—sex discrimination, professional responsibility, pro bono legal practice, women and leadership, and just plain leadership.” We are grateful for the opportunity to honor Deborah’s legacy and extraordinary life—and we are so thankful to those of you who joined us, participated remotely, or submitted remembrances from afar. We are also deeply appreciative of the Stanford Law Review’s publication of powerful reflections on Deborah’s lasting imprint at Stanford, in the legal profession writ large, and beyond.
Building on Deborah’s singular talent for conducting original research to understand problems at their root then devising and implementing solutions—which Nora, in her Stanford Law Review Essay, termed “the Rhode Treatment”—we have redoubled our efforts to keep pushing on the issues that matter.
Access to Justice Through Innovation. We continue to play a central role in ongoing attempts nationwide, and here in California, to promote innovation and access to justice through regulatory reform. David and CLP’s Lucy Ricca have been working as appointees to the State Bar of California’s Closing the Justice Gap Working Group, tasked with recommending a design for a regulatory “sandbox” that relaxes lawyer regulation in order to spur innovation in legal services. CLP is also contributing to vigorous debate via original research, writing, and press outreach. A few highlights of this work include an ongoing Policy Lab, this op-ed from CLP’s Jason Solomon, this LA Times editorial, and comments submitted in support of the State Bar’s proposal to create the equivalent of nurse practitioners to work in areas like family law, housing, and debt. Meanwhile, Nora has co-signed an amicus brief in a recent challenge to New York’s unauthorized practice of law (UPL) restrictions, and she recently participated in a roundtable discussion at Northwestern discussing that potentially pathbreaking litigation.
The Filing Fairness Project. Mark Chandler, who joined us last year after ending his remarkable run at Cisco, is co-leading still another project alongside David and Margaret Hagan, leader of the Legal Design Lab. In particular, Mark, David, and Margaret seek to design and launch an ambitious multi-state pilot effort (titled the Filing Fairness Project) to improve civil filing systems. The pilot is bringing together six states—representing roughly 1 in 6 Americans, from Alaska to Virginia—to pave the way for scalable technology that can assist self-represented litigants with acute civil justice needs. Currently, the majority of litigants are pro se—but the forms one must complete in order to vindicate one’s rights (to respond to an eviction notice, say) are bewildering, and they differ across jurisdictions. That difference, along with variable e-filing standards and other administrative burdens, prevents technology providers from offering help at any scale. The Filing Fairness Project will try to change that—with implications that are potentially enormous.
Law and Lawyering into the Digital Future. The Filing Fairness Projectis one way we are seeking to maximize technology’s positive impact on the legal system. We are also forging new knowledge on technology’s impact. David’s forthcoming first-of-its-kind book, Legal Tech and the Future of Civil Justice (Cambridge University Press), follows from last year’s conference of the same name and gathers expert voices from CLP and beyond on the future of law and legal practice.
Protecting Consumers and Clients. CLP has also shone much-needed light on important issues in legal ethics, including on witness recantation in criminal cases. Efforts to enhance client protection and participation will continue with a May convening regarding attorney-client relationships in multidistrict litigation—where leading scholars, practitioners, and judges will join us to discuss the present and future of aggregate litigation.
A Stronger, More Diverse Profession. One aspect of strengthening the profession is ensuring that judges have the legitimacy they need in our democracy. We recently co-hosted a discussion on attacks on the judiciary,where Nora was a featured speaker.Nora also recently signed a letter to Chief Justice John Roberts urging the Supreme Court to adopt a Code of Conduct. Meanwhile, Orrick Chair Mitch Zuklie, Diversity Lab’s Caren Ulrich Stacy, and Fenwick Director of DEI Mira Dewji spoke to the class “Reforming the Profession,” co-taught by Jason Solomon and the Rock Center’s Mike Callahan, about the most promising levers and difficult challenges in increasing diversity among lawyers. We are currently considering our next project on how to best make an impact on diversifying the profession—a critical issue and major priority.
The Team.Todd Venook, a Yale Law School graduate and, most recently, a law clerk in the Middle District of Alabama, joined us last fall as our inaugural Civil Justice and Technology Fellow and has already made a significant contribution. We’re also looking to hire a Justice Innovation Lead to drive the Filing Fairness Project through its pilot stage. With our team more fully in place, we’re eager to broaden and deepen CLP’s imprint on critical issues facing the profession.
Many thanks to all of you who support our efforts, engage with our work, and challenge our thinking. We are grateful for your partnership, and we look forward to another successful year.
Nora Freeman Engstrom Co-Director, Stanford Center on the Legal Profession and Ernest W. McFarland Professor of Law
David Freeman Engstrom Co-Director, Stanford Center on the Legal Profession and Professor of Law and LSVF Professor in Law
On September 21, the Center on the Legal Profession and the Stanford Legal Design Lab co-hosted a gathering, titled CLP + Legal Design Lab = Student opportunities in A2J + Design + Tech (video here), to highlight the multiple hands-on student opportunities offered over the next twelve months. The gathering, held in the law school’s Crocker Garden and within the University’s Covid protocols, was well attended by students within and beyond the law school and curious about projects focused on access to justice and leveraging design and technology.
Professor Nora Freeman Engstrom, co-director of the Center on the Legal Profession, kicked off the event with a call to action on the access to justice crisis in the United States. The event, featured short speeches via Zoom by the Honorable Bridget McCormack, Chief Justice of the Michigan Supreme Court, and Ronald S. Flagg, the President of the Legal Service Corporation. Both Chief Justice McCormack and Mr. Flagg spoke passionately about the American access to justice crisis and stressed that the magnitude of the crisis requires bold action aimed at truly systemic change. Each noted, echoing a line often repeated by CLP’s Founder Deborah L. Rhode, that the American promise of equal justice under the law does not reflect the reality for most Americans facing legal problems and turning to the justice system for help. As Chief Justice McCormack said, “I am here to tell you that disruption is what is needed right now in our legal system.”
Chief Justice McCormack and Mr. Flagg framed the issue as one of systemic challenge rooted not only in easily-recognizable issues such as underfunding, bureaucracy, and poverty, but also in the institutional design of law, the practice of law, and the legal profession. Chief Justice McCormack highlighted the challenges facing the approximately 80% of consumers who lack legal representation and are trying to access the legal system to resolve their justice needs and act upon their democratic rights, “It’s hard to imagine another public good that would prohibit you from accessing it if you couldn’t afford [someone to help you] access it. [Imagine if we said] ‘You can’t use that highway unless you can afford a highway helper to show you how to get on the highway.’ We wouldn’t stand for that.” Mr. Flagg agreed, noting:
Our judicial and administrative systems for enforcing those rights were largely built by lawyers, on the assumption that people using the systems will be represented by lawyers. And in many categories of life altering cases that assumption is simply false. In family law cases, in many jurisdictions across the country, less than 10% of the litigants are represented. Even more unfairly, in eviction cases in many jurisdictions over 90% of tenants are unrepresented while over 90% of landlords are represented.
The speakers noted the Covid-19 pandemic exacerbated many of the challenges already endemic in the civil justice system, increasing to the point of impossibility physical access to the courts, increasing the difficulties for people trying to go it alone, and increasing the need for virtual and other technology-based solutions.
Despite this bleak picture, both Chief Justice McCormack and Ron Flagg exhorted the students to take the opportunity of their position at Stanford and, for the law students in attendance, of a legal education, to create the disruption so needed to launch impactful systemic change. Chief Justice McCormack said, “If law schools are only building bespoke lawyers ascending to bespoke firms to serve the elite clients who can pay those bespoke lawyers they’re not going to be part of the solution. The work of the [Stanford policy labs], in my view, is how we will make transformational change happen. By your faculty and all of you engaging directly with stakeholders and bringing the university’s expertise and your excellent ideas and innovation to the table.”
After the rousing calls to action from Chief Justice McCormack and Mr. Flagg, Professor David Freeman Engstrom, Co-Director of CLP, introduced the policy lab leaders to provide more detail on the projects and answer students’ questions. Mark Chandler JD ‘81 and until recently the Chief Legal Officer at Cisco, has joined CLP as a Fellow and is leading, along with Professor Engstrom and Margaret Hagan, the policy lab titled: Unlocking Technology to Promote Access to Justice: A Pilot to Reform Civil Justice Filing Systems. The policy lab will serve as a launch for a longer-term project which seeks to develop standardized and simplified formats for use by self-represented litigants and legal services organizations in simple but high need civil justice areas (domestic violence, eviction, consumer debt). The policy lab students will be doing the initial needs finding and strategy planning for the project, conducting stakeholder interviews, identifying high potential jurisdictions and civil justice areas, and preparing for a convening of stakeholders during winter quarter.
Chandler recalled getting interested in access to justice as a law student, inspired by “my mentor Deborah Rhode.” As General Counsel of Cisco, he was a trailblazer in developing and using legal technology, but when he and his colleagues volunteered in legal aid offices, he found they were “in the dark ages of technology,” with lawyers filling out forms when they could be helping more clients. Invoking the example of a 40 year-old single mother with two kids seeking a protective order for domestic violence in California, he pointed out that even the government’s own website for self-represented litigants made the process seem complicated. Chandler pointed to the need for more Turbo Tax-like solutions to help self-represented litigants, and recalled his discussion with Flagg about whether to leave Cisco and pursue this project. “I asked him ‘Is it impossible?’ and he said ‘Not impossible, just very hard.,’’ Chandler recounted. And Chandler closed by quoting President John F. Kennedy’s famous challenge in the context of going to the moon—that we tackle challenges “not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win.”
Margaret Hagan, Director of the Stanford Legal Design Lab, presented the Lab’s autumn policy lab Justice By Design: Eviction. The policy lab is a continuation of the ongoing eviction work Margaret and her team have led since 2018, work that has only become more pressing during the pandemic. The class focuses on creating, evaluating, and scaling new interventions to prevent eviction & mitigate the harms they do to families, health, and communities. This fall, the policy lab client is the NAACP. Students will work on 2 particular issues that the NAACP is facing, as the organization works to prevent eviction with an innovative, community-driven pilot program in South Carolina: (1) How can courts be more involved in mitigating the harms caused by eviction?; and (2) Can we train large groups of community members to do ‘legal first aid’: spotting legal issues and referring people to services?
The event concluded with refreshments and much discussion among presenters and attendees.
Professor Ron Tyler of Stanford’s Criminal Defense Clinic moderates an October 26 discussion on “Indigent Defense During the Pandemic and Beyond” with Avis Buchanan, Director of the D.C. Public Defender Service, and Ricardo Garcia, Los Angeles County Chief Public Defender. This followed an October 15 panel with some of the leading “progressive prosecutors” in the country – District Attorneys Chesa Boudin of San Francisco, Eric Gonzalez of Brooklyn, and Marilyn Mosby of Baltimore. Both panels were co-sponsored by Stanford Law’s Center on the Legal Profession and Criminal Justice Center.
