Exploring new ideas on civil justice reform
ASU Professor Says Changes Needed to Make Legal Aid More Accessible and Affordable for More People
Rebecca Sandefur describes civil justice as follows:
“Anything that’s not criminal but is regulated by law,” said Sandefur, a professor at Arizona State University’s T. Denny Sanford School of Social and Family Dynamics. “It’s jobs, housing, insurance for your car. Whenever you have a relationship that has a legal aspect, so any family member, those we choose and those given to us by fate. To earn a living, to have a home, to be able to take care of people who depend on you. Almost all of these things are governed by civil law.
The need to reform these laws and make legal aid more accessible and affordable was the subject of a two-day conference last Thursday and Friday at the Union Memorial titled “Access to Civil Justice, Reform of regulation and fair solutions”.
Sandefur, a faculty member at the American Bar Foundation, where she directs the Access to Justice Research initiative, and editor of Law & Society Review, organized and hosted the event, which included Supreme Court Justices from two different states, human rights defenders, reform and deregulation experts and other leaders in the field of civil justice.
ASU News spoke to Sandefur about the conference, the need for reforms, and what those reforms might look like.
Question: What was the main objective of the conference?
To respond: If you look around the United States, each year approximately 150 million new civil justice issues will affect Americans. These are things like, you have an hourly job and your employer doesn’t pay you overtime, or you have to take care of your grandchildren and enroll them in school, or you’re on the about to be expelled, or you defaulted on your student loans. We know that around 80% of people who have these problems do not get any help, and one of the reasons for this is that lawyers are very expensive. So this was a conference to think about ways to change who can provide legal services so that they can become more easily accessible and help people solve these problems.
Q: This 150 million is an exaggerated figure, isn’t it?
A: It’s not exaggerated. It is based on surveys. These are people who are three months behind on rent and risk being evicted, or you have to enroll a family member in school who is not your child and you have to deal with powers of attorney or guardianship or something like that. These problems are prevalent across the country.
Q: In your opening remarks at the conference, you said there is an opportunity for reform, but it will soon pass. What did you mean by that?
A: There are two elements to this. Everything related to the practice of law is regulated at the state level. There is an array of states across the country that are experimenting with new types of legal practice. It won’t last forever. It’s a moment. And when the Biden administration arrived, it reopened the Justice Department’s Access to Justice Office. And the Biden administration won’t be around forever, and its ability to get things done will be reduced after the midterms. So we have about eight months.
Q: What new legal practices are you referring to?
A: These can be computer programs that help people solve different types of legal problems, such as filling out a form. These may be social workers who help people access benefits or who take care of housing. These can be special types of licensed paralegals. There is one state (Utah) that is experiencing all of this.
Q: What does Utah do?
A: There are two big rules that people try to change. The first is that only lawyers can practice law. Only lawyers can give legal advice. Only lawyers can accompany you to court for a hearing. Only lawyers can represent your landlord or your employer. There are opportunities to relax (this is the rule). The other thing that people are probably less aware of is that only lawyers can make money from practicing law. Thus, you cannot have outside investment in an entity that provides legal services, whether to help you fill out a form or to go to court with you. One of the theories is that if you allow outside investment, these organizations can invest in technology, they can scale, they can make their services cheaper. In Utah, you can relax both of these (rules). Arizona released this non-advocate property issue.
Q: In terms of other people practicing law, it almost sounds like you’re talking about an equal role to physician assistants.
A: Absoutely. Sort of junior college lawyers.
Q: Why has there been resistance to these types of reforms?
A: There is a concern for consumer protection. Lawyers go through a lot of training, they pass a lot of tests, and they have character and fitness exams. So, can we certify people with less than that? The idea of a profession is that the profession has those values that are distinct from business, and when you do business with it by letting non-lawyers invest, maybe it will be less ethical. This is the honest concern. The greed problem is that if we certify these people and they are cheaper than lawyers, people will use them instead.
Q: Are these reforms practiced worldwide?
A: Yes. UK. In Africa. There are all kinds of places in the world where this is already happening. We’re just a little behind the curve. There’s something called the World Justice Project that does a justice index for the whole world, and we’re about 138th (139th, according to the latest ranking) from the top.
A: Because justice is inaccessible because of costs and delays. It’s also that Americans have a hard time understanding that they have a right to be paid for the work they do, and sometimes the law is a solution to that problem. They tend to think, “Well, my employer is a jerk and my landlord is awful” (but don’t pursue legal options).
Q: How would these reforms work?
A: A regulatory sandbox. If we want to allow people who are not lawyers to practice law, they can apply, enter this space and then we will monitor them. Collect data on the type of services they provide, audit their services to make sure they are of good quality, make sure they are not cheating anyone. It’s a model.
The other model is to do what Arizona did and just change the rules. Arizona got rid of this rule that people who aren’t lawyers can’t make money practicing law, so they allow outside investment. You apply to become a company that has outside investment, they approve you and they let you go out in the wild and go.
The other type of reform you’re looking at is for licensed paralegals, kind of like the physician assistant model you were talking about. In Utah, Arizona, and Minnesota, and soon in Michigan and Washington State, you have people who are legally trained and who are certified and licensed to practice limited legal practice. They can only handle family matters, or they can only handle landlord and tenant disputes, or they can only handle debt claims or something like that.
Q: How have these reforms succeeded in Arizona?
A: They’re about a year old, and I guess what I’d say is nothing bad happened. It takes a while to see the effects of these things.
Q: These reforms seem like common sense. Who is against them?
A: Lawyers. I think what lawyers don’t understand is that these people aren’t using their services now. These are people who are not helped by anyone, and if you look at Washington State, it may become a way for lawyers to get more work because they can’t do everything. They can only solve part of your problem, and sometimes your problem requires someone to go to court or appeal, and then the work is routed to a lawyer. But he would never have reached the lawyer without this intermediate group because he would never have been noticed. It wouldn’t have been related to the justice system.
Q: What do you think the reforms will look like in five or ten years?
A: I think in five years, if we’re very lucky, a big state will take them over. Let’s say California, New York or Florida picks them up. This would be a great demonstration project of what is possible and how safe it is.
Q: Are you optimistic or pessimistic about the chances of these reforms becoming law?
A: I am optimistic about what they can make possible. I’m not very optimistic about how far they will go.