by Tom Gordon
Throughout 2021, the State Bar of California Closing the Justice Gap Working Group has been holding hearings and gathering data so that it can make an informed decision about how to structure a regulatory sandbox, Such a sandbox would allow regulators of the legal industry to test regulatory reforms and gather data about their impact on access to legal help and consumer protection. The working group consists of volunteers—both lawyers and others—from a variety of backgrounds. It is expected to make recommendations to the State Bar in September 2022.
In a December 7 letter to the chair of the State Bar Board of Trustees, the chairs of the California Senate and House Judiciary Committees urged the State Bar to “focus on its core mission of protecting the public by correcting the delays and defects in the attorney discipline system.” This unnecessary pressure on the Bar is not only premature, but also ill-informed.
While the State Bar’s mission of public protection includes attorney discipline, it also includes “support of efforts for greater access to, and inclusion in, the legal system.” Presumably, bar staff can continue to work through backlogs in lawyer discipline cases while a volunteer committee discusses how better regulation might make legal help affordable to those who can’t pay upwards of $250 an hour.
The Assembly Judiciary Committee has a representative on the Working Group. (The Senate Judiciary was invited to appoint a representative but has not done so.) Had she been at the most recent meeting of the Working Group, she would have heard a presentation by Rohan Pavuluri, founder of Upsolve, an online provider of bankruptcy advice, on how current regulations create the equivalent of a poll tax, where people can only assert their rights if they have enough money. She also would have heard a presentation by Erin Levine, a family lawyer who grew frustrated with the inability of most people to afford lawyers such as her. She founded Hello Divorce, an online platform that seeks to demystify the divorce process and make it more affordable. That mission has been jeopardized by byzantine and archaic regulations that force her law firm and her online platform to stay at arm’s length from each other.
The letter from the Judiciary Committee repeats a number of talking points from the trial bar, which understandably feels threatened by the possibility of new, more affordable business models providing competition for its cartel. The letter repeats the canard that the prohibition on lawyers providing services through a corporation that’s not entirely owned by lawyers is “due to grave concerns that it could undermine consumer protection by creating conflicts of interests that are difficult to overcome and fundamentally infringe on the basic and paramount obligations of attorneys to their clients.”
As Responsive Law has pointed out innumerable times, client rights such as confidentiality and fiduciary duty are protected by specific provisions regulating lawyers. If financial pressure is sufficient to make a lawyer violate those duties to a client, it doesn’t matter whether that pressure comes from a corporate employer trying to maximize profits or a law firm partner trying to maximize profits. And consumers certainly care far more about being able to find affordable legal help than they do about the corporate structure of their lawyer’s employer.
Furthermore, the letter mirrors the trial bar’s insinuation that a regulatory sandbox would mean the complete deregulation of legal service providers. In fact, the sandbox would be a way to create a limited, controlled experiment around the impact of changes to the regulation of legal services. Regulatory changes would be confined to sandbox participants, and would only be for a limited duration.
The State Bar Closing the Justice Gap Working Group is 12 months into a 21-month process. The Judiciary Committees should let it complete its work, while sharing their perspectives through their representative on the Working Group. Any report from the Working Group would still have to be approved by the State Bar, the state Supreme Court, and (if there is a need for legislative changes or appropriations) the California Legislature.
Unfortunately, rather than letting the working group create an impartial study of how the public could benefit from regulatory reform and weighing in at the appropriate point in the process, the Judiciary Committees have chosen to threaten the Bar, whose appropriation they control. With this letter, the Judiciary Committees have demonstrated that they are willing to ignore the voices of consumers, who desperately need a new, affordable model for getting legal help, in favor of the propaganda of the lawyer cartel, which masks its self-interest in maintaining the status quo in misleading rhetoric about consumer protection.