The annual meeting of the International Conference of Legal Regulators, held in Chicago this year, was a terrific event with eye-opening panels and thought-provoking speakers. The consensus theme was that extraordinary change is occurring on multiple fronts in the legal world, creating huge challenges for the regulation of legal services, but also real opportunities to reshape this landscape for the better.
Here are 10 observations from the two-day meeting. Some of these insights are from speakers and audience members, others are my own. All of them point to a very different future for legal regulation, one that’s coming our way very fast.
- Something’s got to give. Many rural areas have few or no lawyers, with no prospect of more coming soon. If we continue to restrict legal service to lawyers, we are condemning these areas to become perpetual justice deserts. We have to develop and authorize new means of providing legal remedies in these areas — and if there, then everywhere else, too.
- Mediocre justice will beat no justice. People will trade the impressive, expensive, formal protections of the legal system for the affordability, timeliness, and convenience of alternative solutions. If people prioritize a quick but mediocre outcome over a full but unaffordable vindication, that’s their call. If we can’t make full vindication quick and affordable, that’s our failure.
- We know where the problems are. Numerous speakers consistently cited the same three areas as “lawyer-absent” zones: landlord-tenant, consumer debt, and family law. The levels of self-representation or non-participation in courts are overwhelming. One Arizona county is all too typical: 95% of cases with one self-represented litigant, 75% of cases with two.
- UPL goes too far. In principle, rules against the “unauthorized practice of law” make sense; nobody wants to see a complete free-for-all in legal services. The problem is that UPL is enforced far beyond the point of preventing harm; it’s like using a flamethrower on a wasp. The access-denying cost of UPL rules significantly outweigh their harm-protection benefit. The disproportionality is killing access to justice.
- Define the public interest. What, exactly, is “the public interest” that legal regulation and legal provider governance is intended to pursue? Hardly any legal regulator defines it, probably because we never bothered to ask the public. If we did, they’d probably say: “We care about the availability and effectiveness of legal services, and the trustworthiness and competence of service providers.”
- Upgrade legal demand. New providers of legal services are great and important, but it’s not enough only to improve the supply side of access to justice. We also have to pay attention to the demand side. Help people see that their life problems are legal problems; show them they’re entitled to a solution; guide them to and through those solutions. Empower people to claim their legal remedies.
- Independence from whom? We spend a lot of time ensuring legal regulators’ independence from government, and rightly so. But we also need to ensure regulators’ independence from the legal professionals they regulate. Canadian law societies’ directors are 85%+ lawyers elected by other lawyers; in other industries, that would be called regulatory capture. This is a bigger problem than lawyers think it is.
- We’re just keeping it together here. Critics of justice innovations consistently say, “You have no evidence that your efforts improved access to justice.” Maybe that’s so. But maybe, just maintaining our traditional A2J levels over the last 15 years of economic crashes, austerity, social safety net evisceration, disease, and war has itself been a major victory. Imagine what things would look like without our efforts.
- Beyond “regulators.” We need a better term to describe these organizations than “legal regulators.” The scope and mandate of law societies, state bars, and similar organizations have expanded well beyond “regulating” to include enhancing A2J, improving the legal system, making law practices better, upgrading DEI., and so on. They’re closer to non-governmental organizations now.
- We can do this all day. A theme frequently repeated by panellists and presenters throughout the conference was: “Doing nothing is not an option.” We will keep trying to solve these problems with the legal system. We cannot and will not just let all these troubles and breakdowns fester and worsen. If you’re hoping we’ll give up in the face of opposition, think again.