Bar panel studies Utah’s creative legal access approaches
'It’s less about opening the barn doors than saying before you have non-traditional products and non-traditional providers, they have to prove themselves'
As part of immediate Past Bar President and Chair John Stewart’s desire to have the Special Committee to Improve the Delivery of Legal Services hear how other states are updating their regulation of legal practice, Utah Supreme Court Justice Deno Himonas has presented ways that state is seeking to stimulate innovation to meet consumers’ legal needs.
Speaking with the committee on July 29, Himonas talked about how the state is moving to both change its existing regulations and adopt a flexible oversight regime that will allow new ideas to be tested for efficacy in meeting legal needs.
Although that concept — called the “regulatory sandbox” — is still being set up, it has already attracted some novel ideas, including many to deal with COVID 19-related legal needs and one free program that would help Utahans with convictions address their criminal records.
That non-profit company proposal, Himonas said, is to contact every resident in a state with a criminal conviction who qualifies under that state’s law to have the record expunged or the final outcome reduced to a lesser charge. It would be free to anyone who wants to use it.
The question for the state is, “Can that be done while protecting the public?” he said.
Himonas, a member of the Utah Work Group on Regulatory Reform, said that panel has been working for two years and he welcomed The Florida Bar to use its efforts as a resource.
Himonas said the Utah track on changing existing rules regulating legal practice seeks to find ways to expand legal access by reworking rules that restrict lawyers from providing services. That may include changes to advertising and solicitation rules.
In Utah, those changes also include a licensed paralegal practitioner program (LPP) and online dispute resolution, which has been tested particularly in small claims cases in three trial court jurisdictions. (Both efforts predate the work group.)
The ODR has been wildly successful, Himonas said, while the LPP program targets parties who can’t afford or attract lawyers, notably defendants in debt collection and landlord/tenant cases and parties in family law cases where 60% of cases have at least one unrepresented party.
He estimated Utah, where 13 people have or are about to obtain their LPP licenses, will see about 200 licensed in 10 years. “That’s fine, but not enough,” Himonas said.
The second track is the “sandbox,” which Utah is in the process of setting up.
“The paradigm shift is not regulation by proscription…[but] start regulating by what the consumer actually needs and is benefited from and not harmed by,” Himonas said. “It’s an area in which regulations may be temporarily relaxed and changed to determine whether the consumer is ultimately benefited or harmed.”
It’s not, he said, an open-ended change to allow alternative business structures for law firms that could include nonlawyer ownership, although that is not outright prohibited under the concept.
“It’s less about opening the barn doors than saying before you have non-traditional products and non-traditional providers, they have to prove themselves,” said Himonas, adding that proof will require protections for consumers if the idea is considered risky.
He said there have been 13 inquiries about COVID-19-related programs, all for low-cost or free services.
Another proposal is for the criminal expungement program, Himonas said, which will use artificial intelligence. He also said there is a great need for help in cases where lawyers aren’t justified or interested, such as the 75% of all civil cases, where the total value of the case is $5,200 or less.
A common criticism is that such changes will favor large law firms, the justice said, but he sees it more as a leveler for small, innovative firms, especially when offering technological solutions, particularly if it involves lawyers partnering with non-traditional providers.
“If firms want to bring in outside coders and creative people, there have to be incentives to bring them in,” Himonas said. “If I can offer them equity, I can punch above my weight. All of this offers firms, if they’re thinking broadly, the ability to punch above their weight.”
The interim report from the Utah work group can be found on the Bar special committee’s webpage. There are also reports from similar projects in California, Arizona, and Oregon, as well as an ABA report and other related reports and documents.
Stewart said he hopes to have a representative from one of those other states conducting similar studies at the committee’s next meeting.
The special committee was created last November by Chief Justice Charles Canady. It is charged with “a study of the rules governing the practice of law to ensure that our regulation meets the needs of Floridians for legal services while also protecting against misconduct and maintaining the strength of Florida’s legal profession.”
Its report is due July 1, 2021, although Stewart said it may require more time if the committee thinks Florida should take the “regulatory sandbox” approach to encouraging innovation.