We Can Improve Access to Justice With More Paths to Law Practice

Hiring a lawyer is expensive: Those who seek legal services often find their cost prohibitive. Meanwhile, those who practice law face high barriers to serving their clients. People who aren’t wealthy but need lawyers often can’t pay for them. Worse yet, too many who would serve clients—young lawyers especially—find roadblocks that protect lawyers from competitors, not the public from incompetent counsel.

Thankfully, there’s an answer to this problem: modest reforms that can increase competition and access to legal services.

In a recent paper published by the Federalist Society’s Regulatory Transparency Project, we consider reasonable reforms that could greatly improve access to justice by increasing the supply of reliable legal services.

While many other professions have been the target of reforms to increase access to services and reduce barriers to entry, the legal profession still has a long way to go. Without dismantling important consumer safeguards, there are manifest changes that policymakers can implement to bridge the gap between lawyers and clients.

Those who regulate lawyers should critically examine what benefits the bar exam provides that other winnowing methods don’t. Some states have allowed the receipt of a graduate degree to substitute for the passage of the bar exam. Others have permitted apprenticeship to substitute for other professional qualifications, on the theory that “learning by doing” is more effective. Professional regulators should experiment with new pathways to licensure and study the effectiveness of existing ones, with particular attention to what the data in disciplinary complaints about lawyers tells us.

Even after licensure, attorneys face continuing barriers. Many professionals learned during the pandemic that they could do their jobs from anywhere. But while those licensed in one state may often work from home, they may not be allowed to work with the law of that state if they are located in another one. Such practices can place law licenses at risk.

When lawyers practice in multiple states, they often have to retake the bar exam—no matter if it’s substantially similar to exams they’ve already passed. This burdens lawyers, limits opportunities for a rising generation, drives up the price of legal services, and restricts access to justice. By adopting one model rule pertaining to the multijurisdictional practice of law, legal regulators can ease all of this.

Some legal services can be safely provided by non-lawyers at lower cost. Consider how physician assistants can perform certain medical tasks at a fraction of the expense. This is just as true for paralegal professionals.

Utah’s Regulatory Sandbox Program was approved by the state’s supreme court in 2020. It offers a way for businesses to try out inventive models of providing legal services that don’t currently fit into the state’s regulatory structure, while providing substantial oversight to ensure consumers are not harmed.

In its three years of existence, the sandbox has enabled nonlawyers to help more than 2,500 individuals with “housing, immigration, healthcare, discrimination, employment, and a gamut of other issues.” The low rate of consumer complaints about the program is encouraging: one complaint per 4,111 services delivered, and just one harm-related complaint out of 6,851 services.

Other states allow paralegals to expand their scope of services, and some states are enabling “court navigators” to assist people through the daunting court system. These new businesses, when accompanied by measures that provide public oversight to ensure that consumers are free from harm, can ameliorate the problems of access to justice.

The practice of law is also saddled with other requirements that seem to have no practical effect outside of increasing the cost of doing business. For instance, continuing legal education programs—yearly mandates for hours of re-education for every lawyer—are presumably motivated by the hope that such requirements will lead to better legal services. We share that hope, but there’s no evidence for it.

There’s an across-the-board bipartisan consensus that many aspects of occupational licensing regularly lead to higher costs to consumers without affecting the quality of services. The legal profession is vulnerable to this critique. But there’s plenty of room for modest reforms to it that will both protect the public and increase access to justice for all.

Reproduced with permission. Published October 2023. Copyright 2023 Bloomberg Industry Group 800-372-1033. For further use please visit https://www.bloombergindustry.com/copyright-and-usage-guidelines-copyright/