State Bar of California Board of Trustees Postpones Votes on Several Recommendations From the Access Through Innovation of Legal Services Task Force

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By Madelin Rojer

At the State Bar of California Board of Trustees’ March 12, 2020, meeting, [Agenda item 702], the Task Force on Access Through Innovation of Legal Services (ATILS) presented its Final Report with seven recommendations to the Board. Last year, the Board authorized the formation of ATILS to identify options to enhance the delivery of, and access to legal services through the use of technology to increase access to justice. [24:2 CRLR 119] The Board’s formation of ATILS was in response to the access to justice gap, as further defined by the California-specific Justice Gap Study. According to the study, 55% of Californians experienced at least one civil legal problem last year, and Californians received inadequate or no legal representation for 85% of these problems. The study observes that this gap exists because of a lack of knowledge and a lack of accessible legal services.

In July 2019, ATILS issued for public comment 16 options for innovation in the delivery of legal services. The extensive input gathered from public comment informed the development of the final seven recommendations presented to the Board. After presentations, discussion, and public comment, the Board approved ATILS’ recommendations to release for public comment a proposed amendment to the comments section of Rule of Professional Conduct 1.1: duty of competence, clarifying that this duty includes the duty to keep abreast changes of law and practice, including benefits and risks associated with technology. The Board also accepted the recommendation and voted to release for public comment, a proposed amendment to Rule of Professional Conduct 5.4 that would expand existing exceptions for fee-sharing arrangements with nonprofit organizations.  Finally, the Board approved the charter and proposed composition of the California Paraprofessional Program Working Group, charged with developing recommendations for consideration by the Board of Trustees for the creation of a paraprofessional licensure/certification program to increase access to legal services in California. The ATILS report also supported this recommendation and provided guidance based on the task force’s research for such a program.

With respect to ATILS’s remaining recommendations, however, the Board voted to table discussion and vote until its May meeting to gather input from stakeholders.  Perhaps the most significant of these recommendations was the task force’s recommendation that the Board create a new working group “to explore the viability of developing a regulatory sandbox as a means for evaluating possible changes to existing laws and rules that otherwise inhibit the development of innovative legal services delivery systems.” According to the report, “such an approach would provide data on any potential benefits to access to legal services and any possible consumer harm if prohibitions on unauthorized practice of law, fee sharing, nonlawyer ownership, and other legal restrictions are modified or completely suspended for authorized sandbox participants.” As detailed in the report, the proposal would use Utah’s proposed regulatory sandbox as a model.

The Board heard a series of public comments in support of this recommendation, and one comment in opposition from the Consumer Attorneys of California. After hearing the comments, the Board’s Chair, Alan Steinbrecher, and Vice-Chair, Sean SeLegue, encouraged the Board to table any vote on this recommendation until the Board leadership has had a chance to confer with unidentified stakeholders, and assured ATILS Chair, Justice Lee Edmon, that the Board would consider and vote on the remaining recommendations at its May meeting.  Ultimately the Board agreed with the Chair’s recommendation and tabled the sandbox working group, as well as three other ATILS recommendations, until the May meeting. The Board will reconvene at the Board of Trustees’ May 14, 2020, meeting to reconsider and vote on the tabled recommendations.

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