In Response to Legislative Concerns, the State Bar of California Board of Trustees Approves Recommendations to Clarify the Scope and Composition of the Closing the Justice Gap Working Group

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By Ian Ross

At its February 25, 2022 meeting, the State Bar of California Board of Trustees voted to adopt staff’s recommendations to adjust the composition of the Closing the Justice Gap Working Group (CTJG), streamline its meeting processes, and revise its charter. The decision comes after a months-long hiatus for the working group meetings following a December 7, 2021 letter sent by Assemblymember Mark Stone (Chair of the Assembly Judiciary Committee) and Senator Tom Umberg (Chair of the Senate Judiciary Committee) to Ruban Duran, the Chair of the Board of Trustees for the State Bar expressing concerns about CTJG’s work.

The Board formed CTJG in May 2020 in response to the report and recommendations of the Task Force on Access Through Innovation of Legal Services (ATILS), and appointed 21 members to serve on the working group including judicial officers, legal ethics experts, legal services organization experts, representatives from organized bar groups (the California Lawyers Association, Consumer Attorneys of California, and the California Defense Counsel), and legislative appointees. [26:1 CRLR 106–108] Specifically, the Board charged CTJG with examining the propriety of relaxing rules regarding the unauthorized practice of law, including the development of a regulatory sandbox and the consideration of amendments to Rule 5.4 regarding fee-sharing with non-lawyer entities; assessing concepts for amendments to the California Rules of Professional Conduct governing lawyer advertising and solicitation and fee sharing with nonlawyers and to the statutes and Rules of the State Bar governing Certified Lawyer Referral Services; and evaluating a draft proposed new Rule 5.7 of the California Rules of Professional Conduct that was included in the final ATILS report. According to the staff memo, CTJG held eight full working group meetings and 14 subcommittee meetings before the Bar canceled meetings upon receipt of the December 7 letter to permit staff to gather further information about the legislature’s concerns for the Board’s consideration.

In the letter, the Judiciary Committee Chairs stated that “it appears that the State Bar has chosen to divert its attention from its core mission of protecting the public and addressing the critical issues affecting the discipline system,” citing hundreds of hours of staff time and State Bar resources used on the CTJG. They then urged the State Bar “to redouble its efforts to focus on the core mission of policing attorney misconduct and supporting proven programs offering access to justice and legal services such as legal aid, court‐sponsored self‐help, and pro‐bono assistance, as well as innovative approaches to increasing the number of attorneys who are licensed in California.”

In response, the Chair of the State Bar Board of Trustees, Ruben Duran, wrote the Judiciary Chairs a letter recognizing their concerns but noting the Board’s efforts to improve the discipline system and underscoring the importance of the CTJG. Mr. Duran also stated that the Bar is working to improve support for programs that provide access to justice and legal services, but it does “not believe that the public can be served sufficiently with our existing approaches to closing the access to legal services chasm.” The Board cited to the 2019 Justice Gap Study which found that 55 percent of Californians, at all income levels, experienced at least one civil need within one year but received inadequate or no legal help at all for 85 percent of these problems. [25:1 CRLR 132–33]

Staff reported that in the months following receipt of the letter they had met with the legislature and other key stakeholders to better understand the concerns raised. Specifically, they reported concerns that some members of the working group did not have experience living and working in California and therefore should not be voting on recommendations about California policies. They also relayed concerns about the potential for profit driven corporations to interfere with the independent judgment of attorneys should the working group recommend some form of non-lawyer ownership.

Accordingly, the Board adopted a series of resolutions to refine the CTJG charter and address these concerns. First, it voted to revise the CTJG composition to only include individuals with California-specific experience. Second, it directed staff to work with the chair of the CTJG on revisions to the Working Group’s charter to, at a minimum, 1) direct CTJG to specify the roles that they seek the legislature and Supreme Court to fulfill in setting parameters for the sandbox and the application of existing statutes; 2) direct CTJG to adopt screening and monitoring procedures for the regulator to reduce the risk of undue influence by corporate interests; 3) relieve the working group of its additional rule revision assignments; 4) extend the deadline for the CTJG’s report to the Board of Trustees; and 5) make other revisions necessary to address the concerns raised by the Legislature. The Board also voted to authorize the Chair to appoint an attorney member and public member of the Board to serve as liaisons to the working group.

At its March 24, 2022 meeting, the Board voted to adopt staff’s recommendation for a revised charter pursuant to the Board’s direction. It also formally appointed Trustees Hailyn Chen as an attorney member and Mark Toney as a public member to serve as Board liaisons to CTJG. Pursuant to the revised charter, the Working Group’s deadline to submit its report to the Board was extended from December 2022 to May 2023.

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