The United States faces an access-to-justice crisis of extraordinary scale. Decades of efforts to respond demonstrate a robust track record of failure. Each year, Americans will experience 150 to 250 million new civil justice issues, many involving basic human needs like having a place to live, making a living, and caring for those who depend on them.Footnote ¹ As many as 120 million of those problems will go unresolved, with consequences like eviction, homelessness, lost wages, separated families, and impaired health.Footnote ² For many years in the United States, access to justice has been understood as access to courts and lawyers. Accordingly, access-to-justice efforts have focused on expanding access to lawyers by pushing for increased funding for civil legal aid, exhorting and incentivizing pro bono work, and advocating for a civil right to counsel.

Yet while the American legal profession has quadrupled in size over the past fifty years, all evidence suggests that this crisis has only deepened. The most recent study of poor people’s civil justice experiences found that this group of Americans received legal help for less than 10 percent of their civil justice issues.Footnote ³ The estrangement of Americans from their own law is not just a problem of social welfare policy or justice service delivery; it is a failure of democracy. Without meaningful access to justice, it is impossible to achieve equal justice.

The access-to-justice crisis affects every group in society, entrenching poverty and inequality. Our collective failure to address this crisis fundamentally threatens core democratic principles. Investment in more lawyers and advances in technology have failed to stem the tide, which continues to overwhelm courts, legal aid providers, and millions of everyday people with civil justice needs. The crisis is seemingly intractable.

While the crisis deepens, jurisdictions explore ways to re-regulate the delivery of legal services. Often justified by – though not necessarily motivated by – seeking to increase access to justice, reform projects follow two routes. One removes restrictions on who and what can practice law. The other permits people who are not lawyers and organizations that are not law firms to control or profit from law practice. The first route directly expands sources of meaningful legal assistance by increasing both the scale of the justice workforce and the scope of what justice workers are authorized to do. The impact of the second route would be indirect: Outside investment would permit law firms to expand into technology and take advantage of economies of scale to produce commodified legal services at reduced cost to consumers. Existing empirical evidence supports the first approach: Lawyerless legal services can and do expand access to justice. Evidence on the second is mixed at best.

These findings should inform our choice of strategies if the goal is actually to increase access to justice. The true good at stake is enabling poor and otherwise excluded people to use their rights under the law to act on problems that entrench their poverty and exclusion. Effective reform projects should begin with this end in mind. And they should design interventions based on what the evidence suggests will be effective in achieving it. Imagining justice futures, or a reality in which ordinary people have routine and meaningful access to justice, requires fundamentally reimagining the future of justice work.

This chapter outlines our approach to effective reform – one that responds to the call for new interventions by turning the conventional approach on its head. We start not with lawyers or courts but with ordinary people and the events in their lives that the civil law constitutes as “justiciable,” or legally actionable and governed by authoritative legal norms.Footnote ⁴ In Section 1.1, we discuss what research teaches about peoples’ legal needs and how they seek to resolve legal issues. Section 1.2 explains why traditional lawyer-centric models of legal services delivery fail. Section 1.3 offers examples of existing lawyerless access-to-justice interventions that meet people where they are. Section 1.4 calls for new research into effective access-to-justice solutions.

We highlight the need to toss out past orthodoxy as a guide for reform, and adopt approaches grounded in the growing body of empirical evidence about people’s justice experiences and effective solutions to justice problems. And, most importantly, we begin with the end – access to justice – in mind. Regulatory reform is simply one means to that end.

1.1 Begin with the End in Mind: Redefining Access to Justice

The past two decades have seen an explosion of empirical research around the world that is transforming the way that access to justice is understood. The centerpiece is a wide range of “legal needs studies” from across the globe.Footnote ⁵ The central method of this work is population surveys in which ordinary people are asked about concrete events in their lives that are justiciable, or that have civil legal aspects or raise civil legal issues. In this people-centered method of understanding public experience, surveyed people do not need to understand the legal aspects of their issues at all. They simply need to report on whether they have encountered specific circumstances, such as an employer not paying them overtime pay; being one or more months behind on paying their rent or mortgage; or taking responsibility for the care of a grandchild. They do not need to diagnose, for example, that they are experiencing wage theft; that they are in breach of contract and at risk of eviction or foreclosure; or that they will need legal guardianship or power of attorney to take basic actions like enrolling a grandchild in school or getting them onto health insurance. In these surveys, people are typically asked how they responded to the situation, including where they sought help (if at all) and whether and how the problem was resolved. Some surveys also ask about “problem characterization” – how people understand their justiciable issues – for example as legal, moral, personal, or bureaucratic problems, or simply as bad luck.Footnote ⁶ This research has produced a range of transformative discoveries.

A key finding of this research is that civil justice problems are common and widespread, and affect every group in every studied society.Footnote ⁷ These problems fall in core areas of life and threaten basic human needs, like having a place to live, making a living, getting access to medical care, and caring for dependent children and adults. Justice issues are often clustered or cascading. For example, job loss can lead to application for unemployment insurance. Lost income from lost employment can lead to inability to pay rent and routine debts, resulting in other justice issues such as eviction and debt collection lawsuits.Footnote ⁸ Justice issues often have life-altering collateral consequences. For example, a study based on data collected shortly before the onset of the COVID-19 pandemic estimates that in 2019, 19.5 million Americans’ civil justice problems resulted in impaired health and 18 million led to lost employment, income, or housing.Footnote ⁹

When facing these issues, people show enormous creativity in their search for solutions and assistance. They reach widely, yet they rarely reach out to lawyers or courts.Footnote ¹⁰ Turning to law is only a small part of a richly textured terrain of experience with civil justice problems. People simply attempt to handle many of these issues on their own. Indeed, at times they do nothing at all to try to resolve some of the more significant civil justice issues.Footnote ¹¹ And when they do seek help, their first and sometimes only stop is friends and family. They also reach out to a range of sources in their communities and beyond, such as religious and community organizations, physicians, or membership organizations like the AARP or trade unions.

The central reason why people seek assistance for legal issues outside the formal law is that they do not understand their issues to be legal, and thus do not see them as proper objects of legal action or help. Indeed, one study in the United States finds that the most common way in which people understand the justiciable events of their lives is as “bad luck” or “God’s will for me.”Footnote ¹² Almost always, when people seek assistance with legal issues, they seek help from people who are not authorized to offer legal advice. All U.S. states prohibit the “unauthorized practice of law” (UPL) by people who are not licensed, and most actually criminalize it.Footnote ¹³ This inability to access meaningful help is a central reason that over 120 million civil justice problems go unresolved in the United States each year.Footnote ¹⁴ While the United States is not unique in these prohibitions, it affords lawyers a more robust and punitive monopoly on the law than is granted to lawyers in many other contexts, restricting not only rights of appearance but even the ability to offer legal advice. And, as we noted above, it in many instances criminalizes UPL.Footnote ¹⁵

But while justice issues are widespread and many people suffer from the lack of access to meaningful support, such issues and their consequences do not fall equally across the population. Poor people and people of color are more likely to experience civil justice problems than white people and people of higher incomes, and they are also more likely to experience negative impacts of those problems, such as lost wages or housing.Footnote ¹⁶ These dynamics entrench and expand existing inequalities, and calcify the exclusion of vulnerable and marginalized groups from law and justice.Footnote ¹⁷ In a context like the United States, emerging solutions – such as websites and software that may assist people in learning about or using the law – are difficult for people to find. They also require technical literacy, hardware, and broadband access that many low-income and rural people may not have.Footnote ¹⁸ Using these solutions also often requires both reading proficiency and English-language literacy that many people in a diverse polity simply do not have.Footnote ¹⁹

Inequalities in both exposure to justice problems and the ability to act on them are even more richly textured than this review implies.Footnote ²⁰ In some contexts, for example, Jordan, gender is a critical line of division in the experience of a wide range of civil justice problems, reflecting women’s lesser social power and greater vulnerability.Footnote ²¹ In contexts like the United States, women are much more likely to be victims of domestic violence, and therefore to need access to orders of protection and, often, legal supports for child custody and income maintenance. To take another example, American jurisdictions offer tremendous linguistic diversity: For example, within the United States, Alaska recognizes twenty different indigenous languages spoken throughout the stateFootnote ²² while over 200 distinct languages are spoken in the state of California.Footnote ²³ Yet the language of the courts, for example, is often English-only.

Both who one is and where one is shape legal needs and capabilities. About one in five Americans lives in a rural area,Footnote ²⁴ which presents distinctive challenges for access to justice. Lawyers are often not present in these communities, and challenges of distance and transportation may make it difficult for people to get to those lawyers who are available as well as to courthouses.Footnote ²⁵ Providers in rural communities face distinctive pressures that arise from the critical importance of personal relationships and place in these small communities: “[P]eople may not wish to jeopardize important interpersonal relationships with family, friends, or business associates by assertive advocacy for a client, potential client’s – or, indeed, their own – needs.”Footnote ²⁶

Finally, different groups have different beliefs about the law and whether it is open, accessible, and fair for people like themselves. There are documented differences in the willingness of different groups of people to invoke or engage with the law.Footnote ²⁷ Relationships between these beliefs and people’s location on various axes of difference such as race, gender, income, or age are not straightforward. For example, social class shapes people’s willingness to assert rights in hypothetical police encounters.Footnote ²⁸ But the patterns are not that simple. To take a different example, a study of low-income African American women found that the behavior of calling the police reflects the dynamics of specific situations, such as whether they involve domestic violence, a child’s addiction or mental health, or neighborhood illegal drug sales.Footnote ²⁹ In contrast, a different study of poor women of color facing justice problems finds them expressing a sense of entitlement to help from the law and legal professionals.Footnote ³⁰ Intersectional experiences of disability, sexual identity, income, and race, among other factors, all interact to shape justice experiences.Footnote ³¹

While our understanding of the ways in which people’s identities, capabilities, and place shape their experience of justice is still developing, some clear findings emerge. One is that systematic inequalities in experience of the civil law can entrench or widen existing social and economic inequalities. Another is that people have a range of needs, beliefs, and capabilities that affect their ability and willingness to access, engage with, and use different kinds of services for legal issues. A third is that the contexts in which people live shape both their experience of justice issues and their willingness and ability to respond with different types of solutions. The design of effective solutions requires keeping all of these variables – and more, as these are only illustrations – in mind. Recognizing this, we should pursue a distributed approach, enabling and supporting locally designed and culturally responsive solutions that are evidence-based and outcome-focused.

1.2 Just Solutions and the Reimagination of Justice Work

The first step in crafting effective solutions is an accurate understanding of the problem to be solved. Lawyer-centric models of legal services delivery have failed to meet critical needs because they fail to recognize and respond to people’s experience of the law and how they respond (or do not respond) to justice issues. Lawyer-centric models of legal services regulation fail to create an environment that enables effective and responsive models of people-centered service delivery. The practice of law has been defined essentially as the work that lawyers do, and it is this current definition that guides the authorization of legal practice in most of the United States. The status quo reflects a history of American lawyers’ attempts to gain control of legal practice. In the late nineteenth century, American lawyers, like English lawyers, held rights of appearance but little else.Footnote ³² By the middle of the twentieth century, American lawyers had successfully captured most of the tasks that today constitute the practice of law, including negotiation and legal advice.Footnote ³³ They had also clawed back control of how legal services may be delivered so that membership organizations and other groups, from unions to automobile clubs, could no longer employ lawyers to serve their constituencies and members.Footnote ³⁴

The capture of law by lawyers is not only a market monopoly but also a political capture that chills attempts to help people use their own law and relegates debate about solutions into narrow, unimaginative channels. What could be a thriving justice sector with a multiplicity of approaches to meeting people’s justice needs where they are, through a variety of different kinds of service models, is instead a monolithic, money-seeking, and monopolistic guild that fails to meet even the basic justice needs of everyday Americans. Available evidence suggests that most complaints about UPL come not from aggrieved members of the public but rather from lawyers themselves.Footnote ³⁵ By stopping people who are not lawyers from being able to assist, these complaints have been used as a tool to keep people from being able to take action on critical problems within the context of their rights, whether the issue is wage theft or environmental toxins.Footnote ³⁶

Attempts to make space for change have been largely lawyer-led and business-focused. For example, a marquee legal regulation event of the 1990s was the American Bar Association’s dustup over multidisciplinary practice, one example of a model that would permit lawyers to share fees, profits, and investments with people who are not lawyers or organizations that are not lawyer-led. The traditionalists won that battle and continue to win. Since the 2000s, the rhetoric of change has been innovation, and again lawyer and business interests have crowded out meaningful access-to-justice reforms, arguing for outside investment in legal-services-producing organizations as a way to permit the kinds of capitalization that might allow for investments in technology, organizational growth, and economies of scale.Footnote ³⁷ Evidence from jurisdictions where these kinds of “outside” investments are allowed is so far equivocal about impacts on access to justice; albeit, these experiments are in their early days.Footnote ³⁸

None of these activities, which focus on opening up who can make money from the practice of law, bear any necessary connection with the lives and needs of ordinary people who, in a democracy, are the final authors and true owners of the law. These attempts at reform by the legal profession reflect a long-standing pattern in how lawyers engage with justice. As the late Gary Bellow observed, lawyers, even passionate advocates for the poor and the otherwise disenfranchised, have had a strong tendency to design people’s problems around the solutions that lawyers offer, rather than designing solutions around problems as people experience them.Footnote ³⁹ By contrast, “just solutions,” which are grounded in evidence and focused on the substantive outcomes achieved by people at the center of their own problems, decenter lawyers in an obvious way, privileging ordinary people’s experiences and offering human alternatives in the form of other types of justice workers.Footnote ⁴⁰ Perhaps this is why human examples of the “unauthorized practice of law” garner more opposition than law-practicing computer programs, which have already replaced much work that lawyers used to perform.

If the true goal is people being able to understand and engage with their own laws – access to justice – reform efforts should center that end, with the goal of creating just solutions. The evidence reviewed above makes clear that solutions designed around problems as people experience them would not be lawyer-centered; rather, they would be people-centered and designed to meet people where they are in order to address their everyday justice needs.

1.3 Dismantling Barriers to Empower Effective Justice Work

An effective approach to regulating legal services for access to justice would change the terms of the conversation, dismantling conceptual, legal, and social barriers to justice work. The current model is such a robust failure that there is little point in tinkering with it around the edges; the magnitude of the problem requires wholesale change. The most basic need is to empower more people to provide more effective help. The current legal labor force is expensive to produce and maintain. It is also substantially less diverse than the people to whom it is supposed to be accountable. If we hope to make headway, it is imperative to reimagine fundamentally the future of justice work and the policy, program design, and implementation strategies required to realize justice futures.

American justice work has long been highly stratified. In the 1970s, lawyers were famously found to be divided into two “hemispheres” of roughly equal size, one serving personal clients and the other serving businesses and other large organizations.Footnote ⁴¹ The law schools, social backgrounds, and legal incomes of the lawyers working in each hemisphere were sharply different, with elite law schools, elite backgrounds, and high pay much more strongly represented in the business half of the bar and lower prestige law schools, working-class, immigrant, and ethnic minority backgrounds, and lower pay more strongly represented among lawyers working for people.Footnote ⁴² A follow-up study twenty years later found the profession even more unequal in pay, with continued differences in who had access to elite law positions.Footnote ⁴³ That study also found that the size of the personal client sector had dwindled: A minority of lawyers were working for people; the vast majority were working for businesses and other large organizations.Footnote ⁴⁴ Though lawyers today are more diverse in gender, race, ethnicity, and social class background than those of fifty years ago, the profession remains far less diverse than the people it serves.

The stratification of justice work extends out from lawyers. American lawyers have long had subsidiary occupations working under their supervision, most notably paralegals.Footnote ⁴⁵ This is a classic strategy of professional control of work: keeping alternative providers subordinate to the main profession.Footnote ⁴⁶ Regulatory reforms of recent years have included the expansion of independent paralegal occupations, permitting paraprofessionals to engage in limited practice outside the supervision of fully licensed attorneys. The regulatory models for these occupations parallel those for lawyers, requiring multiple years of higher education, certification, and licensing, all typically designed and administered by state bars to whom state supreme courts have often delegated their regulatory authority. These paraprofessional licensing models also often embrace discriminatory “character and fitness” requirements similar to those for lawyers, replicating and entrenching the same barriers to entry, particularly for groups that suffer from disproportionate criminal enforcement and despite a lack of evidence that these requirements have any bearing on ethical practice.

These highly credentialed paraprofessional law occupations have been slow to grow. The first such program in the twenty-first century, Washington State’s Limited License Legal Technicians, never had more than forty active licensed practitioners.Footnote ⁴⁷ A 2021 survey found fewer than eighty practitioners total around the country.Footnote ⁴⁸ By 2022, the number of programs and practitioners across four states (Washington, Utah, Arizona, and Michigan) had grown to only 166.Footnote ⁴⁹ Like lawyers, allied legal professionals that are trained and certified in these traditional ways have difficulty scaling to meet the legal needs of a country of over 330 million people. And, as with lawyers, the many up-front barriers to entry into these paraprofessions may restrict access by those same groups currently locked out of the law.

Exceptions to these lawyer-centric models exist. Some have operated for many decades, yet rarely feature as examples of important access-to-justice solutions, in large part because they fall outside of these stratified norms and lawyer control. For example, the federal government permits individual representation by nonlawyers in a range of administrative hearings. In the context of both affirmative immigration filings and defensive cases, there are over 2,000 partially and fully accredited nonlawyer immigration representatives who represent clients in a wide range of complex matters, including in immigration court and before the Board of Immigration Appeals.Footnote ⁵⁰ These justice workers are embedded in hundreds of nonprofit community and religious organizations across the country, authorized by the U.S. Executive Office for Immigration Review to offer legal advice and representation through nonlawyer staff and volunteers. Indeed, there exists a robust and well-coordinated network of nonprofit organizations that provide training and technical assistance to support these justice workers and programs. Similarly, the Social Security Administration clearly states that claimants have a right to representation in appealing determinations but does not require those representatives to be attorneys.Footnote ⁵¹ This is also true of other federal administrative agencies, ranging from the Veterans Administration to the Internal Revenue Service.

As discussed in Chapter 11,Footnote ⁵² another well-established yet underrecognized category of justice workers are Tribal lay advocates who work across the hundreds of Tribal courts in the United States, including as many as 300 trial courts and over 150 appellate courts.Footnote ⁵³ They are required to meet the practice requirements of the tribes in which they practice, for example by taking a Tribal bar exam, and may handle both civil and criminal matters.Footnote ⁵⁴ Tribal lay advocates are typically members of the same tribes in which they practice, which facilitates trust between providers and clients, and means that these advocates can offer critical cultural and linguistic expertise. For exactly these reasons, some legal aid providers serving Indian country have enthusiastically embraced Tribal lay advocates to provide culturally and linguistically competent services to their clients.Footnote ⁵⁵

Justice workers also represent individuals in some state courts. For example, both Delaware and Texas allow nonlawyer justice workers to represent both landlords and tenants in eviction proceedings.Footnote ⁵⁶ For decades, domestic violence has been an area where advocates have called for expanded roles for nonlawyer victim advocates.Footnote ⁵⁷ In 2020, the Arizona Supreme Court issued an administrative order authorizing a Licensed Legal Advocate program that allows domestic violence advocates to provide legal advice and support, including orders of protection and other related family law issues.Footnote ⁵⁸

In addition to these more targeted interventions, two states – Utah and Alaska – have made far more sweeping reforms to empower justice workers. Utah launched the first, and currently only, legal services regulatory sandbox in the United States in 2020. The Utah sandbox allows entities to seek waivers of existing blanket UPL prohibitions in favor of assessing applicants’ risk of harming consumers and monitoring the impact of admitted entities’ work on consumers.Footnote ⁵⁹ These potential harms include: “achiev[ing] an inaccurate or inappropriate legal result,” “fail[ing] to exercise legal rights through ignorance or bad advice,” and “purchas[ing] an unnecessary or inappropriate legal service.”Footnote ⁶⁰ Each entity’s risk of exposing consumers to these three harms is assessed when they apply to the sandbox, and entities are classified on a scale from low to high risk to consumers. The risk assessment affects the intensity of monitoring by the regulator, specifically the frequency and scope of the data about consumer experience that approved entities must submit for review and analysis. Consumers’ outcomes from legal services received in the sandbox are monitored in more or less real time. Analysis of the data is published in a monthly Activity Report that includes information about the activities of admitted entities and an assessment of evidence that an entity’s work is causing any of the three consumer harms. So far, across over 70,000 services, the Utah Office of Legal Services Innovation has received fewer than 10 complaints related to the three harms, all of which have been investigated and resolved satisfactorily from the perspective of both the affected consumer and the regulator.Footnote ⁶¹ In the Utah sandbox, nonprofits currently engage justice workers to help the public with a range of civil justice issues, including medical debt, domestic violence protection orders, and expungement. They also deploy innovative models such as embedding domestic violence legal advocates within municipal and county law enforcement and government agencies.

In Alaska, the Supreme Court last year was the first in the country to authorize a UPL waiver that allows Community Justice Workers trained and supervised by Alaska Legal Services Corporation (ALSC) to provide limited-scope legal advice and representation without a law license.Footnote ⁶² As part of their training, each justice worker must handle a case under the supervision of an ALSC attorney. Currently, over 400 Community Justice Workers are at work or in training, helping their neighbors in over 40 communities across the vast and rural state, most of which are not connected by roads.Footnote ⁶³ Hundreds of cases have been handled by Community Justice Workers, the majority of whom work in remote Alaska Native communities, where there are no lawyers. The program currently boasts a 100 percent client success rate.

As the examples from immigration, federal benefits, and Tribal justice show, justice workers are not new. At the same time, the recent sweeping reforms to UPL rules that now allow justice workers to serve low-income and marginalized communities constitute profound changes in the landscape of justice work. The evidence from both the United States and other countries is clear. Justice workers who have not attended law school and are not licensed attorneys can be competent and effective across a wide range of justice issues that people face, both inside courts and other fora and upstream in the development of people’s justice issues. Research shows that justice workers do not increase consumer harm; in fact, they bring other critical strengths and skills uncommon among lawyers, including community trust, linguistic expertise, and cultural competency.Footnote ⁶⁴ When justice workers are available, people go to them for help.Footnote ⁶⁵ And in jurisdictions where they are permitted, they show themselves capable of scaling. For example, the United Kingdom has for over seventy years had a network of Citizens Advice bureaus, where trained community volunteers assist people in understanding and using the law; these now exist in physical offices around the country and are available by internet and phone. In 2021 and 2022, Citizens Advice assisted over two and a half million people.Footnote ⁶⁶

1.4 Designing Justice Futures

Effectively designing justice futures requires incorporating three elements. The first is a solid understanding of people’s lived experience of the law and the forces – including identity, capability, and place – that shape that experience. Responding to this richly textured experience requires an equally rich ecosystem of justice work and justice workers. To make that work possible, we must add the second element, the elimination of regulatory barriers to justice workers and justice work, just as other professions like education, psychology, and medicine have done. States like Alaska and Utah are leading the way, but reforms must go further, and be pursued with a greater sense of urgency.

The third critical element is a research agenda that looks beyond the effectiveness of services at achieving narrow goals. A growing body of evidence suggests that effective solutions have four qualities: (1) they are timely, in the sense that they are visible when people recognize that they have a problem; (2) they are targeted, in the sense that they are specific to the problem someone has and framed in terms that person understands; (3) they are trustworthy, in the sense that people believe the source of help is working for their good interest; and (4) they are transparent, in the sense that they make clear to people their decision points and the possible consequences of different courses of action.Footnote ⁶⁷ If the ultimate goal is increasing people’s capability to engage with their own law – or, legal empowerment – then research should explore whether these features actually support that objective.

In contexts where these experiments are underway, evidence to guide practice will come from a robust research program informed by a clear and shared agenda about two kinds of effectiveness: Effectiveness at solving people’s problems, and effectiveness at changing people’s relation to the law. For these solutions to increase access to justice in a country of over 330 million people, we must also understand the potential for sustainability and scalability of both justice workers and justice work.

The current lawyer-centric models have resulted in large numbers of people, and particularly people with low incomes and people of color, being systemically excluded, isolated, and estranged from their own law. Justice futures require an alternative vision of access to justice – a reimagining of access to justice – that focuses on empowerment, agency, and action. That future requires a diverse and emboldened field of justice workers and an expansive view of justice work.

We can no longer abide by the status quo. Reforms must cease replicating failed models that perpetuate exclusionary and discriminatory barriers to engaging with law. Instead, they must place access to justice – rather than the potential for profit or the past prerogatives of a profession – at the forefront. Meaningful progress in addressing the access-to-justice crisis requires experimentation and a commitment to evidence-based strategies. This approach is exemplified in the models currently operating in Utah and Alaska and bolstered by learnings from the critical work already happening in immigration and other federal agency proceedings. This new approach is grounded in deep commitment to addressing individual and community needs and to shedding existing orthodoxy that centers lawyers and courts. An expansive and richly diverse field of justice work and justice workers requires not only regulatory reforms but also empowered individual and community action. So long as everyday people continue to be systemically estranged from their own law, it is not only just solutions to common legal problems but democracy itself that is ultimately at stake.

There are profound racial disparities in the U.S. civil justice system. According to best recent estimates, U.S. state courts handle over twenty million civil matters annually.Footnote ¹ Some of the most common matters before these courts involve issues such as housing (roughly 15 percent of all cases), child custody, child support and child welfare (another 15 percent), and debt collection (roughly 5 percent).Footnote ² These are all areas where scholarly literature has revealed dramatic overrepresentation of racial minorities and the poor among civil defendants.Footnote ³ The literature has also established that, in addressing such matters, courts frequently look, feel, and act in ways that are far removed from the model of courts described in law school lecture halls. Judges in these courts are pretty frequently not even lawyers, for example.Footnote ⁴ Even if they are lawyers, they may follow ad hoc procedures overseeing litigants who are often not even present. If they are present, they frequently lack a lawyer or other kind of legal adviser.Footnote ⁵

The consequences of weak or nonexistent representation in these Kafkaesque courts are profound. A default judgment in such cases can lead to the loss of credit, one’s home, or one’s children. Worse, the civil justice gap confronting racial minorities likely extends far beyond what even these dismal statistics suggest. Many legal problems never become a case in a court docket.Footnote ⁶ Determining what happens to one’s assets after death, starting a small business, getting the federal disability benefits to which one is entitled: These are common legal issues that state courts do not engage much, if ever. These are also issues where we can reasonably expect a strong relationship between race and problem resolution.Footnote ⁷

At the same time as racial disparities in civil justice are troubling, civil justice is hardly the only public necessity that is under provided and distributed unequally according to race.Footnote ⁸ Indeed, we see similar issues in access to housing, education, banking, and still other areas.Footnote ⁹ Civil justice is also like these other necessities in the sense that contemporary political economies provide these goods through a coproduction of government and markets.Footnote ¹⁰ Notwithstanding the above-mentioned findings about how civil justice actually operates in the United States, at least theoretically civil justice is typically provided by lawyers in private practice. Lawyers are a professional class whose members are tightly connected to the government, not only through the kind of professional regulation that is typical of licensed professionals.Footnote ¹¹ Indeed, lawyers are officers of the court who routinely participate in the process of the state authorizing pretty violent remedies such as taking a person’s assets, even their kids – and that’s just in U.S. civil courts.Footnote ¹²

Because lawyers are not the only potential providers of solutions to civil justice problems,Footnote ¹³ any more than doctors are the only possible providers of medical care, I will typically try to refer to the private market for services addressing civil disputes and issues as the “market for civil justice.” In the status quo, the market for civil justice and the legal market largely overlap, but how they overlap is a policy choice with profound consequences for both efficiency and distribution. While it is easy to imagine an (almost) fully private or (almost) fully public system for providing housing or banking, with civil justice it is harder to see how one could possibly disentangle government and markets from one another. But on reflection, there are robust markets for civil justice where government has little if any involvement, for example international commercial arbitrationFootnote ¹⁴ or religious courts.Footnote ¹⁵ And it is not impossible to imagine a system where all civil litigants had representatives assigned by the court and paid through public funds.

While it is an interesting question how necessary coproduction by government and markets is for any of these goods, empirically at least, governments rarely attempt to provide these services wholly on their own. Instead, governments encourage and oversee private provision with various public backstops, although exactly how they encourage, oversee, and backstop varies tremendously across contexts.Footnote ¹⁶ Governments pursue such coproduction strategies because these goods are important. Private provision of essential goods through markets with the help and oversight of government is what builds more houses, nursing homes, and hospitals, while hopefully making sure they are of the right kinds. While one presumes that a mixed public-private strategy does provide more, or better, or more of better than pure strategies would, racial inequality often remains a stubborn issue in private markets, whether nurtured by the government or not.

While civil justice is certainly a fraught problem in race and political economy in the United States, I would argue it is one of the most important problems in any political economy. Civil justice is a piece of hardware that is needed to make other markets run.Footnote ¹⁷ When there are disputes about housing, credit, health care, and labor, courts are the problem-solver of last resort.Footnote ¹⁸ Or if not courts, some private entity or public non-court adjudicator that often emulates the manner and process of courts, and even at times has overlapping personnel.Footnote ¹⁹ The market for civil justice is so intimately connected to the basic operation of government that interventions in these markets inevitably change how government works, and are intensely political in the sense that they influence who gets, what, when, and why.

Despite the rich, thorny political economy problem that civil justice represents, it is only slightly exaggerating to say that political economists have ignored the civil justice system. The main reason I would qualify that statement is “political economy” is a big tent, after all. But it really is no exaggeration at all to say that civil justice is off the radar of political scientists who think about economic problems, and also of economists who think about politics and government.Footnote ²⁰ One might hope that with increasing awareness about the deep problems in many areas touching civil justice (i.e., eviction, debt, fines, and fees), that will begin to change. Racial inequality that exists in the civil justice system is likely to reproduce and multiply in every market where governmental intervention is needed to ensure racial equality, and especially where private rights of action are a key enforcement strategy.Footnote ²¹

To the limited extent that scholars working on civil justice have focused on race, they have not often done so by thinking first and foremost about market dynamics. Owing to the disciplinary background and methodological approaches of most academics working on access to justice, the prevailing research methodologies are largely qualitative and have involved ethnographic and survey-based approaches. These research strategies have yielded valuable insights into how and why minorities distrust civil justice institutions,Footnote ²² inequalities with respect to obtaining counsel and in quality of representation,Footnote ²³ the role of overlapping and intersecting identities in shaping legal needs,Footnote ²⁴ and many other important facets of race and access to justice.Footnote ²⁵

The importance of continuing to pursue research in these modalities and frameworks should go without saying. At the same time, the rational-choice perspective that political scientists and economists typically adopt also has great value for understanding why markets function or do not.Footnote ²⁶ So too do the methods of causal identification that these disciplines typically favor. While civil justice scholarship has not exactly flourished in political science and economics departments, the study of race and markets truly has. There is much to gain in considering problems of race as problems of markets, and further in thinking about problems of civil justice as problems of markets.

My goal in this introduction has been to make the case for thinking like a political economist about civil justice in general and to see the dramatic racial inequality we see as an all too common, but uniquely important, market failure. Going forward, I wish to continue fleshing out what this perspective might entail. I must admit at the outset that all conclusions and recommendations are preliminary, because this line of inquiry is nascent. The ideas and proposals I offer are meant to provoke thought and debate. I will present findings that describe how severe the problem of racial discrimination is in legal markets and why it occurs. But I do not purport to offer here evidenced-based recommendations about what is to be done. In Section 2.1, which follows, I will introduce two key concepts that are important for contemporary debates in political economy about the causes of racial inequality in markets: racial preferences and statistical discrimination. I also discuss and explain why it is so important to distinguish between these two in thinking about policy solutions. Section 2.2 shows how recent work by myself and others has sought to document and explain the extent of racial disparities in legal markets. Section 2.3 discusses how and why broadening the base of legal service providers seems to be the key for ameliorating racial disparities in access to justice, and considers alternative paths to doing that, respectively through a civil right to counsel and loosening restrictions on alternative potential service providers, such as H&R Block.

2.1 Untangling Racial Preferences and Statistical Discrimination

The literature on discrimination in economics, both empirical and theoretical, has pursued questions of how race influences outcomes very directly. Its conceptual architecture for doing so is greatly indebted to the early mathematical models of Arrow and Becker.Footnote ²⁷ These models distinguish racial preferences, which is when race directly influences an individual’s enjoyment of a good or service, from statistical discrimination, which is when race is used to make inferences about the presence or absence of traits that influence enjoyment. For example, a widget-retailer exhibits a negative racial preference when he believes a black employee will sell as many widgets as a white employee, but nevertheless prefers to have the white employee to the black one simply because he likes white employees more. Equivalently, a widget-retailer who is willing to pay for the privilege of not working with a racial minority has negative racial preferences. By contrast, a widget-retailer statistically discriminates when she makes assumptions about the productivity of the workers based on what race they happen to be. This is to say, a widget-retailer who only cares about widget sales volume nevertheless may discriminate statistically if she has a belief structure enabling her discrimination (e.g., she believes minorities take too long to close a sale, believes minorities take off early on Fridays, whatever).

Racial preferences and statistical discrimination are not exclusive concepts. Indeed, evidence suggests that people with aversive racial preferences also tend to harbor racial stereotypes.Footnote ²⁸ But because race marks so many aspects of American society especially, and because what is in people’s heads is harder to see than what is written in an economist’s equation, it is often very hard to determine whether disparities result from racial preferences or statistical discrimination. Why, then, does it help to distinguish between these two overlapping kinds of discrimination? Because the mechanisms of discrimination matter for why the discrimination happens and what would stop it. Potentially, problematic racial preferences require vastly different policy interventions than, say, problematic beliefs and inferences. An important, often implicit assumption of those operating from the economics perspective is that economically motivated agents are going to act according to the incentives determined by their beliefs. Particularly if those beliefs do have a strong empirical basis, changing behaviors implied by these beliefs will be tough or impossible.

As a more concrete illustration of why disentangling racial preferences from statistical discrimination matters for policymakers, I often gesture to the work of noted sociologist Devah Pager. Pager persuasively shows that in the absence of information, employers who hire low-skilled workers are more likely to assume that black male applicants have a criminal record than white male applicants.Footnote ²⁹ Given the dismal statistics about criminal records in lower-income black versus white men, empirically their belief is well-justified. The upshot of Pager’s observation is that well-intentioned policies that “ban the box” and prohibit employers from asking about criminal records in job applications or interviews risk hurting well-qualified minorities, who no longer have the opportunity to distinguish themselves from white people with red flags in their background. Using the language of the economics literature, banning the box may encourage more statistical discrimination, not less, which could make racial disparities in hiring even worse.Footnote ³⁰ Work such as Pager’s illustrates why it is so important to ask how exactly race matters for the outcomes in question. If one does not consider the incentives of relevant actors in the system one wishes to reform, one may find one’s solutions are counterproductive. Indeed, this is perhaps the real core of the economics perspective on race and discrimination. It is not simply about the introduction of terms like racial preferences and statistical discrimination, which are important but controversial in some quarters. Rather, an economics perspective is about disentangling how racial disparities emerge as a byproduct of some aspect of the strategic interaction between agents who follow the incentives determined by their beliefs but do not necessarily have the preferences and values we would hope that they would.

2.2 Race, Access to Justice, and the Legal Service Market

Returning to the topic of access to justice, there are many entry points for thinking about the distinct role of race in an economics framework. We could think about the rational expectations and aversive preferences of judges, of juries, and of plaintiffs and defendants, both in the courtroom and also even earlier in the dispute resolution process. But perhaps the simplest and most direct way of relating these literatures is through the question of how race impacts the ability of a person with a legal problem to hire a lawyer. Getting a lawyer is a key step in the folk model of dispute settlement that naive and sophisticated commentators alike bring to the table.Footnote ³¹ It is also a step that an extraordinarily large number of self-represented or unrepresented minorities caught up in eviction, debt collection, and other matters have not taken, in many cases despite attempts to do so.Footnote ³² Two empirical questions, which I engage in much more detail in a law review article called Getting a Lawyer while Black,Footnote ³³ are (a) whether race makes any difference in the ability of an individual to get a lawyer to help them solve their legal problem; and (b) if there is a difference, whether that difference is due to racial preferences or statistical discrimination. Greater details are available in the article, including greater justifications and caveats than I have space for here; however, I focus here on the big picture conclusions.

To answer the question of whether race influences the ability of an individual to get a lawyer to help solve their problem, I rely on the popular audit study methodology.Footnote ³⁴ Posing as a prospective client, I contacted California criminal attorneys in private practice via email asking whether they could help me regain my driver’s license, which had been taken when I refused a breathalyzer. Figure 2.1 provides the email template used in the experiment. Crucial to the audit methodology, the email template varied several factors at random, including the name I pretended to have, as well as an off-handed description of my income. The names I used were Brad McCarthy, Laurie McCarthy, Darnell Jackson, and Latoya Jackson, each of which is strongly suggestive of an individual’s race, both based on survey evidence and analysis of birth certificates. Figure 2.2 shows the difference that a name makes in an otherwise identical email. Laurie and Brad had a 40 percent chance of getting a reply to this email, while Darnell and Latoya had a 19 percent chance of getting a reply to the exact same email. Such a tremendous difference in response rates, with white-named clients more than twice as likely to get a reply, was unlikely to be due to chance. Put differently, the estimates imply that the anticipated race of the client mattered to about 20 percent of the California criminal bar in choosing whether to reply to this solicitation. Unusually for social scientific research, this experiment was subject to a second and even third replication. The results were substantially similar each time, at least in California.

Figure 2.1 Prospective client solicitation in the California experiment.

Figure 2.1Long description

The senders, Latoya Jackson, Laurie McCarthy, Darnell Jackson, and Brad McCarthy each sent the same email to an attorney, with their respective email addresses given in the From address bar. The email reads, I am a 34-year-old medical sales representative with an income between $40,000 and $80,000 per year. Two nights ago, I was stopped for drunk driving by two policemen. I had my license suspended and my car towed. I had been drinking that night but did not feel that I was too drunk to drive. If anything, I was just tired. After I was pulled over, they tried to give me the breathalyzer but I refused. Now they say I can't drive for a year and that just can't work for me because my employer is located thirty-five minutes from my home and public transportation can't get me there. I am looking for a lawyer to overturn that suspension and get me back my license, and keep my record clean. Please let me know if you can take my case and if so, how we should go forward. Best, Latoya, Laurie, Darnell, or Brad.

Figure 2.2 Response rate of California criminal lawyers based on likely race of prospective client.

Figure 2.2Long description

In the graph, the horizontal axis has labels, Black and White. The vertical axis shows the response rates for the California criminal lawyers based on the email sender's race, ranging from 0 to 0.5. An upward sloping line connects the response rate for senders, which is just under 0.2, to the response rate for senders, which is approximately, 0.4.

To begin to answer the question of why race seems to matter for one in five of the lawyers sampled, one can examine Figure 2.3, which shows the difference that claiming twice as much annual income makes. Surprisingly, response rates were slightly lower for individuals claiming to make more money. That said, the difference is quite small and could easily emerge if the self-represented income did not matter to lawyers one way or another. The fact that lawyers do not respond to explicit signals of income is evidence that racial preferences drive these results rather than statistical discrimination. This is not to say that statistical discrimination would never emerge in client selection. Indeed, it seems to me relatively likely that statistical discrimination would emerge in contexts where the ability to pay is truly in question, for example, bankruptcy, or the lawyer has a long running matter the client has to pay for entirely, for example, complex felonies. Yet for relatively simple, routine, and self-contained legal problems, one would not expect concerns about the ability to pay to dominate lawyers’ thinking. And the evidence suggests they do not. Based on my own prior qualitative research in designing the study, lawyers who do this sort of work know exactly what they will charge and know that people with relatively modest incomes (for instance, even as little as $40,000 a year) will be able to find the cash to fund the work, especially when confronted with the much more economically damaging prospect of losing their ability to drive a car.

Figure 2.3 Response rates of California criminal lawyers based on self-described client income.

Figure 2.3Long description

In the graph, the horizontal axis shows income levels of $40,000 and $80,000. The vertical axis displays a response rate from 0 to 0.5. A line connects the response rate at $40,000 income, which is a little over 0.3, to the response rate at 80,000 income, which is just under 0.3. The line indicates a slightly decreasing trend in response rate as income increases.

These findings present strong evidence that race sometimes influences the ease with which a prospective client finds a lawyer, and, particularly in routine legal matters, race has this influence to a substantial degree because of taste-based discrimination by lawyers, rather than some kind of economic stereotyping. Further, another recent study by Frankenreiter and Livermore in the Journal of Legal Studies that uses similar audit methods also finds that race often matters a great deal.Footnote ³⁵ But in both their study and mine, the story gets a bit more complicated because it seems that the degree of racial disparities varies greatly across legal markets.

Figure 2.4 provides striking evidence that disparities vary geographically. This remarkable diagram, which is based on a full-color figure deep in the Online Appendix of Frankenreiter and Livermore’s article, shows how the response rates vary by state among some 24,211 personal injury lawyers found on a commercial database. Darker areas are those where their audit study found greater preference for white-named clients. White areas are those where they found no preferences or preferences actually tilting toward minorities. While the California effects do appear more muted than in Libgober (2020), they are directionally similar, and Frankenreiter and Livermore do make equally strong findings of discrimination as I initially did in both the rural west (Montana, Utah) and the densely urban Northeast (Rhode Island). Because of differences in sample recruitment strategies (e.g., commercial database in their approach versus bar directory in mine), the effects found across the two studies are not directly comparable and should not be regarded as direct tests of replicability. Even so, the crazy quilt pattern of discrimination is clearly evident in their figure. There are “red states” where no racial discrimination against minorities is detected through these methods, and “blue states” with intense discrimination against minorities found.

Figure 2.4 Size of treatment effects by state based on findings of Frankenreiter and Livermore (2023), reported originally as OA6 in their supplemental materials.

Source: Are Lawyers’ Case Selection Decisions Biased? A Field Experiment on Access to Justice, 62 J. of Legal Studies 273 (2023).

Figure 2.4Long description

The diagram has a gradient bar labeled, difference in log odds showing a range of values from 0 to 2, with the shading becoming darker where Frankenreiter and Livermore’s audit study found a greater attorney preference for white clients.The states are represented by 2-letter codes. The diagram includes the following data. I A, U T and R I, M T, W I, M I, and N V attorneys show strong evidence of higher preferences for White-named clients. F L,N M, K S, A R, and O K, N Y, O R, I D, V T, and D E show no preference for White-named clients, or preferences slightly tilting toward minorities. The other states show some preference for White-named clients, though not as strong as the previously listed states.

Frankenreiter and Livermore’s work confirms the remarkable geographic variation in the degree of discrimination within the United States, which my earlier study too picked up on. Understanding some details of what I did previously is necessary to go forward and explain my proposed resolution. Returning then to the mid-2010s, after conducting my audit study in California, I sought to examine whether the very strong effect found in California was limited to criminal lawyers or if it was visible in other practice areas as well. In particular, the argument could be made, as I have above, that driving under the influence (“DUI”) cases do not lend themselves to statistical discrimination. For this reason, I sought to examine further practice areas with different payment models to see if that mattered at all.

For technical reasons, the California bar directory at the time did not lend itself to these kinds of endeavors, so I made a switch to field a much larger follow-up experiment in Florida, where doing so was more practicable. At the time, I did not expect the state context to matter. If anything, I expected effects of potential clients’ race would be larger in Florida. And yet, my results regarding personal injury, criminal, and divorce lawyers in Florida were remarkably in line with what Frankenreiter and Livermore later found about personal injury lawyers in Florida: practically no discrimination against prospective clients whose names suggest minority status. This geographic variation was difficult to believe, and for this reason I undertook very extensive internal replication efforts described at greater length in Libgober (2020). These replication efforts confirmed that there were indeed huge disparities by race in California but not in Florida. If Florida and California are different, and if as Frankenreiter and Livermore later would find two states are often quite different, the main question is why.

In my prior study, I proposed several possibilities and tried as best I could with data on hand to offer answers. One possibility is that far fewer lawyers in Florida have aversive racial preferences than in California. For several reasons, I rejected that explanation, most importantly because both subtle and unsubtle methods of determining aversive racial preferences among the general public find that California is more racially progressive than Florida. If racial preferences among the bar were the only thing that mattered, we would see about the same or bigger effects in Florida than California, not the muted effects we do find there.

After puzzling through several alternatives, I eventually came to the view the best explanation for geographic variability in discrimination is the prevalence of lawyers and the profitability of legal practice. Put differently, it’s not the state or geography per se, it’s the fact that states in these studies represent different legal markets, and the market plays a large mediating role in the emergence of racial disparities. Florida and California appear quite different in both dimensions of lawyer prevalence and lawyer profitability. According to the Bureau of Economic Analysis, there are about 20 percent more lawyers per capita in Florida than in California.Footnote ³⁶ Unsurprisingly, Florida lawyers make considerably less. The mean hourly wage for a Florida lawyer is $65 per hour, while in California it is $97 per hour.Footnote ³⁷

Why do lawyer prevalence and profitability matter? Because both speak to the supply constraints of the lawyers who participate in these audit studies. A lawyer who has the capacity to undertake additional work has strong incentive to do so, regardless of their race, while a lawyer who continuously works at or near capacity can act in a choosy fashion about their clientele. And if someone can be choosy, they are likely to do so for all sorts of idiosyncratic reasons. It would be very surprising if race were not occasionally an important factor for some. In California, it seems that race is an important factor for about 20 percent, while in Florida it is likely a similar percentage but because of economic incentives those individuals “get over it.” A regression analysis within Florida counties provides some confirmatory evidence of this theory, with counties where lawyer pay is stronger observing more disparities in response to client solicitations. Frankenreiter and Livermore did not use their national set of data to do the same sort of regression analysis I did within Florida to test mechanisms, but perhaps future work can do so. Even so, racialized service rationing remains an intuitive interpretation for the surprising geographic patterns we see across audit studies, and an interpretation supported by limited observational evidence.

The argument that inadequate supply of lawyers is an important cause of access to justice issues is not new. Nor is the expectation that the burdens of inadequate supply will fall in disparate ways along racial lines. But the idea that when supply shortages are present it allows lawyers who would ration services along racial lines to do so is a novel point. It also raises the racial stakes on all sorts of questions about professional regulation and licensing reform, which is perhaps more useful politically. The point is not to solve the fundamental racial inequities in American (or other) societies. Rather, a more modest goal is to provide enough supply that the typical lawyer does not ration their services along racial lines. California does not need to try to achieve some utopian economic vision; they can simply try to make their legal market look more like Florida’s. Whether the Bar will want to do that given the differentials in lawyer pay is another matter; however, racial justice is a powerful political angle that often does have traction in progressive political climates like California.

To summarize where these findings fit in the broader understanding of race and access to justice, we know from extensive research across the social sciences that race is conspicuously related to many varied civil justice problems. At the same time, it is questionable whether these are simply correlates of a racially inegalitarian society or more directly a consequence of racism by key intermediaries in the civil justice system (i.e., lawyers, judges, juries) or in parts of the broader world that have a tight connection with civil justice problems (i.e., landlords, credit rating agencies, social workers, and others). The stakes of answering this question are both practical and political. On the one hand, one wants an accurate diagnosis if one wants an effective cure. One imagines that interventions making access to justice more equitable will tend to benefit previously underserved demographic minorities more than white people, just as the expansion of health care access was disproportionately beneficial to racial minorities because their situation was previously the most precarious. But perhaps not, or perhaps not enough, unless the interventions do not pay attention to the key mediators.

On the other hand, political claims about racism are different from claims about economic disadvantage. In some cases, the argument that a system is racist or enables racism may prove more powerful and persuasive than claims that this system is disadvantageous to the poor.Footnote ³⁸ The findings discussed above work on both levels. In some jurisdictions, the bar exhibits profound negative racial preferences over clients as distinct from favoring the affluent, who are perhaps less likely to come from minority backgrounds. But crucially, the legal market does seem to mediate these preferences, as political economists might suppose. If the market actually makes lawyers pay the price for their racial preferences, most of those who would like to discriminate in client selection will decline to do so. The upshot is that in designing policy interventions about access to justice, the likely continuing presence of racism by large enough fractions of the bar must be considered.

Moreover, there is to my mind a powerful political argument here, that severe constraints on the number of attorneys that practice in a given field of law in a given legal market basically encourage and enable segments of the bar to be choosy over the race of their clients in a way that is at odds with the official, anti-racist sentiment expressed by all major legal professional associations.

2.3 Is Attorney Supply the Key to De-Biasing?

Having resituated my own research findings within the broader topic, I wish to turn and examine the policy implication. If the basic claim is that insufficient supply of attorneys creates conditions whereby racial discrimination against clients by lawyers becomes likely, then that obviously pours additional gasoline (as if that were needed) on previous arguments made by authors such as Deborah Rhode,Footnote ³⁹ Herbert Kritzer,Footnote ⁴⁰ and others going back many decades that liberalization of the professional monopoly is necessary to improve access to justice. Particularly in the large number of routine legal matters where underrepresentation is most acute, representational discrepancies appear to be more strongly rooted in racist preferences of sizable segments of the bar rather than background economic inequality or statistical discrimination. Greater liberalization of the professional monopoly implies more market discipline against racist preferences by legal service providers. At this point, I could continue to recapitulate arguments about the benefits of liberalizing the professional monopoly, but I will instead emphasize some perhaps more surprising connections that attention to race might imply.

2.4 Conclusion

Perhaps the most important lesson of the political economy perspective on this topic is recognizing that eliminating racism is neither necessary nor sufficient to generate more racially just outcomes. We are not going to fix peoples’ hearts overnight, or even over decades. Instead, we need to carefully think about why minorities do achieve justice outcomes on par with white people in cases where they do, in spite of likely racism, and why they do not in other cases. To the extent that they do not achieve equal outcomes because of incentives facing providers of solutions to legal problems, it is politically and rhetorically useful to note that many individuals who claim to have good hearts nevertheless actively sustain and support incentive systems that enable racially disparate outcomes. There is a lot of letting perfection be the enemy of the better, particularly among those with the luxury of comfortably waiting for greater racial justice. The severity of the civil justice disparities belies that comfort and makes understanding its causes particularly urgent.

The attorney licensing system poorly serves those most in need of legal help. Some dimensions of this problem are relatively well-understood. Access-to-justice scholarship about professional licensing has revealed that state barsFootnote ¹ create high entry barriers and perpetuate a monolithic definition of the practice of law, both of which contribute to a shortage of lawyers in America.Footnote ² Attorney scarcity has, in turn, increased the cost of professional services, leaving out of the market the clients most desperately in need of a lawyer – the rural poor, indigent defendants, accident victims, children, older adults, and immigrants.Footnote ³ The Sixth Amendment right to criminal defense counsel and the court appointment process have tempered this effect for some clients. But for other clients – like immigrants and accident victims – there is no safety net at all. Yet in the face of these shortages, state bars have done little to reform licensure with an eye toward access.Footnote ⁴

This conventional account of how the attorney licensing system fails needy clients is accurate but incomplete. In fact, the state of attorney licensure and access to justice is even worse than many scholars recognize because lawyer licensing is not only over-regulatory but under-regulatory in ways that also harm low-income clients. As strict as state bars are when it comes to entry requirements and ethics rules, they are lax when it comes to professional discipline. In this sense, the lawyer licensing system is hypocritical. In rulemaking, it appears to place attorney quality and public protection above all else, including access to justice. Yet when it comes to discipline, the system puts public protection in the back seat, content to leave unethical and incompetent lawyers in the profession and allow market forces to push them toward the neediest clients.

Every year, thousands of lawyers temporarily lose their ability to practice law or have it significantly curtailed because they have engaged in the unethical or incompetent practice of law.Footnote ⁵ This roster of problematic lawyers is underinclusive; professional discipline as meted out by licensing agencies is notoriously lax, slow, and opaque, and it likely only catches the worst of the worst in its net.Footnote ⁶ Thus, the records of public discipline reflect some of the most serious sins a lawyer can commit: conversion of client funds, exchanging sex for services, and severe client neglect. Yet only a fraction of these attorneys lose their ability to practice law.Footnote ⁷ Far more common are reprimands, probation, and suspensions that allow an attorney to return to practice, even for offenses that suggest that the offending lawyer’s judgment or competency remains in serious doubt.

Where do those attorneys turn for work after having gotten in trouble for serious professional misconduct? The short answer is it’s a mystery. Scholars have for years lamented the lack of data about which lawyers are disciplined and why.Footnote ⁸ This chapter, however, draws on the limited data available to assert the hypothesis that the disciplinary process drives the profession’s most problematic providers into solo and court-appointed practice, where they are likely to serve the underserved. This chapter further argues that using the profession’s bad apples to bridge the access-to-justice gap is problematic not only because it matches the unethical and incompetent with those least able to protect themselves or change attorneys, but also because solo and small-firm work – where supervision is virtually nonexistent – presents unique incentives and opportunities to behave unethically.

If, indeed, the most unethical and incompetent lawyers are being pushed by market forces toward the neediest of clients, the solution cannot be merely to tighten up attorney discipline. This will further contribute to the attorney shortage problem for which indigent clients suffer the worst consequences. Rather, if the licensing system is to be reformed in a way that meaningfully improves access to justice in America, both problems – the ways in which it is over-regulatory and under-regulatory – need to be addressed simultaneously. Arguments for how to increase the supply of lawyers have been made elsewhere. This chapter concludes by sketching some reforms that would meaningfully ensure that supply remains free from providers who have shown themselves to be unfit.

3.1 Too Few Lawyers

It is by now well-documented that the United States has a severe access-to-justice problem.Footnote ⁹ A 2022 report from the Legal Services Corporation found that low-income Americans do not get enough legal help for 92 percent of the civil justice issues that affect them.Footnote ¹⁰ In most civil cases in state court, at least one party has no lawyer;Footnote ¹¹ in cases involving debt collection, family law, and landlord–tenant cases, well over 90 percent of cases involve at least one pro se litigant.Footnote ¹² The rural poor are especially bad off. For example, in Georgia, where 70 percent of lawyers work in or near Atlanta, nearly half the state’s counties have fewer than ten active lawyers. Five counties have none at all.Footnote ¹³

Part of the problem lies with inadequate governmental assistance. The constitutional right to an attorney paid by the government only exists in the criminal context; federal and state funding for legal aid in civil matters is woefully inadequate,Footnote ¹⁴ and out of step with other developed countries.Footnote ¹⁵ Lack of free and reduced-fee services, however, is only half of the story. The other half of the problem lies with a regulatory structure that creates a scarcity of legal services – and, in turn, increases the cost of services beyond reach of low- and middle-income clients. There are many jokes about America having too many lawyers, but in fact it would seem we have too few.

3.2 Too Little Discipline, Too Light

The professional regulatory system for lawyers also fails low-income clients in a way that is less familiar than these arguments about regulation gone too far. State licensing authorities justify the heavy hand they take in restricting entry to the profession as protecting the public from lawyers who are either incompetent or unethical, or as is all too common, both. Yet for all the measures these regulators take to prevent theoretically bad providers from practicing law, they do very little to remove actually bad providers from the profession.

3.3 The Fallen Lawyer

What happens when an inadequate supply of professionals, containing a significant number of providers known to be incompetent or unethical, encounters a market for services where some clients are well-heeled, savvy, and able to choose – and others demonstrably aren’t? Little is known for sure about how this labor market works, but all signs point to the conclusion that the profession’s most problematic providers end up serving the country’s neediest clients.

3.4 Conclusion

In solving the problem of hypocrisy at the heart of lawyer licensing, the stakes are highest for those who have the least access to justice. As it stands, low- and middle-income clients suffer the most for a disciplinary system that keeps in practice dangerous, predatory, and incompetent lawyers. But single-minded reform aimed at cracking down on the profession’s bad apples could also hurt those same clients, either through false positives or by chilling innovative ways of delivering legal services that may end up in the crosshairs of an overactive disciplinary system. Solutions, therefore, should be synthetic.

First, the fetters of legal practice need to be loosened to allow for more access to justice. State bars should promulgate a clear definition of the practice of law that allows non-licensed advisors and other professionals to walk up to the line of legal practice without fear of bar sanction or criminal prosecution. The definition should only include tasks for which an elaborate legal education is required; whatever can be handled competently by a social worker, accountant, paralegal, court clerk, or administrative assistant should be excluded. State bars should get out of the business of strictly regulating the corporate form of legal practice and allow for more novel business models to reach clients in need of legal help. Self-help tools, like online forms and algorithmic legal advice, should be allowed to help pro se litigants learn their rights and make their arguments clearly and persuasively. States should build on their progress in streamlining the bar exam across states, and perhaps revisit the need for a bar exam altogether. And states and municipalities should expand access to justice by guaranteeing appointed representation in more civil matters,Footnote ¹⁰⁵ with a rate-of-pay that would attract not only the providers at the bottom of the barrel. If we are to bridge the access gap in law, the supply of legal services needs to be expanded.

Second, the disciplinary system should be overhauled to ensure that supply is reasonably free of unfit lawyers. I have made a detailed proposal for how to fix the professional disciplinary system for other professions,Footnote ¹⁰⁶ and its lessons can be imported here. States need to promulgate and adhere to disciplinary rules and sanction guidelines aimed at public protection. Specifically, the rules should make clear that clients cannot consent to sex with their attorneys in the course of representation, misappropriating client funds creates a presumption of disbarment, and client neglect, especially where it results in prejudice, is a serious offense. Addiction and other mental health issues, when resulting in actual client harm, should be seen as aggravating, not mitigating factors, especially in cases of misconduct like exchanging services for sex or stealing money to support an addiction.

The disciplinary system should be more transparent, investigative agencies fully funded and pro active, and complaints easy to file and immune from suit. Information about disciplined lawyers, including anonymized complaint data, should be easily accessible and centralized at the national level. At the same time, it’s also important to note that transparency can help only to the degree that someone has a choice of lawyer, which is often not the case for many clients with limited access to justice.

Above all, legal disciplinary authorities need to be more clear-eyed about the likelihood of recidivism and recognize that when a disciplined attorney reoffends, his victims are likely to be the rural poor, the mentally ill or incompetent, immigrants, and indigent defendants. To this end, the monopoly of lawyers over the disciplinary process should end, as self-regulation seems a likely contributor to lax professional discipline. Cases should be decided by panels that are not dominated by lawyers – other professionals and members of the community should have a say in defining competence and ethicality in the provision of legal services. This could be achieved by using a pool of hearing officers that are only one-third lawyers, who hear cases in panels reflecting that balance of expertise in law (one-third) and expertise in community and client legal needs (two-thirds). All hearing officers should be paid appropriately for their time and trained in the regulatory imperatives of the legal profession.

None of these ideas is especially radical, and most of them have been made before. Some have been on the table for many years. And yet little in the attorney disciplinary system has changed. On paper, most lawyers can agree that the system should protect the public from incompetence, abuse, and graft. Why, then, have we made little headway toward a fairer and safer system of attorney discipline? Because even the legal profession’s most vocal critics – lawyers themselves – are unwilling to give up self-regulation. For the most part, reform proposals have gone to the substance of professional rules and the procedure of their enforcement. These proposals have had little impact without changes to the institutional structure of professional regulation in law. Only once we are prepared to be held accountable to someone other than another lawyer will we confront the fact that the legal licensing system is designed not to meet the country’s overall demand for legal services but to meet the needs of the elite, and, above all else, the needs of the profession itself.

The legal profession remains strongly committed, politically and rhetorically, to core values of loyal client service, confidentiality, avoidance of conflicts of interest, and professional independence as the justification for opposing the provision of legal services by nonlawyers. As a result, the profession has been remarkably consistent over decades in its resistance to changing the form of regulating legal services. As an article from the Deborah L. Rhode Center on the Legal Profession at Stanford Law School notes, with an undertone of weariness,

Given the magnitude of the problem of lack of access to legal services, it can be tiresome to listen to the “usual arguments” against loosening unauthorized practice of law (UPL) restrictions. The theme of this book volume, after all, is “rethinking the lawyer’s monopoly.” This chapter contends, however, that one of the usual arguments for prohibiting nonlawyers from providing legal services deserves to be taken seriously. The application of knowledge and training in law to the specific situation of another – the standard definition of the practice of lawFootnote ² – necessarily involves a style of judgment that depends on extensive training and experience in the practice of law. Judgment is something that nonlawyers can develop, but any expansion of the rights of nonlawyers to provide legal services must ensure that the nonlawyer service providers thereby licensed have sufficient training and experience with the exercise of legal judgment.

The relevant judgment should be exercised with respect to the common good or the public interest but not as discerned directly by a practitioner. Rather, guidance is provided by a conception of the common good as embodied in the positive law of the political community and then applied by practitioners skilled in the craft of legal interpretation.Footnote ³ This is what I refer to as the public side of lawyers’ duties. The lawyer’s role is not defined exclusively by private-law duties; it also has a significant public-law component.Footnote ⁴ By this I do not mean the cliché that the legal profession should be regulated in the public interest, or that lawyers should practice in the public interest. Rather, I mean that lawyers contribute in a vital way to the rule of law by aligning the conduct of clients with public values as embodied in positive law, and not merely considerations of the common good or the public interest.Footnote ⁵

What lawyers do for clients has significance for democratic self-government and the rule of law. It follows that there is a serious risk that nonlawyers will not be capable of performing this function. If the concern of defenders of UPL regulation is only with the competence and loyalty of paraprofessionals or other nonlawyer service providers, tort and fiduciary law remedies should be sufficient to address them. It is more difficult to address the public side of the duties that nonlawyer providers of legal services will owe. It may be direct regulation by the judiciary, through the promulgation of rules of professional conduct and enforcement through grievance proceedings.Footnote ⁶ It also may occur through unwritten customs and norms acquired as part of a process of professional socialization. In any case, if nonlawyers are permitted to provide legal services, some attention must be paid to the public side, beyond the interest in protecting consumers from careless or inattentive service providers.

By making this argument sympathetically, I do not intend to object to UPL reform. The point, instead, is that proponents of reform should be prepared to counter the objection in its own terms. The hope is to move beyond the endless cycle of a promising reform idea being met by the usual argument, leading to stasis. The upshot of the argument is not that consumers in need of legal services should have only one option available, in the form of an expensively trained, fully licensed lawyer. It may be possible to meet the needs of consumers for legal services with a human or technologically enabled provider, as long as it is capable of understanding and complying with obligations related to maintaining the rule of law.

Section 4.1 presents three hypotheticals in which nonlawyers engage in what, under most states’ definitions, would constitute the UPL. The hypos show that the private duties owed by a provider of services to a consumer of those services do not exhaust the normative space. In addition, there are public duties having to do with the integrity of the legal system. The Reporter of the Third Restatement of Agency, Deborah DeMott, observes that “the law of agency does not by itself capture all of the legal consequences of relationships between lawyers and clients and between lawyers and others to whom the lawyer owes duties.”Footnote ⁷ The significance of that proposition is that private-law doctrines such as agency, negligence, and fiduciary duties cannot constitute the whole of regulation of nonlawyer providers of what have traditionally been considered legal services.

The more theoretical part of the chapter, Section 4.2, considers how the duties of lawyers must be understood as including this public-facing aspect. Some regulatory responses seem obvious, like promulgating codes of conduct for nonlawyer service providers. It may be the case, however, that the professional education and socialization of lawyers is more important than it seems at first for the preservation of the public aspect of the role of lawyer. The connection between the practice of law, legal judgment, the rule of law, and democratic self-government is available as an ethical ideal that should inform what lawyers do, even if reality departs from ethical ideals in many cases. This is a problem that UPL reformers need to take seriously, particularly if they hope to overcome the opposition of the organized bar to reform.

Section 4.3 concludes by briefly considering some of the options that are available for preserving the public-facing functions of providers of legal services when those services are provided by nonlawyers. Private-law doctrines from tort, contract, and agency law do not have any readily available “hook” to ensure that nonlawyer service providers interpret and apply the law in a way that is consistent with the interpretive norms of the professional community of lawyers. I do not have firm views about the best way to regulate nonlawyer service providers except to insist that the regulatory approach must be responsive to duties owed on both the private and public sides of the normative ledger.

4.1 Case Studies in Lawyers’ Private and Public Duties

This section presents three hypotheticals. Each of these cases involves legal services that could plausibly be provided by nonlawyers – either humans or some form of artificial intelligence (AI)-enabled technological means. The cases considered here, set in a hypothetical jurisdiction permitting the activities, involve services one could imagine an entrepreneurial group of nonlawyers offering to provide.

4.2 The Public Side: Professional Judgment

The opening paragraph of the Preamble to the ABA’s Model Rules of Professional Conduct states that “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”Footnote ³³ This language has launched a thousand platitudinous speeches by bar leaders to law students and newly admitted lawyers, but what does it really mean to say that a lawyer has “special responsibility for the quality of justice”? The key, I believe, is suggested by DeMott’s observation that “as members of a profession, lawyers are subject to duties not neatly captured by the consequences of agency.”Footnote ³⁴ To avoid begging the question, so that the invocation of professionalism becomes simply another version of the usual defense of UPL restrictions, it is helpful to contrast the idea of professionalism here with the law of agency. The agency relationship is characterized by the principal’s right to control the agent.Footnote ³⁵ As an officer of the court, however, a lawyer is also subject to direct supervision by judicial institutions and, as DeMott contends, “[t]his dimension of the lawyer’s position is beyond the explanatory framework of agency law.”Footnote ³⁶ Alice Woolley similarly notes that the law of fiduciary duties fits uneasily with the foundation of the lawyer–client relationship in “the public law relationship between citizen and state.”Footnote ³⁷

In this section, I contend that the problem raised by DeMott and Woolley is correctly identified. However, it is misleading to think that their point depends on the direct supervision of lawyers by judicial institutions, often shorthanded as lawyers having the status of officers of the court. Public duties are not a contingent feature of how lawyers are regulated but a conceptual truth about the function lawyers perform for clients in a society committed to the rule of law. That’s a mouthful, so more explanation is in order.

Lawyers tend to think about public law as that body of law having to do with relationships between citizens and the state. However, Woolley is not talking about public law but about the public aspect of the role of lawyers, which is related to the function of law and the legal profession in establishing rights and duties among members of a political community. Philip Pettit’s description of a social order maps onto what lawyers would think of as the domain of private law, yet it has a public, or social, or communal dimension:

The second half of this passage should call to mind my treatment of the Startup Company case. People have limits on “the privileges and powers [they] can individually command.” The limits are specified by the law that constitutes the juridical relationships that can be created by contracts, different forms of business entities, and other devices of private ordering. As Woolley rightly points out, someone without specialized training cannot access the rights and privileges provided by law – for example, to create a business entity or a contractual relationship with an employee.Footnote ³⁹ Thus, lawyers are required to provide this access, but notably it is to the framework of the social order and is therefore not strictly private. The public side of lawyers’ duties has to do with access to, and the proper functioning of, the framework of social order established by the positive law of a political community, its lawmaking and law-applying institutions, and those occupational groups (lawyers, judges, and possibly nonlawyer service providers) that keep the system running.

On the private side, the fundamental duty of any agent – which DeMott calls the “fiduciary benchmark” – is that “the agent must interpret the principal’s instructions reasonably in light of the principal’s wishes as the agent understands them when the agent must decide what action to take.”Footnote ⁴⁰ This is a duty owed by lawyers to clients, and serves to ensure that the client is calling the shots in the relationship and the lawyer is not acting paternalistically with respect to the client. As Woolley puts it, “the central function of the lawyer in advising a client is to discern the client’s wishes, not to substitute her own.”Footnote ⁴¹ That is fine as far as it goes, but in the Startup Company example, the client’s wishes are not the last word. The client wishes to establish a juridical relationship between the corporation and the engineers. It is “juridical” in that various rights, duties, and privileges are supposed to follow from it, applicable to both the parties to the transaction and third parties.Footnote ⁴² The lawyer’s work in preparing the independent contract agreements brings into existence a set of relationships constituted by law. Thus, in addition to ensuring that she is clear on the client’s instructions, a lawyer in this case must also ensure that she has got the law right insofar as it bears on how the relationship between the company and the engineers can be structured.

Doing this requires judgment. Not since the sustained attack of the American legal realists on “mechanical jurisprudence” has any sensible lawyer believed that it is possible to apply the law deductively in adjudication or when advising clients, that the form of legal norms always has priority over their substance, that law can be applied without consideration of the circumstance of its enactment.Footnote ⁴³ Legal rules do not determine the scope of their application, there is quite a bit of creativity involved in figuring out which are the relevant facts, and formal norms are frequently intelligible only against a background of understanding of what their point or purpose must be. In the Startup Company example, the status of the engineers as employees or independent contractors depends on the application of various multifactor tests that have been used in agency, tort, labor and employment, tax, and other legal contexts.Footnote ⁴⁴ This is not reasoning from first principles about whether it would be in the public interest or the interests of justice to recognize the legal status of independent contractors on these facts. Rather, those judgment calls have been made already, by legislatures, administrative agencies, and judges, and embodied in the form of positive law that is interpreted and applied by lawyers.

My point here is not that nonlawyers or a sophisticated AI system cannot exercise this type of judgment. Rather, the point simply is that the exercise of judgment is necessary to determine whether the engineers should be treated as independent contractors or employees under the applicable law. A similar observation may be made in connection with the judgment required by the providers of legal services in the other hypotheticals. The Asylum Seeker case requires both an interpretation of the applicable law, particularly an understanding of how the knowledge element has been applied in analogous cases, and also a difficult assessment of whether the client lied on his application. Granted, immigration and asylum are public law subjects, so it may be easier to see the source of public duties here. But the same sorts of duties of candor to tribunals and third parties would be required if this were a dispute or transaction among private citizens. Any system that allocates rights, duties, and liberties that can be asserted among citizens dealing with each other in potentially contentious circumstances has to do something to ensure that the juridical relationships thereby established have some connection to what is, in fact, the case in the world. Judgment in this case does not pertain to the law establishing the client’s rights, duties, and privileges, as in the Startup Company case. Rather, it pertains to the constraints that apply to participants in the process of establishing juridical relationships. These constraints are necessary to the orderly functioning of the entire system, however, and in that sense can be said to be part of the public side of the duties of lawyers or nonlawyer service providers.

The Asylum Seeker case may seem too easy because, no matter how it is regulated at the state level, employees of our hypothetical Affordable Immigration Service are appearing before administrative tribunals, which impose, by regulation, duties comparable to those that would apply to fully licensed lawyers. I stuck close to the facts of the real case when writing up this hypothetical, but it would be possible to take the regulations out of the problem, at least directly, by imagining a client coming to AIS for advice about what to do in order to obtain a work visa, permanent residence, or some other legal right. Now imagine that the AIS representative knows or suspects the client is lying or, even worse, counsels the client to lie. In that case the Justice Department regulations would not apply directly but the untruthfulness of the customer would still be a problem for regulators.

The Custody Blackmail case calls for judgment of a different kind altogether. On the assumption that there is no legal prohibition on making an insincere demand for shared custody as a way of exerting leverage in negotiations over the property settlement in the divorce, the issue is whether we want providers of legal services doing this sort of thing. DeMott refers to professional culture and a lawyer’s professional identity.Footnote ⁴⁵ Others may see the matter simply as the application of moral considerations to the representation.Footnote ⁴⁶ In any event, the standards bearing on the exercise of judgment are unwritten, not expressed “officially” in positive law, and applicable by virtue of commitment to the ideals and values of an occupational group. Judgment in this case pertains to what a decent, ethical [lawyer, nonlegal service provider] ought to do. The bracketed terms suggest we can substitute any social or institutional role, but then we have to work out what actions are permissible or impermissible based on the ends and values for which the role is constituted.Footnote ⁴⁷ In any event, if one believes that the representation should involve counseling the father about the appropriateness (as opposed to lawfulness) of the custody tactic, some account is required to explain how the provider of legal services will acquire the capacity to provide that type of counseling.

As a theoretical matter this is a task for scholars, but as a practical matter it may be understood as an important part of legal education. The Carnegie Report emphasized the notion of professional identity as pertaining to “the skills and inclinations, along with the ethical standards, social roles, and responsibilities, that mark the professional,” and “the purposes and attitudes that are guided by the values for which the professional community is responsible.”Footnote ⁴⁸ Social roles, responsibilities, and values can be understood in terms of the broader society’s expectations for how its system for allocating rights and duties should be administered. Some assertions of rights may be unfair or abusive – a perversion of the process. Determining when this is the case requires … you guessed it, judgment. And in this instance that judgment will be developed over time, through experience, as part of membership in a professional community.

4.3 The Regulatory Question

This concluding section is quite tentative, not only because the precise form of regulation varies according to the scope of practice allowed to nonlawyer service providers, but also because many of these regulatory responses have proven imperfect when applied to the existing legal profession. Any approach to regulation that is intended to mitigate the access-to-justice problem must be capable of addressing the public side of the duties owed by lawyers or nonlawyer service providers. One pressing issue for the regulation of nonlegal service providers is the relationship between the judgment that is essential to the provision of legal services and the value of independence.Footnote ⁴⁹ Lawyers see themselves as having a fiduciary obligation of loyalty to represent and advise clients solely with reference to the best interests of clients, without regard to competing interests such as financial returns for equity owners of law firms. At the risk of falling back into the traditional defense of UPL restrictions, there may be something worth holding onto in the value of professional independence as it relates to the judgment that must be exercised in situations like those considered in Section 4.1. I worry a bit, however, that the judgment that is essential to the provision of legal services is best (if not only) acquired through a long process of professional education and socialization. It may be possible to replicate this process in the formation of nonlawyer service professionals, but so far that does not appear to be part of the thinking about these regulatory reforms.

The Washington State Limited License Legal Technician (LLLT) experiment sought to create a class of legal paraprofessionals, comparable to nurse practitioners or physicians’ assistance in medicine, that could deliver legal services at a lower price than the fees charged by lawyers. In addition to an extensive education and licensing process, LLLTs were subject to their own code of professional responsibility, which largely tracked the rules applicable to lawyers.Footnote ⁵⁰ A recent Colorado program goes down the same road: Paraprofessionals who will be licensed to provide legal services in matrimonial matters must have 1,500 hours of substantive legal experience, including 500 hours in Colorado family law; pass a licensing exam and an ethics exam; and satisfy continuing professional education requirements.Footnote ⁵¹ Those requirements appear to be onerous enough to deter many new entrants from seeking to become licensed paraprofessionals. As Keith Swisher argues, to my mind persuasively, saddling nonlegal service providers with the same educational, licensing, and regulatory regime as lawyers is inconsistent with the goal of increasing access to legal services and not necessary to further regulatory goals of accuracy and accountability.Footnote ⁵²

The Utah reform scheme tries to hold onto some form of traditional regulation by the judiciary of the provision of legal services, while better tailoring the substance of the regulations to the relevant values and objectives. The Utah Supreme Court established an Innovation Office, subject to the direction and control of the court, but charged with fashioning regulations “using an objectives-based and risk-based approach.”Footnote ⁵³ Importantly, the regulatory objectives encompass both consumer protection and access to justice.Footnote ⁵⁴ These regulatory goals differ from the usual recitation of interests in UPL decisions by courts, which tend to emphasize only the consumer-protection side of the interest balancing.Footnote ⁵⁵ The court also emphasized that regulation should be empirically informed, based on an assessment of the risk to the consumer, and aware of the alternatives available in the market for obtaining similar services.Footnote ⁵⁶

A comprehensive approach to regulating nonlawyer providers of legal services could attempt to address many of the issues considered in the hypos in Section 4.1. For example, legislation could provide that the attorney–client privilege applies to confidential communications between customers and nonlawyer service providers, in the same way and subject to the same limitations (the crime-fraud exception, etc.) as communications between lawyers and clients. Nonlawyer providers could be subject to enforceable duties of candor to tribunals, to the same extent as lawyers, with respect to their own statements and evidence they submit. The hard part of this approach is not imposing enforceable regulations but training nonlawyer service providers on their application. Something like the knowledge standard in the Asylum Seeker example calls upon fairly sophisticated legal reasoning to determine the appropriateness and limits of analogies with other legal tests to determine an actor’s mental state with respect to facts. A first-year criminal law class would be very helpful to someone trying to puzzle out what to do in that case. The Custody Blackmail hypo is different, because in that case the judgment required is not exercised with respect to other areas of positive law but with respect to the values that inform the legal system and the legal profession. Law schools may not do a great job at inspiring students to engage in critical reflection about the values informing the lawyer’s role – in fact, the normative curriculum is largely tacitFootnote ⁵⁷ – but at least in theory there is an available site for the consideration of these questions. The values inherent in the provision of legal services are likely to go largely unaddressed if the services are provided by software or humans with limited legal training.