Ban on Legal Innovation Can Mean Life or Death
By Dorna Moini
As a pro bono attorney, I sat on a bench in a California courthouse beside a woman covering a bruise under her gauzy pashmina. Andrea told me that she had dragged her two young children across town because she knew this was her two-hour window, once a week, to get free legal assistance from attorneys like me with a domestic violence restraining order to protect her from the father of her children.
She had told me that she had recently received a raise of $4 dollars at her job as a line cook. However, this wasn’t good news — she was now “too wealthy” to qualify for legal aid as her income exceeded the $26,000 threshold for a family of three. To get out-of-pocket aid would cost tens, or hundreds of thousands of dollars.
She isn’t the only person who finds herself ensnared in this loophole. For this, and many other reasons making the legal system expensive and inaccessible, 85% of Californians struggle to receive assistance for their legal matters.
The disbelief on this woman’s face masked the devastation within. I was a pro bono legal aid attorney volunteering my time on domestic violence cases, and with that, I was forced to move on to others in the long line of people still waiting for help before we closed the doors at noon. Many more in line could qualify financially, but they would run out of time because there were not enough attorneys to help them today.
In the U.S., nearly 75% of low-income households experienced at least one civil legal problem in 2021, leaving most of them without a legal defense. In a nation that proclaims liberty and justice for all, the vast majority of citizens find that is not the case.
Many of these issues are matters of life-and-death. They involve people’s right to physical safety, shelter, sustenance, health, financial independence, and bodily freedom. In my time working with legal aid organizations, I saw a teenager who couldn’t get asylum after fleeing a country where he refused to be a child soldier, a mother and newborn who had no housing after she left a unit with black mold, and veteran who was denied benefits for two years because he couldn’t file the paperwork correctly.
But when the average lawyer charges $400 per hour, traditional legal services will never fill this gap. Age-old rules, like those preventing non-attorneys from providing even the most basic legal advice, make it hard for consumers to get affordable legal services.
The State Bar of California has been studying the creation of a regulatory sandbox program, like the one set up in 2020 in Utah, which would allow the state to test nontraditional legal services for a limited period of time under the strict supervision of the state. Among these services is the possibility of allowing paraprofessionals who are not admitted to the bar, but who meet a variety of other educational and experiential thresholds, to provide limited legal assistance. Disappointingly, the California Assembly recently halted progress on both programs.
In an effort to get creative, in recent years, legal aid organizations across the world have built software to help. But U.S. lawyers don’t have clarity on whether they’re even allowed to build DIY software for consumers to use because the professional rules are unclear on what constitutes the practice of law, and this ethical ambiguity has had a chilling effect on action.
Reform must include three pillars, all of which can be cautiously tested and released through a regulatory sandbox: technology, paraprofessionals, and investment.
Providing legal information through technology should not be considered the practice of law. Legal apps that automate legal expertise, for example in the criminal record expungement process, have been shown to allow organizations to serve 10 times more people than they could without technology. By automating the most routine of paperwork, we empower consumers with their legal destiny and allow pro bono attorneys to focus where they are needed most — in more law-intensive hearings, in legal research, and on appeals.
Currently, there are impediments to creating legal software apps, including that there is little clarity from legislators and judges on what constitutes the “practice of law.” It’s unclear whether automating these documents enters someone into an attorney-client privilege with the person who built the automation. Some of these legal products provide no more information than a blog post would — but that information, if provided clearly, can be hugely impactful to those seeking it.
To assist in cases where technology cannot, paraprofessionals should be authorized as a key part of “legal healthcare,” as they now have been in seven states. Just as not every medical issue requires a doctor, not every legal issue requires a lawyer to be involved at every stage of the process. Licensed paraprofessionals would develop specialized expertise, and be subject to reporting requirements, supervision, bonds, continuing education, and additional testing, and they could fill the gaps in areas where most have no help today.
In most states, lawyers cannot share revenue with or receive investment from non-lawyers. This stunts the potential scale of tech-enabled solutions–solutions that are a hybrid of attorneys and technology. The restrictions further widen the gap in the legal market between what attorneys can offer under ethical rules and what consumers desperately need. And at a time when the line for these services is longer than ever, innovative legal service models are what we need most.
Dorna Moini is the CEO of Gavel (www.gavel.io), a no-code platform for document automation and building legal products. She is on the Legal Services Corporation’s Emerging Leaders Council and teaches the Legal Innovation Lab at USC Gould School of Law.
