This month, Utah Business partnered with Holland & Hart to host a roundtable event featuring Utah legal leaders to discuss access to justice. Moderated by Elizabeth Kronk Warner, Dean of S.J. Quinney College of Law at the University of Utah, here are a few highlights from the event.
Is there an “access to justice” problem in Utah?
Ryan Gregerson | Partner | Pearson Butler
I don’t know that we have more of a need than there is nationwide. But I do think it’s a problem. There are lots of people who can’t afford to hire an attorney. A lot of the problems you’ll see are landlord-tenant issues. The tenants almost never have representation. You show up to one of those calendars at court and you’ll see there are 60 cases set and there are maybe two or three people who have an attorney.
Do we have challenges in rural portions of the state?
Ryan Gregerson | Partner | Pearson Butler
Absolutely there is with some of these outlying counties where there’s either not a lot of lawyers or [there are no attorneys]. What we can learn from what’s happening right now is the ability to do things just like we’re doing right now with video conferencing and web chats. And it’s also saving our clients money because then they’re not having to pay me to drive there.
What do you think of the idea of non-lawyers having an ownership interest in law firms?
Cory Talbot | Partner | Holland & Hart
An amendment to Rule 5.4, which discusses the professional independence of the lawyer and how that would be impacted by this program, is in-process right now so that we can move into this sort of regulatory sandbox and non-lawyer ownership.
The revised rule emphasizes that within an organization, where there is non-lawyer ownership, it has to preserve the professional independence of a lawyer’s judgment, it has to preserve the duty of loyalty to the client, and it has to preserve the protection of client confidences. And so somebody that wants to practice in an organization that has non-lawyer ownership will need to get approval as part of that regulatory process.
The concern about these large companies coming in and sort of buying up law firms and practicing, say, securities law through a law firm, that’s not what this amendment is designed to do.
Ryan Gregerson | Partner | Pearson Butler
Even though it might not be what the rule is designed for, I think you’re going to see larger organizations trying to do things just like that―and I don’t think that’s necessarily a bad thing. In part because the regulatory sandbox will keep some control over that. But if we think about it in the sense of, if we allow for this ownership by non-attorneys, then we could also allow the influx of additional funding or dollars into improving the processes.
If we can utilize technology better and more efficiently, find innovative ways to utilize technology in the way that we practice, this will fundamentally change the practice of law in Utah. If we stay in the forefront of that, and really look for those technological advances that can improve not only the way we practice, but also decrease the cost for the consumer, it allows a lot of great opportunities for people to get their legal services at greatly reduced prices.
Lee Wright | President | Kirton McConkie
One concern that I have with the proposal of non-lawyer ownership is that it does introduce what many of us see as a riskier service model. When non-practitioners step into business models that they’re not nearly as familiar with, all of a sudden decisions are being made not based on best practice, but based on dollars. I don’t agree that allowing non-lawyers to come in and tell us how to run our practices is the best way forward.
Dan Garner | Managing Director, Trial Lawyer | White & Garner
I side with Lee on this. When you look at access to justice issues, the practice areas that we’re really talking about are criminal defense, landlord-tenant law, and family law. But a normal flushed out lawsuit is going to cost more than what the amount of controversy is. I just don’t see how non-attorney investors are going to invest in those practice areas.
Steven Joffee | Managing Partner, Salt Lake City & Cottonwood Heights Offices | Michael Best
Once you allow non-lawyers to invest in firms, then you have to be concerned about whether or not decisions are going to really be made based on the best interests of the client.
The other concern is, if you do start to have these very large companies investing in law firms, then you get to a point where they’re also driving legal change through their own firm. They could go retain a firm right now. But it’s slightly different if they have an ownership interest in the firm. And is that going to lead to conflicts of interest? Is it going to give them even greater abilities to potentially decrease access to justice?
Ryan Gregerson | Partner | Pearson Butler
I think we’re being a little shortsighted. We’re still going to be bound by our ethical rules to do what’s in the client’s best interest. But we don’t go to law school learning how to run a business. And when we’re talking about access to justice, we’re really talking about private practice. Many practitioners in small and midsize law firms have no idea how to run a business efficiently. And to be frank, there are a lot of big firms that don’t either.
We want to make sure we’re always doing what’s right for the client. But we also need to be running efficient businesses. I think too many law firms don’t pay attention to things like ROI. They don’t pay attention to what their overhead is. And that’s why we’ve got to charge so much to be able to meet this overhead because we can’t meet our payroll on a month to month basis.
We’ve got to have X number of revenues because so many law firms are not running their law firm like a business. By allowing those non-lawyers who have run businesses before and know how to run things efficiently, they can help us improve those processes. And that can also decrease what we’re having to charge the clients because we don’t have the out of control overhead we’re [currently] having to meet.
Dan Garner | Managing Director, Trial Lawyer | White & Garner
I worry about the scenario where there’s a young associate who gets called into a room by the non-lawyer owner and says, ‘why is this case still going? They haven’t paid their bill, or we need you to finish this case, and if you don’t do it then you’re fired.’ I don’t think that we can completely ignore that. And at the end of the day, the Bar would only have jurisdiction over the lawyer. The non-lawyer can always divest and go invest somewhere else.
Graden P. Jackson, Esq. | Attorney | Strong & Hanni
These are certainly issues that the committee is aware of when it’s drafting the revised rule. They’re also issues that we have raised to the Supreme Court as it considers adopting this rule.
One of the real goals of this is to see if we can have technology improve areas of law where people are currently not being served. One idea that’s been floated as a potential option for this regulatory sandbox is that a group of engineers came up with a software program that would allow somebody to go through and expunge their criminal record. And the hope of this rule is that if we allow people to have an ownership interest, then they’ll be more willing to invest in products that have the potential to help people who currently are not being served by law firms as they exist.
What are your thoughts on this regulatory sandbox?
Ryan Gregerson | Partner | Pearson Butler
You’re really looking at the opportunity to attract people from tech companies we have locally to come into a law firm so that they can take what our processes are and automate them and make them way more efficient. If we can attract somebody by giving them equity, they can automate those systems and provide for more of that.
Dan Garner | Managing Director, Trial Lawyer | White & Garner
I do worry that it might discourage investors because they could be promised equity, but if the sandbox goes away then what happens to their equity?
Ryan Gregerson | Partner | Pearson Butler
Justice Himonas said that if something gets approved for the regulatory sandbox it will get grandfathered in. And that’s why that sandbox is important. Because if somebody is going to invest in and get equity, we can’t just pull it away afterward.
Jonathan Hafen | Shareholder | Parr Brown Gee & Loveless
We also want to be careful to make sure that how we innovate does not negatively impact the people that we are trying to help. One of the things that I think should give everybody some comfort is the fact that right now, with the regulatory sandbox, they’re implementing a pilot program that is focused largely on data collection.
Potential sandbox participants will need to propose ways of collecting data to estimate two probabilities for each type of harm. One, the likelihood that the average person who might use their service will experience harm without that service and two, the likelihood that the average person will experience harm using their service. The task force is trying to make sure the benefit outweighs the harm. But I do believe that the group that is leading the charge to innovate is also being careful about it.
The Supreme Court has proposed an emergency rule in response to COVID-19 that will allow certain law students to bypass taking the July Bar exam. What are your thoughts on that proposal?
Elizabeth Warner | Dean | SJ Quinney College of Law, University of Utah
The Supreme Court has proposed an emergency rule which would allow for anybody who graduated between May of 2019 and June of 2020, who comes from a law school with a 2019 Bar passage rate of 86 percent or above and who completes 360 hours of supervised work, to be licensed in Utah. They would not have to take the July Bar examination.
The justification for that rule is both to help law students in terms of their uncertainty of when the Bar exam might be and also legal employers so that they don’t have to wait several months to be able to get them into the practice of law.
Lee Wright | President | Kirton McConkie
The National Conference of Bar Examiners came out with an opposite view, a concern that minimum standards of confidence would not be met, and of course, they have their own interest as well in why the Bar exam should continue. They issued a white paper on April 9th.
But what you put together addresses a lot of those minimum standards of competence with the amount of oversight that is required, the level that the universities that they come from have to have in terms of Bar passage, and so I actually think it’s an innovative and a positive move. I was grateful to see it because it resolves the concern about what we do with these non-barred member attorneys that we’ve made commitments to in the short term.
Elizabeth Warner | Dean | SJ Quinney College of Law, University of Utah
We did see the NCBE report. NCBE is the organization that provides the questions for the Utah Bar. The first thing several people have pointed out in that white paper is that NCBE obviously has a very strong interest in not having states go to any form of diploma privilege because they have a financial interest in it.
But also, the white paper says both that the Bar exam is the best test of competency, and then several pages later says that women and people of color do poorly on the Bar exam and that there are problems with standardized tests for [these groups]. So that white paper has gotten heavily criticized for some pretty racist and sexist remarks.
George Burbidge | Attorney | Christensen & Jensen
One of the questions I have is how the supervised work is going to take place. This is an awful lot of hours for somebody to just donate under the mentor program. You’d need to have them working closely enough that you can provide guidance. I suspect that whatever attorney is providing the supervision is going to be on the hook for the results as well, and I don’t know where the new applicants are going to be coming up with the clients or where the experienced attorneys who are providing the supervision are going to want to have somebody mucking around.
Elizabeth Warner | Dean | SJ Quinney College of Law, University of Utah
I think a lot of that’s going to fall to the law school, and this is something that BYU and the U are collaborating on, is how do we create opportunities for students who aren’t as fortunate as some of the students in terms of having positions with great firms that might be in a position to help them in this regard.
The Bar has a really strong interest in doing some sort of pop-up pro bono to help small businesses with the CARES Act provisions and the opportunities that they have under the CARES Act.
Christian W. Clinger, Esq. | Managing Partner | Clinger Lee Clinger
The supervising attorney should meet the same standards as the mentors in the Bar’s mentoring program, specifically being screened by the Bar and the Utah Supreme Court, as well as maintaining malpractice insurance.
Graden P. Jackson, Esq. | Attorney | Strong & Hanni
What this feels like to me is a pile-on of, ‘hey, the Bar exam is not that great of a measure of minimal legal competence,’ or ‘it’s not a good entry point into our profession.’ And if that’s the case, then let’s fix it. Because as with every professional doctoral program, there has to be a good way for us to test minimal competence getting into our profession, whether we’re medical doctors, or dentists, or orthodontics, or lawyers. Because it feels like we’re taking a bit of an easy way out.
Elizabeth Warner | Dean | SJ Quinney College of Law, University of Utah
So the order is certainly just for a year. Interestingly, our profession, up until the mid 20th century, was overwhelmingly diploma privilege. And we still of course do have two states that have diploma privilege, Wisconsin and then New Hampshire allows diploma privilege to certain graduates. And then the reason why a lot of states moved away and created the Bar exam as a way of keeping out undesirables who the Bar did not want to join the profession.
What are the impacts of this virus COVID-19 on our access to justice challenges in Utah?
Ryan Gregerson | Partner | Pearson Butler
One of the challenges that people are facing right now is the weariness of wanting to reach out to an attorney when they are confined to their home. We’ve seen a huge decrease in the volume of calls even though I see reports consistently about an increase in domestic violence, and yet my phone’s ringing a 10th of what it was before. Right now people are nervous to call, they’re nervous about what a phone consultation or a video consultation would be like.
We can take this as an opportunity to try to increase what we’re able to do for people, especially in remote areas. We can start more widely applying video conferencing, decreasing the cost, decreasing the time that’s spent on handling hearings and cases. When you look at a family law case, so much of the costs that you have is going to hearings and mediations. When you can reduce the travel time that it takes for those things and bring those costs so much farther down, I can help more clients at a much cheaper rate. It also could increase the ability of LPPs to be able to help people at a more efficient rate and less time spent as well on doing things that we can utilize that technology for.
Nathan Thomas | Attorney | Jones Waldo
There’s a risk that we need to keep in mind as to what the obligations of the court system are. We’re seeing court proceedings happening by video conference and telephonic appearances. I’m aware of one judge that has scheduled a bench trial by video conference, and it starts raising other questions about the access of the public to view ongoing proceedings or to participate in the process. It raises questions regarding court assessment of witness credibility if they can’t be in the same room and see their demeanor in the same way.
I think that there is a real opportunity to make this a more efficient practice and to reduce the cost, but we just need to keep in mind that there are still other obligations. The media needs to have access, the public needs to have access, and trying to find that balance is something we’re going to have to address moving forward after we can get back to a somewhat normalized practice of law.