California, like many other states, is grappling with how to enhance consumer access to needed legal services. In early 2020, the state bar established a working group to explore a prior task force’s recommendations on managing legal services delivery involving technology, including artificial intelligence and the internet. A key concern is deciding how to integrate and regulate non-traditional providers in the legal services market.
The workgroup is tasked with designing a “sandbox” model—such as the one operating in Utah—to experiment with innovative systems while monitoring them to protect consumers and collecting data to assess their effectiveness. The group’s charter also dictates consideration of how existing rules regarding lawyer advertising and solicitation, referral services, and sharing fees with non-lawyers will affect innovation and access to legal services and whether those rules ought to change. In addition, the group was to evaluate the need for a rule stating the professional conduct obligations of lawyers providing non-legal services.
Workgroup members were intended to represent a variety of perspectives, from the state to the international level, with expertise in legal ethics, California’s legal community, and the nexus of legal services, technology, and regulatory reform.
But the efforts were halted in December 2021, when the chairs of the California legislature’s two judiciary committees accused the bar of diverting from its core mission—of protecting the public and addressing attorney discipline issues—in favor of yielding to business interests that could corrupt legal services.
Given this input, the bar’s board of trustees modified the workgroup’s mission to prioritize shaping the sandbox proposal. To emphasize that the bar would not independently make fundamental changes to how Californians receive legal help, the board asked the workgroup to specify how the state legislature and supreme court would partner with the bar to approve, regulate, and supervise sandbox participants. The board asked specifically for screening and monitoring procedures to reduce undue corporate profit-focused influence on legal professional judgment and objectivity.
Aiming to create a more California-specific panel, the board also voted to alter the workgroup’s makeup by trimming members with insufficient connection to the state and adding bar board members—one non-lawyer and one attorney. The bar did not decide which members to remove but indicated “criteria” would apply for adequate California-specific experience.
Two members who could be deemed insufficiently linked to the state were instrumental in creating Utah’s sandbox: former Utah State Bar president John Lund and co-vice-chair Rebecca Sandefur, an Arizona State University sociology professor who also taught at Stanford University for nearly a decade. Sandefur told the ABA Journal that tapering the workgroup could mean losing broader perspectives informed by knowledge of legal services needs across the U.S. and experience in places that have embraced regulatory reforms. She also noted that narrowing the scope and focus of what the workgroup can propose may stifle valuable ideas about expanding access to justice.
The board narrowed workgroup focus by discontinuing consideration of changes to advertising and referral service rules, and it indefinitely extended the group’s deadline to complete work.
Time will tell whether these changes to the workgroup foreshadow additional obstacles or resolved the single speedbump on the road to California’s own sandbox model. The objections in California resemble those that ultimately foiled a Florida proposal for a sandbox-type lab, and it’s clear California is unlikely to approve non-lawyer firm ownership like Arizona did.
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