You’re sued over a debt you don’t recognize. Or you’re facing eviction from the apartment where you raised your kids. The other side has a lawyer. You don’t.
For millions of Californians each year, this is how our civil justice system works.
In Los Angeles debt-collection cases, for example, just 2% of people being sued are represented by lawyers, while virtually every debt collector keeps one on retainer. In eviction cases, only 13% of tenants have attorneys, compared with 92% of landlords. The stakes in these cases are high. Yet unlike in criminal court, people facing these consequences typically have no right to a state-provided lawyer — so, if they can’t afford one, they go it alone.
These sharp disparities are at least in part traceable to the fact that California, like nearly every state, has rules that prohibit the “unauthorized practice of law” and make it a crime to supply anyone legal assistance if you’re not a member of the bar. The result is an all-or-nothing justice system with only two options: Hire a fully licensed lawyer — typically, at a cost of more than $300 per hour — or try to navigate the complex system entirely without assistance.
Six years ago, California recognized the problem and was on the cusp of becoming the nation’s leader in expanding access to legal assistance in civil litigation. Thousands of volunteer hours, including our own, went into developing reforms that would have improved the justice system by broadening the pool of licensed legal providers.
But the effort was ultimately shut down by the California Legislature after various lawyers organized and fiercely resisted reforms that would have chipped away at their monopoly on legal services.
California now has a rare second chance: The state Supreme Court is weighing a rule change that would allow a new kind of legal services providers, called community justice workers, to assist individuals who would otherwise go without needed help. CJWs would be nonlawyers (i.e., those providing legal assistance without JDs) trained and overseen by existing providers of legal services, such as legal aid groups, and would furnish specific forms of legal assistance under narrow, defined circumstances.
The CJW model is hardly revolutionary. Other professions — medicine, accounting, education — have long made room for this kind of tiered expertise. Brain surgery requires a doctor. Treating an earache or splinting a sprained ankle does not. Other healthcare professionals, such as nurse practitioners and physicians’ assistants, competently supply this first-level care.
The CJW model has also been widely tested over the past century, as states have relaxed rules around the unauthorized practice of law in certain contexts and circumstances. During that same time, scholars have studied those practitioners to see how the services they supply stack up to the services supplied by licensed attorneys. From this research — which spans decades, jurisdictions, legal fields and research methods — one finding has emerged with remarkable consistency: Qualified legal services professionals often supply high-quality help.
An evaluation of Michigan child abuse and neglect proceedings found that trained legal services professionals performed as well as trained lawyers and better than lawyers who lacked specialized training. Across several Wisconsin administrative tribunals, nonlawyers held their own — and the line that best predicted good advocacy turned out not to be lawyer versus nonlawyer, but specialist versus generalist. In the most rigorous study yet comparing the outcomes of cases by lawyers and nonlawyers — encompassing some 82,000 closed cases — the nonlawyers came out on top.
Meanwhile, evidence of harm to clients remains elusive. For the last 100 years, the American Bar Assn., alongside many state- and local-level bars, have warned that nonlawyers would prey on unsuspecting clients. For nearly as long, skeptical judges and legislators have asked to see the proof. They’re still waiting. In the 1990s, when Virginia’s Legislature asked the state bar to document errors in real estate cases overseen by nonlawyers, the bar returned with 31 examples — out of tens of thousands of transactions across 15 years. That, the DOJ and FTC dryly observed, is a record many industries would envy.
Also reassuring: Numerous other states have already enacted CJW models, and encouraging evidence is rolling in. Alaska’s CJWs helped recover more than $23 million in food assistance across some 1,400 cases for people who had benefits wrongly terminated. In Utah, victims of domestic violence who were assisted by CJWs were, reportedly, “roughly twice as likely to receive a protective order than the statewide average.” And Delaware’s CJWs delivered substantial housing-related services in court and administrative proceedings.
Add to that, California’s proposed rule is thoughtfully designed to minimize low-quality legal services or even fraud. The proposal doesn’t give the new legal professionals free rein. Pre-authorized legal aid organizations would train and supervise CJWs, maintain malpractice insurance covering them and bear full responsibility for the quality of services provided.
The current proposal isn’t a silver bullet. The amount of unmet civil legal need is enormous, particularly once you add in proceedings before government agencies, such as immigration matters, which have their own rules and are not a focus of the proposal. But the fact that this proposal cannot solve every access-to-justice problem is no reason to leave a large and tractable one unaddressed.
Still, the California Supreme Court now has an opportunity to meaningfully expand access to justice through evidence-based, structural reform. The need is urgent. The evidence is in. The solution is ready. It’s time for California to act.
Nora Freeman Engstrom, the Ernest W. McFarland Professor of Law, and David Freeman Engstrom, the LSVF Professor of Law, are co-directors of the Deborah L. Rhode Center on the Legal Profession at Stanford Law School.
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