Last week, after a 90-day comment period, the Utah Supreme Court unanimously approved Standing Order 15, which establishes a two-year pilot program designed to alleviate the crisis of unmet legal needs of Utah citizens through innovation and market forces. This initiative was prompted in large part by the significant legal issues confronted by underserved communities as a result of the COVID-19 pandemic. Utah is the first state in the country to test this type of program.
The pilot program involves the selection of proposals submitted by non-traditional legal service providers and traditional providers offering low-cost, or no-cost, legal advice to those who cannot afford standard legal fees and who cannot obtain access to legal aid. These legal services will be performed in a newly-created “regulatory Sandbox” that will serve as an innovation lab in which to study the provision and outcome of these non-traditional services.
The activities of those chosen to participate in the pilot will be overseen by a new Office of Legal Services Innovation. The Innovation Office will ultimately determine whether the new legal service models practiced in the Sandbox bring benefits to those requiring access to the Utah legal market or yield flawed legal results, failure to exercise legal rights, or the purchase of unnecessary or inappropriate legal service.
In order to conduct this experiment, it was necessary to amend the Utah Rules of Professional Conduct. The amendments allow lawyers to share fees with non-lawyers and to receive referrals and to be retained and paid by one person for legal services performed for another. In addition, the amended Rules allow lawyers to be in a business relationship with non-lawyers. Restrictions on the marketing of legal services were also loosened.
Individuals and entities interested in submitting a proposal must be ready to begin offering these legal services when authorized by Utah. In addition, those submitting a proposal must provide the Utah Implementation Task Force of Regulatory Reform with the following information:
- Who will provide the legal services, how consumers will access/receive these services, and what the services will do for the consumers;
- The entity business model they want authorized in the Sandbox, including the management structure that will oversee direct legal service providers;
- The specific model, service or product innovations that are not permitted under existing rules governing professional conduct and/or the practice of law;
- The target consumer(s);
- The service model sought (e.g., lawyer employed by non-lawyer; 50% or more non-lawyer ownership; non-lawyer provider without lawyer involvement; software provider without lawyer involvement);
- The legal service categories that will be offered. The Utah Supreme Court will only authorize services in certain categories (e.g., Accident/Injury, Business, Discrimination, Education, End of Life Planning, Immigration, Housing – Rental, Military, Public Benefits.)
Proposers are also asked to submit information regarding any new or different risks consumers might face if they use the proposed business model. Those awarded the opportunity to practice in the Sandbox are expected to identify, track, and mitigate these new or different risks and to support a consumer complaint process. Proposers must also describe how the proposed business model will provide higher quality, more cost effective, and more accessible legal services for the target consumers.
Finally, the proposer must list all persons or entities who will wholly or partially direct the management or policies of the proposed entity as well as all persons or entities who will wholly or partially (greater than 10%) finance the business. The Innovation Office is not authorized to consider Sandbox applications for entities with controlling or financing persons who are disbarred lawyers.
Though Utah is the first state to officially institute a pilot program of this kind, California, Arizona and Illinois are also working to identify regulatory reform that could provide greater access and more affordable legal services to the public, while making the practice of law more innovative and sustainable for lawyers.
The Arizona Task Force on the Delivery of Legal Services issued its formal report in October 2019 offering ten recommendations and proposed amended Rules of Professional Conduct. The California Task Force on Access Through Innovation of Legal Services submitted its report and recommendations on March 6, 2020. The Chicago Bar Association, Bar Foundation Task Force on the Sustainable Practice of Law & Innovation, issued a report and recommendations on July 22, 2020, and the public comment period expired on August 21, 2020.
It will be interesting to see if and how any of these initiatives produce both improved accessibility to quality legal services and the sustainability and draw of an age-old profession.