Utah’s top judges say the legal system isn’t working right. Here’s how they are encouraging change.
(Francisco Kjolseth | The Salt Lake Tribune) Supreme Court justices Thomas R. Lee, Constandinos Himonas, John A. Pearce and Paige Petersen, from left, listen to Chief Justice Matthew B. Durrant give the state of the judiciary speech to the legislature in the House chamber on the first day of the 2018 legislative session at the Utah Capitol on Monday, Jan. 22, 2018.
Utah’s court system is flawed in a fundamental way.
When residents find themselves in a civil dispute — think a debt issue or a divorce — most are not represented by an attorney. They go it alone or they don’t know how to get into the courtroom to begin with.
The Utah Supreme Court recently signed off on an experiment that hopes to level the playing field for people who can’t afford a lawyer or are confused by the complicated civil system. It would allow nonlawyers and tech entrepreneurs to bring innovations to a legal profession often mired in detailed rules.
This stems from a report created by a joint Supreme Court and Utah Bar Association working group, which highlights recent data that shows that in 93% of all civil cases filed in Utah’s 3rd District Courts — which cover Salt Lake and Summit counties — at least one party went without an attorney.
This data was not all that surprising to Utah Supreme Court Justice Deno Himonas, who has worked in the courts system for years. But he does find it troubling.
Himonas said the courts are supposed to be the branch of government where all people can come to peacefully resolve their disputes. But, as it stands now, not everyone gets a fair chance.
“If all we’re doing is giving the wealthiest of society [a place] to solve their disputes,” he said, “then, as a branch, we are failing.”
For years, lawyers have reacted to statistics like this by donating their time or money to help people who can’t afford legal assistance. But Himonas said these efforts are clearly not enough — more serious reforms are needed.
Utah’s courts have taken steps in recent years toward making the law more accessible. That included creating an online program where people can settle small claims cases, a pilot program currently being offered in West Valley and Orem cities and the Carbon County justice court. And, in 2015, the courts created a new legal profession
— limited paralegal practitioners — to bring a more affordable option to Utahns navigating divorces, settling a debt or resolving an eviction issue.
But Himonas said this new experiment is bigger than all of that. It’s a “game changer.”
“All of these [past efforts] are important,” he said. “But none of them has the potential to make the difference the way this does.”
So what exactly is this reform and how will it affect Utahns?
The biggest proposed change is creating a “sandbox” where legal providers and even nonlawyers can bring ideas and test a product that they think can help bring Utahns better access to legal services. With oversight from the courts, applicants can test their product without worrying about the strict rules that attorneys have been forced to follow for years.
This approach has been used in other areas of government and business, including the financial industry grappling with new technology such as blockchain. The Libertas Institute, a libertarian-leaning Utah think tank, pushed for a regulatory sandbox in that industry during the past legislative session and applauded the Utah courts for making similar moves. Libertas Policy Director Michael Melendez said it’s a bit unusual for the regulatory body like the courts and the Utah State Bar to be the driving force behind industry reform. There’s often more hesitation, or playing catch-up as new businesses push the boundaries of what is acceptable, like when Uber and Lyft innovated the ride-hailing industry.
“That’s what excites us,” he said, “to see regulatory bodies embrace these kinds of innovation.”
Court officials haven’t boxed themselves in to a certain idea or placed limits of what could be created in the sandbox, they say. Maybe someone will come up with a way to better automate the creation of court documents. Perhaps someone could create an algorithm that would help people assess risk or impact when filing for divorce or considering child custody issues. Or maybe someone can develop a product that scans eviction notices and tells renters if there’s any issues they can challenge in court.
That kind of tech innovations in the legal industry is what Utah attorney Tsutomu Johnson has been working toward for the past year or so after he helped create Parsons Behle Lab, a subsidiary of Salt Lake City-headquartered law firm Parsons Behle Latimer.
Johnson said the goal is to use technology to streamline services so they are more affordable to people who can’t pay hundreds of dollars an hour for an attorney. He noted that the rules and regulations in the legal world haven’t changed much in the past 100 years or so — but technology has changed the world.
People need legal help, he said, but it needs to match what they can afford to pay. He believes the changes that the Utah court system is proposing will help.
“The legal field has benefited from having a monopoly on our services,” he said. “Sometimes that monopoly can prevent change. But ultimately that change is going to happen one way or another. We should embrace that change and adapt with that.”
Another proposal that the Utah courts are considering would help subsidiaries like Johnson’s. The Utah Supreme Court may relax the rules to allow people who aren’t lawyers to invest in and own law firms.
This means that companies like Johnson’s could become integrated into law firms instead of being subsidiaries. They are considered separate, Johnson said, because of the limitations in the law industry that prohibit certain kinds of marketing and partnerships.
That part of the reform is what’s exciting to Andrew Perlman, the dean of Suffolk University’s law school, whose work focuses on the future of law.
Perlman said the strict rules in the legal industry have stifled innovation, and limiting who can own a piece of a law firm has contributed to that. If that rule is lifted, he said, it would allow people with a background in technology to partner with lawyers and create new products.
And all of this will help with bringing more affordable and accessible legal services to Utahns, possibly even other states.
“Our system is broken in a very fundamental way,” Perlman said. “Traditional services are not working. The way we are going to unlock those innovations are through regulatory reform. What Utah is getting right is attempting to loosen up those restrictions to allow for more innovation.”
Perlman said there are some in the legal field who are apprehensive. There’s worry that if outsiders are allowed to own a piece of a law firm, it could influence an attorney’s work. And there’s concern that if the legal field is opened to nonlawyers, it could put attorneys out of work.
But he said the concern should be about whether the reform will help regular Utahns.
“Front and center in our minds need to be, ‘Will this improve the public’s access to legal services?’" he said. “If it will, and if it happens to have an adverse impact on lawyers, that can’t be what drives us. It has to be about the public.”
The Utah Supreme Court has already adopted the recommendations of the working group, and Himonas estimates that the sandbox could start accepting applicants within a few months.
The other changes involving loosening attorney rules will be voted on individually after the public has the chance to comment.
Editor’s note • Utah Supreme Court Justice John Pearce is the husband of Salt Lake Tribune Editor Jennifer Napier-Pearce.