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Robert Gehrke: Utah can lead the nation in helping average people navigate the legal system

(Eli Lucero | Pool photo) Chief Justice Matthew Durrant, left, listens as Justice Deno Himonas asks a question during the oral arguments of State v. Van Huizen on Monday, March 19, 2018, in Logan. The Utah Supreme Court traveled to Utah State University to hear arguments in two cases followed by a Q&A with those in attendance.

One day a guy calls a lawyer and asks how much he charges for a consultation. The lawyer says he’ll answer three questions for $350. “That’s kinda steep, isn’t it?” the guy asks. “Yes,” the lawyer responded. “Now what’s your third question?”

All the best lawyer jokes play on pretty much this same theme, that if you ever need a lawyer it’ll cost you. And, like all jokes, there’s an element of truth to it. For many Utahns, legal help is an expense they can’t bear.

Earlier this year, a study by the Utah Foundation and the Utah Bar found that 82% of Utahns earning less than twice the poverty level couldn’t afford a lawyer for a civil matter if one arose.

This isn’t just a problem for the poor, said John Lund, past president of the bar association. At twice the poverty level, we’re talking about households making about $70,000 a year, middle-class people who still can’t get the help they need.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

Think about the discrepancies created by that dynamic. The Utah Foundation study found that in 62,000 debt collection cases almost every party collecting the debt had a lawyer, while less than 2% of the debtors had counsel. In eviction cases, 90% of landlords had lawyers, while 5% of renters did.

Of an estimated 240,000 people with legal issues of one kind or another, only 40,000 had a lawyer.

“Those are 200,000 problems out there waiting to be solved,” Lund said, “and if there’s that much demand, what can we do to create more affordable, accessible solutions for those people?”

After months studying the issue, the Utah Supreme Court issued an order last week formally launching a groundbreaking effort to address the access-to-justice gap that could serve as a model for the rest of the United States.

The idea is to open up the field, expanding the range of legal services that non-lawyers or even websites can offer, things like guidance for someone facing eviction or advice for someone going through a divorce, making the services more affordable.

“We’re talking about getting advice on your real estate agreement … delays in unemployment benefits, wage violations. You name it, it runs the gamut,” said Supreme Court Justice Deno Himonas, who led the reform effort with Lund and others.

But it’s how the state is pursuing the goal that is most intriguing. Rather than simply changing the rules, the Utah Supreme Court — which regulates the practice of law in the state — is launching a “regulatory sandbox” where innovators can bring their ideas.

It’s that bottom-up approach (with monitoring in place to protect consumers) that makes the Utah model unique, said Rebecca Sandefur, a professor at Arizona State University who studies access to justice issues and was involved in the Utah project.

“You know who knows what people need? Those people and the organizations and businesses that are closest to them,” she said.

Since the idea was first floated, 15 applicants have come up with ideas on how to better serve the public.

One of those proposals came from Noella Sudbury, a former criminal justice adviser to then-Salt Lake County Mayor Ben McAdams, who wants to create a web-based portal to help people expunge their criminal records.

Last year, the Utah Legislature passed a bill that automatically wipes out criminal records for many less-serious crimes after a set number of years without another offense. For more serious felony offenses, the individual still has to petition the court, which can be complicated. It usually means hiring an attorney and, therefore, can be expensive.

But those with automatic expungements only benefit if they know their status, and those who have to apply are often caught in a cycle. “You can’t get a job if you have a criminal record,” she said, “but in order to clear your record, because of the cost, you need a job.”

An estimated 800,000 Utahns have a criminal record, but there are usually only about 2,000 to 3,000 expungement petitions filed each year.

So Sudbury’s sandbox proposal is to create a website that pulls the offenders’ data and tells them whether or not their record has been expunged or whether they are eligible to apply for expungement and, if so, walks them through the paperwork they would need to file — which wouldn’t have been allowed under the rules against offering legal advice through websites.

Another applicant wants to tailor online legal advice for things like debt collections or evictions, whether it’s providing links to forms, giving guidance on how to fill them out, on even having someone do it for them.

“Quite a few of those applications are articulating unmet needs around family law issues, evictions, debt collection, consumer needs,” Lund said.

If someone falls behind on their rent, Lund said, and gets help getting that remedied it can keep a family in their home, it keeps them out of a homeless shelter, it keeps their kids in school. “These things are all intertwined,” he said.

Sandefur said researchers from outside Utah will be studying the results of the two-year pilot project to see what works and what might transfer to other states.

Himonas said recently the Conference of Chief Justices voted to endorse studying this kind of regulatory reform. Arizona’s high court is due to vote on proposals this month and California, Florida and Illinois are looking at their own options.

The hope, Himonas said, is that it has a democratizing effect on the law, making help that was once out of reach more accessible. “It’s really important as a society that we recognize that it’s the people’s law,” Himonas said, “and that’s ultimately what we have to serve.”

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