There is a frustrating disconnect at the heart of efforts to reform regulation of the U.S. legal industry: The public overwhelmingly supports allowing more types of legal solutions, including non-lawyer service providers and corporate provision of legal services. However, this support has not led to rapid regulatory change. The reason for this, of course, is that regulations are made by state bars and state supreme courts, neither of which (with few exceptions) are directly accountable to the public.
As a result, the reform movement has focused primarily on direct advocacy to those policymakers, hoping that data and logic will move the regulatory needle. This has led to some success, as we’ve seen in Utah and Arizona, but change has been slow and there are still only a handful of states seriously exploring regulatory reform.
The reform movement could benefit from expanding its grassroots activism. This may seem counterintuitive, as the general public doesn’t elect state bar members, and only elects supreme court justices in about half of the states. Why, then, try to leverage public voices when they hold no direct power over the policymakers we are trying to influence?
First, hearing from the public can persuade policymakers when data fails to do so. Of course, policymakers who support the status quo for self-interested, protectionist reasons will do so no matter what the evidence says. But for policymakers who are making a good faith effort to act in the public interest, an emotional personal story from a consumer of legal services can humanize the story we are currently telling primarily through data.
Additionally, public support can provide cover to reform-minded policymakers. For example, the public opinion survey undertaken by the Arizona Supreme Court Task Force on the Delivery of Legal Services was highly influential in giving the Court the confidence to move forward with its reforms.
Finally, there are instances where policymakers are directly accountable to the public. State legislatures have a role to play in the regulatory process, which can range from statutory changes to UPL laws to the budgetary veto that the California Legislature holds over the State Bar of California’s regulatory working groups.
Mobilizing the grassroots on this issue also has a strategic advantage compared to doing so on other public policy issues. Unlike divisive issues such as race, taxes, or criminal justice, there’s not significant grassroots support that could be mobilized against us. In this regard, regulatory reform of the legal industry is similar to the use of eminent domain for private benefit, where the U.S. Supreme Court decision in Kelo v. City of New London catalyzed overwhelming opposition, leading nearly every state legislature to enact laws restricting this practice.
Responsive Law, of which I am executive director, is a national nonprofit with a mission of advocating on behalf of consumers of legal services. Our grassroots base is enthusiastic, but needs to grow for their voices to effectively counter the misinformation being promulgated by the trial lawyers and other advocates of the status quo. While we haven’t yet had a watershed event like the Kelo decision, we also don’t have to boil the ocean to find additional support from the public. In fact, many of our most likely supporters are a few clicks away from many of the readers of this blog.
If you’re disrupting the U.S. legal services market, you have customers who are likely to be supporters of reform. They need to be engaged in the regulatory reform conversation. If you’re operating in a jurisdiction that has enacted reforms, let your customers know that your services are possible because of those reforms. And if there are places that status quo regulation is preventing you from delivering a better customer service experience, let your customers know about the regulations that prevent you from serving them the way you’d like. Let them know that there’s a movement supporting them. And let them know that their voices—their stories—can make legal solutions more available to others like them.
Responsive Law wants to make sure that all Americans can access affordable legal solutions. The innovators who are disrupting the legal cartel have already facilitated that access through their services. I hope those disruptors and their customers will join us in fostering a regulatory environment where that access is commonplace.
