Utah test-run revamp of lawyer guidelines paves approach for tech to assist

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Utah test-run revamp of lawyer rules paves way for tech to help

SALT LAKE CITY — After hundreds who waited in line for help expunging their criminal records were turned away when the free event filled up two years ago, attorney Noella Sudbury wondered whether an online program could help more at once.

Only one problem. Rules governing the legal profession barred anyone or anything besides a real live lawyer from dispensing legal advice, even for basics like filling out forms.

That changed last week when the Utah Supreme Court voted unanimously to approve a two-year pilot program inviting tech to play a bigger role in the legal world, the first of its kind in the nation.

It means Utahns who can’t afford an attorney’s help on issues ranging from expungements to divorces and debt collections can soon consult certain nonlawyers or even new apps that get special permission to take on their cases.

Utah already allows paralegals with extra training to counsel clients. But the new temporary changes drop requirements that others must have a law license to give legal advice, to own law firms or to invest in them. Previously, computer programs could draft forms but not suggest how a person should fill them out.

The moves could help fill a shortage of affordable options that has left thousands in the state with no representation in court.

Last year, 97% of those facing debt collection cases and more than 4 in 5 responding to divorce filings did so without an attorney, according to data from the Utah State Courts.

The problem has reached “crisis levels” as the coronavirus pandemic has taken away jobs, sickened Utahns and strained families, according to the Utah Supreme Court. So it moved up the timeline on the revamp by a few months.

Those facing criminal charges have a right to an attorney whether or not they can afford one. But there’s no such guarantee on the civil side.

To fill the gap, attorneys have long volunteered to help low-income clients at no cost. But the need has far outpaced the free help available, said Utah Supreme Court Justice Deno Himonas.

“It hasn’t worked,” Himonas said in a statement. “And hammering away at the problem with the same tools is Einstein’s very definition of insanity.”

It’s time for a business approach, Himonas said, but not without safeguards for consumers.

Participants must secure approval from a new office established to regulate them within the state’s court system and from the Utah Supreme Court. They have to pass a risk assessment, give routine updates to the office overseeing them and undergo secret-shopper style checks.

Fourteen have applied so far and a handful are on track for approval in the next few weeks. The pitches include Sudbury’s tool for free expungement help through a partnership with the nonprofit Code for America.

“It’s basically like a computer lawyer,” Sudbury said. The idea is that someone visiting her site would not have ponied up for an attorney in the past but will get the same quality of advice as if they had.

Utah is not alone. The United Kingdom and Australia have welcomed similar changes. And within the U.S., Arizona, California, Illinois, and Washington, D.C., are considering similar moves. Washington, D.C., allows lawyers and non-attorneys to own law firms together but they must stick strictly to legal help. They cannot delve into counseling, financial planning or other services the Utah Supreme Court envisions.

Supporters say the Utah program, dubbed a “sandbox,” is a controlled experiment that allows lawyers to go into business with tech entrepreneurs or others and tap into outside investment so they can offer better online services in smaller chunks. They also say it removes arcane rules for how lawyers can promote their services.

Previous rules prohibited such partnerships and widely restricted marketing, exposing them to discipline for going door to doo and cutting checks to anyone who refers a client to them.

Critics say the changes could lead to companies pressuring lawyers to put business interests before the good of their clients. Moreover, the opponents say the moves could give an edge to powerhouse accounting firms that want to compete with traditional law offices in the state. They also contend those without attorney licenses aren’t bound to the law profession’s strict ethical standards.

John Lund, the former Utah State Bar president who led a task force with Himonas studying the changes, compared the long-standing legal rules to a hospital where only doctors — not nurses, physician assistants or EMTs — can treat patients.

Those he expects to use the new resources are the same people who opted to muddle through the process themselves in the past. He said many gave up and put divorces, child custody cases, evictions or employment issues on hold.

Gordon Smith, dean of Brigham Young University’s J. Reuben Clark Law School, said the sandbox will provide a glimpse of the services people want and will shed insight on how the court could best regulate them in the future.

“We’re not talking about working within the system to produce results. We’re saying maybe the system could be better,” he said. “And maybe instead of working for large corporations and rich individuals, the system could work for ordinary people.”

Attorney Jason Velez is CEO of a law firm connecting people to legal help through an online platform. But 1-Law, with offices in Utah and California, has struggled to recruit web designers and developers: Velez couldn’t offer them equity, while tech companies could.

“That’s a huge issue,” he said. “Utah has a wealth of talent.”

A. Jason Velez, 1LAW president and CEO, poses for a portrait in front of the 1LAW Community Response Unit in Salt Lake City on Wednesday, Aug. 19, 2020.Kristin Murphy, Deseret News

If the court approves his sandbox idea, Velez can provide new hires a stake in the firm and accept an infusion of money from investors. He wants to focus on helping those in debt collection cases, using software that can help them figure out their options and connect them with an attorney if they have tricky legal problems.

He also plans to roll into neighborhoods in an RV he refers to as a community response unit to get the word out about his firm.

Utah divorce attorney Marco Brown said he’s skeptical the initiative will meet its long-term goal of connecting low- and middle-class income Utahns to legal help. After the incubation period ends, Brown believes the services backed by investors may morph into tools geared at clients that pay well and not at those needing help with evictions and debt collections.

“The money is going to flow to places where there’s already money,” Brown said.

Lien lawyer Kelly Silvester agreed. He worries that investors will soak money into big law firms or companies that already have significant resources instead of smaller firms or those working on their own. Silvester said he believes clients could be better served under a different sort of program that would make open source tools available to all attorneys in the state.

Elizabeth Kronk Warner, dean of the University of Utah’s S.J. Quinney College of Law, said the changes fit with other recent initiatives at the Utah Supreme Court, like a beefed-up program allowing paralegals to give advice, easier-to-understand legal forms and an online small claims court.

She does not believe the new changes will threaten future livelihoods of her law students.

“There’s more than enough work for lawyers and nonlawyers to help close that gap on access to justice,” she said.

The Utah Supreme Court will allow those who have shown they pose little risk of harm to consumers to stay in operation at the end of the two-year period.