California Closing the Justice Gap Working Group holds first public meeting

A California State Bar working group established to study access to justice innovations held its first public meeting on the 14th January 2021. The State Bar’s Closing the Justice Gap Working Group, created by the Board of Trustees to carry on with important recommendations from the State Bar’s Task Force on Access Through Innovation of Legal Services (ATILS), has been established with the objective of:

  • Investigating the development of a regulatory sandbox to foster experimentation with innovative systems for delivery of legal services
  • Exploring amendments to the Rules of Professional Conduct regarding the ability of lawyers to share fees with nonlawyers
  • Examining the addition of rule 5.7 to the Rules of Professional Conduct addressing the delivery of nonlegal services by lawyers and businesses owned or affiliated with lawyers
  • Considering amendments to the Certified Lawyer Referral Service statutes and Rules of the State Bar to enhance efforts to expand access to legal services.

The task force chair Justice Alison M. Tucher, Associate Justice of the California Court of Appeal, First Appellate District, Division 4, in San Francisco has said “The immense challenges of the past year have only heightened the needs that this group’s work is intended to address. Fortunately, meeting virtually enables us to bring together a truly remarkable working group, all of whom are volunteering their expertise to help California move forward. We are honored and excited to get started.”

The working group is made up of 20 state, national, and international experts an is expected to submit recommendations to the Board of Trustees no later than September 2022. Each recommendation is expected to balance the dual goals of public protection and increased access to justice.

Read more about the meeting here. 

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New Zealand Law Commission seeking views on class action and litigation funding

The Law Commission of New Zealand is undertaking a first principles review of class actions and litigation funding. They are currently seeking feedback from interested parties, having released an issues paper in December 2020.  The New Zealand Law Society is planning to respond to the call, and is asking for views on the issue.

The review is part of ongoing efforts to improve the affordability and efficiency of litigation. Class actions allow claimants with common issues to group claims together, allowing for more efficient and cost-effective resolution,  litigation funding can improve access to justice by allowing a commercial body to cover legal costs in exchange for an agreed percentage of compensation awards.

The Commission says the crucial question is whether the potential benefits of class actions and litigation funding can be realised in a way that manages the risks and outweighs any disadvantages. The Issues Paper summarises the issues and explores some options for addressing them.

The Commission’s preliminary view is that Aotearoa New Zealand needs a statutory class actions regime, the key advantages of this are improved access to justice, promotion of efficiency in litigation, and improved incentives to comply with the law.

The New Zealand Law Society committees considering the Issues Paper welcome comments from the profession and these can be sent to lawreform@lawsociety.org.nz by 22 February 2021.

Read more about the Law Society Response here, or view the commission’s issues paper here.

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Canadian Bar Association releases new resources to improve access to justice

The Canadian Bar Association has released a new guide aimed at addressing the country’s access to justice crisis. The guide has been developed by the CBS’s Access to Justice Subcommittee, based on past research, particularly the Reaching Equal Justice Report. The guide is divided into three different sections, with each section providing background to the issues and links to resources created by the CBA. The sections are broken down into

  1. Preventing Problems – focused on improving legal capability, taking legal health seriously, enhancing triage and referral systems to navigate paths to justice as quickly and efficiently as possible, and taking steps to ensure that technology is well used to facilitate equal, inclusive justice.
  2. Providing Legal Services – focused on reinventing the delivery of legal services so that a wide spectrum of legal services are available to meet the range of legal needs.
  3. Transforming Justice – focused on reforming the formal justice system, complementing informal everyday justice innovations and eliminating gaps between formal and informal justice to create a seamless civil justice system.

The goal of the guide is to give members the information and tools to talk about access to justice with colleagues, clients and communities, post on social media about access to justice issues, and to speak with politicians about the problems – and possible solutions.

The guide says “As lawyers and notaries, we have a professional duty to the courts, the justice system and the public. We need people to feel confident that the justice system is fair and accessible to all. Governments need to invest more and develop creative solutions to our access to justice problem. Change only comes when governments are pressured to act.”

Access the guide here.

 

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A Critical Analysis of the Online Court

Abstract

It is no secret that many judicial systems across the globe are stumbling beneath a heavy burden of thousands of suits filed eve- ry year in court. The need to optimize the judicial system of Eng- land and Wales led Lord Justice Briggs to write a comprehensive report about the subject, in which he suggests the establishment of a model, the first of its kind in the United Kingdom, which he terms the “Online Court.” In Civil Courts Structure Review: Final Report, he sets out the details of this Online Court, which I will analyze in this article.

The article contains two main parts. In the first part, the model is analyzed and broken down by its three stages. The advantages inherent to the Online Court are presented, including: saving time and money, making the court accessible to the disadvantaged, and reducing the caseload of each courtroom. Although there are many advantages, the Online Court has some serious drawbacks, including enabling frivolous lawsuits and the threat of identity theft by either party or even by a third party.

In the second part, I will attack the crux of the matter, tackling the attendant issues raised by moving legal proceedings to a virtual environment. These aspects relate to the absence of legal representation envisioned by the model, as well as the concern of false testimony. In the final analysis the pros of this model far outweigh the cons. Indeed, the model is a desirable template which should first be employed as a pilot program, dealing with civil proceedings which may be easily resolved and claims involving relatively small amounts of money. Further down the road, this model may be applied to additional proceedings involving cases which are more expensive or more complex.

Ultimately, the online legal system proposed constitutes the first step toward accommodating the court system to the innovative reality of the Internet Age, in a manner which is both systematic and controlled. The aim is to streamline existing legal proceedings and to make all legal services accessible, with the overarching ideal of “justice for all” as the guiding principle.

Menashe, Doron, A Critical Analysis of the Online Court (2018). University of Pennsylvania Journal of International Law, Vol. 39, No. 4, 2018,

Read the full article at SSRN. 

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Victorian Legal Services Board announced $1m to improve access to legal services

On the 22nd October Victorian Legal Services Board CEO and Commissioner Fiona McLeay announced seven grant recipients who would receive shares of a $1 million fund, aimed at helping ordinary and vulnerable Victorians to access simple and affordable legal support services. Projects include a scheme to provide women in regional Victoria with a pathway out of the justice system and supporting people to apply for the Disability Support Pension

Victoria Legal Aid’s ‘Joined-Up Justice for Gippsland’ project will improve access to timely, appropriate and culturally safe legal assistance for priority clients and communities in the Gippsland region. The project aims to establish and improve referral pathways, create a network of non-legal service providers and help member organisations coordinate services. Whilst the Mental Health Legal Centre has received funding to assist people managing complex health and mental health issues apply for the Disability Support Pension, by providing improved access to Centrelink resources. This project builds on the work of Social Security Rights Victoria, who earlier this year launched an online support service, including a medical chat bot, to support people to apply for the Disability Support Pension.

Victorian Legal Services Board CEO and Commissioner Fiona McLeay has said : “This program provides vulnerable Victorians with innovative new ways to get access to legal services when they need it the most. I’m pleased to be announcing this year’s successful grant applicants, and I congratulate each of the organisations for their innovative projects and commitment to increasing access to justice for Victorians. During times of crisis, such as now, these organisations are more important than ever as increasing numbers of Victorians find themselves in need of help.”

Read more about the grant program here. 

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Law Council of Australia publishes webinar on implementing the ALRC’s pathways to justice roadmap

The Law Council of Australia has published a recording of its latest online webinar, entitled “Closing the Justice Gap: Implementing the Australian Law Reform Commission’s Pathways to Justice Roadmap”. Over the course of the event, the panel discussed a number of issues around access to justice, and the justice gap, including discussion around access to justice in indigenous communities. The panel was made up of Dr Hannah McGlade, Ms Cheryl Axleby, Dr Tracey McIntosh and Mr Tony McAvoy SC., with  Law Council President, Pauline Wright, moderating the discussion.

Watch the full recording of the webinar. 

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Arizona to Allow Non-Lawyer Ownership

The Arizona Supreme Court has approved rule changes allowing for non-lawyer ownership of law firms in the state. The rule change comes in the wake of the two-year sandbox announced in Utah, however, the Arizona courts went one step further, opting to make the changes permanent.

The recommendations for the rule change were first proposed by the court’s Task Force on the Delivery of Legal Services, have focused around improving public access to affordable legal services and promoting legal innovation. The changes in state’s rules are set to become effective as of January 1st 2021. The changes include the removal of ER 5.4 the rule barring nonlawyers from fee sharing and barring nonlawyers from having an economic interest in a law firm. As well as this the changes also allowed for the licensing of legal paraprofessionals, as well as changes to lawyer advertising rules.

Arizona Supreme Court Chief Justice Robert Brutinel said of the development, “The Court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices. I thank and commend the Task Force and its chair, Vice Chief Justice Timmer for their groundbreaking work.

Read the full report from the Arizona Supreme Court. 

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Utah to be First US State to Trial Non-Lawyer Ownership

Utah has become the first state in the US to allow non-lawyer ownership of legal services providers. This month the State Supreme Court unanimously voted in favour of approving a 2-year sandbox programme which would licence new forms of legal services ownership.

The move has come about in the face of continued concerns over access to justice, particularly in the face of the ongoing COVID-19 pandemic. The courts have cited the reasoning that regulation should focus primarily on serving the consumer, and acting in their best interests, with Utah Supreme Court Justice Deno Himonas saying “changes will enable individuals and entities to explore creative ways to safely allow lawyers and non-lawyers to practise law and to reduce constraints on how lawyers market and promote services. New forms of providers could include partnerships, corporations and companies and non-profit organisations partnering with other entities to offer legal services.”

Whilst the Utah profession is comparatively small, with 26 lawyers per 10,000 residents compared with 92 in New York and 43 in California, the result of the sandbox will be closely watched by other state bars, particularly in the light of similar moves being discussed in California, and calls by the ABA for other states to follow suit.

Read more about the decision or view the standing order.

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Federation of Law Societies of Canada approves recommendations towards reconciliation with Indigenous peoples

The Federation has adopted an overarching framework to guide it on the path to reconciliation with Indigenous peoples in Canada. Laid out in a report from the Federation’s TRC Calls to Action Advisory Committee (“Advisory Committee”), the framework is rooted in the recognition of the significance of Indigenous legal orders, legal principles, and the perspectives and experiences of Indigenous peoples.

The framework encourages a broad approach to reconciliation while specifically addressing two of the Calls to Action in the Truth and Reconciliation Commission’s (TRC) Final Report, which highlighted the need to raise awareness and competence among all legal professionals and law students in Canada as it relates to Indigenous peoples.

Read the full story.

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Washington State Bar Association to appeal ending of LLLTs

The Washington State Bar Association is set to seek review of the state Supreme Court’s decision to end the limited licence legal technician (LLLT) program in the state. At the LLLT board meeting on June the 8th the board decided to request the Supreme court review the decision or at least provide longer for those currently training to complete their licensing requirements.

The review comes in the wake of the June 5th decision by the Supreme Court to “sunset” the LLLT program. The court felt that the costs were too high for the limited participation in the program, and ruled that all those aiming to become licensed must do so by 31st July 2021.

The LLLT program is the first of its kind in the USA and is aimed to help provide affordable legal services to the broader population in the state. LLLTs are licensed by the Washington Supreme Court to advise and assist people going through a divorce, child custody, and other family law matters, the aim had been to expand these practice areas. LLLTs consult with and advise clients, complete and file necessary court documents, assist pro se clients at certain types of hearings, and advise and participate in mediation, arbitration, and settlement conferences.

The Bar Association has requested that anyone who wishes to contact the Supreme Court about the decision should email  supreme@courts.wa.gov.

See the Bar Association’s comments.

See the Supreme Court’s letter announcing the decision (PDF).

See Justice Madsen’s dissenting opinion on the decision (PDF).

 

 

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