A Path to Meaningful Regulations, with Rebecca Sandefur

Announcer: 

Welcome to The Lawyerist Podcast, a series of discussions with entrepreneurs and innovators about building a successful law practice in today’s challenging and constantly changing legal market. Lawyerist supports attorneys, building client-centered, and future-oriented small law firms through community, content, and coaching both online and through the Lawyerist Lab. And now from the team that brought you The Small Firm Roadmap and your podcast hosts 

Ashley Steckler (00:35): 

Hi, I’m Ashley Steckler. 

Zack Glaser (00:36): 

And I’m Zack. And this is episode 440 of the Lawyerist Podcast, part of the Legal Talk Network. Today I talked to Rebecca Sandifer about access to justice and how framing that question can help us regulate lawyers and law firms. 

Ashley Steckler (00:51): 

Today’s podcast is brought to you by Posh Virtual Receptionists, Clio, & LawPay, we wouldn’t be able to do this show without their support, so stay tuned and we’ll tell you a little bit more about them later on. So Zach, we actually had Rebecca on several years ago and we are inviting her back to talk again. Can you tell me a little bit about why we asked her to join us in 2019 already? 

Zack Glaser (01:17): 

Oh man. Yeah, it was a while ago, and quite frankly, we probably should have had her on more recently or more often because she is extremely well versed in the access to justice sphere. And I think that, I’m actually kind of not saying that big enough. She is extremely well versed and extremely well respected in the access justice sphere. Initially in 2019, we had her on to talk about thinking about access to justice more broadly than just access to a lawyer or access to the legal system. And reframing that question to do people have access to resolution of a justifiable issue? And so that is not always how we think of access to justice when we argue about it, when we argue about more lawyers, more money, more court being easily accessible. Yeah. Yes, those things are access to justice, but are they broadly access to justice? 

Ashley Steckler (02:26): 

Yeah. So we had the conversation with her to broaden how we look at that. And now we’ve invited her back on for this episode, which you talked to her about access to justice. What is the new take this time? Why are we having her back this time? 

Zack Glaser (02:43): 

So access to justice really hasn’t changed, obviously we’re still, it’s an uphill battle and it is a battle about how do we frame the question? But what has adjusted or changed or evolved since last time we talked to Rebecca is that some states have revisited how they do some of their regulations, how they do some of the regulating of lawyers and law firms. And things have changed. Things have changed and gone back, experiments have happened, experiments are still ongoing. And so I wanted to talk to Dr. Sandifer about her thoughts on how we can continue to move forward with regulations of attorneys. And I have my own ideas about the potential futility of regulating lawyers. And so it, it’s nice to have somebody on that can talk about a systematic and thoughtful approach to adjusting and appropriately testing our regulatory systems. 

Ashley Steckler (03:59): 

So let’s hear Zach’s conversation and learn a little bit more about that. 

Rebecca Sandefur (04:07): 

Hi, I’m Rebecca Sandefur, a college professor. I work at Arizona State University and I’m also a faculty fellow at the American Bar Foundation, and I study access to Justice. 

Zack Glaser (04:17): 

Rebecca, thank you for joining us on this episode of the podcast. I really appreciate it and obviously we like talking about access to justice here, but it’s good to get people that have literally studied it and devote what they’re doing to the issues around access to justice. What I kind of wanted to start with, because on Twitter we’ll use the hashtag A to J and people will say access to justice, and that term gets bandied about a bit, but I want to define what we’re talking about. When you talk about access to justice, what are we thinking there? What does that mean in your mind? 

Rebecca Sandefur (04:56): 

That is such a great question because the traditional way I think that we’ve thought about this is that access to justice is access to a court or it’s access to a lawyer. It’s access to some chunk of the formal legal system in the theory that that’s going to get you to some kind of substantive outcome that’s just right or at least lawful. I think about it somewhat differently. So when I am thinking about access to justice and working to try to find ways to increase it and equalize it, I’m thinking about access to just solutions, so to lawful resolutions to the many millions of problems that Americans have every year that are governed by the civil law. And sometimes the way you’re going to get that just solution is through a lawyer or through a court case. But oftentimes, I mean, we don’t set up these laws because we want people to file lawsuits all the time. 

(05:44): 

We set up these laws, we want them to order behavior that we think is really important, like raising your kids or making a living or having a place to live. And so what we really want is for the formal legal system to be the backstop of having a set of rules and standards and norms that allow people to, in an orderly and somewhat predictable way, resolve the inevitable conflicts that we come to in life. And so if it gets resolved lawfully, that for me is access to justice. Whether the law in a formal sense is ever involved or not, like unlawfully sitting in my chair right now, 

Zack Glaser (06:20): 

I think that’s an important distinction because as lawyers, a lot of times, especially when we’re talking from my perspective, I’m somebody that talks about legal technology a lot, but we talk about people having access to the courts or access to being able to do something, having access to a lawyer. And we have a lot of numbers that we throw around of how many people have a legal issue and don’t have access to a lawyer or have a legal issue, have money and still don’t go get access to a lawyer. And so I think reframing it as access to the lawful resolution. So that would be even being able to, you get behind on your rent and your landlord comes and says, okay, well we obviously have to evict you here, and you go through that eviction process without even going into the courtroom, that would be access to justice in your mind or not. 

Rebecca Sandefur (07:24): 

Well, so part of that lawfulness is say you have a notice period, so if you’re my landlord, you have to give me a certain kind of heads up that this is something that you’re going to do. I have to be able to make defenses to you. I mean, that’s what that court context is for. And so part of the reason we have eviction laws is to prevent landlords from executing evictions in ways that maybe we don’t agree are the right way to do them. I would also say though, in that situation, another lawful resolution of that problem would be for that tenant to in some way find the money to pay the landlord the back rent, which simply, if you think about the case of eviction is what the landlord wants, right? The landlord, that’s their business and they want to make a living. And so if you can resolve that problem on their side, you can make eviction not the issue that’s on the table. 

Zack Glaser (08:19): 

Well, so do you think that people, as they’re going about their day and the regular public non-lawyers, people that don’t really have a lot of access or interaction with the legal system, do you think they really even recognize that they have a kind of access to justice problem? A lot of times 

Rebecca Sandefur (08:38): 

That’s one of the things that’s really striking. So if you talk to people in one of two ways, so if you’re a sociologist, one way you could talk to people is just talk to them. So if you sit down and you say, tell me a story about something that’s happening at work or something that’s happening in your neighborhood or something happening at your kid’s school, they’ll tell a story about, my employer is such a jerk, he owes me overtime, but he only pays it one out of every five times that I’m owed. Not recognizing that whatever state you’re in, there are wage and hour laws and there are federal laws that make that behavior on your landlord’s part illegal and that make that in fact a justice issue. Another way that you can see this is I did a survey a few years ago of ordinary people and I said, and I asked them the different kinds of issues they were experiencing. 

(09:21): 

So were they in a dispute with their insurance company about covering some medical treatment or did they have wages they weren’t being paid, or were they behind other rent or something like that? And so they said, I said, okay, well you told me you had this kind of situation in your life. What kind of situation is it? Is it a bureaucratic problem? Is it a personal problem? Is it a moral problem? Is it bad luck? Is it god’s will for you? Is it a legal problem? And the most common way that people described their civil justice issues. So this was a list of things that lawyers had identified as gic as things you could take action on. In the civil law, the most common way that people describe that was as either bad luck or God’s will for me. So these are things that just happen in life or they’re supposed to happen in life. And so if that’s the way I’m thinking about them, I’m going to handle them in a very different way. And if I identify them as legal or as somebody else’s moral failing or something like that, 

Zack Glaser (10:17): 

I’m actually, because we’re not on video, nobody can see it. I’m kind of stunned by that idea that most people when they approach these problems think of it as bad luck or God’s will. But then honestly, I was watching Golden Girls last night and there’s an episode, yes, yes, there’s an episode where Rose loses her husband’s pension because her husband’s company goes bankrupt after he’s passed and she has the pension. And her solution to that was go get another job in order to try to, my solution to that is Sue the hell at everybody, I mean is to fight them directly. And her solution was, oh, well this is bad luck. This is something that has happened to me and I can’t do much about it other than react. And I think that’s interesting. And lawyers, I mean, that was not my solution. That was not the direction that I went with that. So that, that’s fascinating. So do you think there’s an education problem in access to justice? 

Rebecca Sandefur (11:24): 

I mean, I think there is some, there’s some value in helping people understand that this is their legal system, it’s accountable to them. I think that’s an educational task we should be working on. When I first started in this work, sort of my temptation was, well, we’ll just tell everyone that these are all legal issues and these are the five ways that they can solve them. And you run into two problems. So one is if you think about, I’ll just talk about me, we won’t implicate you, but if you talk about me, I’m receptive to information when it feels relevant in the moment. And so if you gave me this giant book of all the different legal issues I might run into and what I might do about them when I was 18 and taking my last class in high school, I might find it was interesting, but I’m probably not going to remember it when I’m 45. 

(12:07): 

And the problem is I can’t get my kid into the school that I think that he or she should be enrolled in. For example, things that are targeted at the moment, when people experience a problem and that are specific to their situation, people are much more able to take that information on. So that’s one challenge. But another challenge is the rules we have about what you can say about the law. I can tell you, I as someone who does not have a law degree and is not a licensed attorney, can tell you what the law says in the sense that I can say, the law says if you’re a tenant you have to pay rent. And I can say your law, your landlord has to give you a certain amount of notice. But what I can’t say is if your landlord doesn’t give you that notice, maybe you should go to court and file this crazy thing called an answer that says, actually your landlord is violating the law. 

(12:57): 

Because if I do that, I’m violating the law. I’m engaged in the unauthorized practice of law by giving super basic legal advice. And so part of it is if I get this information miles away in my life from when I need it, I’m not going to remember that information, which is true for all of us about lots of things. But another part of it is really kind of unnecessary restrictions on what ordinary people can tell each other or what people who are not attorneys can tell people who are not attorneys about the law. And there are other jurisdictions that are not that restrictive. So for instance, in England and Wales and most of the UK people who are not lawyers can give legal advice. And throughout the country in England and Wales, there’s a thing called Citizens Advice that’s funded by the government and philanthropy and it’s trained volunteers. 

(13:43): 

And you come in and you’re like, I just got this really scary letter, I don’t know what it means. And they say, first of all, okay, this is what this letter is, it’s a demand letter for whatever, and these are your three options in responding to this. And if you take option one, this will probably happen. And if you take option two, this will probably happen, which in the US only, typically not always, but only an attorney can give you that advice. And so first of all, you got to figure out that you need that it’s legal. Whereas if it’s just citizens advice and the issue is I got the scary letter, what does it mean? So it’s a sign posted place to go, but then those people are empowered to actually give you useful information instead of information that’s less useful, which is most of what you can give out in the us. There are laws here, they’re in this book, 

Zack Glaser (14:29): 

At it, have at it. There was a thing in there where you say, for the most part, lawyers are the only people that are able to give out legal advice in the United States. So that indicates that that’s not a hundred percent true, that only lawyersare the ones that are able to give out legal advice. And I think you’re correct, but I’d like to know what you, I mean, I know you’re correct, but what do you mean by that? Who else can give out legal advice then? 

Rebecca Sandefur (14:58): 

That’s a great question. So I don’t know. Your listeners have probably heard rumors of regulatory reform projects in different states. And so there are examples like that. But there are examples that have been around for 60 or 70 years of this. So in a range of different kinds of federal practice, so different kinds of benefits, unemployment, social security in immigration courts and in some state tax courts, people who are not licensed attorneys, but who are authorized to give advice in those contexts and sometimes to appear in those contexts like immigration corridor, state tax court, can represent you in that limited area of practice. So that’s been true for decades. What you see in really recent years, say the last three are some different attempts to open that space up in different states. So many states have created licensed paralegal programs or are thinking about licensed paralegal programs. 

(15:53): 

And so unlike a paralegal in a law firm who’s formerly under the supervision of an attorney, those are independent paralegals and they’re usually licensed. They’re always licensed to do limited practice. So they only do landlord tenant law or they only do parts of family law. And then, and they sometimes have rights of appearance but often don’t. And they’re part of their training is you can do this, but when you get to this point or this kind of issue, you’ve got to hand it off to an attorney. So that’s one thing that’s happening around the country. Then you have other contexts that are not using licensing of individuals as a way to solve, as a way to create new kinds of services, but they’re authorizing organizations to provide them. So in Alaska, the state Supreme Court gave a waiver to Alaska Legal Services, which is the federally funded civil legal aid shop in Alaska to train and supervise people who are not attorneys throughout the state to give limited legal services around issues that people commonly confront, like attaching to benefits and so on. 

(16:54): 

And the benefit of doing that is Alaska is huge and big squads of the population live where there are not only no lawyers but no roads and they’re very difficult to get to. And so a really incredible resource for providing people assistance in those situations are the people who are already there. So you then provide this model of training people to assist their neighbors and their community members alongside other kinds of assistance. They might be giving health assistance. So we have all kinds of dental therapists and parish nurses and public health nurses with different levels of certification qualification. They can be trained, for example, to do a little bit of legal advice around issues that are common in the communities that they work in. So that’s one model. Another model Delaware was looking at its landlord tenant law, and it realized that there was a really big asymmetry there, which was that landlords who are organizations could hire registered agents who are not attorneys to represent them in eviction proceedings. 

(17:57): 

But people who are not organizations could not hire those same folks. They could either have a lawyer or they could represent themselves. So Delaware changed the law so that registered agents could work for tenants as well as for landlords. So there’s sort of just straight equity issue there. Utah did something that California also considered but has since stopped considering, which is to do an evidence-based kind of regulation where you authorize an organization to come in and provide legal services through a new means. So it could be cause there’s non-lawyer investment, which violates rules in most states. It could be because there’s people who aren’t fully qualified attorneys providing direct legal services to the public. It could be because you’ve got a really good computer program that say is reading contracts and giving you advice about what’s in them, which would be u p by a robot. 

(18:53): 

And so then you watch measure how people experience those services in real time to see if they’re consumer harms. And if there are, you can step in and say, wait a minute, you’re your algorithms giving bad advice or your charging people something that’s 10 times when everyone else is charging them for the same thing. So you have a regulator that’s using instead of having a bunch of upfront requirements, which is what we do with Lawyerist, you have a regulator that’s using evidence to watch things as they happen focused on consumer protection directly measuring the thing that you have the regulation for, which is protecting people. 

Zack Glaser (19:29): 

Do we have that for lawyers though? 

Rebecca Sandefur (19:32): 

No, 

Zack Glaser (19:34): 

I think that’s the thing that I run into. A lot of times I in practice have practiced with some really bad lawyers and we don’t, at least anecdotally, it has not been my experience that lawyers get reprimanded for practicing bad law. They get reprimanded for lying to clients, lying to the court or mishandling money. 

(19:58): 

And so why are we so concerned with getting the wrong answer? And I guess that’s the thing is I feel like we’re not really that concerned with getting the wrong answer in the, it’s a thing we say to continue to regulate. But I also kind of want to go a little broader on this idea of people that are not Lawyerist or entities that are not Lawyerist being able to give legal advice. If you look at areas where there’s no money to be made, many times we either turn a blind eye or actively allow an organization to give legal advice. Or if you look at some of the organizations that are giving accounting advice as well as legal advice at the same time and the is giving that advice by selling the hours of the Lawyerist that work for them. And it’s not a firm. So we already do this, and I always go to this, how are you going to regulate something that is online and outside of the United States? So we’re not, are we fighting a losing battle there in the first place? And we already lost this battle. If I’m looking at it from the perspective of the Lawyerist, who rightly want to protect the public, who rightly want law to be practiced well, have we already lost that battle? 

Rebecca Sandefur (21:26): 

I don’t think so, but I think the way we regulate law in the US has some peculiar qualities. So it’s done at the level of states, which means there are and territories. So there are like 53 jurisdictions, 53 regimes for authorizing people to practice. So you could be authorized to practice in New Mexico, but not in Arizona. And so that makes it challenging to think about something that would be consistent across all those jurisdictions. I think that’s one issue. I think another issue as you point out, or I infer from what you said is the pace of change has been faster than the pace at which regulators have thought about consumer protection. Yeah, in the particular context. So there are services you can get that are unregulated in the sense that this, I’m sitting in Arizona right now, the state of Arizona has no jurisdiction over a lawyer from Greenland. 

(22:15): 

So if I get a service on the internet, but I think what we do have the opportunity to do is to move away from things that make us feel comfortable because we’ve done them forever. So regulating legal services by putting all these upfront restrictions on who can enter the profession, it makes it expensive, it makes it difficult to get into, it’s part of the reason that the American legal profession stays less diverse than the people that it is accountable to as in the public. So I think thinking about ways to open up participation in connecting people to their own law, I think there are a lot of opportunities there. And one of the things that you see in the Utah example is if what we really care about is consumer protection, then let’s regulate for consumer protection. Let’s make that the explicit goal of the regulation and if that’s really what we want to achieve, let’s see if we’re actually achieving it 

Zack Glaser (23:13): 

Right, 

Rebecca Sandefur (23:13): 

Instead of assuming that if we do things the way we’ve always done them, then everything must be great. 

Zack Glaser (23:19): 

Let me take a break for a word from our sponsors real quick, and when we come back, I’d like to kind of go down that path of connecting people with their own law, that idea in this. So we’ll take a quick break and we’ll be right back. 

Zack Glaser: 

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(26:31): 

So we’re back with Rebecca Sandifer and we’re talking about access to justice. And before the break, I had kind of indicated that I’d like to talk about connecting people with their own law. And I think that’s a fascinating idea behind access to justice because a lot of times we as lawyers, and I know I get in this habit a lot of times of protecting people from themselves and that seems to be a lot of what our regulations are, but connecting people with their own law because this law is supposed to be serving them. 

Rebecca Sandefur (27:04): 

So when I started studying access to justice, it was because I noticed something that seemed curious to me. I as a person who lives in this country pay taxes and I elect legislators and they write laws and my taxes bill courthouses and pay for judges salaries and court clerk salaries and all those things. And it’s a democracy or it’s supposed to be. And so that means that those are my laws and that’s my legal system, not me exclusively, but me as part of this big diverse that we’re in now in my community. There’s also a system of public schools and if I live within the Cashman area of the public school or if I live within whatever, how are you allocate people in your community? I can take my child down and enroll them in the public school, my public education system, but if I want to use my legal system, I have to go to a private third party and pay them money. Now, what if in order to enroll my kid in kindergarten, I had to go to, I don’t know, educational consultants who’ve had seven years of training and have to buy lots of insurance and take lots of exams 

(28:09): 

And pay them $250 an hour to enroll my kid in school. It’s kind of crazy to have that gatekeeping on what is a public institution that is accountable to those people. And so part of what these explorations and changing the rules about who can give access are about thinking about ways to connect people to their own law because it really is their law, our law, and it’s even your law as a lawyer, it’s just it’s not anymore your law than anyone else’s. 

Zack Glaser (28:41): 

Now, theoretically, people could go and do their own research and I say theoretically rather loosely because we also have restrictions or at least difficulties in finding what the law is. And it is confusing to do legal research if you’re not trained to do legal research. But theoretically people can connect with the law if they want to, but I think more to your point practically, they really can’t. And so you had said something about some other countries having free legal services in the way that we would have education, public education. Is that something that would help us with access to justice, having an office, a local, almost like the social security office that somebody could go to say, Hey, I’m having an issue. I don’t know if it’s legal or not, can you help me with it? 

Rebecca Sandefur (29:34): 

I think if we had places where people could go, I’m having an issue. I don’t know what this letter means, know how to respond to this problem. I don’t know who to call for this. I think that would be incredibly powerful, but it can only be powerful if people can give you information that’s useful to you and here’s the code or go look it up or here’s a pleading form, write a pleading. That’s not particularly helpful. And so if you’re thinking about giving people access to law, part of it is about empowering frontline justice workers who are going to be, if you think about what we really need much more diverse than just attorneys. They’re going to be people who are already working in the places where people go when they run into trouble. So they’re going to be, when you go to the doctor’s office or when you’re in the principal’s office trying to figure out what to do with your kid or in a community center or attached to your religious organization, they’re going to be in places where you already go and they’re going to have enough knowledge but also authorized capacity to give you information that’s really useful. 

(30:40): 

And I’ll give you an example. Most every state has a statewide legal aid website. So you can go there for free and you can get information about what the law says, and you might be able to get a referral to a lawyer. You can get forms if your state has authorized forms, that differs a lot across different states like forms for divorce or forms for whatever answer to answer some kind of claim. And many of them have live chats. And so a couple of states were kind enough to give me for some period of time the live chats that just came in and out of their statewide websites. I looked at what people were asking for. Were they asking for an attorney? Were they asking for information or were they asking for legal advice? And the most common thing that people are asking for is legal advice. They’re asking a question, what is this that’s happening? What does this mean? What kind of situation am I in and what are my options for trying to respond to it and what can I expect if I take one or the other of those options? So empowering the people at the front lines to be able to give that kind of very basic information. Well, yeah, it’s information about how the law works, but we call it advice and we restrict it to attorneys like that would be a game changer. 

Zack Glaser (31:54): 

I hadn’t gone down that path in my mind of where you’re going. The difference in my mind of what our examples is that my thought is, or let’s make an office like a legal services corporation and it’s their downtown, yada, yada. But you know, kind of go back to this idea of giving people education at the moment they need that education. So having people embedded, but I don’t know, is it practical to be able to regulate that? And I don’t mean regulate in the sense of, I guess regulator is probably not a good word. Is it practical to be able to organize that to feel like the appropriate people are in the appropriate place? Or is it more practical to say, we’re going to change the definition of what is legal advice? 

Rebecca Sandefur (32:45): 

You mean in terms of achieving the goal of making it more accessible, 

Zack Glaser (32:48): 

Of having somebody at the principal’s office that can give somebody good thoughtful advice and knowing that they can, having somebody at the dentist’s office that can give somebody good practical advice and knowing that they can, or is it better to say, listen, buy, or beware, but people can give a little bit more advice now. 

Rebecca Sandefur (33:07): 

So in the United Kingdom, it’s unregulated the delivery of legal advice. You can do it for free as a charitable act. You can do it for pay as a business, you could do that in the US context, I tend to like evidence. And so what are the contexts and what are the kinds of issues in which we can do this safely? So Utah’s model which says, okay, you are a domestic violence advocacy organization. What we’re going to do is authorize the people who work with you to give legal advice to people facing these domestic violence situations as well as just information about the process and accompaniment through it. And then we’re going to watch what happens and make sure that that goes okay, I like that better. But if you think about it, it’s more expensive and takes more people and more time than just changing the rules and saying, what the heck? Give it a try. Then there are backend ways to respond to injury, just like consumer protection law that would apply to all kinds of things. 

Zack Glaser (34:08): 

I think that’s something that we gloss over a lot of times is just because somebody is not a licensed attorney doesn’t mean they can’t get sued for causing harm based on their advice or lack of advice or something like that. I think that’s absolutely something that we just bounce right over. But I’ve gone to school for three years to learn about all this stuff. 

Rebecca Sandefur (34:31): 

Actually seven, 

Zack Glaser (34:32): 

Yes. So I’ve gone to school for seven years to learn about all this stuff. Why should somebody not pay me for that knowledge? I can’t just pull somebody’s tooth. 

Rebecca Sandefur (34:48): 

You probably can’t pull their tooth, but you can whiten their teeth, you can clean their teeth. I mean, it goes back to sort of how you want to authorize and monitor or organize the activity. So one is to do what you would do with a dental therapist and be like, okay, you are licensed to do this limited set of dental care, or you could say you work for T Rs and we’re going to rely on teeth Rs to train you to do this limited set of dental care. Then t rs is accountable to telling the regulator how many people’s teeth you cleaned, if there were any complaints, if any of them got inadvertently pulled out or if there was some kind of consumer harm that occurred during that. And then the regulator can say, okay, teeth Russ, you’re doing great. We feel okay about how you train and monitor the people who provide the services that you offer. 

(35:42): 

Or you might say, wow, you know, do okay in this area, but when you’re dealing with people with dentures, you’re terrible. So dentures are now out of your practice perhaps. And that’s a perfectly possible way to do this. That also if you do it that way, people who are in a place living the lives that they live are much more likely to identify what their neighbors need, give it to them in a culturally appropriate way, in a way that’s in the language that they actually speak. So it’s also a way of creating possibilities for people to identify local problems and local solutions and act on them in ways that will make sense in that context rather than trying to say there’s this one size fits all and it’s going to solve all of our problems, which is what we’ve tried to do with attorney licensing. And clearly it doesn’t work, 

Zack Glaser (36:29): 

Right? Yes, because there is whether you like it, don’t like it. I mean, I don’t think there’s a lot of people that there’s a massive access to justice gap, but there are a lot of people who are not getting their justifiable problems served appropriately, no matter how you say it. So before we go, I’d like to know then, what is a way that we could move forward with evidence-based kind of regulations? What would be your thought on how do we gather or how do we set ourselves up in a way where we can gather evidence and actually serve these ideas of protecting the public and getting people to do things appropriately in a positive way? 

Rebecca Sandefur (37:16): 

And there are different models that are being explored right now in the us. So Utah, the Office of Legal Services Innovation is an evidence-based regulator that requests information from about every service that’s received in that regulatory space and then it has data analysts that analyze that data and look for evidence of harm. So that’s one way to do it. Another way to do it would be the model that’s developing in Alaska. So the Supreme Court has authorized the Legal Aid agency to train people and deploy them throughout the state, but then there are independent researchers who have started a project looking at how that plays out. So you’re kind of outsourcing the evidence part outside of the legal services regulatory structure to another group of people. And the good thing about that is that those people are independent in a way that maybe regulators aren’t from their own regulation, but it also means the challenges of funding that kind of activity of ID of recruiting the people to do that kind of work. Nothing is perfect. 

Zack Glaser (38:23): 

They’re right. I think that’s a good thing to really keep in mind with this whole thing though, is that nothing is perfect. The system that we right now is not perfect. The system that we’re going to create is not perfect. The systems that we have in between now and what we create in the future will not be perfect, and I think we can’t lose sight of that. One last question then is do we have the time to make evidence-based, I think of this as smaller thoughtful steps, or do we need to make big changes? And where I’m coming from is, which you had gleaned from what I said earlier, is technology going too fast for us to be able to respond to these things when we look at artificial intelligence and the simply globalization of these issues as well? Do we need to make big steps? 

Rebecca Sandefur (39:25): 

Well, I think we definitely, as Jim Sandman, who is the past president of the Legal Services Corporation, says we need solutions that are commensurate with the magnitude of the problem. So yes, we have to take really big steps, but you can take really big steps and then watch them and think of them as experiments, right? We’ve allowed this to happen. Let’s see how it goes. And if you’re monitoring things in more or less real time, you can intervene really quickly if you see problems and you identify fairly quickly models that will be likely to be successful because we have to scale this stuff up. I mean there are one point, is it 1.6 million in the US now? And as I think it’s 1.6, I didn’t check today though, but even though the legal profession has quadrupled in size since 1970, everything we know about the justice gap for low income people, but also for middle income people is that it’s only gotten worse. So lawyers scale. So then we need to think about creating, enabling environments for things that could scale. 

Zack Glaser (40:31): 

Yes. I don’t have much, much better to say than that. And I think that’s probably a good thing to end on is creating environments for things that can scale because we’re not taking care of this and won’t be able to take care of this by throwing lawyers or money at it simply. So Dr. Sander, I really appreciate you being with me today. I certainly learned a lot and thank you for thinking about my questions and taking them. I really appreciate it. 

Rebecca Sandefur (41:00): 

Well, thank you. It’s been wonderful to be with you.
 

Announcer: 

The Lawyerist Podcast is edited by Britany Felix. Are you ready to implement the ideas we discuss here into your practice? Wondering what to do next? Here are your first two steps. First. If you haven’t read The Small Firm Roadmap yet, grab the first chapter for free at Lawyerist.com/book. Looking for help beyond the book? Let’s chat about whether our coaching communities, are right for you. Head to Lawyerist.com/community/lab to schedule a 10-minute call with our team to learn more. The views expressed by the participants are their own and are not endorsed by Legal Talk Network. Nothing said in this podcast is legal advice for you.