Renee Knake Jefferson is the author of the book Law Democratized: A Blueprint for Solving the Justice Crisis (NYU Press 2024) and founder of the Legal Ethics Roundup weekly newsletter. She holds the endowed Doherty Chair in Legal Ethics and is a Professor of Law at the University of Houston.
Public opinion of the nation’s judicial system and courts fell to a “record-low” in 2024, according to the latest Gallup poll. At the same time, many people do not receive adequate legal help. As Justin Hansford, the Executive Director of the Thurgood Marshall Civil Rights Center at Howard University, bluntly puts it: “Today in the United States, the richest country in the world, you can lose your home, your financial independence, and even your child as a result of a civil court hearing where your opponent has access to legal counsel and you do not.”
Frequently individuals do not even recognize when a lawyer or legal services provider might be able to help them, and those who do try to navigate the civil justice system on their own encounter insurmountable complexities. According to the World Justice Project Rule of Law Index for 2024, the United States ranks the bottom for accessibility and affordability of its civil justice system, coming in at 107 out of 142 countries globally.
This lack of trust in the judicial system, coupled with the lack of access to legal help, threatens to undermine our democracy. In the wake of social justice protests and election challenges during the 2010s and 2020s, more than ever the American public must understand—and importantly, access—its justice system to enforce legal rights and entitlements.
We need a plan to make legal help available to all, one that leverages ethical innovation and technology, along with regulatory reform and education. This effort must be coordinated among wide-ranging stakeholders, including attorneys, advocacy groups, bar authorities, courts, law schools, the legal tech industry, legal service providers, legislators, policy makers, regulatory authorities, and research centers.
In short, as I argue in my book Law Democratized, we need a blueprint for solving the justice crisis. Here’s an overview.
Ethical Innovation & Technology. Technology advances and other innovations in the delivery of legal services are essential to expanding affordable, understandable help to those in need. But, we must implement a framework for assuring users that these new tools are aligned with the rule of law, cultural competence, ethics, and free from bias. One mechanism to ensure that the rapid pace of change driven by consumer demand, globalization, and technology does not compromise the integrity of the justice system is to formalize a duty to innovate within professional ethics codes. Lawyers, in particular, have a critical role to play in both assessing the benefits and risks of innovation and in adopting new tools to help solve legal problems. All but ten states already mandate that lawyers “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This mandate is not yet fully appreciated as a broad duty to engage in ethical innovation, but it should be. Just as the American Bar Association amended Model Rule 1.1 in 2012 to extend the duty of competence to include an obligation to keep abreast with changes in technology, it should craft a similar revision to encompass innovation.
Litigation. Another component of the blueprint involves reform through litigation challenging restrictions on who is authorized to provide legal services and how they may do so. For example, historically the Supreme Court employed antitrust doctrine to ease competitive barriers and reduce costs for things like real estate title searches and bar exam review courses. The Court also turned to the First Amendment to liberalize client solicitation and advertising rules. More recently, the First Amendment has been used to challenge unauthorized practice of law restrictions in New York and South Carolina that keep advocates from helping individuals with personal bankruptcy or housing issues.
Regulatory Reforms. International regulatory transformations like the United Kingdom’s Legal Services Act of 2007 sparked some states like Arizona and Utah to experiment with reforms to professional conduct rules and other legislative interventions aimed at encouraging competition and innovation. Arizona became the first state to allow nonlawyer ownership of law firms in 2020. That same year Utah established a “regulatory sandbox” also allowing nonlawyer ownership and investment in law practices in an effort to expand legal services to those in need. Other jurisdictions should follow these examples with their own experiments.
Learning. Education is also an important tool, both for the legal profession and for the public about the legal system. Law schools should infuse curriculum with courses on entrepreneurship and cultivate pipelines for lawyers to reflect the diversity of the public that they serve. Investment is needed to help individuals who are not lawyers recognize legal problems and successfully navigate the justice system, whether through an affordable, trusted lawyer or on their own through self-help and do-it-yourself tools. When reforms are made, or new tech-driven legal services are offered, we need to track the impact and share that information broadly to make sure the intervention expands access to justice rather than maintains status quo or makes things worse. We must learn from mistakes, experiment in the face of uncertainty, and keep our minds open to possibilities when presented with new information.
Engaged Citizens. Democratizing the law requires not only empowered citizens equipped with knowledge about the legal system, but also engaged citizens who look out for the interests of all in addition to their own. Engaged citizenship means knowing the local government employees, legislators, and school board members where one lives and works. It means voting and taking responsibility to ensure that obstacles do not stand in the way of others when they go to cast their own ballots. Engaged citizenship also means actively contacting policymakers to demand reform.
The tools highlighted here – developed more fully in Law Democratized – are not meant to be comprehensive, but instead they are intended to serve as a springboard for inventing a world in which everyone gets the legal help they need. For the legal profession, this means accepting that lawyers may not always be the solution. It’s up to each and every one of us to start building.