California ATILS (2 of 2): California Dreamin’

The State Bar of California is seeking public comment with respect to proposed regulatory “reform options” developed by the Task Force on Access Through Innovation of Legal Services. The due date is Monday, September 23, 2019.

If adopted, the most significant elements of the proposals would allow:

  • Nonlawyers to provide some legal services, subject to regulation,
  • Entities that provide legal services to include lawyers, nonlawyers or a combination, again subject to regulations, and
  • Nonlawyers to hold a financial interest in law firms and other structures that provide legal services.

A few days ago I submitted comments. (Comments received to date have been made available at this link).

The immediately preceding post contains the first half of the comments I submitted, which addresses the substance of the proposals. This post contains the second half of my submission, which addresses the Task Force’s approach with respect to public engagement.

STATE BAR OF CALIFORNIA

ACCESS THROUGH INNOVATION OF LEGAL SERVICES (ATILS)

Public Comment

Dr. Laura Snyder

Part II: The Task Force’s Approach towards Public Engagement

Next I would like to comment on the Task Force’s approach towards public engagement.

(A) The Model Chosen Does More to Divide than to Contribute to Good Decision-Making

The Task Force has chosen to implement what Donald G. Lenihan refers to as the “consultation model.” In his article “Public Engagement Is a Must in a Multi-Stakeholder World,” contained in the 2009 OECD publication Focus on Citizens: Public Engagement for Better Policy and Services (https://www.oecd-ilibrary.org/governance/focus-on-citizens_9789264048874-en), Lenihan describes this model as follows:

Some sort of government panel is given the task of finding solutions to an issue. The public is invited to express their views. This can happen in many ways, from town-hall meetings to online chat-rooms. Once the submissions have been made, the panel reviews them, deliberates, reaches conclusions and finally makes recommendations to government, which then decides how it will respond. (page 208)

While this description may sound innocuous, Lenihan explains that this model does more to divide the public than contribute to good decision-making. This is because it pits different interest groups against each other, who then seek to create a sense of urgency and bring competing claims into disrepute. It encourages participants to adopt uncompromising positions that they are not willing to modify in the face of conflicting evidence, and it discourages them from engaging in genuine debate or discussion. As a result, when the panel reviews the positions and decides upon its recommendations, it necessarily results in at least some participants perceiving they have “lost,” and that their demands have been ignored. It also causes the panel to become secretive about its rationale and defensive about its choices which, in turn, makes the public even more suspicious of the process and the advocates more strident in their criticism. (Lenihan, pages 208-9).

There is ample evidence of the accuracy of Lenihan’s observations. The most pertinent examples are the consultation processes carried out by the American Bar Association (ABA) in 2009-12 (Commission on Ethics 20/20) and again in 2014-16 (Commission on the Future of Legal Services); as well as the consultation process carried out by the Law Society of Upper Canada in 2012-15 (Alternative Business Structures Working Group). The manner by which each of these consultation processes transpired fits squarely within Lenihan’s prediction above as to how it would transpire. (For a detailed analysis of how each of these processes transpired, see Modernizing, pages 137-48, 171-224. Some of that material is also available online at http://notjustforlawyers.com/ch-15-ontario-false-start/; http://notjustforlawyers.com/ch-20-indestructible-model-rule-5-4/; and http://notjustforlawyers.com/ch-21-two-commissions/).

Each of these consultation processes resulted in failure. In Modernizing, I argue that this is for a number of reasons and principally because of the failure of each to take into account two conditions that were essential for the successes of England & Wales and Australia, namely the adoption of entity regulation and of compliance-based regulation (Modernizing, pages 139, 142-45, 206-8). (In its Attachment G, the July 11, 2019 Board of Trustees Open Session Agenda Item 701 briefly touches on the concept of compliance-based regulation, with its references to “anticipatory regulation” and “the focus on risks”).

However, the failure of those consultations can also be attributed to the model for public engagement that was implemented. In each case the use of the “consultation model” did not bring people together; to the contrary, it drove them further apart. And in the case of what is now the Law Society of Ontario, it did so with such bitterness it produced a fallout that the Law Societies of all the Canadian provinces—not just Ontario’s—grapple with still today.

In light of Lenihan’s astute observations and the prior examples of the ABA and the Law Society of Ontario, it is easy to imagine that  the same model for public engagement implemented here by the Task Force of the State Bar of California could produce a similar result.

(B) The Online Form is Overly Complex and Heavily Prescriptive

For the average person who might like to submit comments, the online form is remarkably complex. The user is asked to select from a drop-down menu of no less than 16 “reform options” on which he/she would like to comment, plus a 17th option of “Other.” The description of many of these options is complex. It is not clear on their face just what many of the descriptions mean, for some options it is not clear what purpose public consultation is intended to serve, and often it is unclear how one option relates to others. When an option is selected, a short explanation of the option appears, but those explanations are also complex. There is a link for more information but when the user clicks on that link it is not clear where the relevant information can be found.

Given such complexity and lack of clarity, it is easy to imagine that a certain number of would-be commentators could find the form to be daunting. It is especially easy to imagine this with respect to those without a legal background: the online form seems to have been created by lawyers for lawyers with little to no thought for those without the background necessary to understand the complex jargon or to understand how to negotiate the complex options.

Finally, in addition to being complex, the reform options are also heavily prescriptive. This belies one of the apparent objectives of the proposals, which is to move towards a compliance- or risk-based regulatory approach (again, what Attachment G of the July 11, 2019 Board of Trustees Open Session Agenda Item 701 refers to as “anticipatory regulation”). As Attachment G alludes, an overly-prescriptive approach can be stifling. In this case I would predict that the overly-prescriptive nature of the majority of the 17 options will, among other factors, stifle needed public engagement on the more essential, structural regulatory changes that are necessary to better assure access to justice and rule of law. I urge the Task Force not only to develop proposals for regulatory reform that more clearly reflect the lessons from England & Wales and Australia with respect to compliance- or risk-based regulation but also that it take those lessons on board with respect to public engagement itself by eschewing overly prescriptive proposals that obscure more fundamental discussions about the overall environment for the regulation of legal services in California.

(C) OECD Publications Contain Extensive and Helpful Research on Best Practices for Public Engagement in the Regulatory Process

This complexity, combined with the choice of the “consultation model,” is unfortunate. The OECD has made available extensive research which explains both the importance of doing more to facilitate true public engagement in the regulatory process and how to carry it out. The OECD research notably emphasizes the importance of developing public engagement models that both (1) are open and inclusive, and (2) foster cooperation rather than divisiveness. I would encourage the Task Force to consult that research, and most notably that which is contained in the book cited above: Focus on Citizens: Public Engagement for Better Policy and Services (https://www.oecd-ilibrary.org/governance/focus-on-citizens_9789264048874-en).

In the meantime, in Modernizing, this is how I summarize some of the OECD’s teachings with respect to public engagement in the regulatory process:

“In order for citizen engagement to succeed, it must […] include as wide a variety of citizen’s voices as possible. This means going beyond the highly selective and unrepresentative ‘usual suspects.’ That is, this means going beyond highly-resourced industry and other special interest groups to include all the stakeholders as well as those who have specific knowledge or expertise with respect to the subject at hand. Because many of those who are the ‘least equipped’ for public participation are often those from whom input is important if not vital, the OECD states that policymakers must make extra efforts to reach out and ensure they are included. Merely creating a ‘level playing field’ which allows for passive access to information, consultation and participation is not enough because it will not result in the needed diversity of voices. [Emphasis added].

“In making those extra efforts, policymakers have to overcome the “many good reasons” that people have for not participating in policymaking. As one French commentator observed: “many people continue to perceive public authorities as distant from their concerns and do not dare imagine that their opinion, even if it is very personal or noninstitutional, could legitimately be heard in a public decisionmaking process.”” (Modernizing, page 8; also available online at http://notjustforlawyers.com/ch-1-good-regulation/#_edn45).

The OECD publication Focus on Citizens: Public Engagement for Better Policy and Services (pages 83-165), contains a number concrete examples of citizen engagement practices in different countries and policy areas. These examples were selected for study in part because they go past the “consultation model” in an attempt to genuinely engage a larger and—especially—a more diverse cross-section of the relevant population. In this context, a “diverse cross-section” does not or does not only refer to gender, race, or national origin, but also—if not especially—to training or occupation, public vs. private sector, level of education, socio-economic status,… In sum, the participants were persons who, because of their backgrounds and experiences, had reason to come to the issue at hand from very different perspectives. In some examples participants were selected from the general public at random and were provided with the information and support that they needed to participate in the process in an effective manner.  

Another reason why the examples in this OECD publication were selected for study was that they employed engagement processes intended to foster cooperation, understanding, and the exchange of ideas among participants, in contrast to pitting one person’s opinions against another’s. This was done in a variety of manners depending upon the purpose and the objectives of the engagement. Examples include public awareness campaigns; interviews, presentations, and workshops; identifying and specifically seeking input from representatives of relevant organizations and interest groups; soliciting and supporting project applications; and polls and surveys.

A common feature was the organization of informational meetings (not town halls) for members of the general public. These were organized most notably in the context of processes for determining local government budgets and budget priorities; the purpose of the meetings was to provide prospective participants—again, members of the general public with no prior relevant knowledge or experience—with the information they needed to participate in a meaningful and effective manner. Other examples featured training for public servants to increase their sensitivity to the importance public engagement and to better understand how to carry it out.

One of the most compelling examples contained in the OECD publication is that of the City of Port Phillip, Australia (pages 119-26). Among other activities, the city organized a one-day “participatory democracy” summit for 750 participants to develop an agreed list of priorities for the city through the vehicle of a ten-year Community Plan. The purpose of the summit was to facilitate discussion and learning between participants and to establish a ranked list of priorities to be achieved through voting by all participants. To achieve these objectives the summit utilized groupware computing systems, individual key pad polling, and audiovisual communication tools. More specifically the day was described as follows:

Participants came from all walks of life and represented the diversity of the Port Phillip community. People were randomly allocated to tables to achieve a variety of viewpoints in each group and to separate friends and family members. Trained and non-partisan facilitators helped groups explore ideas and differences of opinion, and topic experts were on hand to answer questions. Responses from each small group were transmitted to a central “theme team” who then collated responses to identify themes. Individual keypad polling was used to establish collective priorities across all participants. (page 124).

This model of public engagement bears little resemblance to the “consultation model” that the ABA, the Law Society of Ontario and, today, the Task Force of the State Bar of California have implemented. Also in contrast, it was by all accounts successful: in the short term the participants expressed appreciation for the immediacy of results and the transparency of processes enabled by the technology (page 120) and in the longer term the Community Plan had an influence on the city council’s strategic planning and allocation of resources (as attested to in city council documentation: http://www.portphillip.vic.gov.au/default/CorporatePlanningandPerformanceDocuments/CouncilPlan_2007-08.pdf).

To summarize:

  • If the comments the Task Force receives are difficult to differentiate from the comments that were submitted in response to comparable calls for public comments by the two ABA Commissions and the Law Society of Upper Canada, such a result was predictable. The Task Force has engaged in essentially the same kind of process with essentially the same “kind” of people—lawyers, law firms and bar organizations. People who, while they may be diverse with respect to gender, race, national origin, and even practice area and practice structure, have little diversity when it comes to one crucial characteristic: they are all lawyers. For the most part they will come to this problem with essentially the same perspective. And they will naturally, understandably and entirely predictably prioritize what they perceive to be their own interests over the interests of the public more generally. This is especially the case when they are asked to submit comments in isolation, without first being exposed to and obliged to learn from and contend with persons who have different perspectives and ideas.

The alternative models for public engagement described in the OECD publications may appear like pie in the sky for the Task Force because of the considerable resources they would require to implement, even in some modest form. At the same time, because today the Task Force has implemented essentially the same model of public engagement as the ABA and the Law Society of Ontario, the expectation of achieving an outcome different from theirs is no less pie in the sky.

  • In the event the Task Force would like to truly engage a wider public—the California public as a whole and not just the California lawyers who are sufficiently motivated to negotiate a complex online form—and would like to engage them in a manner that fosters cooperation and understanding, then I encourage the Task Force to develop and implement a different kind of public engagement model. The Task Force can consult the relevant OECD publications for inspiration, without the need to slavishly imitate any alternative models described there. I recommend focusing on pages 83-165 of the book Focus on Citizens: Public Engagement for Better Policy and Services, which contain concrete examples of citizen engagement practices in different countries and policy areas. The Task Force will see that the organizers in those cases overcame a number of obstacles in order to carry out the relevant engagement process; I can’t imagine that the obstacles faced by the Task Force of the State Bar of California would be greater. Developing and implementing a different kind of public engagement model, among other steps, will better assure the success of the Task Force’s endeavors to change the regulations.

The regulatory changes are very badly needed and they can—I hope—serve as a beacon for the rest of the United States and other countries in the world.

More information about Democratizing is available at http://notjustforlawyers.com/democratizing-legal-services/.

More information about Modernizing is available at http://notjustforlawyers.com/modernizing-legal-services/.

 

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