Category Archives: California

Blog, California, Democratizing Legal Services, Lawyer Monopoly, Modernizing Legal Services

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.



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 (, 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;; and

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 (

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

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:

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

More information about Modernizing is available at


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Blog, California, Democratizing Legal Services, Lawyer Monopoly, Modernizing Legal Services, Stories

California ATILS (1 of 2): Same Old Song

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.

I’ve just submitted comments. (Comments received to date have been made available at this link).

I’m not under any illusions that anyone who matters will give my submission anything more than a passing glance, if that. Few people will read it and even fewer (anyone?) will care about it. But for entirely inexplicable reasons I wasn’t comfortable with allowing the period for public comment to pass without making a submission of some kind.

I organized my comments in two parts, one addressing the substance of the proposals and the other addressing the Task Force’s approach with respect to public engagement.

There are a multitude of other topics that could and should be addressed, but I didn’t have time to develop them in any meaningful way. If I had had the time, I would have focused on some of the many issues that California regulators will need to address in the event the Task Force’s proposals are implemented in any significant manner.

I would have prioritized these two issues in particular:

(1) The assurance of effective enforcement of anti-trust (competition) laws to prevent the development and abuse of monopoly power in the legal services market; and

(2) The recognition that regulation is a public service – that it is something that we as a society need and value because it brings economic and social value to everyone. Further, the proper regulation of legal services is necessary to assure access to justice and rule of law. For these reasons, new regulations for legal services must not be developed or financed privately; to the contrary, they must be developed by public, democratic processes and they must be financed publicly through equitable, progressive revenue sources. 

But, as I just mentioned, I didn’t have time to get into those issues. They are highly complex. Or, perhaps it would be more accurate to say that I wasn’t motivated to find the time given that those comments  also would be unlikely to garner even a passing glance.

In this and in the immediately following blog post I will show what I did have time to get into. Namely, this post contains the first half of the comments I submitted, which addresses the substance of the proposals. The next post will contain the second half of my submission, which addresses the Task Force’s approach with respect to public engagement.



Public Comment

Dr. Laura Snyder

Part I: The Substance of the Proposals

A multitude of articles and books have been written on these topics. Of course I can’t help but mention the two books that I’ve written: Democratizing Legal Services: Obstacles and Opportunities (“Democratizing”), and Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? (“Modernizing”). Nor can I help but mention my website which contains excerpts of the books as well as supplemental materials: I would, of course, be among the first to admit that my books and website are among the least read on these topics, and perhaps even the very least read.

Because hope springs eternal, just in case someone might be interested in Democratizing and Modernizing, links to more information about them are provided at the end of this commentary.

(A) The Objections Raised in this Consultation Process Have Been Long Anticipated and Addressed

In reading the comments submitted to date in this consultation process one could be forgiven for thinking that the objections they raise are new—that no one has yet made those objections, and certainly no one has yet fully considered them. But nothing could be further from the truth. Such objections have been raised repeatedly over a number of decades and they have been addressed extensively by a number of persons. Most if not all of what they have written has been much more widely read and respected (dare I say even revered?) than my own material.

Nevertheless, I can’t help but again mention my book Democratizing. It anticipates, categorizes, and addresses in-depth many of the objections that have been made in the comments submitted to the Task Force. These objections, and detailed responses to them, include:

  • Alternative structures will undermine professionalism and ethics
  • There is no way to regulate alternative structures
  • The adoption of alternative structures will jeopardize self-regulation of the profession
  • There is no demonstrated need, demand, or problem
  • New delivery models can be developed without changing the rules
  • The payment of salary is adequate compensation for nonlawyers
  • No one in their right mind would want to invest in a law firm
  • Alternative structures will lead to a consolidated market controlled by large firms
  • Alternative structures cannot help those who cannot pay for legal services
  • Alternative structures will make things harder for un- and underemployed lawyers
  • The burden of proof has not been met

(Democratizing, pages 1-93, 217-22; also in part available online at;;;;;

(B) Alternative Structures Come in a Wide Variety of Shapes and Sizes

Via the link you can read the stories and experiences told firsthand by 65 people who have created, are managing, are employees of, and/or have invested in alternative legal structures, as well with persons who regulate them. (And, in one case, by a person who has closely studied alternative legal structures that existed in the United States a century ago: The stories offer unique, direct perspectives on the objections that this consultation process has collected.

Many people think that alternative structures are only about allowing investment-fueled, technology-focused companies to deliver legal services in the manner of LegalZoom, or about large corporations establishing “law factories” in the manner of Slater & Gordon. Certainly they are about that, but they are also about much more. There is huge variety in the structures that have been created in England & Wales and Australia, as regards both size and substance, that many people overlook. Here are just a few examples of the structures profiled at and discussed in Democratizing, which expose this variety—three of the four are small structures, none are technology-based, none have outside investors, each would violate current California rules:


Salvos Legal is a not-for-profit law firm with five “partners” that provides commercial and property services to corporations, government agencies and not-for-profits. The fees collected by Salvos Legal, less expenses, are used to fund Salvos Legal Humanitarian. Salvos Legal Humanitarian is a full-service law firm that provides services to the “disadvantaged and marginalized” in family law, housing, social security, migration and refugee matters, debt, criminal law and other areas. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the funding of Salvos. As Luke Geary, Managing Partner of both Salvos Legal and Salvos Legal Humanitarian, explained:

Salvos Legal Humanitarian, to date, has provided free legal assistance on [many thousands of] matters, at no cost either to the government or to The Salvation Army. That’s [many thousands of] cases of access to justice that otherwise would not exist. And that number goes up with each passing day.

BPIF Legal offers legal support and advice to members of The British Printing Industries Federation (BPIF), a trade association representing the UK’s print, printed packaging and graphic communications industry. Their services are offered holistically with the other services that BPIF also offers to its members, in the areas of human resources, health, safety and environment, quality, marketing, sales and finance. As Anne Copley, Head of Legal, BPIF Legal, explained:

Our members come to us because of our expertise in the industry. They do not have to explain to us how the industry works…  We know what our members are and we can ask questions that other lawyers might not know to ask because we know frontwards and backwards what goes on in a printing company. In addition, the relationship we have with our members is different than the one a traditional law firm would have with them. For lack of a better word, the relationship is more intimate. Since they are members, they consider that they have some ownership of us, rather than coming to us cap in hand. And since we liaise with the other services in our organization, we have a much more rounded view of their businesses.

Counterculture Partnership offers to cultural and creative not-for-profit organizations holistic services in the areas of strategic planning, funding, financial and project management, legal and governance advice, capital projects, training and advocacy. Counterculture has thirteen partners of which five are lawyers. In 2019 The Legal 500 recommended Counterculture as a Leading Firm in the North West of England. As Keith Arrowsmith, Partner, Counterculture Partnership LLP, explained:

There are clients who talk to me now because I am sitting with them wearing a Counterculture badge that wouldn’t dream of walking through the door of what they see as a law firm. There is something about the perception of being in this more comprehensive structure that allows them to be more comfortable in engaging with me. Some of it might be related to concerns about cost, but I think that the real reason is that because I am wearing a Counterculture badge, I can begin conversations that otherwise I never would have been able to have. Many people in the arts start with the premise that their world and the legal world are so far apart, a lawyer could never understand them. With Counterculture, I am able to communicate with clients in a much more open way because they don’t see us as a traditional law firm. We’ve had real success in that way, and it has been helpful for the arts sector.

Stephens Scown provides legal services to companies and high net worth individuals. The firm specializes in areas important to the South West region of England, such as mining & minerals, renewable energy and tourism. Inspired by the share ownership scheme of John Lewis, Stephens Scown is one of the first large law firms in the UK to implement a limited employee share ownership scheme in which not just lawyers but all eligible employees may participate. In 2019 Stephens Scown was included in the Sunday Times 100 Best Companies list for the fifth consecutive year. As Robert Camp, Managing Partner, Stephens Scown LLP, explained:

For the past five years, we’ve been focused on client service, and we’ve won several awards for client service. We’ve recognized that client service is dependent upon staff engagement, and we want our staff to feel part of our firm, and not just a cog in a bigger wheel. This is the context in which we decided to become an ABS [alternative business structure]—in order to increase staff engagement. Research shows that if you can engage your entire staff so that they are all working for the same common goal and not just for rewards for those at the top, then the quality of service will go up. So you get happy clients who recommend you to others, and you get a virtuous circle. 

(C) Bottom Line: The Lawyer Monopoly on Legal Services Can No Longer Be Justified

If the laws of California accord to the legal profession the exclusive privilege to serve the entire market for legal services in California then shouldn’t the counterpart to that exclusive privilege be the corresponding obligation to serve the entire market? If it is the legal profession—and the legal profession only—that has the right, by law, to serve the California legal services market, then shouldn’t the legal profession have the obligation, by law, to develop and implement solutions that do effectively serve the entire market? By what right can California lawyers exclude other kinds of service providers from a market that the lawyers either cannot or will not serve in its entirety?

And if the legal profession in California is either unable or unwilling to serve the entire market then doesn’t the State of California have the obligation to change its laws in order to open the market to others—including nonlawyers and alternative structures? Isn’t this even more of an imperative given that England & Wales and Australia demonstrate that this can be done safely? More specifically, these two jurisdictions are evidence that it is possible to open the market for legal services to a wider range of service providers without harming those who need legal services or the public more generally. They have done this by respecting these two essential conditions: (1) the implementation of entity regulation alongside the regulation of individual lawyers, and (2) moving away from prescriptive, rules-based regulation in favor of compliance-based regulation (also termed “proactive, management based regulation,” or “outcomes focused regulation”). (I discuss how important both these conditions are in Democratizing pages 11-17 and in Modernizing pages 206-208; also in part available online at

Many assert that there is no proof that opening the market for legal services in England & Wales and in Australia increased access to justice in those countries. While I disagree with that assertion (Democratizing pages 167-84, also in part available online at, my first response is to ask: why should such proof be necessary? Certainly there is proof that the current restrictions on who may provide legal services have not solved the access to justice problem. To the contrary, the problem is so severe in California and around the country that it has been described as a human rights crisis (see Democratizing, pages 185-94, also available online at Further, appeals to the federal and well as to state and local governments for funding for legal aid demonstrate that the provision of legal services to those who cannot afford it is considered to be a public responsibility. In that case, why is the public allowed to fulfill that responsibility only with (taxpayer) money? Why can they not be allowed other means—notably by doing it themselves—given that, again, England & Wales and Australia evidence that it can be done safely and demonstrate how. (For a more detailed discussion in this regard, see Democratizing, pages 222-24, also available online at

Over two decades and more these topics have been discussed and written about ad nauseum—those discussions and writings are readily available online and in-print. Naturally, in my entirely unbiased opinion, my books are the best place to start. There is little point in entering into more detail here.

The next post (2 of 2) will contain the second part of the comments I submitted, which addresses the Task Force’s approach towards public engagement.

More information about Democratizing is available at

More information about Modernizing is available at


 If you’d like to subscribe in order to receive notices of new posts, you can do so by scrolling to the bottom of this page — you’ll see the place in the bottom left corner. Thanks for subscribing!