Bold. Innovative. Visionary. At a time when many courts are losing the battle to provide access to justice, especially in low-income communities, the Arizona Supreme Court has brought fresh ideas to bridge the justice gap.
Vice Chief Justice John Lopez, at the invitation of the ABA Crossroads Caucus, discussed innovations his court has recently put in place in a conversation with moderator Mark Martin, dean of High Point University School of Law at the ABA Midyear Meeting in Phoenix in February.
As reported by the Legal Services Corporation in its most recent Justice Gap Study in 2022, low-income Americans do not get any or enough legal help for 92% of their substantive civil legal problems. To address this issue, Lopez and his colleagues have focused on improving access to legal services by lowering costs and increasing options. For lower income citizens, the court approved several programs, including the Legal Paraprofessional Program, the Lawyer Apprentice Program, the Legal Advocate Program and the Government Law Admission Program.
The Legal Paraprofessional Program, to highlight a very successful program, has been in operation since early 2021. It grants a license that allows nonlawyers to offer limited legal services, including legal advice; drafting and filing legal documents, opinions and strategies; and representing clients in court. The first licenses were granted in November 2021, and Arizona has 65 licensed LPs. The program improves access to justice by allowing trained nonlawyers to represent clients in criminal, family, civil, administrative and juvenile law matters. The University of Arizona and Arizona State University offer a Master of Legal Studies that prepares students for the legal paraprofessional licensure exam.
To address the problem of Arizona’s “legal deserts,” a term coined by the ABA to describe counties with few or no lawyers (i.e., fewer than one lawyer per 1,000 residents), the Arizona Supreme Court approved a Lawyer Apprentice Program. The program encourages aspiring lawyers to stay in Arizona, creates a pathway to licensure for law graduates with lower bar scores and increases the number of lawyers in the state. In a state that ranks 49th of 50 states in lawyers per capita, such a program is a necessity, but it’s a very disciplined necessity: Applicants must (1) be graduates of an ABA-accredited law school (2) score 260-269 on the Uniform Bar Exam (3) and commit to practice under the supervision of a qualified Arizona attorney for at least two years in rural Arizona or a public law practice.
More controversial are the Arizona Supreme Court-approved “Alternative Business Structures.” The ABS program allows nonlawyers to partner with lawyers in businesses that provide legal services. The program was created to encourage innovation in legal services and make them more affordable. ABS are subject to the Rules of the Arizona Supreme Court regulating the practice of law, including the requirement that the ABS employ a member of the Arizona Bar who supervises the practice of law. While such arrangements are common in the United Kingdom and Australia, they are actively debated in the U.S.
When Big Four accounting firm KPMG was approved on Feb. 27 to own a law firm under the ABS program, some skeptics asked whether such a step would actually bridge the justice gap or lower costs for lower-income citizens. Lopez acknowledges that some have also raised concerns that the “one-stop shop” model may put traditional firms out of business.
As part of the Arizona Judiciary’s Five-Year Plan, Chief Justice Ann A. Scott Timmer, a 2021 ABA Journal Legal Rebel, has made public trust and confidence in the judiciary a foundational goal. Lopez strongly supports this goal, and the court has put in place several initiatives to address the problem.
He told his audience: “Much of the public’s distrust in our courts is driven by inaccurate media coverage of our cases. Too often, media coverage centers on a case result and often fails to accurately identify the issue, if at all. Inaccurate framing of judicial decisions is then used to drive a narrative that judicial opinions are invariably political decisions. To that end, too many media reports on judicial opinions are limited to the party affiliation of the judge, the case result and its political significance or palatability. This coverage encourages public cynicism and distrust of courts.”
To counter objectively inaccurate characterizations of judicial opinions, the Arizona Supreme Court recently adopted a practice of releasing a brief summary of the judicial opinion that identifies the issues and sets out the reasoning and the decision in the case. Lopez observed that the initial results seem to be positive, noting that coverage of judicial decisions has been more accurate. He said the purpose and effect is not to diminish critical reporting of decisions, but to increase the likelihood that the criticisms and coverage accurately reflect the actual issues, reasoning and conclusions in the case.
Lopez’s final topic was retention elections. Arizona adopted a merit selection system in 1974 that applies to Arizona’s appellate judges and trial court judges in Arizona’s four most populous counties, where a nonpartisan commission of lawyers and citizens investigates and evaluates candidates for judicial positions. The commission then submits the names of the most highly qualified applicants to the governor, who makes the appointment from that list.
Once appointed, judges are subject to retention through regularly scheduled retention elections, by which a majority of votes in favor of a judge results in retention for another term. During judges’ terms, beginning in 1992, a commission of citizens and lawyers, known as “Judicial Performance Review,” assessed judges’ performances and issued recommendations to the voters prior to an election.
From 1974 to 2020, no endorsed judge had ever been removed by voters. In fact, most judges recommended for removal by JPR were retained by voters. Moreover, during those nearly 50 years, only three judges were removed by voters in retention elections; all were embroiled in legal scandal or were otherwise deemed unfit by the JPR Commission.
But, Lopez said, “Something began to change about Arizona’s retention elections in 2020. For the first time, a major political party targeted judges for nonretention. All were retained. But in 2022, voters failed to retain three Maricopa County Superior Court judges. In other words, as many judges were removed by voters in one election as had been removed over the previous 48 years. Notably, two of the three judges had been recommended for retention by the JPR Commission—a first in the history of Arizona’s merit selection system. One of the judges was targeted not for his judicial performance, but rather for his prior associations and his work as an assistant A.G. in Arizona.”
In 2024, the merit selection system, including the retention election, became a major political issue. One side of the partisan/ideological divide cited an unpopular abortion decision, while the other side of the divide expressed dissatisfaction with the court’s election decisions. These political forces culminated in two primary events: (1) a significant campaign was marshaled to remove two members of the Arizona Supreme Court (2) and Proposition 137 was placed on the ballot to eliminate routine retention election for judges unless they committed various crimes, filed personal bankruptcy or were not recommended for retention by JPR. This proposition was rejected by nearly 80% of voters.
Lopez concluded his presentation by questioning the wisdom of politicizing the merit selection process. He quoted the late U.S. Supreme Court Justice Sandra Day O’Connor who called the prospect of jettisoning the merit selection system “a great step backwards.”
Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.