A pair of dueling California ballot initiatives both purport to increase consumers' access to justice — a righteous cause, most would say. If only the initiatives' backers agreed on what that means.

Uber Technologies Inc., the ride-hailing company and frequent personal injury defendant, is drumming up support for the Protecting Automobile Accident Victims from Attorney Self-Dealing Act. The company argues that clients seeking justice are being abused by unscrupulous attorneys, and seeks to limit medical recovery claims and ensure that the clients — not the attorneys — get a greater share of their monetary awards.

To plaintiffs attorneys, the economic viability of lawsuits is a major aspect of access to justice. Anything that makes lawsuits less profitable for plaintiffs attorneys would force them to be pickier about the contingency fee cases they choose to gamble their time and money on.

By that measure, they say, Uber's initiative is an all-out assault on access to justice masquerading as consumer protection. So they have introduced the California Right to Counsel of Choice Initiative, which would amend the state constitution to prohibit laws that "deny or interfere with a person's ability to contract with the attorney of their choice," including Uber's initiative.

Proponents of each of the initiatives were in the process of attempting to collect enough California voters' signatures to land them on ballots for the November election. Each would require 874,641 signatures to qualify.

The battle echoes others in California and elsewhere, where opponents each claim the righteous mantle of access to justice and consumer protection.

Access to justice scholars say the true definition does not belong to any one group. It calls for situational and nuanced analysis.

"When considering access to justice, we need to know whose lives are affected and how their ability to access justice compares with the other side," said David Udell, executive director for the National Center for Access to Justice at Fordham University School of Law. "Sadly, most people have little if any ability to vindicate their rights, even when up against powerful antagonists. That's why community justice workers and plaintiff-side litigators are so important."

"The Great Equalizer"

Casey Johnson of Aitken Aitken Cohn, president-elect of Consumer Attorneys of California, said the Uber initiative threatens to undermine the contingency fee system in the nation's most populous state, which could have devastating access-to-justice consequences.

"[Access to justice] means having the ability to hold wrongdoers, whether they be individuals, insurance companies, corporations, accountable for their actions," he said. "Most people who are injured can't afford to pay lawyers $1,000 or more an hour to represent them in their cases, and the contingency fee system is the great equalizer."

John Carpenter of Carpenter & Zuckerman said personal injury cases typically involve sudden and unexpected events, leaving injured parties in the difficult position of dealing with stressful events while trying to find quality legal representation.

The Uber initiative, he said, threatens to make this struggle even more difficult by depriving injured parties of lawyers.

The initiative would require, among other things, that injured plaintiffs receive at least 75% of their judgments and limit medical recoveries. This would dramatically reduce the money plaintiffs attorneys would receive as compensation, which often ranges from 30% to 45%.

Uber claims that "billboard attorneys and other personal injury lawyers" engage in unscrupulous tactics, such as colluding with friendly doctors, to drive up medical costs and the attorney's profits at the cost of their injured clients.

In an email to Law360, the Uber initiative's campaign spokesperson Nathan Click disputed that the measures would cut too deeply into attorneys' contingency fees or result in attorneys rejecting more meritorious cases. He argued that some state laws and the Federal Tort Claims Act already cap contingency fees without dire consequences.

He said that many accident victims end up receiving much less money than expected because of attorney fees and inflated liens.

"Ensuring that victims keep at least 75% of their recovery strengthens trust in the civil system," Click wrote. "Access to justice is not just about filing a case. It's about whether the injured person meaningfully benefits from the outcome."

Prominent legal scholars including University of California, Berkeley School of Law Dean Erwin Chemerinsky and Stanford Law School's Nora Freeman Engstrom have come out against Uber's initiative. Both have written op-eds for the Sacramento Bee agreeing with plaintiffs attorneys that the initiative would deeply harm accident victims' ability to obtain counsel and essentially starve the plaintiffs bar.

"Uber's interest, of course, is not really about helping automobile accident victims — no one should think that for an instant," Chemerinsky wrote. "Quite the contrary, Uber wants to make it harder for those injured in its vehicles to have their day in court and recover."

Engstrom, in an article co-authored with Brianne Holland-Stergar of the University of Montana School of Law, wrote that the contingency fee system is "one of the engines of access to justice in the American legal system."

"But contingency fee caps — including the 25% cap Uber is peddling in California — throw a wrench into this delicate system by making it impossible for many poor people to find lawyers," they wrote.

Click, however, argued that Uber would not be directly benefiting from its proposed initiative, saying that it was strictly a bid to strengthen consumer protection.

"The premise that lawyers will simply stop taking cases if they cannot extract 40%-plus of a settlement — or structure inflated liens — is not an access-to-justice argument," Click wrote. "It is an argument about preserving a particular fee structure."

"Talking Past Each Other"

Rebecca Sandefur is an Arizona State University sociology professor who has spent much of her career focusing on access to the civil justice system and earned a MacArthur Foundation "genius grant" for her work.

She co-founded Frontline Justice, an organization that seeks to expand access to justice by empowering community justice workers — nonlawyers who are trained to provide basic legal assistance to people who cannot otherwise afford such help. Opponents of this and other efforts to allow nonlawyers to engage in limited legal assistance or practice have argued that it would only create a two-tiered system: those who can afford lawyers, and those who can only afford something less than a lawyer.

"So when people argue about whether something like a sandbox or a justice-worker program can promote access to justice, part of what they're talking past each other about is what the definition of that is," Sandefur said.

Sandefur contended with such arguments during California's debate over creating a legal industry "sandbox" to test new ideas, including licensed legal paraprofessionals and nonlawyer ownership of law firms. Plaintiffs attorneys were the most vociferous opponents to the proposal, which ultimately failed.

They argued that it was a ploy that would actually undermine access to justice.

"Imagine Amazon getting into law the same way that they monopolize everything else," plaintiffs attorney Danny Abir told Law360 in 2022, "the same way Uber did, price-cutting in the name of access to justice. That would be easy to sell, right? Get everybody out of the business — consumer lawyers, divorce lawyers, bankruptcy lawyers — everybody would be out of business. Who's going to be left? Amazon. Uber."

In a recent interview, Sandefur said lawyers are not always necessary to resolve legal disputes. In fact, she said, nonlawyers can be at least as effective as lawyers handling some minor, everyday matters, and at a fraction of the cost.

"What we want is for people to behave lawfully, and when they have conflicts, to have those conflicts resolved lawfully in accordance with those authoritative norms," she said. "And so from my perspective, whether they do that with a lawyer, or justice worker, or with a paralegal, or with their neighbors, is irrelevant."

Nikole Nelson, CEO of Frontline Justice and former executive director of Alaska Legal Services Corp., said precious few people in the United States can afford lawyers and there are few alternatives to help them access and navigate the legal system.

"It's not so much whether or not you have access to court or whether or not you have access to a lawyer," she said. "It's really whether or not you have access and a means of reasonably enforcing your rights and the legal protections that you have as a citizen, or as somebody who's living within this country."

In this way, attorneys fighting efforts to add stratified options to the legal services industry might actually be obstacles to access to justice, she said.

"They have a monopoly over the services that they aren't providing, and that's a problem," Nelson said. "As part of our profession, we really need to be thinking about what we can do to stop that and to end that, and to rethink and transform our system into one that is less centered around lawyers, and more centered around the justice expectations of the people we hope to serve."

--Editing by Tim Ruel and Orlando Lorenzo.

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