My wife is a great cook and watches “The Cooking Channel” for new recipes. I’m fascinated by her ability to translate the TV chefs’ recipes into delicious meals at home. It made me wonder: is there a recipe for affordable legal representation? Approximately 90% of Americans as well as a majority of small businesses cannot afford a lawyer–even when the need is acute. This is often referred to as “the access to justice crisis.” The human and societal toll is immense. How can a society based upon the rule of law operate this way?
A recent New York Times article “In Louisiana, the Poor Lack Legal Defense” revealed that the access to justice crisis also bleeds into the criminal process. Many criminal defendants—especially in poor, high-crime areas– go unrepresented. For those wondering, “Doesn’t the Constitution guarantee the right to counsel for one accused of a crime?” the answer is yes—theoretically. Funding constraints, unrepresented accused sitting in jail cells like so many planes stacked up in the fog with no open runways, and not enough pro bono lawyers to go around have vitiated the Sixth Amendment guarantee of counsel. What’s happening to our justice system and what is the legal profession doing to address it?
We Have The Ingredients To Resolve The Problem
The ingredients for an access to justice recipe are available: (1) an enormous pool of new clients that can pay for legal services, just not at current rates; (2) a surfeit of unemployed and underemployed attorneys; (3) senior lawyers that could participate and serve as mentors for inexperienced counsel; (4) technology; (5) access to legal sources, including documents; and (6) new legal delivery models that reduce cost, promote efficiency, and enhance ease-of-access to lawyers. What’s needed is a recipe to combine these ingredients.
How will these ingredients be blended and who will do it? Simple answer: it takes a village. And that ‘village’ refers to three key stakeholders in the legal ecosystem: (1) law schools, (2) legal providers, and (3) regulatory bodies. Each will play a role, and all must act collaboratively to resolve the challenge.
Law schools must prepare graduates to be practice ready. Students should graduate knowing how to interview and represent a client, for example. They should also understand how to utilize technology and project management in delivering legal service; ‘being a lawyer’ is not just about legal expertise anymore. It’s about combining legal, technological, and process management expertise to solve personal or business challenges.
Legal providers, likewise, can “do good and do well” by structuring legal delivery models to be more accessible, flexible, efficient, client-centric, and cost effective than the traditional partnership model. LegalZoom is an example of a legal services provider that is doing just that. They provide consumers with a range of legal service options including: self-help (documents) to limited attorney consulting (subscription services with panel counsel) to attorney-client engagements (where LegalZoom receives no fee and does not participate in the engagement). LegalZoom—with more than 3.5 million individual customers and 1million small businesses –has begun to make a dent in the access to justice crisis. Its success should be a clarion call to others and an indication of the marketplace’s receptivity to creative solutions.
Regulatory bodies—notably State Bars and the American Bar Association—should take a hard look at how well (or poorly) self-regulation has served the public. The access to justice crisis is a blight on their record and a reminder of their need to take aggressive steps to ensure that an appropriate balance between protecting the public and preventing the public from securing legal representation is achieved. Note to regulators: you are failing.
The late Justice Lewis Powell, Jr. noted that: ‘Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status.’
Now—as never before—technological tools exist to facilitate ready access not only to legal sources (e.g. documents, case law, statutes, etc.) but also to lawyers. Likewise, online courts that unclog court dockets are already operating in Canada and other parts of the world. This is especially effective for “small claims” matters where pro se litigants may not require legal representation at the proceeding. And on the subject of activism by courts, why not make available a free online document library (including basic pleadings geared to ‘retail’ legal matters) for the public. No doubt, an entrepreneurial company would step in to provide legal consulting services on an economical, online basis.
Not all matters have the same value for a client, nor do any two require the same amount of “touch points” with lawyers. Process, technology, and legal oversight—combined with creative new models—are the recipe for taking on the access to justice crisis. What constitutes ‘legal representation’ and the direct involvement of lawyers in that process is an issue worthy of further exploration in this context.
The legal profession has the means and opportunity to resolve the access to justice crisis. Failure to do so would undermine the rule of law and trivialize the legal profession.