Monday, 09 June 2014 12:10

The Atlantic Calls Attention to the Access to Justice Crisis

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Michael Zuckerman, writing for The Atlantic, has written an excellent article, asking “Is There Such a Thing as an Affordable Lawyer?” The answer is, in short, is no. Not today, at least. Zuckerman cites the case of Ned Henry, who was priced out of an Attorney’s services in a dispute with a landlord. Zuckerman traces the source of the high prices associated with legal assistance – and he winds up circling the Bar’s monopolistic control of the legal services market. Two alternative models for legal services get the spotlight in the article: The first is the DIY model, based on the “legal equivalent of TurboTax.” The second is a model centered around limited-scope representation, where an attorney would focus on quick (and cheap) advice and expertise, offloading much of the actual labor onto their clients.

The article provides an excellent overview of many of the problems preventing people from having access to affordable legal services. However, Zuckerman touches only briefly on two of the biggest systemic obstacles to affordable legal help.

First, the bar gets its monopoly over providing legal services from statutes and regulations prohibiting the unauthorized practice of law (UPL). These UPL laws, enacted under the pretense of consumer protection, declare a wide range of activity to be the "practice of law," making a lawyer the only legal service provider available, no matter how competent other services may be. Thus, the LegalZooms and Rocket Lawyers face legal challenges to the right of their business to exist in multiple states, and hundreds of less-capitalized innovators fold in the face of overwhelming regulation. Bar associations have brought legal actions against innovative service providers even in the absence of any public complaint. In England, professionals other than lawyers are allowed to perform a wide range of legal services, and consumers have been overwhelmingly satisfied with their performance. American UPL restrictions need to be reformed to allow competent non-lawyer professionals to serve customers and to require a showing of harm to a customer before a case can be brought.

Second, law is unique among American industries in forbidding outside investment in legal practices. Law firms serving average Americans (rather than large corporate clients) typically employ at most a dozen lawyers, making it impossible to create the economies of scale that would allow them to affordably serve customers. In contrast, if outside investment were allowed, a national company could develop training and supervision protocols for thousands of lawyers, teaching them how to provide legal services to their clients and providing not only the legal expertise they need, but also letting those lawyers focus on their core competency of practicing law, while letting a corporate office handle the business side of practice. This isn't merely a hypothetical idea. In Australia and England, outside investment is permitted. As a result, customers are already seeing more affordable lawyer help, both from existing firms taking advantage of additional capital to improve their operations, and from companies outside the legal sector bringing their business and customer-service expertise to bear in a new market. Unfortunately, the American Bar Association has strongly opposed even modest changes to the outside investment prohibition.

These twin restrictions are a drag on innovation, and impede the advancement of the many innovations the article describes. Until they are reformed, American consumers will be left far behind their overseas counterparts in access to the legal system.

Read 3982 times Last modified on Monday, 23 June 2014 13:52

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