Delaware Governor Jack Markell recently wrote an opinion article urging states to remove many of their professional licensing requirements. License requirements often do more to protect existing service providers than they do to protect consumers. These requirements also leave consumers with fewer options and, therefore, higher prices when seeking services. Gov. Markell specifically discusses how requiring someone assisting an evictee in landlord-tenant court to have a law degree leaves many tenants without any assistance. Gov. Markell formed a committee to “review existing licensing regulations and and recommend ways to eliminate unnecessary barriers to entry.”
Responsive Law agrees with the reforms that Gov. Markell has initiated conversation about and hopes that he is successful in implementing them. Responsive Law believes that these reforms could have significant advantages for consumers and their access to legal help. Such reforms could assist non-lawyer legal service providers (LSPs) in supplying expertise to consumers who need legal help. Consumers could more easily and affordably receive services such as simple wills and uncontested divorces, which can be competently provided by trained non-lawyers.
Responsive Law looks forward to providing the committee with its input about reforming licensing regulations.
Morgan Newell is a Responsive Law intern
The State Bar of California has established the Governance in the Public Interest Task Force to help improve the public protection function of the State Bar. California law holds the protection of the public as the State Bar’s highest priority. Responsive Law believes that unchecked self-governance by lawyers is not in the interest of the public, and issued comments offering guidelines that would better protect the public.
After the North Carolina Board of Dental Examiners v. Federal Trade Commission case last year, state bar associations have found themselves vulnerable to antitrust suits, and the State Bar of California is no exception. For a full analysis of the Dental Examiners case click here. Subject to approval by the California Supreme Court’s approval they can pass regulations that restrict the practice of law by even highly trained non-lawyers. While the State Bar argues that these restrictions protect the public, many of the state bar’s members support these measures as a way to protect themselves from competition.
Many state bars claim that they are exempt from antitrust liability because they are supervised by the courts, which are a branch of government. However the justices on the California Supreme Court are required to have been practicing lawyers for ten years before becoming justices, and most return to private practice after their terms end. It is against the public interest for these justices to be making decisions on regulations that will directly affect their financial interests when their term is over. Furthermore, under FTC guidelines, they still count as active market participants, which means that antitrust liability would still apply to the Bar’s actions.
To resolve this conflict, California should grant a non-judicial agency oversight of any anti-competitive actions proposed by the State Bar. This would make the State Bar more accountable to the public.
Responsive Law urges the State Bar of California to recognize that the public cannot have a say in how they receive or pay for legal services unless the protectionist impulses of lawyers are curbed by an agency without a financial stake in allowing such impulses.
To read Responsive Law’s full testimony click here.
James Duffy is a Responsive Law Intern.
Recently the American Bar Association’s Commission on the Future of Legal Services published a paper on how to make legal checkups more effective and widely available to the public. Responsive Law believes the guidelines have promise and issued comments on ways the guidelines could further benefit consumers.
Legal checkups are a critical tool that can identify when consumers’ problems have legal solutions. One example would be an online questionnaire where a consumer plugs in their information, and software judges whether or not their problem has a legal solution. There are millions of people in the United States that lack access to legal services, many of whom do not even know they have a problem those services could solve. In New York State alone there are nearly two million people who don’t realize their problems have legal solutions. Legal checkups would allow people to receive immediate feedback and legal solutions and resources.
The Commission’s guidelines would protect a consumer’s privacy, require the accuracy of documents used for checkups, ensure that all checkup providers are truthful and honest with consumers, and that they must provide a list of legal resources to the consumer if a problem is found.
The language in the issue paper seems to indicate that the ABA envisions bar associations as the primary promoters of legal checkups to the public. Responsive Law urged the Commission that the private sector has a role to play in providing legal checkups to consumers. A major ad campaign by a private business can do more than PSAs from the bar to raise awareness of the need for legal checkups. For instance the online legal service marketplace Avvo spent $20 million this year on an ad campaign that raised awareness of the need for legal services.
However the ABA could help consumers even more by clarifying that non-lawyers can give these checkups. This would give consumers the choice between a lawyer or a trained non-lawyer. Without having to worry about fighting court battles just to keep their businesses afloat, non-lawyer service providers could invest more into innovating this field and provide more legal checkups to a public in desperate need of them.
To read Responsive Law’s full testimony click here.
James Duffy is a Responsive Law Intern.
Responsive Law has issued comments to the DC Committee on the Unauthorized Practice of Law recommending improvements to the District of Columbia's rules on the unauthorized practice of law, or UPL. Responsive Law urged the committee to recommend revising the UPL law so non-lawyers would be able to offer legal services to the many low- and moderate-income people who can't afford to use a lawyer.
Responsive Law pointed out that UPL laws exist on top of consumer protection laws, so the broad scope of UPL restrictions is redundant with respect to protecting consumers, and exists primarily to protect lawyers. To make sure the UPL laws are serving consumers, not lawyers, Responsive Law specifically recommended changing the UPL law so that no UPL action may be taken when legal services are provided for free, and so that any UPL lawsuit requires a consumer complaint and proof of consumer hrm.
Responsive Law also urged the commission to consider allowing non-lawyer staff at non-profits to provide legal services. Nonprofits are the perfect avenue to provide low cost legal services, as they usually specialize in offering community services in one area, making them experts on it. These nonprofits operate in the areas where there is the most unmet legal need, such as housing and domestic issues, and could provide their clients with understanding of the law as it pertains to these specific issues. The large range of expert nonprofit organizations in DC could provide assistance with their extensive knowledge of how the law pertains to these areas, giving advice to the people they already serve without cost or for very cheap. Furthermore, there is very low risk of consumer harm when nonprofits offer legal assistance in an area that is consistent with their missions. Nonprofits are not focused on making a profit; they are specifically focused on the interests of their constituencies, which would provide much of the consumer protection that UPL laws are ostensibly meant to provide. The current UPL laws keep knowledgeable people from being able to give free assistance to members of their community. Keeping nonprofits from being able to share their expert knowledge with the people they already serve only maintains the access to justice gap.
Responsive Law also highlighted several other types of legal help beyond lawyers that would help incress access to justice. One service Responsive Law asked the commission to consider is a version of the U.K.'s McKenzie friends, who are volunteer or low cost non-lawyers who provide guidance to unrepresented litigants in court. They provide moral support, help with case papers, give advice on courtroom conduct, and sit with the consumer while in front of the judge, giving litigants the confidence and assistance they need to navigate the complex court system. Responsive Law also suggested licensing new types of legal professionals that provide limited legal services, similar to the Washington State LLLT program. However, Responsive Law recognizes that the high barriers to becoming an LLLT in Washington State keep that program from providing the fullest potential of consumer help, and recommended a model with a lower licensing bar that would allow more people to be able to offer this kind of legal service.
Our comments to the commission can be read here.
Bridgette Harrison is a Responsive Law intern.
Ilene Seidman of Suffolk University Law School recently wrote a column about a paradox of supply and demand in the legal field: lots of people who can’t afford legal help and lots of recent law grads working as baristas. Her column highlights the benefits of law-school based incubator programs teaching law students about the business end of law so that they can use technology to be on the cutting end of practice upon graduation. Suffolk University’s program teaches “innovative approaches” to students them to start their own firms or join small firms serving average-income people by teaching new technologies, marketing skills, process management and business through cross-training.
These incubators provide valuable opportunities for law students interested in opening their own firms, and are able to make some difference in bridging the access to justice gap. However, a more successful approach to closing the justice gap is to allow outside investment in law firms. Training law students as managers, business owners, and entrepreneurs, can be valuable, but allowing corporate-run law firms would allow people who have studied business disciplines to take on those roles and let the law students do what they went to law school for: serving clients through the practice of law. If lawyers are taking on the management side of the firm as well as working with clients, their skills are spread thin and they are unable to help as many consumers as they would be able to if they focused strictly on providing legal services. Outside investment would allow firms to offer law on a consumer scale that small and solo law firms are unable to offer.
Legal startups have been slow to develop because of the requirement that capital for innovation come only from lawyers. Allowing outside investment would allow a new model of legal services to arise: the mass-market consumer law-firm, which could allow millions of Americans to affordably and accessibly navigate the legal system. Mass-market consumer law would also help provide recent law school grads with training, employment, and opportunities for internal advancement. Startups bring innovation to markets. However, due to restrictions on non-lawyer investment, legal service startups that employ lawyers to provide services to the public cannot seek the investor funding that allows innovation in other fields to flourish. For these startups, it’s not enough to have a business model that could reshape the legal industry—they must also contort their financial structure to avoid non-lawyer investment and fee sharing.
If lawyers want to run a small firm, we should, of course, make that option available to them, and incubators do a wonderful job of enabling them to do so. However mass-market consumer law firms would do a far better job of making lawyers available to the masses, and they can only exist if outside investment is allowed.