The state Supreme Court's proposal to require lawyers to spend a minimum number of hours representing the poor, while well-intentioned, will not do enough to improve access to the legal system.

Mississippians face about 14,000 divorces annually. Perhaps upwards of 5,000 households will face foreclosures in 2010. In addition, Mississippians face untold number of consumer, employment, eviction, and other legal issues. Even if each Mississippi's 6,000 lawyers provided 20 hours of help to those who can't afford a lawyer, it would fall far short of the hundreds of thousands of hours that would be needed to meet these needs.

Read the letter here. The commentary was published as a Letter to the Editor in the Mississippi Clarion-Ledger, December 19, 2010.

Saturday, 01 January 2011 13:49

Temple to Justice

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Editorial, The NY Times: "Seventy-five years ago, the Supreme Court heard the inaugural arguments in its new building across from the United States Capitol. The architect, Cass Gilbert, designed a Greco-Roman temple, with imposing white marble columns and immense bronze doors. He intended it to be a monument to justice, and he succeeded."

Monday, 13 December 2010 13:47

Lawyers exempt from new FTC foreclosure regulations

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To paraphrase the old joke about communism: all professions are equal, but some are more equal than others. Once again, lawyers have carved themselves an exemption from Federal regulations. In response to the growing trend of predatory mortgage relief services, the Federal Trade Commission created a rule to protect homeowners facing foreclosure by preventing debt relief companies from collecting fees upfront and from making false or misleading claims about their services. Most lawyers are exempt from these new requirements.

Having successfully lobbied to gain the exemption, ABA President Stephen Zack applauded the FTC's decision, saying that "[b]y exempting most practicing lawyers who help consumer clients to renegotiate their mortgages or avoid foreclosure, the final FTC rule...will allow lawyers to continue to provide the critical legal services and expertise homeowners in crisis need." This statement raises more questions than it answers. Are lawyers unable to provide legal services without charging fees upfront or making false or misleading statements to their clients? Of course not. Why then should lawyers be exempt from rules intended to protect the public?

Lawyers claim that they need not be subject to such regulations because they are held accountable by various state Bar rules governing attorney conduct. While there are rules of professional conduct that, for example, prohibit lawyers from making false or misleading statements or control how lawyers may charge fees, such rules are often far less stringent than similar state or federal consumer protection laws. Worse, according to the ABA's own statistics, less than 5% of all disciplinary complaints made against lawyers nationwide result in any formal charges. Even when charges are filed, disciplinary proceedings are often conducted privately and in the rare instances when lawyers were subjected to formal sanction, nearly half received only private reprimands.

Under the current system, the hallmarks of lawyer regulation are leniency and secrecy. Lawyers should be regulated like any other profession. If charging fees upfront to homeowners facing foreclosure is a bad thing for mortgage relief services to do, it is equally a bad thing for lawyers to do. Lawyers have the same capacity for misconduct as any other professionals and can hardly claim to have the best interests of consumers in mind if they repeatedly seek to be exempt from rules and laws designed to protect them.

Please read this blog entry from Kat Mountjoy, a board member of the Alliance of Legal Document Assistant Professionals. ALDAP is one of the membership groups supporting California legal document assistants by promoting professional responsibility within the profession and generating awareness of the profession among the public.

Kat operates two businesses, an LDA business, which is regulated under California's LDA statute, and a bankruptcy petition preparation business, which is regulated under federal bankruptcy law. A federal bankruptcy trustee took Kat to court because she uses the word "legal" in the name of her LDA business, not her BPP business. Kat's blog tells how she spent the day in court because the bankruptcy trustee either didn't take the time to recognize that she operates two separate businesses or didn't' understand the law he is supposed to enforce. It's particularly troubling that the trustee would spend resources on attacking an upstanding member of the LDA community when there are real scam artists out there trying to separate consumers from their money.

Even while unveiling a bevy of new programs, Laurence Tribe announced that he is stepping down as Senior Counselor for the Access to Justice Initiative at the Department of Justice. The new programs his Initiative unveiled are aimed at providing greater access to legal services for veterans, people with potential workplace wage violation complaints, and homeowners facing foreclosure. As laudable as such programs are, these efforts still appear to be trying to bridge the gap to affordable and accessible legal services at its widest point. Mr. Tribe deserves accolades for placing his considerable reputation and vast legal scholarship behind such a worthy effort, but it is difficult to understand why Tribe never fully exploited his office's capacity to act as a bully pulpit from which he could better describe and amplify the importance of greater access to justice for the average American - a need greatly underrated and ill-understood across all levels of American society.

Amongst the announcements were new programs aimed at expanding and standardizing the use of mediation nationwide in resolving home foreclosure disputes - a good idea by any measure, but then there are few legal disputes that wouldn't benefit from the increased use of mediation. Home foreclosure is justifiably a prominent concern in the current economic climate, but as Tribe acknowledges, the vast gulf between average Americans and affordable, accessible legal services existed long before the collapse of the housing market. In announcing a new website aimed at connecting veterans with local lawyers, John Levi, one of the creators of StatesideLegal.org, noted that it received 35,000 hits since June without having received any official publicity. Such overwhelming demand justifies the value of such programs, even while exposing their limitations. In fairness to Tribe's efforts, every program his Initiative announced will help improve access to legal services, but it is equally fair to note that by limiting the scope of such programs to specific groups of Americans, that still leaves millions out in the cold.

Far from a gratuitous knock of Tribe's laudable goals and achievements in his time with the Access to Justice Initiative, these criticisms highlight the insufficiency of limiting such efforts to the public sector. By lifting some key institutional barriers to the growth of new legal markets, such as permitting widespread use of non-lawyer practitioners and increasing the availability of self-help legal tools, we could tap into the same drive for innovation that fuels other successful business models. His replacement at the Access to Justice Initiative should focus not on creating new public programs, but instead on clearing away the impediments that prevent the private sector from innovating new solutions. Most critically, however, his successor should use his or her station to place access to justice at the forefront of the public policy debate, a role at which Tribe fell sadly short during his tenure.

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