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.
Yesterday at its midyear meeting in San Diego, the American Bar Association passed a resolution urging states to adopt regulatory objectives for all non-traditional legal service providers (LSPs). This is a pleasant surprise and victory for those advocating for more accessible and affordable legal services, as it signals the ABA is looking forward at the future of legal services and is open to the creation of new types of LSPs.
The resolution does not strictly advocate for the creation of any new forms of LSPs, but it outlines a framework on how the courts will address them and indicates openness to expanding non-lawyer LSPs. When arguing for the passage of the resolution, Judy Martinez, the chairman of the Commission on Future of Legal Services stated, “There’s room in this space to think differently about how we provide legal services.” These non-traditional LSPs include already existing programs such as the Limited License Legal Technicians (LLLTs) in Washington State and housing court navigators in New York. The resolution includes basic objectives for regulating all LSPs, such as maintaining protection of the public, advancing administration of justice and the rule of law, and meaningful access to justice. This Resolution comes less than a week after the Conference of Chief Justices passed a resolution supporting transparency in the regulations lawyers and non-lawyer LSPs. The mention of non-lawyer LSPs in both resolutions signals an increase in support for the creation of new providers that are better able to meet the legal needs of all consumers.
Although the resolution passed, it faced opposition from many members of the ABA. The outcry came from protectionist concerns for the industry, with one member opposed to the resolution because it “presume[s] there’s a place for non-lawyers to provide legal services.” The complaints about non-lawyer LSPs from Bar Associations have been based on complaints such as the already high unemployment rate of recent law school graduates and the business that they could take from small law firms. These objections clearly show that lawyers who oppose new types of LSPs do so based on their own interests and ignore the large groups of Americans who cannot afford legal services. These claims rooted in a “save our profession” attitude are examples of the antitrust concerns that have arisen in the wake of the U.S. Supreme Court’s decision in North Carolina Board of Dental Examiners v. FTC.
After the Resolution passed, ABA President Paulette Brown said, “The adoption of Resolution 105 is intended to create a framework to guide the courts in the face of the burgeoning access to justice crisis and fast-paced change affecting the delivery of legal services.” Responsive Law Executive Director Tom Gordon lauded the decision, saying “It’s wonderful to see that at least part of the ABA has recognized that change is coming to the legal profession and that it’s the bar’s responsibility to adapt to that change in a way that benefits consumers, rather than naked self-interest.”
Bridgette Harrison is a Responsive Law intern.
Last week, Responsive Law issued comments to the American Bar Association asking it to support new categories of legal service providers (LSPs) that could expand the types of services non-lawyers may offer consumers. In October the ABA’s Commission on the Future of Legal Services sought advice on alternative LSPs in an effort to expand access to justice. Responsive Law provided insight on how to offer more affordable legal services by cutting down on regulation that limits the types of services non-lawyers can provide.
Responsive Law urged the Bar to push for the creation of more non-lawyer LSPs as the most effective way to close the access to justice gap. Response Law highlighted the fact that pro bono work and legal aid—often the bar’s tools of choice in providing legal assistance to those with unmet legal needs—are insufficient to remedy the problem. Only a greater variety of non-lawyer LSPs can create a sustainable solution. Although the creation of non-lawyer LSP programs in states such as Washington, California, and New York are a step in the right direction, the limitations on how these LSPs can offer assistance keep them from being able to meet a significant portion of the unmet need. Responsive Law recommended loosening unauthorized practice of law (UPL) restrictions and more narrowly defining what qualifies as practicing law in order to expand the kind of services that non-lawyer LSPs are able to provide, including offering assistance in court and giving legal advice.
Responsive Law pointed to the Limited License Legal Technician (LLLT) program in Washington State as a step in the right direction which may be unnecessarily limited in its reach. The program has only been in existence for roughly six months, but the strict requirements to become a LLLT appear to be a large barrier to the program. The combination of education, experience, and exams required to become a LLLT rival those that lawyers themselves face. Responsive Law recognizes the necessity of stringent requirements to maintain a high level of standard for all LSPs, but quality assurance should come from primarily from existing consumer protectionism laws. More regulation from the bar, however well intended, only serves to keep barriers to affordable legal help in place and protect lawyer profits.
Responsive Law turned to European countries to provide examples of successful non-lawyer LSP programs that face low regulation and have more freedom in the types of services they may provide. In the Netherlands, England, and Wales, there are a variety of LSPs, including non-lawyer legal professionals, who may give advice to those navigating the legal system. A study of England and Wales indicated no difference in the quality of legal services between these alternative LSPs and lawyers.
Responsive Law lastly asserted that the Commission should recommend right-sizing regulation of LSPs to remove barriers that keep the cost of legal services high and unattainable for many. We also called for shifting the authority to create and monitor new LSPs from judiciaries to legislative and executive branches in each state. There are antitrust concerns when an industry is controlled by members of its own profession instead of objective state supervision, as the U.S. Supreme Court made clear in its recent decision in North Carolina State Board of Dental Examiners v. FTC. Industry members may act in ways that further their own interests, leading to limited consumer choices and increased prices.
Our full comments to the Commission can be read here.
Bridgette Harrison is a Responsive Law intern.
The World Justice Project has released its 2015 Rule of Law Index, a comprehensive ranking of countries based on how their public experiences the rule of law. We've reported on the Rule of Law Index before, and sadly the story remains the same for the United States. While we rank among the world's leaders in most areas, we continue to bring up the rear among our peers in accessiblity and affordability of civil justice.
The WJP rated countries on 44 factors across eight categories, including open government, absence of corruption, civil justice, and criminal justice. The U.S. was ranked 19th of 102 countries overall, and was in the middle of the pack overall among its geographic and income-level peers. However, the story is very different when it comes to the Civil Justice category of "Accessiblity and affordability." Here, the U.S. was in a tie for 65th with countries including Pakistan, Tanzania, and Uzbekistan.
When compared to its peer countries for accessibility an affordability, the U.S. is even more dismal. We were next to last among 31 high income countries, narrowly edging out the United Arab Emirates to avoid a dead-last raniking. Even among upper-middle income countries, only four of 31 scored lower than the U.S. in this category. And our score in this category was far below any other country in North America and Western Europe.
What's most disappointing about the U.S.'s low ranking is that it comes despite our relative prosperity. For Americans of average means, legal help is less available than it is for those of average means in far poorer countries. This isn't due to a shortage of lawyers, but due to the inability of the American system to match people who need help with those who can provide it, brought on by the economic protectionism of bar associations. Eliminating antiquated rules that prevent mass-market consumer legal services—doing for legal help what H&R Block does for taxes—is one way to fix this problem. Rolling back restrictions on the unauthorized practice of law—allowing competent non-lawyers to provide basic legal assistance—is another. Reforming these areas is a must if the U.S. wants a justice system more accesible than that of an impoverished nation.
Responsive Law, along with a coalition of law professors and alternative legal service providers has filed an amicus curiae brief in the U.S. Supreme Court case of North Carolina State Board of Dental Examiners v. FTC. The case concerns whether dentists on the state licensing board are exempt from antitrust law for their behavior in banning non-dentists from providing teeth-whitening services.
While dentistry is not part of Responsive Law’s mission, the case has important implications for the regulation of the legal profession and whether anyone besides lawyers will be allowed to provide legal services. The position of dental examiners in this case is directly analogous to that of lawyers who regulate the legal profession through state bar associations. In both cases, a group of professionals that has a financial self-interest in excluding outsiders has been given the power to regulate the profession. Unsurprisingly, in the case of both dentists and lawyers, the professionals have used this power to exclude outsiders. In both cases, it is the public who suffers, by being forced to pay cartel prices for services.
The damage caused by a self-regulating cartel is even greater in the case of lawyers than it is for dentists. The cost of the legal cartel is the denial of access to justice for the vast majority of the American population. When lawyer prices start at $200 per hour, only the richest people can afford to pay lawyers for everyday legal needs, such as simple estate planning, arranging child custody, landlord-tenant disputes, or addressing consumer debt matters. As a result, over 80 percent of Americans are unrepresented when such matters go to trial. And that number reflects the lack of legal help for crisis-level legal problems—those that are headed to court. An even greater percentage of people are priced out of legal help when facing these matters at an early stage, when basic legal help could prevent smaller issues from erupting into a crisis. Given these conditions, it’s no wonder that a recent study found that the US was tied with Kyrgyzstan, Mongolia, and Uganda in the affordability and accessibility of its legal system.
In the face of this access to justice crisis, state bars, many of which claim to be committed to equal access to the legal system, are concerned primarily with their own wallets. State bars have acted aggressively to shut down any attempt by non-lawyers to provide legal assistance to the large number of Americans who need help. State bars use their power to regulate who may practice law (and expansive definitions of the practice of law that they have created) to protect itself from non-lawyer competition. This type of cartel is exactly the type of danger that antitrust laws are designed to protect consumers from.
State bars argue that their behavior is exempt from antitrust regulation because they are given their power by the state government. However, private actors acting to restrict competition have not been viewed as exempt from antitrust enforcement merely because they are part of a state board. In fact, the ability of the bar to use state-granted power to enforce its monopoly makes its behavior even more harmful to consumers.
The self-regulatory nature of lawyer regulation is at the root of our access to justice crisis. If lawyers did not have the ability to use government power to protect themselves from competition, we’d see more innovation and lower prices in the legal services market, both from the innovative non-lawyer services that would be permitted to flourish, and from the innovation and lower prices that lawyers would be forced to provide to remain competitive in an open market. We hope the Supreme Court will agree when it hears the case on October 14.
Responsive Law has long supported the use of competent non-lawyers to assist people who are unable to afford a lawyer. Allan Rodgers, a guest contributor to Richard Zorza’s Access to Justice Blog, has called attention to a possible solution to this problem in his most recent post. Rodgers suggests the implementation of programs to train lay advocates who could represent clients in certain court proceedings. He praises the efforts by some states to start up programs that would train these lay advocates, but he still sees some hesitation and urges the states to make more radical changes. The current high cost of lawyers may force people to attend court hearings without any representation and without full understanding of the legal system. Lay advocates could be a step in the right direction towards fixing this problem without triggering the unauthorized practice of law.
In his blog post, Rodgers suggests that the implementation of lay advocate programs is moving slowly due to two primary concerns. First, some lawyers fear that having trained non-lawyers would threaten the legal industry. Second, some argue that lay advocates would not be able to represent their clients in court as well as a lawyer. However, Rodgers believes that neither of these concerns is well founded. In fact, he suggests that training non-lawyers could help both the legal industry and struggling clients. If more people were represented in hearings, by lay advocates or otherwise, more lawyers might need to be hired to oppose them in court. This would increase the use of lawyers, as well as non-lawyers, in the legal system. As for proper representation of clients, people represented by lay advocates have consistently fared better than those without any representation at all.
To put his ideas into action, Rodgers proposes a temporary experimental system, using volunteers who would be trained by lawyers. As this system gets rolling, a review process could also ensure that these lay advocates are representing their clients well and that everything is running smoothly. A potential group of candidates for lay advocacy work could be college graduates or law students who are looking for valuable work experience, creating a win-win scenario for both the clients and the lay advocates. New York has already taken a step in this direction with its Court Navigator program, which trains lay people to help provide legal information to unrepresented litigants in Housing Court. Other states should follow this lead and implement programs of the type that Rodgers recommends.
Mika Bray is a Responsive Law intern.
The World Justice Project recently published their annual Rule of Law Index, a comprehensive study of the rule of law in 99 countries. The fourth annual index compares countries in areas such as the absence of corruption, openness of government, and protection of fundamental human rights. Intended for policy makers, academics, and anyone going through post-Olympics international-competition withdrawal, the index provides a comprehensive empirical data set driven by surveys of over 100,000 households and legal professionals. The verdict: America's failure to provide access to justice seriously harms the rule of law here.
The results are in—so how did team USA perform? The index found that, overall, the United States successfully provides its citizens the myriad facets of the rule of law. The index praises our “well-functioning system of checks and balances,” and strong protection of fundamental rights. Compared to the other 99 countries surveyed, the US ranked a respectable 19th overall, putting us on par with France and Uruguay. The performance of America’s civil justice system as a whole was merely adequate: the US is slightly above the global average, ranking 27th out of 99. That puts us in the same neighborhood as Botswana, Slovenia, Chile and Greece. While not awful, this is hardly the sort of quality Americans expect and deserve from their legal system.
But the US underperforms—spectacularly so—in providing affordable and accessible civil justice. In that sub-category, we were ranked 65th out of 99 globally. For reference, that puts us in a four-way tie with Mongolia, Kyrgyzstan, and Uganda. The index notes that, “Civil legal assistance is frequently expensive or unavailable, and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the court system is significant.” Among our regional group (covering North America and the Eurozone), the US was ranked last. That’s behind Bulgaria, for those of you keeping score. (Though we did perform better than Mexico, which was placed in the Latin American regional group.) And among other high-income countries, we're 29th out of 30, ahead of only the United Arab Emirates. Readers of this blog know that the lack of access to civil justice is an ongoing crisis for low and middle income Americans, but still the comparison is shocking. Most Americans would hardly consider these countries our peer group, but the fact is that when faced with a civil dispute, any non-wealthy American might as well live in Kyrgyzstan. But hey, it’s not all bad: our civil legal system is (barely) more accessible and affordable than Egypt’s is!
The take-away from all this is that the high cost (or plain unavailability) of civil legal assistance in the USA has created a crisis in access to justice whose depth would surprise most Americans. The US Olympic team could hardly be expected to succeed using wooden skis in this era of Kevlar and carbon fiber, and the US justice system is failing because it is stuck in the last century. There are many changes needed to bring civil justice within reach of all Americans, but they share a common thread: We need to enable innovation in the legal services industry. We should allow outside investment, allow multistate lawyers, and allow à la carte legal services—allow some alternative to the archaic guild structure. Innovation could revolutionize the supply of legal services, and pass the savings to consumers. Other countries have embraced (or at least avoided preventing) these innovations, and they are better for it. There’s no medal for access to justice, but it’s something we all deserve.
Danny Foster is a Responsive Law intern.
Richard Zorza has an excellent blog post this week on a new program announced in New York Chief Judge Lippman’s 2014 State of the Judiciary Speech. The Court Navigator pilot program will provide “trained volunteer non-lawyers” to help unrepresented New Yorkers in Brooklyn and the Bronx navigate Housing Court and consumer debt cases. Here at Responsive Law, we have long argued that providing consumers with non-lawyer options for legal assistance is a core issue for providing real access to justice throughout society. We applaud Chief Judge Lippman’s continued efforts to address the legal needs of the most vulnerable New Yorkers.
But even as we cheer, we must also exhort Chief Judge Lippman, and New York as a whole, to push onward. Programs like the Court Navigators should be embraced and expanded, and policymakers should seek other ways to increase consumer choice and access to legal services. In England, for example, litigants are entitled to the assistance of a “McKenzie friend”—someone who may provide support and advice in navigating the case, and crucially, need not be a licensed attorney. Likewise, New York Senate Bill 427, which Responsive Law has endorsed, would allow New Yorkers to choose non-lawyer representation in housing court cases. Both of these would provide much-needed legal assistance to those who, unable to afford the price of a full attorney, today must to stand in court alone. The Court Navigator program is certainly good news, but if it is truly a “milestone in the development of access to justice,” as Mr. Zorza claims, then we have miles further to go.