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.

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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.

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Monday, 17 January 2011 14:00

Removing barriers to virtual legal practice

Reducing regulatory barriers to practicing online would go a long way towards improving access to justice. Darryl Mountain examines the issue here.

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Laurence Tribe, President Obama's Access to Justice Counselor, addressed the ABA convention last week. After acknowledging the contribution of pro bono attorneys, he pointed out that pro bono assistance alone is not capable of filling the gap in legal needs faced by the poor and middle class. "I would encourage all of you," Tribe said, "to derive satisfaction as well from the less direct, but no less real, relief that we bring to others through the avenue of systemic reform."

Among the reforms Tribe suggests are the revision of UPL laws to allow non-lawyers to provide simpler legal tasks, and the use of technology to establish better self-help centers located in courts and communities. A video of Tribe's complete address is below. Below that, we have transcribed the last several minutes of his speech (from 18:14 to the end), which contain most of his recommendations for systemic reform.


Excerpt From Laurence Tribe's August 9, 2010 Speech to the ABA
(as transcribed by Consumers for a Responsive Legal System)

But even if all the lawyers in the room rededicated themselves to pro bono work and we increased funding for civil legal services fivefold, we still wouldn't have enough lawyers to meet all the needs of the poor and working class. Many of our fellow citizens will still have to navigate our labyrinthine legal system without the help of any member of the bar.

But maybe this is just the time to see this glass as half-full. This may well be the time to take advantage of our new technologies and harness them to pro se litigation. Many innovative programs have taken hold across the country, incorporating web-based systems in self-help centers located in courtrooms or elsewhere in the community. I have no doubt that these projects can be smoothly integrated into existing pro and low bono efforts to optimize the delivery of services to those in need. But I am equally sure that this cannot happen without a serious reexamination of the rules governing the unauthorized practice of law.

As we embrace the myriad new technologies and accompany them with badly needed form simplification, we must promulgate clear rules that govern court staff and non-lawyers in guiding prospective litigants through the maze of self-help forms, especially those that are interactive.

Not even the fanciest technology on earth can fully replace the need for human help. But many lawyers fear that their well-being and the success of their profession demands an airtight legal monopoly whose members represent adversaries before a passive judiciary. Deep-rooted habits resist having either those on the bench or those outside the bar help with even the simplest and most straightforward legal issues. Many worry that having judges assist unrepresented litigants will compromise their judicial objectivity, and that the work well-trained non-lawyers would do in supplementing such assistance would cut deeply into their own livelihoods.

My advice: Prove them wrong. Show them that we can distinguish the tasks that truly need a licensed lawyer's expertise from those that can be capably performed by non-lawyers without making us obsolete, given how huge the unmet need truly is. Challenge your courts not to confuse neutrality with passivity, and to embrace codes of judicial conduct that go beyond merely tolerating judicial assistance to unrepresented litigants. And challenge your bar associations to embrace rules of professional practice that welcome the provision of desperately needed legal help from dedicated and talented non-lawyers alongside licensed attorneys.

Other countries have learned how to protect clients from unsound advice and inept representation, without erecting prohibitive barriers to legal assistance. There is no reason that we cannot do so as well. Nothing less than such reforms can bring justice within reach of all Americans. And mark my words: In an increasingly globalized world of legal practice, nothing less can preserve the health of America's legal profession.

You've all heard, I think, of the trickle-down theory-the theory that if we help those at the top, those at the bottom will eventually benefit from the fallout. I've never been convinced about that. But I am convinced that if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to justice are lowered. The challenge, of course, is to do just that: to use our privileged positions as guardians of the law to lift up the most vulnerable and needy among us, when so much else competes for our attention. "The road is long," say the lyrics of one of my favorite songs, "With many a winding turn/That leads us to who knows where, who knows when/But I am strong/Strong enough to carry him/He ain't heavy/He's my brother." Thank you very much.

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On July 26, Laurence Tribe, President Obama's Senior Counsel for Access to Justice, told an assembly of state supreme court justices that he had "come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment" and then told them what they could do to improve access to the courts. We'll be writing more about Professor Tribe's recommendations in the weeks to come, but we'd like to focus here on his comments on pro bono (free) assistance from lawyers.

Tribe recommended that the courts and bars loosen restrictions on unbundled representation and multi-state practice in order to increase opportunities for pro bono representation. He also suggested that courts reconsider their unauthorized practice restrictions so that court clerks could offer more help to self represented parties.

Unfortunately, pro bono work can't begin to cover the legal needs of the American public. About two million people got divorced last year, half of whom represented themselves. There also were about four million foreclosures and about 1.4 million consumer bankruptcies. That's over 6.4 million people who need legal help in just three areas of law. There are about one million lawyers in the country; however most of them have no background in these or other areas of law where everyday people need the most help. It is simply unrealistic to expect that lawyers could provide free full-service help to the millions who need assistance.

Fortunately, there are other options. Full-service representation is both prohibitively expensive -for pro bono lawyers and for paying clients. However, allowing unbundling for paid services would enable lawyers to offer a wider range of services that would be affordable for clients and make business sense for lawyers. For example, in an uncontested divorce, a client could fill out forms and pay a lawyer to review them. In a small claims case or other self-represented litigation, a client could pay for 30 minutes of a lawyer's time for coaching on how to present her case. Allowing clients to receive service other than in a one-size-fits-all plan-and allowing attorneys to be paid for such service without fear of ethics violations-will expand the availability of legal help far more than pleading for more pro bono hours.

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The American Bar Association's Coalition for Justice has released its Report on the Survey of Judges on the Impact of the Economic Downturn on Representation in the Courts. State court judges nationwide were asked about their courts' caseloads, whether parties were represented by a lawyer, and what impact lack of representation had on individuals and on the court system.

The four types of cases where the most judges reported an increase were foreclosure, domestic relations, consumer issues, and non-foreclosure housing issues. Sixty percent of judges said there had been an increase in self-representation, with only three percent saying reporting a decrease in self-represented parties. Nearly half of the judges said there had been an increase in self-representation among those who did not qualify for legal aid. There was also consensus that the increase in self-representation harms both the courts (78% of judges) and the people who represent themselves (61%).

The four types of cases mentioned above are areas where consumers can most benefit from inexpensive help from non-lawyers. For example, if the bar and courts were to allow it, divorcing couples could use social workers with some limited legal training short of a law degree to help them get divorced. Other non-lawyer advocates with some legal training could help with housing or other consumer matters. At a minimum, the crisis in access to the courts should lead to increased support and training for self-represented litigants, online form completion, and unbundling of legal services. However, when asked for a solution to the problems of self-represented litigants, 73% said that legal services funding should be increased and 68% thought there should be more pro bono attorneys. More training for self-represented parties was supported by only 44%, online self-completing forms by 36%, and unbundling of legal services by just 19%.

Courts and lawyers have created a very complex system for the resolution of disputes. Now, the system's creators, recognizing that the complexity is causing problems for both them and the system's users, propose maintaining the system's complexity by injecting more lawyers into it. In the current economy, however, neither individuals nor the government can afford more lawyers. A more rational approach would be to find ways to make the legal system simpler, so that people can access it without such difficulty. Allowing innovative approaches--like the ones rejected by the judges surveyed--would ease the burden on both consumers and the judiciary.

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Sunday, 21 March 2010 20:00

Better living through the law

Right now, much of the country's attention is focused squarely on Washington DC and on healthcare reform. No matter your political opinion of the bill that just passed the United States House of Representatives late last night, one thing is clear: new laws regarding your healthcare are likely on their way. That bill (which can be downloaded in PDF format here) is very long, very complicated, and may change many things about the way you receive healthcare coverage. One thing is clear: having affordable access to legal services will be as important as ever.

The more the law changes and the more comprehensive and complicated it becomes, the more people without adequate access to the legal system risk being victimized by the law -- regardless of how well-intentioned those laws might be. In a recent national study conducted by The Legal Services Corporation, less than one in five of the legal issues facing low-income legal consumers ever receive attention from a private or legal aid attorney. The study concludes that a likely reason for this is that low-income legal consumers often don't realize the legal implications of some of the issues they face and therefore do not seek assistance, even in the rare instances when it may be accessible to them.

As you find yourself adrift in a sea of political rhetoric about healthcare reform, don't forget that access to your legal rights can have every bit as much an effect on your life and your health as access to healthcare. So get engaged in the process of reforming the legal system. After all, while healthcare laws may be about to change, the unmet needs of legal consumers remains sadly constant. And whether you have to fight an insurance company, a doctor, or the Government, or even if you just need to know how the new laws may affect you; having access to effective and affordable legal services may be just what the doctor ordered.

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Sunday, 21 March 2010 10:37

Buy Your Law

In a previous blog post, I discussed how the divorce rate had dropped during the recession in part because people simply couldn't afford the cost of a divorce. Consider one way in which those costs could be brought under control for the average consumer. A recent article in LawyersUSA notes a trend toward "unbundled legal services" -- legal services provided on an "as needed" basis. In the article, Attorney Susan O'Brian stated that a full service divorce usually requires a $4,000 retainer, and depending on the complexity of the case and whether there are custody issues, a divorce can cost between $10,000 and $50,000.

"Unbundled" legal services (sometimes called "limited scope" or "discrete task" representation) are certainly a welcome trend in the legal profession and often do substantially lower the costs associated with a divorce, however, O'Brien did note that she still charges $275 an hour for unbundled services. Even purchased "a la carte," legal services carry a hefty price tag and often one that extends beyond what most people can afford -- reason enough to regard unbundling of legal services as only one potential solution to a much bigger legal crisis. Regardless, if you are seeking legal help, consider asking about unbundled services. Not only will you be encouraging a worthwhile trend in how legal services are provided to consumers, but you may also find you're able to afford services you assumed were beyond your reach.

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Wednesday, 30 March 2011 14:49

Court Budget Cuts Burden Pro Se Litigants

Forty states cut their court budgets last year. Some even began to close their courthouses altogether for several days each month – “rolling blackouts” on access to justice. Others eliminated programs designed to help the growing number who cannot afford to hire a lawyer. But those cuts will ultimately cost the courts money because they make them less efficient: Instead of a clerk explaining basic terms and how the process works, now a judge has to.

According to a study by the ABA Task Force on the Preservation of the Justice System, 88 percent of lawyers and judges believe the middle class are at risk of being driven out of the courts altogether. We believe this is already happening. In fact, according to the World Justice Project's 2010 Rule of Law Index, which ranked the 11 wealthiest nations by how well they provided access to civil justice, the United States came in last.

Legislators must be reminded that the rule of law and access to the courts are fundamental to our democracy. Indeed, laws and rights are meaningless without the means to enforce them and take on even greater value in a recession. We often criticize the courts for serving unrepresented litigants poorly, but an imperfect system is clearly better than none at all. It’s time to turn the courthouse lights back on.

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According to The Wall Street Journal, The New York Times, and Forbes, the divorce rate has declined during the recession. Why? Because it has become too expensive for many Americans to get divorced. As a lawyer quoted in Times quipped: "Why is a divorce so expensive? Because it's worth it," adding that in our current economic climate, "now it better really be worth it." But the expense of exercising such a basic legal right is hardly a joke. And if you can't afford to file for divorce, it is a safe assumption there are other legal rights you also can't exercise.

Although the increasing cost of legal services is gaining attention due to the recession, we should not attribute the trend to the recession. Basic legal services have always been priced out of reach for most Americans. Our rights as individuals are only as real as our access to the legal services allows us to protect or exercise them.

Having the legal right to get divorced means nothing to a couple who can't even afford to consult with an attorney to learn about that right, let alone begin the process. It speaks volumes about the deep-seated flaws of legal system that, in a time of recession, something as basic as getting a divorce should be be inaccessible to working people.

Our economy will eventually rebound, but the basic inequalities that exist in our legal system will persist unless we take steps to empower all Americans to take command of their legal rights. Access to one's legal rights should never be a luxury.

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