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.
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.