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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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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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Mark Childress was sworn in yesterday as the White House's Access to Justice Advisor, succeeding Laurence Tribe, who left last fall due to health problems. The Washington Post describes Childress as a "savvy Washington operator" who played a major behind-the-scenes role in the enactment of health-care reform and in handling federal judicial nominations. While Professor Tribe has left some large shoes to fill, we are pleased that the administration has chosen a serious political player as his replacement. We hope that Childress will quickly put those skills to use on behalf of the majority of Americans who lack meaningful access to the legal system.

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