In Alabama, the 90,000 people whose lives were ripped apart by tornadoes in April are being told that they cannot use public insurance adjusters to help them settle their insurance claims. Public adjusters work for (and are paid by) the policyholder, rather than the insurance company. They prepare a separate estimate of the cost of property damage and negotiate with the insurance company to maximize the policyholder's settlement.
The Alabama State Bar has issued a statement that public adjusters are committing the crime of unauthorized practice of law and warning that anyone assisting them could be charged with aiding and abetting. While Alabama's law regarding UPL may be broad enough to encompass this activity, at least 44 other states allow consumers to use public adjusters. Those states have recognized that, as with most services, consumers should have a choice of service providers. Those who have already lost everything they had should not be forced to either hire a lawyer or go it alone against the insurance companies.
Regardless of the legality of public adjusters in Alabama, the bar's implicit threat to consumers that they could be charged with aiding and abetting for using a public adjuster is uncalled for. The bar should use its authority over unauthorized practice of law to protect consumers. The threat of criminal prosecution for using a public adjuster is worse than any harm that the adjuster might cause. Most consumers would gladly forego this type of "protection" from the bar and exercise an educated choice about who provides services to them.
The Georgia Bar's Standing Committee on Unlicensed Practice of Law is holding a hearing on June 1 to determine whether forestry consultants using form contracts are engaging in UPL. Responsive Law has submitted testimony on this issue. While we left the specifics of how this decision might impact the timber industry to the Georgia Forestry Association, our testimony focused on the effect that the committee's decision could have on the everyday legal needs of Georgians.
Specifically, we pointed out that most Georgians cannot afford a lawyer, and that they often seek free help from family, friends, and colleagues with legal matters, including filling out forms. If the UPL Committee rules that forestry consultants, who do not charge for the completion of contract forms, are engaged in UPL, then so is the person with a better grasp of English (or of legalese) who assists her friend with completing a legal form relating to a divorce or a foreclosure. This help may not be as valuable as that provided by a lawyer, but it is often all that people can afford. Unless the Georgia Bar plans to offer tens of thousands of additional hours of pro bono service to poor and middle-class Georgians, it should not take away the limited help that they have. That, more than forestry consultants, is what is at stake here.
Slate recently ran an opinion piece about the different state laws regarding getting vaccinations in pharmacies. While nearly all states allow pharmacists to administer the flu shot, many states do not allow pharmacists to administer similar shots for diseases like shingles and whooping cough. Even though pharmacists have the training necessary to administer shots, state medical associations continue to insist the only doctors should be allowed to give these other vaccines. The article persuasively argues that this system doesn’t make sense. Pharmacists have the training to do this work safely and competently. Allowing pharmacists to give these shots would improve the availability of immunizations and reduce sickness. As the article argues, the level of treatment should match the level of expertise: why should folks be required to book a doctor’s appointment when they can get the service they need from a visit to their local pharmacy?
In many ways, this situation has an analogue in the legal world. Many states continue to support laws that attorneys must be involved in basic legal work such as drafting a will. Even though other types of experienced professionals are trained to handle these basic legal matters, laws often require an attorney to do this work, driving up costs and curtailing access. Given the shortage of legal services many people face, it does not make sense to squander an attorney’s time when another professional could do the same work more efficiently. Just like a doctor should only be consulted on more serious medical issues, an attorney’s extensive knowledge (and expensive rates) should be brought to bear only on legal matters that absolutely need it. Attorneys should not be required to weigh in on routine matters when there is a competent alternative available, often for a lower cost.
As Responsive Law has noted, some states such as California and Arizona allow people to use legal document assistants (LDAs) for certain services. LDAs are professionals licensed by the state to prepare documents without the assistance of an attorney. This recognizes that just as not every medical problem needs a doctor, not every legal problem needs an attorney. But state bar associations have been just as strident as their medical counterparts in their efforts to limit consumers’ choices. They continue to support laws that artificially keep the supply of licensed professionals down, which drives the price of services up. Just as states should be concerned about the fact that the public’s health needs aren’t being addressed, they should recognize that people’s legal needs aren’t being addressed. They should undertake similar reforms to expand the work that LDAs and other qualified non-attorneys are allowed to do for the public.
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.
Professor Gillian Hadfield at the University of Southern California, who has produced excellent work on access to justice issues in the past, has just released a brilliant piece that systematically addresses the issues that keep legal costs high and out of reach for so many. She subsequently followed this up with a piece for CNN. This posting is just an overview, we encourage you to read the whole piece.
As Professor Hadfield notes, the problem of legal access in the US is not an issue that only impacts the poor. It is not the result of insufficient government funding or lawyers’ unwillingness to volunteer. Indeed, while boosting legal aid budgets and getting lawyers to do more pro bono work would be positive steps, these solutions are ultimately insufficient to address the problem. Rather, the problem is one of cost. The average hourly rate for an associate attorney is $190 and for a partner it is $285. This makes consultation over even routine legal matters, like signing a rental contract or responding to credit difficulties, prohibitively expensive. These costs mean that attorneys’ expertise is only employed in the most extreme cases, burdening the court system with long and expensive litigation that could have been resolved at an earlier stage. Imagine the incredible burden on the medical system, which Professor Hadfield frequently uses as a point of comparison, if high costs forced consumers to leave their problem unaddressed until it required a trip to the ER.
The reasons that legal costs are so high, Professor Hadfield argues, has nothing to do with supply: there are many competent lawyers out there capable of competing with each other. The problem is structural. Any given legal issue is incredibly complex, with huge sunk costs such as the cost of getting a legal education and certification, as well as the costs in money and time needed to research, investigate and form a response to a given issue. However, the regulatory structure of the industry prevents the innovation and specialization necessary to develop tools to respond to these issues more quickly and cheaply.
One model that Professor Hadfield suggests the legal profession look to is that of medicine. Since the 1970’s the medical profession has moved away from rigid professional requirements, allowing doctors, hospitals, insurance providers, nurse practitioners and specialists to collaborate in a variety of areas. This has allowed innovations in everything from medical research to how patient information is transferred and has reduced costs. But unlike the medical industry, the current codes of professional conduct largely prohibit what Hadfield calls “the corporate practice of law.” Hadfield defines this as the ability of any organization other than a law office, owned and managed by attorneys, to provide legal services. These organizations need not be private corporations, but also include non-profits, charities that provide legal aid themselves, unions that supply attorneys to their members or schools that offer legal advice to students. Although these organizations often employ or consult with competent and licensed attorneys, nearly every state prohibits every form of providing legal services that is not wholly owned and managed by lawyers.
This system forces lawyers to be involved in the business aspects of legal practice like securing office space, hiring staff, collecting bills and marketing their services. This is on top of the costs of paying off their considerable law school debts and securing the loans necessary to finance all of these operations on their own. These costs necessarily cause prices to rise.
Moreover, cost saving innovation is stunted in the critical area of developing products that help deliver legal services. These delivery products do not necessarily impact the substantive law or the legal options that an attorney can actually suggest to the client. Rather, delivery products change the way those underlying legal issues are researched, drafted and ultimately made understandable to the client. In other words, improving access to legal delivery doesn’t change which forms you need to fill out in a divorce, but changes how you would find out which forms you need and how you would get a copy.
If attorneys were allowed to collaborate with other organizations to develop and employ new methods for areas like legal research, client advertising, meeting continuing legal education requirements, and developing an easy to use delivery system to get legal information to clients, the resources necessary to address a given legal matter would decrease and could be deployed more efficiently. But currently, everything must be done by an organization owned and financed by a lawyer. Having lawyers devising advertising strategies to bring in clients instead of focusing on legal analysis is not an efficient use of legal resources. It also places huge burdens on small firms and single practitioners. By changing standards to allow the corporate practice of law, a change Responsive Law supports, other organizations and businesses could work with attorneys to provide and deliver legal services. This would allow cases to be processed more cheaply and quickly, providing the consumer with a better product.
The ABA’s Ethics 20/20 Commission, which Responsive Law has been closely following, has largely neglected reforms in this area. As Professor Hadfield notes, the ABA has largely ignored the scale of the cost problem and focused its attention on traditional remedies like increasing legal aid budgets. If the ABA wants to address the crisis of legal access seriously, it would do well to deeply consider Professor Hadfield’s work and not overlook the issues surrounding the corporate practice of law.
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.
Several recent articles, including this one in the New York Times have described the bursting of the law school bubble, with record low numbers of law school applicants in response to increasing tuition and declining job prospects for graduates. However, the United States is faced with a growing legal services gap, where only the richest Americans can afford the exorbitant hourly rates needed to hire a lawyer to help them with legal matters. With the demand for legal services increasing, why is there a decrease in the supply of people who can provide legal assistance?
The answer lies in the overly restrictive licensing system that governs who may provide legal assistance. Law schools are propped up by the requirement that anyone practicing law (with very few exceptions) be a graduate of a three-year law school program. "Practicing law" is defined so broadly in most states that it applies to anyone offering any kind of advice or service that has an impact on legal rights. Therefore, anyone who wants to make a career out of helping people with legal matters, no matter how simple, must pay for and attend three years of law school, or face prosecution for the unauthorized practice of law.
Want to help tenants with housing issues? Working for a tenants' rights organization and taking some courses in housing law would be a good way of learning the law and procedure regarding these issues, but without a J.D. you won't be allowed to give advice to a single tenant. Want to help people draft forms to write a will or get an uncontested divorce? You may have done so for twenty years as a paralegal working for a $300-an-hour lawyer, but without three years of education at a cost of over $200,000, you won't be allowed to offer those services directly to customers at a far lower cost.
To fix this disconnect between supply and demand, we need to allow a wider range of service providers, with training appropriate to the tasks they are performing. This could take the form of intermediate-level licenses for limited types of services. For example, a licensed social worker could be allowed to perform divorce-related legal services, either by virtue of her existing license or with some additional testing or coursework. California and Arizona (soon to be joined by Washington) allow licensed document preparers to provide services directly to consumers.
In the field of health, we don't require everyone to get a medical degree to provide services. Nurse practitioners, pharmacists, and physicians' assistants have less burdensome educational requirements. Massage therapists don't have any formal degree requirements and usually have a simple testing and coursework requirement for their licenses. Fitness trainers aren't required to have any licensing to guide people through exercise and diet regimens. In the field of law, however, we require everyone providing services to have a law degree. That's like requiring your massage therapist or your spin class teacher to have a medical degree!
If we right-size legal training to the types of services we're training people to provide, then the deflated law school bubble will consist of schools that train lawyers to deal with the most complex legal matters. At the same time, states could experiment with other models of licensing and training for simpler legal services, so that people with a desire to work in the field of law could be trained at a lower cost. These service providers, who would not face crushing law school debt, would be able to provide services to consumers at an affordable rate, easing the access to justice burden.