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Responsive Law has just released its Report Card on Barriers to Affordable Legal Help. The report card grades all 50 states and the District of Columbia on how their regulations regarding the practice of law restrict consumer access to the legal system. Unfortunately, the news is not good, with no state receiving a grade higher than a C.

The report card graded three areas:

  1. barriers to affordable help from lawyers (45% of total grade),
  2. barriers to affordable help from non-lawyers (40%), and
  3. support for self-represented litigants (15%).

 

Barriers to Affordable Lawyer Help

The first area the report card graded was Barriers to Affordable Lawyer Help.

 

Non-Lawyer Ownership of Law Firms

Most of this grade was determined by whether the state allows non-lawyer ownership. Non-lawyer ownership of law practices would allow innovation and economies of scale that don't exist in the current law firm model. Nearly all consumer law firms—those that offer services in areas such as estate planning, family law, housing, employment, and consumer disputes—consist of fewer than ten lawyers. At this scale, legal services are still very individualized. Furthermore, lawyers in such a small firm have to spend much of their time on marketing and management, rather than on the practice of law.

Allowing non-lawyer ownership would permit the creation of mass-market consumer law firms that could use their scale to mechanize much of the most common legal work. They could also keep lawyers out of both rote legal matters and management and marketing, reserving their high-cost labor for legal oversight and review and for thornier legal questions. All of this would significantly reduce the price of a lawyer.

Unfortunately, with only a couple of very minor exceptions, non-lawyers are not allowed to have an ownership interest in a law firm in the U.S. On the other hand, in England and Australia, non-lawyer ownership is permitted and regulated to protect consumers from any potentially adverse impact on clients. As a result, people in those countries have access to a wider range of reasonably-priced consumer legal services, on Main Street or in the mall.

 

Other Regulations Affecting Affordable Lawyer Help

The other areas making up the Barriers to Affordable Lawyer Help grade were what type of advertising restrictions are placed on lawyers, whether consumers can hire lawyers from other states, and whether consumers are allowed to use "unbundled" legal services (hiring a lawyer for just part of their legal matter).

Restrictions on lawyer advertising often leave consumers with limited ways to find out about lawyer services. In a Yelp economy, they leave consumers stuck with an archaic model where the bar's recommended way to find a lawyer was to ask for a referral from a friend at the country club.

Restrictions on multijurisdictional practice unnecessarily restrict consumers' options based on an outdated notion that being admitted to the bar in a state has a high correlation with knowledge of that state's law. In a national economy where much of the law is identical from state to state—and where lawyers' skill is as much in finding the law as in knowing it off the top of their heads—it's irrational to prevent a Tennessee lawyer from handling a legal matter in New Jersey, particularly if the Tennessee lawyer is an expert in the particular area of law at issue. Canada has taken a much more progressive approach to multijurisdictional practice by adopting a National Mobility Compact, which allows a lawyer admitted to practice in one province to practice fairly easily in another province.

One area that most states do fairly well in is in allowing limited scope, or "unbundled" legal services. For example, in most states, a person can prepare their own documents for a court appearance while hiring a lawyer just to represent them in court. Our report card analyzed whether states provided enough assurance to lawyers that they could offer these unbundled services without getting dragged into representing the client on a wider basis. Fear of getting dragged beyond the agreed-upon scope of representation is one of the reasons lawyers don't offer unbundled services more frequently.

 

Grades

Because of the great weight given to whether states allow non-lawyer ownership of law firms, almost every jurisdiction received a grade of D. (The lone exception was the District of Columbia, which allows non-lawyer ownership under extremely limited circumstances, and which received a C.) If England and Australia were states, they would have received grades of A due to their more progressive approach to non-lawyer ownership.

 

Barriers to Affordable Non-Lawyer Help

The second area the report card graded was Barriers to Affordable Non-Lawyer Help. In other words, does the state allow consumers to use service providers other than lawyers to help them with matters that may be considered legal in nature?

 

Laws Restricting Non-Lawyer Help and Enforcement of Those Laws

First, we analyzed what the state's law says about the types of services that require a lawyer. Specifically, we looked at various ways in which competent non-lawyers could provide help (such as document preparation, financial advice, real estate closings, contract negotiations, and free advice from friends and family) and researched whether state law allowed or prohibited people from getting non-lawyer help for such activities. State laws range from draconian prohibitions to ambiguity, with few laws specifically allowing non-lawyer activity. The ambiguity in these laws is almost as bad as a prohibition, as a service provider is unlikely to offer a service that exists in a legal gray area.

Second, we analyzed the level of enforcement of unauthorized practice of law (UPL) restrictions. In other words, how often does the state prosecute this offense, what resources do they put towards prosecutions, and who is doing the prosecuting? States in which the attorney general has sole responsibility for prosecuting UPL were graded more harshly than those in which the state bar plays a significant role. In the former situation, UPL prosecutions are more likely to be undertaken in the public interest; in the latter they are more likely to be undertaken for anticompetitive reasons.

 

Grades

Grades in this area ranged from a B for Washington and 16 other states to an F for Florida, North Carolina, and Ohio. Washington is noteworthy in that it has just issued the first licenses for limited license legal technicians, or LLLTs. LLLTs are individuals with paralegal training who are licensed by the state to provide information and advice in family law matters, akin to the role of a nurse practitioner in medicine.

The states with the lowest grades earned them on the basis of overly aggressive UPL enforcement by the bar. For example, Florida has a $1.8 million budget for UPL enforcement that it has used for activities such as pursuing charges against a senior citizen who helped a fellow parishioner complete workers compensation forms.

Again, the low grades that most states received stand in stark comparison to more consumer-friendly countries. England, which licenses a wide range of non-lawyer service providers, would have received an A in this category. Australia would have ranked behind only Washington.

 

Treatment of Self-Represented Litigants

The third area the report card graded was court treatment of self-represented litigants. In other words, we wanted to know how easy it was for people to resolve disputes without a lawyer. We based grades in this area on the Justice Index, published by the National Center for Access to Justice at Cardozo Law School.

This grade took into account whether court forms and procedures are understandable to the average person, whether judges and court staff are trained to assist self-represented litigants, and whether courts have internal processes to monitor and review their treatment of such litigants. Hawaii was first in this category with an A grade; Mississippi was last with an F.

 

State Bars Have Yet To Comply with the Supreme Court's Dental Examiners Decision

Most of the obstacles to better access to the legal system stem from the fact that state bars frequently create rules governing the delivery of legal services without adequate oversight from the elected branches of government. When any group of professionals sets its own governing rules for the profession, its tendency is to favor itself at the expense of outsiders. Thus, established lawyers are likely to set rules that favor lawyers operating according to the status quo over outsider lawyers who may have revolutionary ideas about how to innovate the profession. And lawyers are likely to set rules that block competition from non-lawyers, no matter how competent their services and how much the public needs them.

The U.S. Supreme Court ruled earlier this year in North Carolina State Board of Dental Examiners v. FTC that professionals are not exempt from antitrust laws when they act without adequate oversight to limit competition. We hope that our report card will shine some light on state bars' continued reluctance to adhere to this principle. We also hope that it will demonstrate the desperate need of most Americans for affordable legal help and the failure of the organized bar to allow them to receive it.

 

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Intellectual property lawyer Graham Syfert was hearing from a lot of defendants in cases about illegal downloading. For many of these people, the amount plaintiffs were seeking from them was substantial, but less than what he would charge them just to begin working on their case. In a savvy business move that also benefits consumers, Syfert began selling forms that would help these people represent themselves. The forms, along with instructions, were priced at $9.99, which is far less than any lawyer would charge.

Nineteen people facing lawsuits from the US Copyright Group (a private company) used the forms to defend themselves. USCG's lawyers responded by asking a court to impose $5000 in sanctions against Syfert for the time it took them to respond to the defendants who used the forms. It should be well known by now that selling legal forms is protected speech under the First Amendment. It's also a good way of leveling the playing field between those who can afford lawyers and those who cannot. USCG is clearly trying to discourage self-represented litigants and those who assist them. Syfert has asked the court to impose sanctions on USCG for its intimidation attempt. While the court has not yet ruled on that issue, there is already some good news for the self-represented litigants: The forms that they filed convinced the court to dismiss USCG's case against them.

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Sunday, 12 September 2010 20:00

DIY Legal Software Reviewed in New York Times

Recently, the New York Times did consumers a great service by reviewing self-help legal products. That review can be found here. A follow-up blog post on the article can also be found here. While it's true, as was noted in the article and the blog, that not every consumer is best served by DIY software, not every consumer is best served by a lawyer either. Consumers are best served when there is a wide range of legal services available to meet the continuum of legal needs that they face.

What's missing in the current model of the profession is a wide selection of options between full service and self service. In medicine, nurse practitioners, physicians' assistants, and midwives are among the options that people can use when dealing with health issues. Unfortunately, the legal profession has very few professionals occupying this middle ground. More states need to follow the lead of California and Arizona in licensing legal document assistants and legal document preparers--non-lawyers with training to prepare simple legal documents. Also, lawyers need to be more innovative in providing mid-level services. For example, more lawyers need to make themselves available for review of DIY forms, or to draft documents for self-represented litigants, or to provide short coaching sessions to small claims litigants.

The bottom line is that consumers need more options in how to navigate a legal system that is too complex, and that they need to be educated about how to best use the services that do exist. That is why we're working to make the legal system more affordable and accessible for its users by educating consumers and influencing policy around the customer-friendly practice of law.

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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.

Published in Blog
Friday, 30 July 2010 11:04

Don't Sue Them; Join Them

Online document preparation has been around for years, and will hopefully continue to thrive, despite the efforts of the organized bar to restrict consumers' access to this low-cost avenue for legal help.

While some lawyers use accusations of the unauthorized practice of law to try to shut down online providers using lawsuits, others have decided that competition is the best way to challenge these providers.

This article features John Gerber, a lawyer who has created an online portal, UpstartLegal.com, to provide self-help document preparation services to startup companies. In addition to self-serve document preparation, the site offers additional services that a lawyer can perform, distinguishing Gerber's service from other online providers and showcasing the unique value that a lawyer can provide. By adding his own innovation to the model for legal service delivery, Gerber is doing good business while expanding the range of choices available to the public.

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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.

Published in Blog
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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The Supreme Court of Connecticut recently added two new slide-show videos to the ‘Self-Help’ section of their website to help self-represented litigants fill out basic legal forms. These two new videos, along with two previous ones, allow self-represented litigants to easily navigate one of the most difficult aspects of being self-representedproperly filling out the forms.  The videos are approximately twenty minutes each and are easily navigable with a right side outline. They also can be tailored toward the hearing impaired or persons without computer speakers by offering a closed caption option. 

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Wednesday, 20 June 2012 20:00

Washington to Allow Non-Lawyer Providers

 

On June 15, 2012 the Washington Supreme Court adopted a groundbreaking rule which will allow consumers to use non-lawyers with certain training and education to provide technical help on simple legal matters. This Limited Practice Rule for Limited License Legal Technicians (“LLLT”) will be effective September 1, 2012 and is a monumental step toward increasing access to justice for Washingtonians.  The purpose of the rule is to authorize certain persons to render limited legal assistance or advice in approved areas of law.

This rule was a product of the Washington Practice of Law Board, which was created to handle unauthorized practice of law (“UPL”) complaints. In other states, UPL committees are dedicated to defining and investigating complaints for UPL. Such investigations often cause more harm than good to consumers, as they sweep up useful service providers alongside fraudulent ones. However, rather than blindly cutting off non-lawyer services for consumers, this UPL committee focused on finding ways in which access to law-related services can be improved by allowing consumers to use well-regulated non-lawyer professionals.

While some of the specifics regarding Limited License Legal Technicians are still being worked out, there are some guidelines that the Washington Supreme Court has already outlined.  LLLTs must:

  • Pass a moral character and fitness test;
  • Have an associate’s or bachelor’s degree in paralegal/legal assistant studies with a minimum of two years’ experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer) or have a post-baccalaureate certificate in paralegal/legal assistant studies along with three years of experience as a paralegal/legal assistant doing substantive law-related work under the supervision of a lawyer (at least one year of that under a Washington lawyer);
  • Complete 20 hours of pro bono legal service in Washington within two years of taking the LLLT exam;
  • Successfully pass the LLLT exam;
  • Show ability to meet financial responsibilities;
  • Have a physical address in Washington;
  • Create a written contract which describes their services and fees;

After an individual meets all of those requirements for an LLLT they will then be authorized to engage in tasks previously allowed only by attorneys. This is a great development because prior to this rule, these tasks, most of which are basic, have been monopolized by the legal profession but can be competently done by well trained and educated individuals for a fraction of the cost of hiring an attorney. 

Some of the tasks which LLLTs will be able to engage in under the new rule are:

  • Explaining facts and relevancy to their clients;
  • Selecting and completing court forms;
  • Informing clients of applicable procedures and timelines;
  • Reviewing and explaining pleadings;
  • Identifying additional documents that may be needed in a court proceeding; 
  • Providing the client with self-help materials approved by the Board or prepared by a Washington state lawyer;
  • Performing legal research and writing legal letters and documents, but only if reviewed; by a Washington lawyer;
  • Advising the client about other needed documents;
  • Assisting the client in obtaining needed documents;

This model also improves upon that of California, which along with Arizona is the only state to license and regulate legal technicians. California currently licenses legal document assistants (http://www.calda.org/ContinuingEducationCodes.asp) (LDAs) to help consumers with legal document preparation.  However, California LDAs are forbidden from offering legal advice, discussing legal strategies, answering legal questions, or selecting forms for the consumer. Therefore, in California, LDAs can be prosecuted for UPL if they advise clients on something as essential as determining which legal forms need to be completed.        

Under the Limited Practice Rule, Washingtonians will have access to a broader range of services from LLLTs than Californians can receive from LDAs. The ability for LLLTs to be able to advise clients on a broader range of tasks, such as which forms are appropriate, will make the program more dependable to consumers.  For example, if a Californian goes to an LDA with a form that is inappropriate for the task at hand, the LDA may not correct them and suggest the correct form. In Washington, the LLLT can correct obvious consumer mistakes such as this.

Allowing access to LLLTs will also allow legal services organizations in Washington to save money and serve more people with complex legal needs, since LLLTs can alleviate many of the simpler legal issues before legal services agencies. Moreover, courts will benefit by facing more knowledgeable self-represented litigants who have filed the correct paperwork and who will be better prepared for the court hearing, resulting in less rescheduling of court dates and less need for judges to explain court processes to litigants. 

With LLLTs being able to handle more basic legal services, consumers will have a greater ability to save money by unbundling legal services. For example, a person with an uncontested divorce could use an LLLT for the majority of the paperwork, such as division of property issues, but might consult a lawyer for more complicated parts of the divorce, such as child custody.  

If Washington continues to execute the licensing and regulation of LLLTs smoothly, and other states follow Washington’s lead, this could be one of the greatest advances for consumers of legal services since the U.S. Supreme Court outlawed mandatory fee schedules in Goldfarb v. Virginia State Bar in 1975.

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