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Tom Gordon

 

An American Bar Association task force has recommended that state regulators license people other than lawyers to perform certain legal services. In a recently released working paper, the ABA Task Force on the Future of Legal Education stated, “State regulators of lawyers and law practice should undertake or commit to … authoriz[ing] persons other than lawyers with J.D.’s to provide limited legal services and create certifications for such persons.”
 
The state of Washington has already begun to implement a program to license non-lawyers and California is considering doing so as well. A recommendation from the ABA that such programs be created could go a long way toward expanding this additional avenue of access to the legal system nationwide.
 
Of course, the release of a working paper is several steps removed from a nationwide change in policy. Even if these recommendations remain in the task force’s final report (due on November 20), there is no guarantee that the ABA House of Delegates will adopt it as ABA policy. Numerous consumer-friendly proposals about lawyer regulation have received strong support from ABA committees and task forces, only to be shot down by the House of Delegates. And even if the ABA endorses this proposal, each state will be free to accept or reject it in setting its own policy with regard to non-lawyer licensure. Local bars are sure to put up a strong fight over what they may see as non-lawyers infringing on the turf of lawyers.
 
Nevertheless, this is a significant development in the expansion of legal services to all Americans. If non-lawyers provide simpler legal services, the cost of those services will drop, potentially to a level where they would be affordable to the vast majority of people in this country who cannot currently afford legal help. If nothing else, the coalescing opinions on this point among a group of distinguished lawyers and judges shows how far the legal establishment has come. It appears that at least one segment of the legal establishment recognizes that it is irrational to continue the decades-old monolithic way of educating lawyers that produces newly-minted lawyers who are incapable of providing the legal services that most people need.
 
The recommendation that limited practice licenses be created is also only one of several dozen recommendations that the task force has put forward. On nearly all of the issues it addresses, the task force has made thoughtful recommendations that would, if followed, give the legal education system the room it needs to experiment with new models that can help both potential legal service providers and their clients.
 

 

The state Supreme Court's proposal to require lawyers to spend a minimum number of hours representing the poor, while well-intentioned, will not do enough to improve access to the legal system.

Mississippians face about 14,000 divorces annually. Perhaps upwards of 5,000 households will face foreclosures in 2010. In addition, Mississippians face untold number of consumer, employment, eviction, and other legal issues. Even if each Mississippi's 6,000 lawyers provided 20 hours of help to those who can't afford a lawyer, it would fall far short of the hundreds of thousands of hours that would be needed to meet these needs.

Read the letter here. The commentary was published as a Letter to the Editor in the Mississippi Clarion-Ledger, December 19, 2010.

The California Senate is considering a measure that will allow the State Bar of California to collect penalties from those who are found to have committed the unauthorized practice of law (UPL) in the state of California. This measure gives the State Bar a financial incentive to launch investigations—one might say witch-hunts—into economic competitors whom it claims are engaging in UPL. If passed, this provision will grant the State Bar a disproportionate amount of power and essentially set the stage for lawyers to dominate the legal field and prevail over any non-lawyer service provider who provides services even remotely linked to the law.

Beyond the undue amount of power that the bill will grant the State Bar, the measure will also have a chilling effect on non-lawyer service providers. Many other professionals, including legal document assistants, tax preparers, and accountants, often deal with issues that relate to the law. However, these professionals will be deterred from providing some of their services as a result of an increased threat of being found liable for UPL. If there are fewer service providers available, consumers will suffer since there will be fewer options available to them when they need help with problems that have a legal component.

The State Bar claims that the bill will prevent fraud. This is unpersuasive, as state consumer fraud law already has measures in place to penalize those who fraudulently represent themselves as lawyers despite not holding the correct qualifications. In addition, prosecutors are already free to pursue criminal cases of UPL. This bill doesn’t give consumers any additional recourse; it only gives new powers to the State Bar.

UPL enforcement has historically been a tool for lawyers to limit their competition, rather than a means to protect consumers. Only two percent of UPL cases involve actual consumer harm. But even if the State Bar is truly concerned with protecting consumers, then it would make sense for the penalties paid by those found liable for UPL to benefit the victims, rather than to financially enrich the State Bar. Instead, every dollar the State Bar is awarded from UPL defendants will be a dollar that those defendants could not pay to any actual victims of UPL.

The California Senate Judiciary Committee will hold a hearing on the bill, Assembly Bill 888, on June 25. To learn more about the bill’s potential impact, read our testimony to the Judiciary Committee.

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.

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.

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.

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.

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.

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.

Today's Wall Street Journal features an article on the ABA's debate over nonlawyer investment in law firms. While the ABA is debating whether to allow minority-share investment by investors who take an active role in a law practice, Responsive Law is trying to push this debate away from these marginal changes to transformative changes that would allow law firms to raise sufficient capital for true innovation that would benefit consumers through lower prices, wider consumer options, and better service delivery. (See this post for our testimony to the ABA on this issue.)

The article quotes Responsive Law's Tom Gordon on the potential consumer benefit from models like those in Great Britain, where outside investment is allowed, and businesses that had not previously offered legal services are now poised to do so: "It's the people who can't pay $500 an hour but could pay a $500 flat fee for a divorce who would benefit."

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