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Tom Gordon

In May, Responsive Law submitted testimony to the Georgia Bar Unauthorized Practice of Law Committee opposing attempts to prohibit the use of fill-in-the-blank forms by foresters completing timber contracts.

While this may seem like an obscure issue, an adverse ruling could have a severe impact on everyday consumers, as a prohibition on these forms could open the door to prohibitions on forms and software used for residential leases, wills, uncontested divorces, and many other common transactions. Consumers with simple legal matters would be forced to hire a lawyer rather than making use of low-cost alternatives.

Fortunately, the Georgia UPL Committee agreed with us in a decision it just handed down, so consumers will remain free to use legal forms in Georgia.

At a recent hearing of the Task Force to Expand Access to Civil Legal Services in New York, Professor Gillian Hadfield of the University of Southern California brilliantly outlined the mathematical impossibility of relying on more legal aid lawyers and more pro bono lawyers to bridge the enormous gap in legal access for New York's poor. Her entire testimony is worth reading. (Thanks to our friend Richard Zorza for providing the link.)

Professor Hadfield calculated the number of critical legal needs faced by poor people in the state of New York, then determined how much it would cost for each of those people to receive one hour of help from a lawyer. The result was staggering: The cost of just one hour of help for each of these people would be $300 million, which is approximately one-seventh of the entire budget of the New York state judiciary. If we were to rely on pro bono lawyers to help these people, each member of the New York bar would have to provide 10 hours of free legal help just to provide one hour of service for each poor person with a legal problem. Of course, one hour of a lawyer's time isn't nearly enough to solve a person's problem with eviction, foreclosure, or loss of a job. To provide the dozens of hours of lawyer time per case that would be needed to help these people would require billions of dollars or hundreds of hours of donated service for each lawyer in the state.

Of course, the critical legal issues of the poor are only the tip of the iceberg. Not every legal matter is as immediate a crisis as the loss of a roof over one's head. Professor Hadfield points out that many ordinary legal matters, such as setting custody arrangements, or deciding whether to sign a mortgage or rental agreement, only ever come to the attention of courts and legal aid agencies once they have "erupted" into a crisis. Preventive legal care would help people with these matters, but using lawyers to provide such care would add another order of magnitude to the costs above.

Professor Hadfield's conclusion is that since there simply are not enough lawyers to handle all the legal problems of the poor, we need to make alternatives to lawyers available to people with legal problems. Professionals with training far less than a three-year law degree could provide assistance to people representing themselves in landlord-tenant matters or custody matters. After all, not every person facing one of these situations needs to engage in full-scale litigation; many just need to be told how to fill out a form, or need to have an agency's procedure explained to them. Providing affordable non-lawyer resources can prevent these problems from "erupting," and thus provides additional relief to overburdened courts and legal aid lawyers.

One area that Professor Hadfield did not address, possibly because it was the beyond the scope of the hearing, was how these calculations would apply to the middle class. With the average hour of a lawyer's time costing $200-$300, hiring a lawyer for anything more than a short representation is beyond the means of most middle-class Americans. Therefore, the systemic problems that prevent the poor from accessing the legal system apply to the middle class as well, adding an order of magnitude to the shortage of affordable legal help. Like the poor, the middle class could be helped by non-lawyer assistance. In many cases, this would not even require an expenditure of taxpayer money, since the middle class could afford to pay a reasonable amount for such assistance in the private market. All that is required is for the courts and bar associations to loosen restrictions on the unauthorized practice of law that prevent such service providers from operating. Of course, it's not easy to convince the legal cartel to release its grip, which is why Responsive Law exists in the first place.

 

The State Bar of California is currently considering whether to allow non-lawyers to provide certain legal services, potentially giving millions of Californians affordable legal help.
 
In California, as in the rest of the country, most people have no way to get affordable access to the legal system. For example, 80 percent of California divorce litigants are self-represented. These people cannot afford a lawyer, and there are currently no other ways to seek legal advice. California is considering creating a license for “limited license legal technicians” (LLLTs), who would generally be people with training and experience as paralegals. LLLTs might be able to offer services such as conducting legal research, informing clients about procedures, helping clients select and complete appropriate forms, thus providing lower-cost help for people with needs that are not complex enough to require a lawyer. Washington state is in the process of implementing a system of LLLT licensing, and it’s likely that California will use Washington’s system as a model.
 
Licensure of non-lawyers has been debated over the last few months at public hearings of the State Bar of California Limited License Working Group. The overwhelming majority of testimony at these hearings has been in favor of LLLTs. Nearly the only exception has been testimony from lawyers who oppose the idea.
 
Some lawyers have questioned whether LLLTs will provide competent services. If California follows Washington’s lead, LLLTs would need to fulfill a list of specified prerequisites and will have to pass an examination. After obtaining their licenses, LLLTs would only be allowed to provide a specifically prescribed list of services. LLLTs will therefore be well trained to provide services and will be able to competently provide legal assistance.
 
Another concern for lawyers (and in some cases a more honest one) is that LLLTs will hurt lawyers’ ability to attract clients. The economics of purchasing legal services indicate that this is unlikely to be a problem. Most people who use the services of LLLTs will be those who could not afford a lawyer in the first place, so LLLTs could hardly be said to be stealing such clients from lawyers. Furthermore, ensuring lawyers’ livelihood is not a sufficient reason to shut down an endeavour that will promote access to justice. Most lawyers provide some value to their clients beyond being members of a cartel that is allowed to provide legal services. Lawyers who are only making a living because they are part of that cartel have no right to hold access to justice hostage to their continuing cartel membership.
 
The Limited License Working Group's final hearing will be on June 17, 2013, after which it is expected to make its recommendation to the State Bar. For a more detailed discussion of these issues, you can read Responsive Law’s testimony to the Working Group.
Thursday, 13 June 2013 00:00

CT Enacts Broad New UPL Restrictions

Connecticut has enacted a new criminal law that could apply sweeping new restrictions on people's ability to receive legal assistance, with punishment ranging up to five years in prison.

The new law, which was Senate Bill 829, changes the state's relatively reasonable definition of practice of law to a much broader one that could potentially encompass a number of professional activities, including the work of doctors, financial planners, and real estate agents. It also could criminalize any non-lawyer giving advice to a friend or family member about how to fill out paperwork or how to handle any other matter involving legal rights.

The bill also raises the penalty for unauthorized practice of law from a class C misdemeanor, with a maximum sentence of three months, to a class D felony, punishable by up to five years in prison. This is the same sentence applicable to crimes such as jury tampering and third degree burglary.

Responsive Law was the only group to testify against this proposal, speaking out on behalf of the people whose professional  behavior may be criminalized and those whose access to legal information may be chilled. Our testimony on this bill can be found here.

The Florida Bar is considering a proposal to place unnecessary restrictions on lawyer referral services. Most people don't use lawyers frequently enough to know how to find one. Lawyer referral services can provide a useful way for people to shop for the lawyer who is right for them. Restrictions on innovation by lawyer referral services, particularly ones that limit how they can operate online, have the effect of limiting access to lawyers for the ordinary person.

You can read our testimony to the Florida Bar on this proposal here.

Monday, 20 May 2013 00:00

Unbundling Lawyer Services in Arizona

The Arizona Supreme Court is considering a rule change to make it easier for lawyers to unbundle their services. Click here to read our comments to the court in support of the proposal, and our suggestions on how to make further improvements.

 

The law firm DLA Piper is being sued for overbilling, which has led to increased discussion of the intersection between legal ethics and the economics of law practice. Many people are taking this oppportunity to decry lawyers' lack of ethics. It will come as a shock to many people that lawyers are not any less ethical than the rest of the population. However, it will come as a shock to many lawyers that the rules governing lawyer ethics do not make them any more ethical than the rest of the population.
 
This case is illustrative of the problems with the system of self-regulation governing the legal profession. Consumers have little recourse against lawyers who have ripped them off. In many states, lawyers are exempt from generally applicable consumer fraud laws, whether by statute or by court ruling. These exemptions are based on the theory that the legal profession will enforce its own rules against lawyers who engage in misconduct. However, the bar's record of enforcing its own rules is abysmal. According to American Bar Association surveys, fewer than 5% of formal complaints to state disciplinary authorities result in public sanctions against a lawyer. (Some complaints lead to private reprimands, which is analogous to a judge whispering in a gulity defendant's ear that he has been very naughty and shouldn't commit any more crimes.)
 
Overbilling by lawyers also rips a hole in the profession's most common argument against allowing outside investment in law practices. As we've noted many times, outside investment could spur desperately-needed innovation in the delivery of legal services that would increase access and lower prices. The bar has countered that outside investors would pressure lawyers to put profits ahead of their obligations to their clients. Overbilling like that alleged in the DLA Piper suit makes it clear that lawyers already face pressure to increase profits from inside their practice. Allowing outside investment would not create an incentive to put money ahead of clients, since that incentive already exists.
 
The legal profession often envisions itself as somehow above the reach of ordinary laws due to its adherence to its own codes of ethical conduct. However, this self-regulation is often equivalent to having no regulation at all. The profession needs to remove its blinders and recognize that its members are subject to the same human frailties and temptations as everyone else. If they're not subject to the same laws as everyone else, then it should come as no surprise when lawyers take advantage of a system that shields them from accountability.
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