Category Archives: Blog

Blog, France

A Big Happy (French) Family

You may or may not have heard of the Law for Growth, Activity and Equality of Economic Opportunity (Loi pour la croissance, l’activité et l’égalité des chance économiques). Adopted in August, 2015, this law is better known as the Macron Law (Loi Macron), named for the then Minister of the Economy (and now candidate for the Presidency) credited with its adoption. If you have heard of it, I’m willing to bet that you’ve not read it, given it’s 308 articles long. The law targets different sectors in which special rules were considered to restrict competition and economic growth. The sectors include public transportation and labor rules, as well as those relating to regulated professions.

This is the second in a series of eight posts relating to France and its move towards alternative structures. Links to the other seven in the series are provided below.

More specifically as regards regulated professions, Article 65 of the Macron Law authorizes the executive branch to adopt ordinances allowing for different regulated professions to join together to practice from the same company. The list of regulated professions concerned includes mostly the different legal professions: lawyers (avocats), as well as notaries (notaires) and bailiffs (huissiers de justice), to name a few (as explained in the first post relating to France, the country has several regulated legal professions). The list also includes one non-legal profession: certified accountants (experts comptables).

In March, 2016, the executive branch adopted such an ordinance.

Both Article 65 and the ordinance contain details about who may be a shareholder of and who may practice in such a company, and how it must be governed.

If you are interested in those details, you can find them here.

The ordinance calls such a company a “société pluri-professionelle d’exercice” (multi-professional company, or SPE).

The ordinance also provides that the Council of State (Conseil d’Etat) is to issue a decree establishing additional details about the operation of SPEs. It is expected that the decree will be published in April, 2017, and the entire package is to enter into effect no later than July 1, 2017.

Both the law and the ordinance anticipate that in allowing for SPEs, there will be two sticking points:

The first sticking point will be the fact that the rules governing the different professions, and namely their ethical rules, are not identical. As one example, bailiffs are subject to greater restrictions on advertising than the other professions. Can an SPE advertise in ways that are permitted under the rules of the other professions, but not under the rules for bailiffs?

The second sticking point will be the question of independence. The ordinance requires that an SPE’s bylaws establish a means to protect the independence of each kind of professional practicing with the company, and it is likely the future decree will also address this topic. What if an SPE composed mainly of accountants has just one bailiff? What do the bylaws need to provide in order to assure the necessary professional independence of the bailiff?

These are questions that are being debated now.

Not surprisingly, not everyone is in favor of allowing for SPEs. For example, the Conseil supérieur du notariat (CSN), which represents the notarial profession in France, has filed an objection before the Council of State. The President of the CSN argued that SPEs cannot be allowed because of “the risks for our clients with respect to independence, conflicts of interest and professional secrecy.”

Perhaps also not surprisingly, one response to that objection has been offered by a representative of Open Law (one of two organizations that were the driving force behind the Charter of Ethics for legaltech companies discussed in this post). That representative, Dan Kohn, stated that there is no obligation to create such an SPE, and that those who do are “free to prepare an ‘inter-professional charter of ethics’ to organize their cohabitation.”

In fact, with Dan Kohn’s leadership, Open Law has already gathered a group of persons representing the professions concerned in order to reflect upon the ethical and other issues raised by SPEs, and to propose draft bylaws and charters, as well as other documents and ideas, to address them.

It is highly unlikely that the objections raised by the CSN or others will operate to prevent the entry into effect of the new rules. The Macron Law reflects a strong will on the part of the French government to reduce what are seen as unnecessary barriers to competition and economic growth.

And when the new rules do enter into effect, France will be one step closer to the adoption of alternative structures.

If you’d like to subscribe in order to receive notices of new posts, you can do so by scrolling to the bottom of this page — you’ll see the place in the bottom left corner. Thanks for subscribing!

Links to the other seven posts in this series:

  1. There’s Something About France
  2. A Big Happy (French) Family
  3. A Little More Liberté
  4. France’s Haeri Report on the Future of the Legal Profession: Intro
  5. France’s Haeri Report and Alternative Structures (1 of 2): Je t’taime un peu
  6. France’s Haeri Report and Alternative Structures (2 of 2): Je t’aime, moi non plus
  7. France and Alternative Structures: Putting the Pieces Together
  8. Alternative Structures: Why is France Succeeding While the US Continues to Fail?

All eight posts, regrouped, can be viewed at this link: Regroup of posts on France

Blog, Legal Aid

What’s Wrong With This Picture?

Last weekend, almost as soon as US immigration officials began enforcing Trump’s executive order limiting travel and immigration by citizens of seven Muslim-majority countries, lawyers began to appear at various airports around the country, eager to help those detained at the border.

They arrived in numbers so great, The Atlantic referred to them as an “army,” and reported that for hours they far outnumbered the people they were trying to help. Photos of what were described as lawyers busy at work in the airports soon appeared on social media and on newspaper websites.

Indeed, the way that so many lawyers organized themselves in very little time was more than impressive. Speaking to the New York Times, Andre Segura, a lawyer for the American Civil Liberties Union, stated that a section of a restaurant at JFK airport in New York, was “entirely taken over by attorneys.” They were all working to file petitions for individual clients with the help of the clients’ families. Segura continued:“There were attorneys from numerous major law firms, nonprofits, all working together. I’ve never seen that immediate coming together of teams to start filing actions to try to protect people.”

In a similar vein, Deborah Axt, of the social justice group Make the Road New York, speaking to The Washington Post, stated “The organic outpouring of support has been extraordinary. Attorneys are out en masse mobilizing like organizers.”

It wasn’t just the newspapers that noticed the lawyers’ efforts: Notably, they were lauded by Linda Klein, the President of the American Bar Association, who tweeted

And the lawyers aren’t finished yet. The effects of the travel ban extend well past the several hundred persons detained at US airports to also include many thousands more who are citizens of one of those seven countries and who seek to enter the United States either as temporary visitors, long-term residents, green card holders or refugees. Having learned about the travel ban, they’re not sure if they should even turn up at an airport to try to board their flights to the US. They don’t know if or when they will be able to travel to (let alone live in) the United States again. For these many more persons, no longer concentrated in international airports in the US but spread out across the world, the lawyers are organizing themselves on a larger scale.  They are gearing up for a long-term fight, on the one hand to oppose the executive order in court, and on the other to reach out to and help as many of those affected by the travel ban as possible. And this organization is taking place not only on a national scale, but on an international one, to coordinate and share information with lawyers and other volunteers around the world.

All of this work is being done for free. No one is expecting to be paid. No one is even asking whether any of the beneficiaries of the work might be in a position to pay, even some small amount. Even companies that provide legal services to lawyers are getting in on the game, offering access to research tools and practice management platforms for free.

Of course the lawyers’ efforts can and must be lauded, and of course Klein and others are absolutely right to laud them.

And yet.

It’s not just those affected by the travel ban that need legal services — there are many many others that need legal services — and who in many cases desperately need legal services — for many other reasons.

But when it comes to those people, we have to ask: where are the lawyers?

To take just one example:

Each year the National Network to End Domestic Violence conducts a one-day “census” of the number of individuals who sought services in a single 24-hour period, as well as the types of services requested, the number of service requests that went unmet due to a lack of resources, and the issues and barriers that domestic violence programs face in attempting to help victims of domestic violence.

According to the results of the Network’s 2015 survey (the most recent available), a total of 12,197 requests for help that day went unmet. The survey explains:

Legal services are desperately needed. Legal cases involving domestic violence are often difficult and complex and can include filing for an order of protection, requesting child support, or testifying against the abuser in criminal proceedings. Survivors who don’t have legal representation are frequently further victimized by unfavorable outcomes….Out of all the different types of unmet requests faced by local domestic violence programs nationally, legal representation through an attorney was the second most sought-after service, after housing/shelter. Without proper legal representation or advocacy, survivors and their families continue to struggle with safety issues.

In spite of the great need as well as critical importance of this kind of service for victims of domestic violence, on the day of the survey, only 11% of the 1,752 programs surveyed were able to assist a victim with legal representation by an attorney, and throughout the year only 29% had been able to do so.

One program in Washington described:

We worked with a survivor who didn’t have the income for legal representation and our community didn’t have legal resources to help her. Because she had to represent herself, she was unsuccessful in responding to the abuser’s attorney’s legal tactics. The result was an order that required her to see her abuser weekly when exchanging the children for visitation. This is causing her great anxiety and fear.

Another program, this one in Georgia, reported:

Every day we tell survivors that we can’t help them with their legal matters. We don’t have any lawyer who can take pro bono cases, and Legal Aid only has the capacity to handle emergency matters.

It’s an incredible, even shocking, contrast: This past week there have been “armies” of lawyers ready and waiting at our country’s airports to help those affected by the travel ban — in some cases more lawyers than were actually needed. At the same time, however, there were very few lawyers at our country’s shelters ready and waiting to help victims of domestic violence.

Yet as shocking as the contrast may be, it’s pretty easy to understand.  The situations are barely comparable:

The travel ban is new and has very few precedents. Perhaps even more importantly, the ban is likely perceived by many of not most of the volunteer lawyers  as part of a larger, urgent and highly compelling issue that affects the country generally as well as them personally, which is the direction of Trump’s presidency. Mobilizing in this manner to help those affected by the travel ban is a way to express opposition to Trump and the policies of his Administration. It is more concrete than simply joining a demonstration, and for many of the lawyers likely more gratifying and offers more immediate results. In contrast, domestic violence is hardly new, it has countless precedents and its effects are confined for the most part to the victim and his/her family (at least, its effects are generally perceived in that way). Certainly instances of domestic violence do not raise such fundamental questions about our values as a nation and how our country should be governed. In this manner, providing legal assistance to victims of domestic violence understandably seems far less compelling and far less urgent as compared to providing legal assistance to those affected by the travel ban.

All this is true.

And yet.

I can’t help but think — how might it feel to be one of the 4,7 million women who are victims of domestic violence each year in the US, be in desperate need of legal assistance but unable to pay for it, and so have to go without, with potentially dire consequences, notably suffering more violence? All the while knowing that “armies” of lawyers were, at that very moment, on standby at airports to help some of the several thousand people estimated to be affected by the ban? Their problems as a result of the ban are without a doubt considerable, but in most cases unlikely to go so far as physical battering. And to add insult to injury, those affected by the travel ban who are in a position to pay for legal services are nevertheless getting them for free, while so many victims of domestic violence are denied legal services for the simple reason that they are unable to pay for them.

The army of lawyers who are on duty at our country’s airports and beyond have shown a remarkable and truly impressive ability to organize and mobilize on very short notice and with effective results.

They are obviously motivated to help those in need.

When (if?) the dust settles on the travel ban and the lawyers leave the airports for a well-deserved rest, I hope that they will reflect on what more they can do to help others who are in equally if not more desperate need of legal services.

I’m not talking about these lawyers doing more pro bono work themselves — their resources are limited and it would be unreasonable to ask them to do more in that way.

But it would not be unreasonable to ask them to take a good, hard look at the lawyer monopoly on legal services. To take a good, hard look at how the monopoly, together with Model Rule 5.4, operate to deprive a great many people of badly needed legal services.

For example, Australia’s Salvos Legal Humanitarian provides free legal assistance to victims of domestic violence as well as to others who need legal services but have limited means. Salvos Legal Humanitarian and its sister company, Salvos Legal, are both wholly owned by The Salvation Army. Salvos Legal provides commercial and property legal services on a paid basis and the fees it collects, less expenses, are used to fund Salvos Legal Humanitarian. The two companies operate with 16 offices in eastern Australia and since its founding in 2010 to date, Salvos Legal Humanitarian has provided free legal assistance for nearly 18,000 matters. Salvos Legal Humanitarian has done this without any government funding, and without any funding from The Salvation Army. (Contrast that to Catholic Charities which receives significant funding from both the government and Catholic dioceses).

Services like Salvos Legal and Salvos Legal Humanitarian are illegal in the United States. This is because of rules that, on the one hand, grant lawyers a monopoly on the provision of legal services, and that, on the other hand, prevent lawyers from sharing fees with nonlawyers (Model Rule 5.4).

Again, it is obvious that the airport lawyers are motivated to help those in need. Once the airport lawyers have had their rest, I hope that they will turn their obviously considerable talents and energy towards the abolition of those two rules, in order to open the market to a greater variety of persons and structures who can join the airport lawyers in helping to meet the very large and in many cases equally desperate need for legal services.

Related posts on this site:

Chapter 9: Alternative Structures Cannot Help Those Who Cannot Pay for Legal Services

Chapter 12: Opportunities for Legal Aid

Chapter 23: Endless Objections and Calls for Evidence and the Lawyer Monopoly on Legal Services (Or, Having Your Cake and Eating It, Too)

Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian

Glenda Terry, Practice Manager, Castle Park Solicitors

Martin Langan, Founder, Road Traffic Representation

Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law

Blog, France

There’s Something About France

 

If you haven’t been paying attention, then you might not know that France is marching steadily towards the adoption of alternative structures.

Of course, it’s not doing it in the way that Australia did. Or in the way that England & Wales did. Or in the way that Canada seems to be doing it. It’s doing it in its own special French way.

This post is the first in a series of eight on the topic of France and its move towards alternative structures. Links to the other seven in the series are provided below.

This, the first post, is about the adoption of a “Charter of Ethics for a Market of Online Law and Its Actors” (Charte Ethique pour un marché du droit en ligne et ses acteurs). This Charter was prepared under the auspices of the ADIJ (Association pour le Développement de l’Informatique Juridique, or Association for the Development of Legal Information Technology) and Open Law.

In March, 2016, the two organizations mobilized about 40 representatives of the different regulated legal professions (“professions réglementées”) to prepare a first draft Charter. (France has a number of regulated legal professions. They include lawyers (avocats), as well as notaries (notaires) and bailiffs (huissiers de justice), to name a few).

In June, 2016, they presented a draft Charter to the public. The draft was posted on an online collaborative consultation platform. Over the course of the next several months, the draft was the subject of a number of in-person meetings and consultations, including a hackathon. Different kinds of persons and organizations participated in the consultation process, including representatives of French “legaltech” companies, representatives of the Paris bar, law students and additional members of the different regulated legal professions.

Jean Gasnault, a coordinator of the project, explained to Villages de la Justice that the principal purpose of the Charter is to demonstrate that legaltech and the regulated legal professions are not necessarily rivals. To the contrary, they can be complimentary and, instead of opposing each other, it would be better to find common ground. “When you are in a defensive position,” he stated, “you lose. The only solution is to go discuss with the actors of legaltech and to agree upon common values.”

Echoing this sentiment, the purpose of the Charter was further explained as enabling legaltech companies to assure their clients, be they members of the regulated legal professions or members of the public, that they (legaltech companies) work in an ethical manner. Those legaltech companies that sign the Charter distinguish themselves from those who do not.

The end result of the process is a 7-page, 3-part document. The first part (4 pages) consists of seven articles which describe the ethical obligations of the Charter signatories in a manner that any lawyer would recognize: maintaining confidentiality, avoiding conflicts of interest, assuring competency, and maintaining professional liability insurance.

This part of the Charter also goes a bit further: To begin, it takes care to specify that the Charter’s signatories agree to respect the laws applicable to their activities, notably in the areas consumer protection, commerce, electronic communications, the protection of personal data and the respect on intellectual property rights. Further, the Charter’s signatories agree to “respect the perimeter of intervention of the regulated legal professions.” This is explained in two manners: If the signatory’s client is a member of a regulated legal profession, then the signatory will respect the “core values” (“principes essentiels”) of the profession in question. On the other hand, if the service in question is provided online and a member of a regulated legal profession is implicated in the service (the Charter does not expressly state this, but presumably in this case the client is a member of the public), then the signatory will establish the means to identify the client, to assure there is no conflict of interest, and to assure segregation of funds.

The second part of the Charter (Annex 1, 2 pages) describes in detail the signatories’ obligations with respect to cyber security and the protection of personal data. Finally, in the third part (Annex 2, 1 page), the Charter signatories agree to provide a minimum level of service to their clients: simplicity of process, respect of deadlines, transparency with respect to price, services and products, availability of information.

For the time being, the signatories of the Charter do nothing more than make a promise. There is no organization or mechanism in place for investigating breaches of the Charter by a signatory. Nor does the Charter foresee any kind of consequence for a signatory that commits a breach. It is possible that such an organization or mechanism may be developed later, notably in the form of a certification process.

Not Everyone Approves

To be sure, not everyone is in favor of the Charter. Most notably Didier Adjedj, a representative of France’s Conseil National de Barreaux (CNB – National Bar Council) called it a “fausse bonne idée.” That is, he explained, while it might seem like a good idea, it isn’t one because “it is evident that a commercial company cannot respect the ethical obligations that lawyers must respect. It’s unimaginable.” In addition, he noted that nothing in the Charter requires its signatories to conduct a self-evaluation to identify potential problems in how they function. Further, there is no system in place to control compliance. So, what will happen, he predicts, is that companies will “self-certify” and then simply tell everyone that they respect the rules.

Adjedj’s comment about the ability of a commercial company to respect ethical obligations ignores the fact that since 2000 in Australia and since 2012 in England & Wales, commercial companies have offered legal services in full respect of the ethical obligations applicable to lawyers (at least, in no less a manner than traditional law firms). Thus, it’s not just imaginable, it is a reality. Adjedj’s comment about self-evaluation of course brings to mind Queensland, Australia’s formal self-assessment process for such commercial companies, called “incorporated legal practices” or “ILPs.” This process requires ILPs to conduct a self-evaluation to identify potential problems in how they function, and supports that process with a 39-page questionnaire.

Not all bar authorities in France share Adjedj’s view of the Charter. Most notably Frédéric Sicard, the Batonnier (head) of the Paris bar, does not. When the final version of the Charter was officially presented to Sicard on November 24, 2016, he described it as “balanced” as well as “indispensable.” Why indispensable? Because, he said, “we are trying to confront man to machine. You might say that the machine will take all of humanity, but that’s not true…[this document] is how to conserve the rules of humanity.”

Signing Ceremony

A signing ceremony for the Charter was held on January 20, 2017. At the ceremony, 19 legaltech companies (such as Rocket Lawyer, Legalstart.fr, Captain Contract, SECIB, and JurisCloud) signed. Additional signatories included three national professional networks (such as Eurojuris), representatives of the legal press and legal publishers, and as many as 50 representatives of different legal professions.

You can consult the Charter in full (in French) at this link.

What About the United States?

The Charter is interesting for a number of reasons. One of them is in contrasting the Charter, and the process that lead to it, to the recent deliberations of the ABA Commission on the Future of Legal Services:

Appointed in August, 2014, the Commission had a broad mandate to, among other things, “recommend innovations in accessing and delivering legal services,” and “propose new approaches that are not constrained by traditional models for delivering legal services.”

In this very broad mandate, the Commission did consider the question of the regulation of legaltech companies, referring to them as “unregulated LSP [legal service provider] entities.” In late March, 2016, the Commission published an “Issues Paper” about such entities, calling for: “data and evidence” about them, information concerning any efforts to regulate them, and input on whether state judicial authorities should be encouraged to regulate them, and, if so, what form those regulations should take.

The Commission posted on its website 24 responses that it received to this Issues Paper. The responses were all over the board, with some arguing that they were opposed to the existence of LSPs and as a result they were opposed their regulation of LSPs as entities because doing so would legitimize them (see, for example, this response and this response). Others explained that they were opposed to the existence of LPS, but, more or less resigning themselves to their existence, advocated for their regulation (see, for example, this response). Others still championed LSPs as important for meeting the access to justice gap, but argued against their regulation by state courts on the grounds either it is unnecessary (they are already regulated by consumer protection laws), that it would unnecessarily increase costs, or that regulation would only enable the state bars and courts to exercise their “protectionist instincts” (see this response, this response and this response). On the other hand, while other respondents also championed LSPs, they felt it’s not possible to “responsibly advocate” for them without also advocating for their “meaningful regulation” (see this response). Other respondents simply weren’t sure whether regulation was a good idea or not (this response and this response). Finally, one respondent told the Commission in no uncertain terms that both its Issues Paper and its work on the subject were insufficient, stating that “far more thought and analysis” was required.

In its 116-page Final Report (issued in August, 2016), the Commission ended up mentioning the topic of unregulated LSPs only briefly. It did so just long enough to kick the question of their regulation to “states.” That is, the Commission recommended that “states” should be the ones to explore “how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”

(This recommendation is difficult to square with correspondence the Commission had earlier received from the National Organization of Bar Counsel. The NOBC is an organization “whose members work in the regulation of the practice of law.” In December, 2015, the organization wrote to the Commission “it is appropriate for the ABA to play a leadership role in evaluating and guiding the manner in which the delivery of legal services will be regulated so that all US jurisdictions can make informed decisions.”)

In sum, during its two-year mandate, the Commission did nothing with respect to the regulation (or not) of legaltech companies. The contrast to ADIJ and Open Law in France could not be starker: Taking the bull by the horns, in just nine months they went from a draft Charter to a document ready for signature. The Charter may not be a perfect solution, and it is unlikely that, standing alone, it will be a permanent one. Nevertheless, it is a significant first step.

And more than that, as should become clearer in the following posts, the Charter is one of several significant steps that France is taking towards the adoption of alternative structures.

If you’d like to subscribe in order to receive notices of new posts, you can do so by scrolling to the bottom of this page — you’ll see the place in the bottom left corner. Thanks for subscribing!

Related posts on this site:

John Briton, Legal Services Commissioner Queensland, 2004 – 2014

Further, a number of the Stories available on this site provide examples of commercial companies in England & Wales and Australia that provide legal services in compliance with the ethical obligations applicable to lawyers. Some of those Stories include:

Tom Curran, CEO, Kings Court Trust

Andrew Grech, Group Managing Director, Slater and Gordon Lawyers

Alexander Hamilton, CEO, Radiant Law

Karl Chapman, Chief Executive, Riverview Law

Christopher Mills, Partner and COO, Schillings

Jeff Winn, Managing Director, Winn Solicitors

Archana Makol, Director, BT Law Ltd.

Links to the other seven posts in this series:

  1. There’s Something About France
  2. A Big Happy (French) Family
  3. A Little More Liberté
  4. France’s Haeri Report on the Future of the Legal Profession: Intro
  5. France’s Haeri Report and Alternative Structures (1 of 2): Je t’taime un peu
  6. France’s Haeri Report and Alternative Structures (2 of 2): Je t’aime, moi non plus
  7. France and Alternative Structures: Putting the Pieces Together
  8. Alternative Structures: Why is France Succeeding While the US Continues to Fail?

All eight posts, regrouped, can be viewed at this link: Regroup of posts on France

Blog, Lawyer Monopoly

It’s the Least We Could Do

Just before Christmas Forbes published an article “The American Bar Association’s Greatest Hits (Lost Tracks).”

The article’s author begins by explaining that in an earlier article he had criticized the ABA for “failing to step up on a number of pressing social issues,” such as preserving the rule of law, defending human rights and inadequate access to legal services.

The author then states that the very morning after that article came out, he received an invitation to meet with Linda Klein, the ABA’s President.

Meet he did.

After that meeting, he couldn’t have enough good things to say about the ABA, namely:

  • Last year Klein spent 90% of her time on the road meeting with solo and small firm lawyers in order to better understand their challenges,
  • This has led to the creation of “ABA Blueprint,” described as a “’co-op’ of shared infrastructure,” principally technology, “to help lawyers save time and money so they can help more small businesses and consumers.”
  • The ABA has established the Rule of Law Initiative to promote the rule of law in emerging democracies,
  • The ABA “develops policies, projects and initiatives” to promote human rights both in the US and globally, and
  • The ABA has provided pro bono legal assistance to and has been an advocate for veterans.

The author continued: It is not just the ABA but other groups of lawyers that “selflessly advance the public interest and advocate on social issues.” He offers as examples a coalition of law firms to provide pro bono representation to gun control groups, and, more generally, the fact that the average US lawyer performs 50 hours of pro bono work per year.

In sum, the author concludes, “Good lawyers are good storytellers.” The ABA should be doing a better job “upgrading its PR,” both to enhance membership in the ABA and to “upgrade the public’s overwhelmingly negative perception of lawyers.”

Perception. PR. Stories.

Regardless of perception, and behind any story the ABA might tell, the reality is that the World Justice Project’s Rule of Law Index for 2016 ranks the US 94th out of 113 countries with respect to “affordable and accessible civil justice.” This is a dramatic fall from 2015, when the US ranked 65th out of 102 countries (65th was already shockingly low).

Here are just some of the countries that rank higher than the US with respect to affordable and accessible civil justice: Albania, Belarus, Bulgaria, Kazakhstan, Kyrgyzstan, Nigeria, Myanmar, Russia and Zimbabwe. To be clear — this means that the persons living in those countries have better access to civil justice than Americans do. In most if not all aspects of their lives, they are better able to learn their rights and obligations, and better able to assure their rights and obligations are respected. Let’s repeat that list: Albania, Belarus, Bulgaria, Kazakhstan, Kyrgyzstan, Nigeria, Myanmar, Russia and Zimbabwe.

So many people (as well as businesses) in the United States lack meaningful access to legal assistance, the problem is considered by some to constitute a human rights crisis.

Certainly the efforts described in the Forbes article are helpful and those who make them should be thanked. But no one should be fooled into thinking that they are nearly enough, or that they excuse the ABA — or the legal profession as a whole — from doing much much more to make a true difference.

Take, for instance, the pro bono work cited in the Forbes article. There is a critical element that the article fails to mention: there is simply no conceivable way that pro bono work could ever come close to meeting the huge unmet need for legal services. According to the research of Professor Gillian Hadfield, each American lawyer would need to provide not 50 hours but at least 900 hours of pro bono work per year in order to provide some measure of assistance to all households with unmet legal needs.

Lawyer Monopoly on Legal Services

Through all of this (and with only limited exceptions), the legal profession in the US holds a monopoly on the provision of legal services. The monopoly may not be a perfect one, but, on the whole, rules regarding the unauthorized practice of law combined with restrictions on the sharing of legal fees have succeeded in keeping many nonlawyers (be they individuals or organizations) out of the legal services market.

There is something very wrong with this picture. If the laws of the United States accord to the legal profession the exclusive privilege to serve the entire market, shouldn’t the counterpart to that exclusive privilege be the corresponding obligation to serve the entire market? If it is the legal profession — and the legal profession only — that has the right, by law, to serve the legal services market, then shouldn’t the legal profession have the obligation, by law, to develop and implement solutions that do effectively serve the entire market?

If the response to that question is yes, then the efforts lauded in the Forbes article aren’t laudable. They are normal, as well as entirely insufficient.

If the response to that question is no, then we have an even more serious problem that no better story telling or PR can ever begin to address.

Related posts on this site:

Chapter 20: Unmet Needs as Human Rights Crisis

Chapter 23: Endless Objections and Calls For Evidence and the Lawyer Monopoly on Legal Services (Or, Having Your Cake and Eating It, Too)

Blog, Legal Aid

Legal Aid and Lazy Journalism

On January 5 the New York Times posted an editorial criticizing New York governor Andrew Cuomo for vetoing a bill that would have increased state expenditure on legal aid.

The article explains that the bill sought to assist poor people by providing additional funding for criminal defense as well as for legal assistance with civil legal matters, such as child custody and wills and estates. Cuomo seems not to oppose additional funding for criminal defense, given that providing it is a constitutional obligation. For that reason, he stated he is willing to sign a bill that focuses on funding for criminal defense, but it must exclude legal assistance for civil matters.

The article concludes:

With his veto, Mr. Cuomo missed a chance to show leadership by demonstrating New York’s broader commitment to well-funded legal services, which is critical not only when a person faces jail time, but also in noncriminal contexts like family court, where judges can remove children from their parents and order juveniles into state custody. Providing legal counsel to the poor in those cases will have to wait for another bill.

This editorial is incredibly lazy journalism, for two reasons:

The first reason is that it implicitly accepts without questioning the unstated assumption that the only way to increase the availability of legal services for poor people for civil matters is to increase public funding for legal aid.

Of course, it is not just the poor but also the middle class that do not have access to civil legal services in the US. The research of Gillian Hadfield demonstrates that current levels of funding for civil legal aid is only one-tenth of what is needed to provide just one hour of legal assistance for all the households in the US with an unmet dispute-related need (current level is $3.7 billion per year as contrasted to $50 billion per year that would be needed). It is clear that as necessary as increased funding is, it will never come close to being enough. Anyone who is genuine and fully honest in their calls for the poor to have greater access to legal services recognizes this, and understands the huge importance of identifying alternative solutions.

Which leads to the second reason why this editorial is incredibly lazy journalism. It ignores the multitude of solutions that other countries have come up with. For example, it ignores organizations like Australia’s Salvos Legal and Salvos Legal Humanitarian. These sister companies are both owned and managed by The Salvation Army. The first provides commercial legal services to corporations and other institutional clients on a paid basis. The fees it collects, less expenses, are used to fund the second, which provides free legal services to the “disadvantaged and marginalized.” Neither company receives public funding or funding from The Salvation Army.

The reliance upon public funding to provide legal services for the poor is neither sustainable nor scalable. In contrast, Salvos Legal has proven its model to be both of those, having now opened 16 offices across eastern Australia and provided free legal assistance on nearly 18,000 matters to date.

Organizations like Salvos Legal cannot legally operate in the US, because of the lawyer monopoly on legal services and ABA Model Rule 5.4, which prevents lawyers from sharing fees with nonlaywers. (Don’t think for one minute that organizations like Catholic Charities in the US are comparable – to the extent they provide legal services, they rely extensively upon public funding).

Immense energy is spent calling for greater funding for legal aid. Much of that energy should be directed instead to identifying alternative solutions to meet our country’s acute unmet need for legal services, including changing our regulations to allow for organizations like Salvos Legal to operate in the US. Calling for greater funding for legal aid while ignoring the potential of alternative solutions is, at best, incredibly lazy journalism.

The article ends with the sentence “Providing legal counsel to the poor…will have to wait for another bill.” If that is the case, then powerful media outlets like the New York Times share responsibility for that result. This is because they persistently fail to mention — much less to question — the lawyer monopoly on legal services and its devastating effects for the poor as well as the middle class.

Related posts on this site:

Chapter 9: Alternative Structures Cannot Help Those Who Cannot Pay for Legal Services

Chapter 12: Opportunities for Legal Aid

Chapter 23: Endless Objections and Calls for Evidence and the Lawyer Monopoly on Legal Services (Or, Having Your Cake and Eating It, Too)

Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian

Glenda Terry, Practice Manager, Castle Park Solicitors

Martin Langan, Founder, Road Traffic Representation

Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law

Jenny Holloway and Nick Johnson, Nottingham Law School Legal Advice Centre