Category Archives: Democratizing Legal Services

Democratizing Legal Services

Bibliography

A full bibliography with hyperlinks for Democratizing Legal Services: Obstacles and Opportunities, appears below. The bibliography is also available with Zotero, at this link (public group). For access to the Zotero private group, please message me to request an invitation (the private group includes full access to attachments).

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ABA Commission on Ethics 20/20. “ABA Commission on Ethics 20/20 Will Not Propose Changes to ABA Policy Prohibiting Nonlawyer Ownership of Law Firms.” April 16, 2012.

http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20120416_news_release_re_nonlawyer_ownership_law_firms.authcheckdam.pdf.

ABA Commission on the Evaluation of the Rules of Professional Conduct (‘Ethics 2000’). “Chair’s Introduction.” August 2002. http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/e2k_chair_intro.authcheckdam.pdf.

ABA Commission on Lawyer Assistance Programs. “Proposed Resolution Regarding Model Regulatory Objectives.” October 28, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/lawyer_assistance_programs.pdf.

ABA Commission on the Future of Legal Services, “For Comment: Issues Paper Concerning Unregulated LSP Entities.” March 31, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/final_unregulated_lsp_entities_issues_paper.pdf.

— “For Comment: Issues Paper Regarding Alternative Business Structures.” April 8, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

— “Issues Paper Concerning New Categories of Legal Services Providers.” October 16, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services_completed_evaluation.pdf.

ABA Commission On The Future Of Legal Services, Standing Committee On Professional Discipline Criminal Justice Section, Law Practice Division, Standing Committee On Legal Aid And Indigent Defendants, Standing Committee On Client Protection. “Report to the House of Delegates.” November, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/final_regulatory_objectives_resolution_november_2015.pdf.

ABA Resource Center for Access to Justice Initiatives. “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid.” July 15, 2015. http://www.americanbar.org/content/dam/aba/images/legal_aid_indigent_defendants/ls_SC%20Best%20Practices.pdf.

ABA Standing Committee on the Delivery of Legal Services. “Issues on the Future of Legal Services.” December 2, 2014. http://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services.pdf.

ABA Standing Committee on Legal Aid & Indigent Defendants. “Comments on Issues Paper on Alternative Business Structures.” May 5, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/legal_aid_and_indigent_defendants.pdf.

ABA Standing Committee on Professionalism. “Standing Committee on Professionalism Comment on Issues Paper Regarding Alternative Business Structures.” May 5, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/professionalism_abs.pdf.

The Advocates’ Society. Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures. December 19, 2014. http://www.lsuc.on.ca/uploadedFiles/The%20Advocates’%20Society.pdf.

American Bar Association. “ABA Mission and Goals.” Accessed February 11, 2016. http://www.americanbar.org/about_the_aba/aba-mission-goals.html.

— “Constitution and Bylaws Rules of Procedure House of Delegates,” 2014-2015. http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/aba_constitution_and_bylaws_2014.authcheckdam.pdf.

— “House of Delegates — General Information.” Accessed August 25, 2015. http://www.americanbar.org/groups/leadership/delegates.html.

— “Model Rules of Professional Conduct: Preface.” Accessed August 27, 2015. http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_preface.html.

— “Resolution 105.” February, 2016. http://www.americanbar.org/content/dam/aba/images/abanews/2016mymres/105.pdf.

Adams, Edward S. and John H. Matheson. “Law Firms on the Big Board?: A Proposal for Nonlawyer Investment in Law Firms.” California Law Review 86 (1998): 1-40. http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1100&context=faculty_articles.

Ambrogi, Robert. “Washington State Moves Around UPL, Using Legal Technicians to Help Close the Justice Gap.” ABA Journal, January 1, 2015. http://www.abajournal.com/magazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_close_the/.

Antonelli, Mark R. “For Comment: Issues Paper Regarding Alternative Business Structures.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/mark_r_antonelli_abs.pdf.

“ArchCity Defenders Municipal Courts White Paper.” 2014. http://s3.documentcloud.org/documents/1279541/archcity-defenders-report-on-st-louis-county.pdf.

Arentz, Oliver, Hans Manner, Leonard Münstermann, Clemens Recker and Steffen J. Roth. “Services Liberalisation in Germany Overview and the Potential of Deregulation: A Study by the Institute for Economic Policy at the University of Cologne.” Otto-Wolff-Discussion Paper 1b/2015, March 2015. https://www.iwp.uni-koeln.de/fileadmin/contents/dateiliste_iwp-website/publikationen/DP/OWIWO_DP_01b_2015_rev_2.pdf.

Arnold, Jens M., Beata S. Javorcik, and Aaditya Mattoo. “Does Services Liberalization Benefit Manufacturing Firms? Evidence from the Czech Republic.” Journal of International Economics 85 (2011): 136-146. http://www.sciencedirect.com/science/article/pii/S0022199611000523.

Associated Press. “Iowa Discipline Board Reprimands Attorney.” KCRG.com, August 31, 2014. http://www.kcrg.com/subject/news/iowa-discipline-board-reprimands-attorney-20140831.

Attorney Registration & Disciplinary Commission. “Annual Report of 2015.” April 27, 2016. https://www.iardc.org/AnnualReport2015.pdf.

Ayotte, Mike. “How Fixed Fees Are Going to Change BigLaw Forever.” The Last Honest Lawyer. August 28, 2013. https://lasthonestlawyer.wordpress.com/tag/biglaw/.

Balko, Radley. “How Municipalities in St. Louis County, Mo., Profit From Poverty.” Washington Post, September 3, 2014. https://www.washingtonpost.com/news/the-watch/wp/2014/09/03/how-st-louis-county-missouri-profits-from-poverty/.

Barone, Guglielmo, and Federico Cingano. “Service Regulation and Growth: Evidence from OECD Countries.” The Economic Journal 121 (2011): 931-957. http://dx.doi.org/10.1111/j.1468-0297.2011.02433.x.

Barton, Benjamin H. “An Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?” Georgia Law Review 37 (2003): 1167-1250.

— “Do Judges Systematically Favor the Interests of the Legal Profession?” University of Tennessee Legal Studies Research Paper No. 1, 2007. http://ssrn.com/abstract=976478.

— “Economists on Deregulation of the American Legal Profession: Praise and Critique.” Michigan State Law Review 2011 (2011): 11-13. http://ssrn.com/abstract=2008942.

— “The Lawyer’s Monopoly — What Goes and What Stays.” Fordham Law Review 82 (2014): 3067-90. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5008&context=flr.

Bass, Julia H., W. A. Bogart, and Frederick H. Zemans. Access to Justice for a New Century: The Way Forward. Toronto, Ontario, Canada: Law Society of Upper Canada, 2005.

Batlan, Felice. Women and Justice for the Poor: A History of Legal Aid, 1863-1945. New York: Cambridge University Press, 2015.

Beal Law Firm. “Comment in Opposition to Alternative Business Structures.” April 28, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/beal_law_firm_abs.pdf.

Beck, Susan. “Divided ABA Adopts Resolution on Nonlawyer Legal Services.” The American Lawyer, February 8, 2016. http://www.americanlawyer.com/id=1202749202171/Divided-ABA-Adopts-Resolution-on-Nonlawyer-Legal-Services?mcode=0&curindex=0&curpage=ALL.

Beisner, John. “Comments of the US Chamber Institute for Legal Reform on the Issues Paper Concerning Alternative Business Structures.” June 1, 2011. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/uschamberinstituteforlegalreform_issuespaperconcerningalternativebusinessstructures.authcheckdam.pdf.

Benathen, Steve. “Non-Lawyers Owning Law Firms.” Illinois Business Law Journal, October 21, 2012. http://www.law.illinois.edu/bljournal/post/2012/10/21/Non-Lawyers-Owning-Law-Firms.

Bennett, Daniel and Wesley Yin. “The Market for High-Quality Medicine: Retail Chain Entry and Drug Quality in India.” NBER Working Paper No. 20091, November 17, 2014. http://home.uchicago.edu/~dmbennett/chainentry.pdf.

Bennet, Paul. “Comment on Alternative Business Structures.” April 25, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/paul_w_bennett_abs.pdf.

Berndt, Lorne, Alycia Middleton, Christal Côté, Cheryl Sheffer, Tania Castonguay, Paula Callaghan, Denis Sabourin, Linda Schmidt, and Kayla Minor. “Alternative Business Structure Call For Input.” December 20, 2014. https://www.lsuc.on.ca/uploadedFiles/BRENDT,%20Lorne%20and%20group.pdf.

Betke, Christopher G. “Proposal for ABS.” April 27, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/christopher_g_betke_abs.pdf.

Bindman, Dan. “ABSs Frustrated by Acquisition Targets That Are Either Not Ready or ‘Financial Basket Cases.’” Legal Futures, November 12, 2013. http://www.legalfutures.co.uk/latest-news/abss-frustrated-acquisition-targets-not-ready-financial-basket-cases.

— “Not-for-Profit’s Groundbreaking ABS Eyes Expansion.” Legal Futures, June 4, 2014. http://www.legalfutures.co.uk/latest-news/abs-lives-not-profits-groundbreaking-abs-eyes-expansion.

Blakely, Susan Smith. “Why Do Women Lawyers Leave?” Ms. JD, April 24, 2014. http://ms-jd.org/blog/article/why-do-women-lawyers-leave.

Blasi, Joseph R., Richard B. Freeman, and Douglas Kruse, The Citizen’s Share: Putting Ownership Back into Democracy. New Haven: Yale University Press, 2013.

Bonn, Kristian. “The Future Law Firm: Lawyers in the Minority.” Boon Law, December 3, 2014. http://bonnlaw.ca/2014/12/03/lawyers-minority-access-to-justice/.

Bourlès, Renaud, Gilbert Cette, Jimmy Lopez, Jacques Mairesse, and Giuseppe Nicoletti. “Do Product Market Regulations in Upstream Sectors Curb Productivity Growth? Panel Data Evidence for OECD Countries.” The Review of Economics and Statistics 95 (2013): 1750-1768. doi:10.1162/REST_a_00338.

Bourlès, Renaud, Gilbert Cette, Jimmy Lopez, Jacques Mairesse, and Giuseppe Nicoletti. “Do Product Market Regulations in Upstream Sectors Curb Productivity Growth? Panel Data Evidence For OECD Countries: Supplementary Web Appendix,” 2013. http://www.mitpressjournals.org/doi/suppl/10.1162/REST_a_00338/suppl_file/REST_a_00338_esupp.pdf.

Brittany L. McConniel v. State of Indiana, In the Court of Appeals of Indiana, Opinion for Publication. September 11, 2012. http://www.in.gov/judiciary/opinions/pdf/09111201ebb.pdf.

Bronner, Ethan. “Right to Lawyer Can Be Empty Promise for Poor.” New York Times, March 15, 2013. http://www.nytimes.com/2013/03/16/us/16gideon.html?pagewanted=all&_r=1.

Brown, Chrissy. “How to Go From Citizen to Criminal in Under 10 Minutes.” Thoughts On Liberty, July 23, 2013. http://thoughtsonliberty.com/how-to-go-from-citizen-to-criminal-in-under-10-minutes.

Brown, Toby. “The Legal Profession is Doomed.” 3 Geeks and a Law Blog. February 10, 2015. http://www.geeklawblog.com/2015/02/the-profession-is-doomed.html?utm_content=buffera11a0&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.

Caldwell, J. Richard, Jr. “Report on ‘Alternative Business Structures.’” April 29, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/j_richard_caldwell_jr_abs.pdf.

Campbell, Ray Worthy. “Rethinking Regulation and Innovation in the US Legal Services Market.” New York University Journal of Law & Business 9 (2012): 1-70. https://ssrn.com/abstract=2018056.

Campos, Paul. “The Collapsing Economics of Solo Legal Practice.” Lawyers, Guns & Money. May 25, 2015. http://www.lawyersgunsmoneyblog.com/2015/05/the-collapsing-economics-of-solo-legal-practice.

Canton, Erik, Daria Ciriaci and Irune Solera. “The Economic Impact of Professional Services Liberalisation.” European Commission Economic Papers 533, September 2014. http://ec.europa.eu/economy_finance/publications/economic_paper/2014/pdf/ecp533_en.pdf.

Carter, Terry. “Judges Say Litigants Are Increasingly Going Pro Se— At Their Own Peril.” ABA Journal, July 12, 2010. http://www.abajournal.com/news/article/judges_say_litigants_increasingly_going_pro_se–at_their_own_/.

Catholic Charities Archdiocese of Washington. “Catholic Charities Legal Network Annual Report 2015.” https://www.catholiccharitiesdc.org/file/Legal_Network_Annual_ReportFY2015.pdf.

— “Immigration Legal Services.” Accessed April 25, 2016. https://www.catholiccharitiesdc.org/ILS.

CBA Legal Futures Initiative. “Futures: Transforming the Delivery of Legal Services in Canada.” August, 2014. http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/Futures-Final-eng.pdf.

Centre for Innovative Justice. “Affordable Justice — A Pragmatic Path to Greater Flexibility and Access in the Private Legal Services Market.” October 2013. http://mams.rmit.edu.au/qr7u4uejwols1.pdf.

Cette, Gilbert, Jimmy Lopez, and Jacques Mairesse. “Product and Labour Market Regulations: Production Prices, Wages and Productivity.” NBER Working Paper No. w20563, 2014. http://ssrn.com/abstract=2505868.

Chadderton,Sam. “Crash Course to Success.” The Lawyer, February 4, 2013. http://www.thelawyer.com/analysis/market-analysis/crash-course-to-success/3000339.article.

Chambliss, Elizabeth and David B. Wilkins. “A New Framework for Law Firm Discipline.” Georgetown Journal of Legal Ethics 16 (2002): 335-351. http://heinonline.org/HOL/LandingPage?handle=hein.journals/geojlege16&div=18&id=&page=.

Chandler, Mark, Charles J. Kalil, Thomas L. Sager, Brackett B. Denniston III, Robert C. Weber, A. Douglas Melamed, Glenn E. Bost II, Randal S. Milch, and Frank R. Jimenez.  “Comments of Nine General Counsel on the ABA Commission on Ethics 20/20’s Discussion Paper on Alternative Law Practice Structures.” February 29, 2012. http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/ethics_20_20_comments/ninegeneralcounselcomments_alpschoiceoflawinitialdraftproposal.authcheckdam.pdf.

Chanen, Jill Schachner. “Early Exits.” ABA Journal, August 6, 2006, http://www.abajournal.com/magazine/article/early_exits.

Chaserant, Camille and Sophie Harnay. “The Regulation of Quality in the Market for Legal Services: Taking the Heterogeneity of Legal Services Seriously.” The European Journal of Comparative Economics 10 (2013) 267-291. http://eaces.liuc.it/18242979201302/182429792013100208.pdf.

Cheng, David. “Why So Many Lawyers Are Unhappy with Their Jobs.” Business Insider, August 29, 2013. http://www.businessinsider.com/why-lawyers-are-unhappy-at-work-2013-8#ixzz3jieKXqLN.

Christensen, Clayton and Mark Johnson. “What Are Business Models, and How Are They Built?” 2010. http://www.thefgi.net/wp-content/uploads/2010/09/What-is-a-Business-Model.pdf.

Clarke, Brian S. “Law Professors, Law Students and Depression . . . A Story of Coming Out.” Journal of Law 4 (2014): 219-234. http://journaloflaw.us/5%20The%20Post/4-2/JoL4-2,%20TP4-2,%20Clarke.pdf.

Clearwater, Karen. “President’s Report: The Map Followed…” The Law Society of Manitoba Communiqué 2.0. May, 2015, 1. http://www.lawsociety.mb.ca/publications/communique/May%202015.pdf.

Clementi, Sir David. “Report of the Review of the Regulatory Framework for Legal Services in England and Wales.” December, 2004. Accessed August 20, 2015. http://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm.

Clifton, William W., Jr. “ABA Commission on the Fuiture [sic] of Legal Services Report.” April 28, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/william_w_clifton_jr_abs.pdf.

Columbia Law School Human Rights Institute and Northeastern University School of Law Program on Human Rights and the Global Economy. “Equal Access to Justice: Ensuring Meaningful Access to Counsel in Civil Cases, Including Immigration Proceedings — Response to the Seventh and Ninth Periodic Reports of the United States to the Committee on the Elimination of All Forms of Racial Discrimination.” July, 2014. http://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/equal_access_to_justice_-_cerd_shadow_report.pdf.

Commission d’Etude des Effets de la Loi Pour la Croissance et l’Activité. “Réformes des Professions Réglementées du Droit.” January, 2015. http://www.strategie.gouv.fr/sites/strategie.gouv.fr/files/atoms/files/fiche-professions_0.pdf.

Commission on Legal Empowerment of the Poor. Making the Law Work for Everyone, Volume I: Report of the Commission on Legal Empowerment of the Poor. New Jersey: Toppan Printing Company America, 2008. http://www.unicef.org/ceecis/Making_the_law_work_for_everyone.pdf.

Making the Law Work for Everyone, Volume II: Working Group Reports. New Jersey: Toppan Printing Company America, 2008. http://www.undp.org/content/dam/aplaws/publication/en/publications/democratic-governance/legal-empowerment/reports-of-the-commission-on-legal-empowerment-of-the-poor/making-the-law-work-for-everyone—vol-ii—english-only/making_the_law_work_II.pdf.

“Complaint for Declaratory and Injunctive Relief.” Jacoby & Meyers Law Offices LLP v. the Justices of the Supreme Court of New Jersey, May 18, 2011. http://pdfserver.amlaw.com/nj/Jacoby_%20Meyers_complaint.pdf.

“Complaint.” Michele Burke Craddock v. LeClairRyan. In the United States District Court for the Eastern District of Virginia, January 6, 2016. http://amlawdaily.typepad.com/CraddockComplaint.pdf.

Conference of Chief Justices and Conference of State Court Administrators. “The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators.”  2012. http://www.ncsc.org/~/media/Files/PDF/Services%20and%20Experts/Government%20Relations/Final%20CCJCOSCA%20white%20paperonLSCFunding33012CleanVersion1%20w%20resolution.

— “Resolution 1: In Support of Continued Federal Funding for the Legal Services Corporation.” February 1, 2012. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/02012012-In-Support-of-Continued-Federal-Funding-for-the-Legal-Services-Corporation.ashx.

— “Resolution 1: In Support of Continued Federal Funding for the Legal Services Corporation.” July 25, 2012. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252012-In-Support-of-Continued-Federal-Funding-for-the-Legal-Services-Corporation.ashx.

— “Resolution 11: In Support of Increased Federal Funding For the Legal Services Corporation.” August, 2009. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08012009-In-Support-of-Increased-Federal-Funding-For-the-Legal-Services-Corporation.ashx.

— “Resolution 4: In Support of the Statement of Best Practices for State Funding of Civil Legal Aid Prepared by the ABA Resource Center for Access to Justice Initiatives.” 2015. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Support-Statement-Best-Practices-State-Funding-Civil-Legal-Aid.ashx.

— “Resolution 7: In Support of State Supreme Court Leadership in Increasing Funding for Civil Legal Assistance.” July 28, 2010. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07282010-In-Support-of-State-Supreme-Court-Leadership-in-Increasing-Funding-for-Civil-Legal.ashx.

— “Resolution 7: Reaffirming the Critical Importance of Adequate Funding of the Legal Services Corporation.” 2015. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Reaffirming-Critical-Importance-Adequate-Funding-Legal-Services-Corporation.ashx.

— “Resolution 9: In Support of Continued Funding for the Legal Services Corporation Commensurate with Its Vital Role in the Administration of Justice.” January 24, 2002.

http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/01242002-Support-Continued-Funding-Legal-Services-Corporation-Administration-Justice.ashx.

— “Resolution 9: In Support of the Federal Funding Legal Services Corporation.” August 3, 2011. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08032011-In-Support-of-the-Federal-Funding-Legal-Services-Corporation.ashx.

— “Resolution 9: Recommending Consideration of ABA Model Regulatory Objectives for the Provision of Legal Services.” February 3, 2016. http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/02012016-Recommending-Consideration-ABA-Model-Regulatory-Objectives-Provision-Legal-Services.ashx.

Corsmeier, Joseph A. “Ethics Alert — Iowa Supreme Court Reprimands Lawyer who Billed Corporate Client for Costs of Sanctions Which ‘Resulted From His Own Lack of Diligence and Communication.’” Lawyer Ethics Alert Blogs, September 5, 2014. https://jcorsmeier.wordpress.com/tag/lawyer-failure-to-communicate/.

Corugedo, Emilio Fernández, and Esther Pérez Ruiz. “The EU Services Directive: Gains from Further Liberalization.” IMF Working Paper No. 14/113. July, 2014. http://ssrn.com/abstract=2475012.

The County & District Law Presidents’ Association. “CDLPA’s Response to the Discussion Paper on Alternative Business Structures: The Voice of the Practising Lawyer in Ontario.” n.d. http://www.lsuc.on.ca/uploadedFiles/The%20County%20District%20Lawyers%20Presidents’%20Association%20(CDLPA).pdf.

Council for Licensed Conveyancers. “ABSs Leading the Way on Information Technology.” CLC Blog. April 13, 2016. http://www.conveyancer.org.uk/CLC-Blog/April-2016/ABSs-Leading-the-Way-on-Information-Technology.aspx.

Coyle, Jim. “A New Model of Attorney Regulation?” Colorado Supreme Court. Fall, 2015. http://www.coloradosupremecourt.us/newsletters/fall2015/a%20new%20model%20of%20regulation.htm.

Creamer, Robert A. “Get Ready for Illinois’ New Rules of Professional Conduct.” Illinois Bar Journal 97 (October 2009): 500. http://www.isba.org/ibj/2009/10/getreadyforillinoisnewrulesofprofes.

Cross, Robert. “Balancing Regulatory Risk.” Presentation at UCL International Access to Justice Conference, London, England, June 20, 2014. https://research.legalservicesboard.org.uk/wp-content/media/UCL-AtoJ-Conference-presentation-20-June-2014.pdf.

Daicoff, Susan Swaim. Lawyer, Know Thyself. Washington, DC: American Psychological Association, 2004.

Dempster, Michael. “The Hurting Profession.” National, April-May 2012, 12-20, http://cbanational.rogers.dgtlpub.com/2012/2012-05-31/pdf/Lawyers_in_crisis.pdf.

Denckla Derek A. “Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters.” Fordham Law Review 67 (1999): 2581-2599. http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3572&context=flr.

Devlin, Edward. “Hacking Ashton Partners Set for Shortfall.” Insider Media, December 9, 2013. http://www.insidermedia.com/insider/midlands/104420-hacking-ashton-partners-set-shortfall/.

Devlin, Richard and Ora Morison. “Access to Justice and the Ethics and Politics of Alternative Business Structures.” The Canadian Bar Review 91 (2012): 483-553. http://ssrn.com/abstract=2437035.

Dewan, Shaila. “A Surreptitious Courtroom Video Prompts Changes in a Georgia Town.” New York Times, September 4, 2015. http://www.nytimes.com/2015/09/05/us/a-surreptitious-courtroom-video-prompts-changes-in-a-georgia-town.html?_r=0.

Dinovitzer, Ronit. “Law and Beyond: A National Study of Canadian Law Graduates,” May 27, 2015. http://dx.doi.org/10.2139/ssrn.2615062.

Dodek, Adam M. “Regulating Law Firms in Canada.” Canadian Bar Review 90 (2012): 383-440. http://dx.doi.org/10.2139/ssrn.1984635.

Domberger, Simon and Avrom Sherr, “The Impact of Competition on Pricing and Quality of Legal Services.” International Review of Law and Economics 9 (1989): 41-56.

“[Draft] Regulatory Objectives of the Supreme Court of Colorado.” November 12, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/supreme_court_of_colorado.pdf.

DRI – The Voice of the Defense Bar. “Issues Paper Regarding Alternative Business Structures.” May 4, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/dri_the_voice_of_the_defense_bar_abs.pdf.

Duesterberg, Thomas J. and Donald A. Norman. “Why Is Capital Investment Consistently Weak in the 21st Century Economy?” April, 2015. https://www.mapi.net/system/files/attachments/files/Capital_Investment_4_0.pdf.

Duroni, Lance. “US Law Firms Still Flirting with Going Public.” Law 360, July 15, 2015. http://www.law360.com/articles/671281/us-law-firms-still-flirting-with-going-public.

Dyck, Karen. “Innovating Regulation on the Prairies.” Slaw, January 20, 2016. http://www.slaw.ca/2016/01/20/innovating-regulation-on-the-prairies/.

Dzienkowski, John S. and Robert J. Peroni. “Multidisciplinary Practice and the American Legal Profession: A Market Approach to Regulating the Delivery of Legal Services in the Twenty-First Century.” Fordham Law Review 69 (2000): 83-207. http://ssrn.com/abstract=2277718.

Eliades, Paris P. “Testimony to the ABA Commission on the Future of Legal Services.” February 7, 2015. http://www.americanbar.org/content/dam/aba/images/office_president/paris_eliades.pdf.

Ellis, Christian. “Comment on Future of Legal Services.” April 28, 2016. http://www.americanbar.org/content/dam/aba/images/office_president/christian_ellis_abs.pdf.

EPP Group in the European Parliament. “EPP Group Policy Paper: Five Building Blocks for Growth and Jobs.” February 23, 2015. http://www.eppgroup.eu/system/files_force/publications/2015/02/EPP_Policy%20Paper_Growth_148x210_EN_LR.rev_.11.02.105.pdf.

Equity Advisory Group Working Group on Alternative Business Structures. Memo to the Law Society of Upper Canada’s Working Group on Alternative Business Structures. January 21, 2015. http://www.lsuc.on.ca/uploadedFiles/Equity%20Advisory%20Group%20Working%20Group%20on%20ABS.pdf.

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Zorza, Richard. “Good News from the ABA — Regulatory Objectives Adopted.” Richard Zorza’s Access to Justice Blog, February 9, 2016. https://accesstojustice.net/2016/02/09/good-news-from-the-aba-regulatory-objectives-adopted/.

Democratizing Legal Services, Legal Aid

Ch 23 Endless Objections and the Lawyer Monopoly

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

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?

Alternative structures are controversial, if not highly controversial. Much has been said and written about them and, no doubt, much more will be. Many objections have been raised and many calls for evidence have been made. With each response, a new objection is raised or a new call for evidence is made. Part I of this book addresses the more commonly raised objections and calls for evidence, but there are a great many more.

Here are some of the additional objections:

  • “It is not clear how the implementation of ABS, by themselves, would contribute to enhancements in technology.”[1]
  • “Systems for checking conflicts would necessarily have to become much more complex.”[2]
  • “Different providers of professional services (which presumably, under an ABS model, could provide services under the same roof) will have different professional codes of conduct, and these may be in conflict with one another — including provisions in different professional codes relating to privilege.”[3]
  • “[I]magine someone who has diverted a lot of cash from his business and is looking for a quick way to clear it up. Buy a law firm and run it through the trust account. Works like a charm, and who thinks … regulators will catch it.”[4]
  • “[ABS does not] result in a better quality of service…In the UK, professionalism of the bar has remained steady since 2011. In contrast, in Illinois disciplinary charges are decreasing and formal disciplinary complaints are at an all-time low.”[5]
  • “The nonlawyer investment ownership and management reforms adopted by our common law cousins were put into place many years ago. Given the quick pace of technological change those reforms […] may simply no longer be applicable or appropriate for the current American experience.”[6]
  • “ABS structures could erode reputational incentives that exist today to encourage lawyers to perform their best work.”[7]
  • “[L]awyers [would become] salaried employees of legal services corporations, lawyers would become mere revenue producing units for outside business owners. On balance, we believe fewer lawyers would prefer that system over the current system.”[8]
  • “ABS could result in a widening gap in income among top tier lawyers and the rest of the profession. … the lawyer “middle class” would shrink.”[9]
  • “Nonlawyer ownership would have allowed Enron.”[10]
  • “Maurice Blackburn, [one of] Australia’s three largest personal injury firms…has not gone public. Because Maurice Blackburn has been able to scale and grow the firm without going public, a comparison of this firm to [Slater and Gordon and Shine] may cast doubt on whether outside ownership is necessary to achieve economies of scale.”[11]
  • “Investment by non-lawyers may allow firms to scale and grow their brand and increase advertising funding, to better allow customers to comfortably rely on brands when trying to seek a legal service provider…However, in reality, the attachment of a brand name to a product is a tenuous guarantee of its quality.”[12]
  • “Well-known companies which own legal service providers may be less likely to offer legal services to publicly unpopular clients out of fear of harming their brand.”[13]
  • [There has been] a dramatic increase in marketing by personal injury lawyers…For the most part, this advertising in in very poor taste. In an ABS world, the amount of advertising by personal injury firms would likely increase…Skillful marketing by financial backers of unskilled lawyers will result in uninformed consumers not getting proper representation.[14]
  • “[We] are concerned about the disappearance of lawyers who provide complex, non-commoditizable services like criminal and family law with no solution for replacing access to justice in these areas, especially for low to middle income clients.”[15]
  • “[A]ny growth of unregulated legal services does not necessarily imply that existing regulatory restrictions are unduly constraining innovation, but could indicate instead that the public is being sold services with little or no value albeit at low costs.”[16]
  • “ABS advances in technology are overstated.”[17]
  • “Many [bar] associations depend on revenue from [continuing legal education (“CLE”)] programs to ensure their financial existence. With firms like Slater and Gordon offering internal [CLE] courses to their staff, without charge, there is no reason for their staff to register and pay for outside [CLE] programs and courses, thus significantly reducing the overall revenue to local [bar] associations.”[18]
  • “ABS entities…may include disbarred lawyers, licensees who have had their licenses revoked or even candidates who petitioned for a license and were refused due to bad character or other issues.”[19]
  • “[T]here is an inherent risk that by introducing non licensed shareholders into the equation, women paralegals will continue to endure more systemic barriers as there is no guarantee that ABS entities will view diversity and equity on the boards as a must.”[20]
  • “[T]here may be other regulated possibilities worth exploring.”[21]
  • “ABS would … take so much money out of the public that the public would have that much less to devote to charitable endeavours.”[22]
  • “[S]everal of the large ABS entities in England have suffered badly and have lost millions and millions of pounds.”[23]
  • “ABS is mostly a smoke-screen to avoid doing anything about the time and cost of litigation.”[24]
  • “Would anyone like our most prestigious firms, or the bulk of our mid to small firms… to be owned by Arthur Andersen, AIG, Enron, WorldCom, Societe Generale, Royal Bank of Scotland, Lehman Brothers, Bear Stearns, Volkswagen, Barker Trust, Barlow Clowes, Phar-Mor, Bernie Madoff, Allan Stanford, Tyco International, Health South, Swissair, Baninter, HIH Insurance, Polly Peck, Barings Bank, Bank of Credit and Commerce, Nordbanken, Carrian Group, Bre-X, Equitable Life Assurance, Pacific Gas & Electric, One.Tel, Adelphia, Parmalat, Nortel, Dynergy, Banco Espirito, Union Carbide, and future versions of Medici Bank and the South Sea Company? … What about being owned by divisions of arms manufacturers, drug cartels looking to launder money, immigration fraud companies? Russian carpetbaggers with close ties to global destabilization efforts? Companies ostensibly independent but really controlled by foreign communist or totalitarian regimes looking for an in? … How would you like to be a lawyer on the payroll of those entities and then try to get a job when they are exposed for what they are? How do you wash that taint off?”[25]
  • “We are so proud that the American legal system, while flawed, is the best in the world… We are DIFFERENT for a reason that we should be proud of and embrace. Our system should not look backwards to what other, more flawed, legal systems have had to become. They should be more like us and not us like them.”[26]

And here are some of the additional calls for evidence:

  • “[C]omparisons [to the use of ABS in foreign countries] are of extremely limited utility, in the absence of comprehensive data concerning how the legal systems of those countries operate… in countries such as the UK and Australia, the distinction between barristers and solicitors is still maintained…European countries employ a civil law system, dramatically different from the common law heritage of the United States. The point is that what works well and is beneficial in the context of one society may not be productive at all in the context of another. Further study, or at least further explanation, is needed before attempting to justify an ABS on the basis of its existence in other countries.”[27]
  • “ABS proponents also need to show that ABS structures can work in the regulatory regime we have, not just in the very different regulatory regimes of other common law jurisdictions (if indeed ABS works even in those jurisdictions — a question it is too early to answer).”[28]
  • “There is currently little evidence supporting the conclusion that ABSs are having a transformative effect on the delivery of legal services in the United Kingdom.”[29]
  • “[T]here has been no showing that firms cannot achieve their goals of providing seamless law-related services to clients (if that is what they want to do) by forming ancillary entities as is presently permitted.”[30]
  • “[T]here is not enough empirical evidence available from the jurisdictions in which ABS is permitted (namely Australia and UK), to endorse permitting ABS… Until empirical evidence on the benefits of ABS to access to justice and the market as a whole is available and has been fully and critically reviewed … the introduction of ABS on any level would be premature and, therefore, ill‐advised.”[31]
  • “[M]ore discussion is needed about the true impact for the unemployed licensee before preference is given to non-licensees.”[32]
  • “[T]he deliberations need to remain focused on who will stand to lose the most as opposed to who will gain from ABS.”[33]
  • “[The] impact ABS will have on access to justice in both rural communities and urban communities [should be examined] before concluding that alternative business structures are appropriate.”[34]
  • “What evidence is there to show that ABS has had no negative impact — professional or business on the bar and, in particular, on soles and smalls in Australia and England?.. [We] should be cautious and only proceed once a strong empirical case can be made and only once the practicing bar fully appreciates the impacts to the profession and their business model.”[35]
  • “[C]hanges to the regulation of the legal profession made primarily for the purpose of enhancing access to justice should only be made on the basis of unequivocal evidence of successes from other jurisdictions, and not on theoretical arguments or assertions that ABS will enhance access to justice…[There should be] unequivocal empirical evidence compiled over a significant period of time of substantial net benefit to the public.”[36]
  • “[T]here is a lack of data on the impact of [ABS] on equity and diversity in the legal profession and on access to justice.”[37]
  • “To the extent that proponents of ABS predict benefits from economies of scale in the delivery of service, it is important to determine whether, and to what extent, these require changes to the regulatory framework.”[38]
  • “The decision we face in regards to non-lawyer ownership of law firms will have far reaching consequences that will affect/effect the rule of law, and the very foundation of our government; therefore this issue should be reviewed and discussed exhaustively…There must be a philosophic line of inquiry to accompany the soft science research… To discuss this matter philosophically will help us identify where we want to go as a profession and, ultimately, as a country…We should commission an in-depth study by comparative law scholars and attorneys who practice internationally in order to compare the legal culture, legal structures, and constitutional structures of [the jurisdictions outside the US] to our own.”[39]
  • “There is an absence of empirical data showing savings to consumers of legal services… [T]here are segments in the legal system that have particular access concerns, especially in the family law context [yet] no evidence has been brought forward to show how these access concerns will be effectively addressed and reduced through ABS.”[40]
  • “Proponents of ABS who argue that it offers technological benefits that are unavailable to traditional law firms have thus far fallen woefully short in producing any evidence in support of such claims.”[41]
  • “There is, quite simply, a lack of any empirical evidence that shows:
  1. Why ABS was introduced in the UK and Australia;
  2. Whether the problems sought to be solved in other jurisdictions correlate in any way to the legal landscape in Ontario;
  3. Whether the introduction of ABS has in fact solved the problems it presumably sought to resolve in the UK and Australia;
  4. Whether there has been significantly improved access to justice (particularly in areas of practice where access to justice is a concern);
  5. Whether core values such as avoiding conflicts of interest and the independence of counsel have been compromised to any extent with the introduction of ABS;
  6. Whether the regulatory bodies in the UK and Australia have been effective in dealing with ABS‐related issues as they arise (which includes an examination of the structure of the regulatory bodies and complaints reporting systems); and
  7. What the overall impact has been for the profession and the public interest since the introduction of ABS in jurisdictions where it has been adopted.”[42]

These examples show that there a great many objections that can be raised and calls for evidence that can be made in relation to alternative structures. They are infinite in number and limited only by imagination.

Under the rules of 50 states, only licensed lawyers may provide legal services. As a result of this restriction, licensed lawyers, and the traditional law firm structures in which they practice, hold a monopoly on the provision of legal services. No other person, and no other type of structure — and notably not a multidisciplinary practice or a structure owned in whole or in part by a nonlawyer — may offer legal services without the risk of running afoul of unauthorized practice of law (UPL) and fee sharing rules.[43] (There are two exceptions: since 1990 Washington DC has permitted a limited form of nonlawyer ownership, and in 2015 Washington State began licensing “Limited License Legal Technicians.” These are individuals — not organizations — who are licensed to provide legal advice and assistance in specified areas of the law without the supervision of a lawyer).

Certainly, the full scope of the monopoly is difficult to describe.[44] Further, nonlawyers and non-traditional structures have attempted to chip away at the monopoly, such that some have described the role of the legal profession as having become “a subset of a larger industry that is increasingly populated by nonlawyers, technologists and entrepreneurs.”[45] Others make what is essentially the same observation but from a different perspective — they say, for example, that “legal services to big companies are…already de facto deregulated.”[46]

To be sure, UPL rules have not succeeded in keeping all nonlawyers and all non-traditional structures out of the market — companies like RocketLawyer, LegalZoom, Axiom, Shake and Modria are proof of that. But UPL and fee sharing rules have succeeded in keeping a great many out. As Gillian Hadfield observed: “There are many things that U.S. companies cannot do, and the fact that there is a little going on at the margins does not come close to what could be done if the restrictions were not there.”[47]

Much has been written and said, on the one hand to defend UPL rules (lawyers, by reason of their legal education and training, are more effective and more ethical than nonlawyers) and on the other hand to oppose them (in certain if not many situations, nonlawyers and/or nontraditional structures can provide services of adequate quality and entirely ethically, and thus make legal services available to a greater number of people who otherwise would be forced to go without them altogether).[48]

Without minimizing the importance of that debate, UPL restrictions raise a second and equally important issue: The laws in place in the United States today allocate the entire legal services market to the legal profession — to the legal profession only — and those laws (more or less successfully) support bar associations and other groups of lawyers when they attempt to keep nonlawyers and nontraditional structures out of the market.

Yet, those same laws do not require the legal profession to meet the needs of the entire market. Indeed, when in 2013 the New York Court of Appeals adopted a rule requiring New York attorneys not to provide any minimum amount of pro bono service, but simply to report the number of hours they do spend on pro bono work (as well as any financial contributions they make to organizations that provide legal services to the poor and underserved), the New York State Bar Association (NYSBA) strongly objected. In a letter to the Chief Judge of the State of New York, David Schraver, the President of the NYSBA and a partner at Nixon Peabody in Rochester, wrote that “the provision of legal services to the poor is a public responsibility” and that the reporting requirement was “an invasion of privacy.”[49] In 2015 the rule was scaled back to require only anonymous reporting.[50]

If Schraver is correct in saying that “the provision of legal services to the poor is a public responsibility,” then isn’t the effect of the monopoly to severely limit the public’s room for maneuver in meeting its responsibility? Doesn’t the monopoly essentially mean that the only way “the public” can meet its responsibility is to provide money to pay lawyers to provide legal services to the poor? That the public will not be permitted any other means to meet its responsibility?

Further, if “the provision of legal services to the poor is a public responsibility,” why isn’t the provision of legal services to the middle class and to the rich also a public responsibility? If Schraver is drawing a line in order to allocate what is the responsibility of the legal profession as opposed to what is the responsibility of the “public,” why does he draw the line at “legal services to the poor”?

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?  Beverley McLachlin, the Chief Justice of the Supreme Court of Canada, has stated it in this manner: “If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it.”[51]

If the United States is not willing to change its laws, either at the federal or state level, in order to oblige the legal profession to serve the needs of the legal service market in its entirety, then doesn’t the United States have the obligation to change its laws in order to open the market to others — including nonlawyers and alternative structures? As discussed in Part III, one of the many objections made to alternative structures is that there is no proof they will increase access to justice. But why should such proof be required? If the provision of legal services to the poor is a public responsibility, shouldn’t members of the public be allowed to try to provide them, even if they may fail? Isn’t this all the more true in light of the examples of Australia and England and Wales — which demonstrate, each with its own example, how nonlawyers and non-traditional structures can play a greater role in the delivery of legal services safely — without the dire consequences to ethical standards that so many have predicted?

Viewed from this context, all of the arguments made in opposition to alternative structures and all of the calls for greater evidence lose their relevance. The bottom line is that there is a massive unmet need for legal services in the United States — a need that some consider a human rights crisis. By law, the members of the legal profession are the only persons who are allowed to meet this need. Yet, the legal profession does not have the means to meet it, and, speaking through its bar associations, it rejects that it has the obligation to do so. At the same time, the Government of the United States is obliged under international treaties “to provide effective remedies to rights violations,” “to guarantee equal treatment before the tribunals and other organs administering justice,” and “to protect against discrimination and provide equal protection under the law.” And under the Agenda for Sustainable Development, the United States has committed to “ensur[ing] equal access to justice for all,” as well as to “develop[ing] effective, accountable and transparent institutions at all levels” that are needed for that purpose.

In this context, what continues to justify the lawyer monopoly on legal services in the US?

Ending the lawyer monopoly on legal services will not, by itself, solve the access to justice problem in its entirety, but it is an important and necessary element. And it will certainly be cheaper than spending an additional $46.3 billion per year on legal aid not to mention more realistic than expecting (let alone requiring) the 1.2 million lawyers of the US to increase their average number of pro bono hours to 900 per year.

Notes

[1] The Advocates’ Society, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, December 19, 2014, 2, http://www.lsuc.on.ca/uploadedFiles/The%20Advocates’%20Society.pdf.

[2] Ibid.

[3] Ibid., 3.

[4] Nicholas E. Gehl, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, December 9, 2014, 2, http://www.lsuc.on.ca/uploadedFiles/GEHL,%20Nicholas.pdf.

[5] Illinois State Bar Association, “Issues Paper Regarding Alternative Business Structures: Request for Comments,” 3.

[6] Ibid., 4.

[7] International Association of Defense Counsel, “ABA Commission on the Future of Legal Services – Alternative Business Structures,” 1.

[8] Ibid., 2.

[9] Ross, Letter to Katy Englehart, 2.

[10] Richard M. Leslie, “Nonlawyer Ownership of Law Firms,” May 1, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/richard_m_leslie_abs.pdf.

[11] McLeish Orlando, “Submissions Regarding the Implementation of Alternative Business Structures in Ontario,” December 17, 2014, 4, http://www.lsuc.on.ca/uploadedFiles/McLeish%20Orlando.pdf.

[12] Ibid., 5-6.

[13] Ibid., 14.

[14] Ibid., 15-16.

[15] Ontario Bar Association, “Alternative Business Structures,” 8.

[16] Ibid.

[17] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1.

[18] Ibid., 19.

[19] Women’s Paralegal Association of Ontario, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, January 30, 2015, 2-3, http://www.lsuc.on.ca/uploadedFiles/Womens%20Paralegal%20Association%20of%20Ontario.pdf.

[20] Ibid., 3.

[21] Ibid.

[22] Bradley Wright, December 30, 2014 (6:28 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion.”

[23] Ibid.

[24] Bradley Wright, January 2nd, 2015 (4:45 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion.”

[25] Bradley Wright, January 20, 2016 (8:00 pm), comment on Karen Dyck, “Innovating Regulation on the Prairies,” Slaw, January 20, 2016, http://www.slaw.ca/2016/01/20/innovating-regulation-on-the-prairies/.

[26] Laura Bellegie Sharp, “Comments Regarding the Alternative Business Solutions Issues Paper,” April 28, 2016, 2, http://www.americanbar.org/content/dam/aba/images/office_president/laura_sharp_abs.pdf.

[27] J. Richard Caldwell, Jr., “Report on ‘Alternative Business Structures,’” April 29, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/j_richard_caldwell_jr_abs.pdf.

[28] New York State Bar Association, “New York State Bar Association’s Comments,” 7.

[29] Perlman, “Towards the Law,” 85.

[30]Richmond, “Discussion Paper on Alternative Law Practice Structures,” 3.

[31] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1-2.

[32] Lorne Berndt et al., 2.

[33] Ibid., 3.

[34] ABA Standing Committee on Legal Aid & Indigent Defendants, “Comments on Issues Paper on Alternative Business Structures,” May 5, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/legal_aid_and_indigent_defendants.pdf.

[35] The County & District Law Presidents’ Association, “CDLPA’s Response to the Discussion Paper on Alternative Business Structures: The Voice of the Practising Lawyer in Ontario,” n.d., 14, http://www.lsuc.on.ca/uploadedFiles/The%20County%20District%20Lawyers%20Presidents’%20Association%20(CDLPA).pdf.

[36] Thunder Bay Law Association, “Submission to the Law Society of Upper Canada’s Working Group on Alternative Business Structures,” February 18, 2015, 1, http://www.lsuc.on.ca/uploadedFiles/thunder-bay-law-association.pdf.

[37] Equity Advisory Group Working Group on Alternative Business Structures, Memo to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, January 21, 2015, 2, http://www.lsuc.on.ca/uploadedFiles/Equity%20Advisory%20Group%20Working%20Group%20on%20ABS.pdf.

[38] Ontario Bar Association, “Alternative Business Structures,” 8.

[39] William M. Leech, “Comment: Issues Paper Regarding Alternative Business Structures April 8, 2016,” May 2, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/william_m_leech_abs.pdf.

[40] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1, 9.

[41] Ibid., 17.

[42] Ibid., 35.

[43] See generally Derek A. Denckla, “Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters,” Fordham Law Review 67 (1999): 2581-2599, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3572&context=flr. See also Hadfield, “Innovating to Improve Access,” 3-4.

[44] Laurel S. Terry, “Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context,” Fordham Law Review 82 (2014): 2907, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Terry_May.pdf.

[45] William D. Henderson, “A Blueprint for Change,” Pepperdine Law Review 40 (2013): 461-507, 462, http://ssrn.com/abstract=2202823.

[46] Michael Mills, “The Future of Legal Services: The American Bar Association Commission,” Neota Logic Blog, April 13, 2015, http://www.neotalogic.com/news/the-future-of-legal-services.

[47] Laura Snyder, “Does the UK Know Something We Don’t About Alternative Business Structures?,” ABA Journal, January 1, 2015, http://www.abajournal.com/magazine/article/does_the_uk_know_something_we_dont_about_alternative_business_structures.

[48] See, for example, W. Bradley Wendel, “The Profession’s Monopoly and Its Core Values” (Forward to “Colloquium: The Legal Profession’s Monopoly on the Practice of Law”), Fordham Law Review 82 (2014): 2563- 2585, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Wendel_May.pdf; Deborah L. Rhode and Lucy Buford Ricca, “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement,” Fordham Law Review 82 (2014): 2587-2610, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf; Laurel A. Rigertas, “The Legal Profession’s Monopoly: Failing to Protect Consumers,” Fordham Law Review 82 (2014): 2683-2703, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf.

[49] David M. Schraver, “Mandatory Reporting of Pro Bono Service and Contributions,” 1.

[50] “Pro Bono Reporting Requirements – Attorney Registration,” New York State Unified Court System, last modified May 4, 2015, https://www.nycourts.gov/attorneys/probono/reportingreqs-intro.shtml#a.

[51] Kirk Makin, “Access to Justice Becoming a Privilege of the Rich, Judge Warns,” The Globe and Mail, February 10, 2011, http://www.theglobeandmail.com/news/national/access-to-justice-becoming-a-privilege-of-the-rich-judge-warns/article565873/.

Democratizing Legal Services

Ch 21 Abdication of Regulatory Power

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

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?

Alternative structures are controversial, if not highly controversial. Much has been said and written about them and, no doubt, much more will be. Many objections have been raised and many calls for evidence have been made. With each response, a new objection is raised or a new call for evidence is made. Part I of this book addresses the more commonly raised objections and calls for evidence, but there are a great many more.

Here are some of the additional objections:

  • “It is not clear how the implementation of ABS, by themselves, would contribute to enhancements in technology.”[1]
  • “Systems for checking conflicts would necessarily have to become much more complex.”[2]
  • “Different providers of professional services (which presumably, under an ABS model, could provide services under the same roof) will have different professional codes of conduct, and these may be in conflict with one another — including provisions in different professional codes relating to privilege.”[3]
  • “[I]magine someone who has diverted a lot of cash from his business and is looking for a quick way to clear it up. Buy a law firm and run it through the trust account. Works like a charm, and who thinks … regulators will catch it.”[4]
  • “[ABS does not] result in a better quality of service…In the UK, professionalism of the bar has remained steady since 2011. In contrast, in Illinois disciplinary charges are decreasing and formal disciplinary complaints are at an all-time low.”[5]
  • “The nonlawyer investment ownership and management reforms adopted by our common law cousins were put into place many years ago. Given the quick pace of technological change those reforms […] may simply no longer be applicable or appropriate for the current American experience.”[6]
  • “ABS structures could erode reputational incentives that exist today to encourage lawyers to perform their best work.”[7]
  • “[L]awyers [would become] salaried employees of legal services corporations, lawyers would become mere revenue producing units for outside business owners. On balance, we believe fewer lawyers would prefer that system over the current system.”[8]
  • “ABS could result in a widening gap in income among top tier lawyers and the rest of the profession. … the lawyer “middle class” would shrink.”[9]
  • “Nonlawyer ownership would have allowed Enron.”[10]
  • “Maurice Blackburn, [one of] Australia’s three largest personal injury firms…has not gone public. Because Maurice Blackburn has been able to scale and grow the firm without going public, a comparison of this firm to [Slater and Gordon and Shine] may cast doubt on whether outside ownership is necessary to achieve economies of scale.”[11]
  • “Investment by non-lawyers may allow firms to scale and grow their brand and increase advertising funding, to better allow customers to comfortably rely on brands when trying to seek a legal service provider…However, in reality, the attachment of a brand name to a product is a tenuous guarantee of its quality.”[12]
  • “Well-known companies which own legal service providers may be less likely to offer legal services to publicly unpopular clients out of fear of harming their brand.”[13]
  • [There has been] a dramatic increase in marketing by personal injury lawyers…For the most part, this advertising in in very poor taste. In an ABS world, the amount of advertising by personal injury firms would likely increase…Skillful marketing by financial backers of unskilled lawyers will result in uninformed consumers not getting proper representation.[14]
  • “[We] are concerned about the disappearance of lawyers who provide complex, non-commoditizable services like criminal and family law with no solution for replacing access to justice in these areas, especially for low to middle income clients.”[15]
  • “[A]ny growth of unregulated legal services does not necessarily imply that existing regulatory restrictions are unduly constraining innovation, but could indicate instead that the public is being sold services with little or no value albeit at low costs.”[16]
  • “ABS advances in technology are overstated.”[17]
  • “Many [bar] associations depend on revenue from [continuing legal education (“CLE”)] programs to ensure their financial existence. With firms like Slater and Gordon offering internal [CLE] courses to their staff, without charge, there is no reason for their staff to register and pay for outside [CLE] programs and courses, thus significantly reducing the overall revenue to local [bar] associations.”[18]
  • “ABS entities…may include disbarred lawyers, licensees who have had their licenses revoked or even candidates who petitioned for a license and were refused due to bad character or other issues.”[19]
  • “[T]here is an inherent risk that by introducing non licensed shareholders into the equation, women paralegals will continue to endure more systemic barriers as there is no guarantee that ABS entities will view diversity and equity on the boards as a must.”[20]
  • “[T]here may be other regulated possibilities worth exploring.”[21]
  • “ABS would … take so much money out of the public that the public would have that much less to devote to charitable endeavours.”[22]
  • “[S]everal of the large ABS entities in England have suffered badly and have lost millions and millions of pounds.”[23]
  • “ABS is mostly a smoke-screen to avoid doing anything about the time and cost of litigation.”[24]
  • “Would anyone like our most prestigious firms, or the bulk of our mid to small firms… to be owned by Arthur Andersen, AIG, Enron, WorldCom, Societe Generale, Royal Bank of Scotland, Lehman Brothers, Bear Stearns, Volkswagen, Barker Trust, Barlow Clowes, Phar-Mor, Bernie Madoff, Allan Stanford, Tyco International, Health South, Swissair, Baninter, HIH Insurance, Polly Peck, Barings Bank, Bank of Credit and Commerce, Nordbanken, Carrian Group, Bre-X, Equitable Life Assurance, Pacific Gas & Electric, One.Tel, Adelphia, Parmalat, Nortel, Dynergy, Banco Espirito, Union Carbide, and future versions of Medici Bank and the South Sea Company? … What about being owned by divisions of arms manufacturers, drug cartels looking to launder money, immigration fraud companies? Russian carpetbaggers with close ties to global destabilization efforts? Companies ostensibly independent but really controlled by foreign communist or totalitarian regimes looking for an in? … How would you like to be a lawyer on the payroll of those entities and then try to get a job when they are exposed for what they are? How do you wash that taint off?”[25]
  • “We are so proud that the American legal system, while flawed, is the best in the world… We are DIFFERENT for a reason that we should be proud of and embrace. Our system should not look backwards to what other, more flawed, legal systems have had to become. They should be more like us and not us like them.”[26]

And here are some of the additional calls for evidence:

  • “[C]omparisons [to the use of ABS in foreign countries] are of extremely limited utility, in the absence of comprehensive data concerning how the legal systems of those countries operate… in countries such as the UK and Australia, the distinction between barristers and solicitors is still maintained…European countries employ a civil law system, dramatically different from the common law heritage of the United States. The point is that what works well and is beneficial in the context of one society may not be productive at all in the context of another. Further study, or at least further explanation, is needed before attempting to justify an ABS on the basis of its existence in other countries.”[27]
  • “ABS proponents also need to show that ABS structures can work in the regulatory regime we have, not just in the very different regulatory regimes of other common law jurisdictions (if indeed ABS works even in those jurisdictions — a question it is too early to answer).”[28]
  • “There is currently little evidence supporting the conclusion that ABSs are having a transformative effect on the delivery of legal services in the United Kingdom.”[29]
  • “[T]here has been no showing that firms cannot achieve their goals of providing seamless law-related services to clients (if that is what they want to do) by forming ancillary entities as is presently permitted.”[30]
  • “[T]here is not enough empirical evidence available from the jurisdictions in which ABS is permitted (namely Australia and UK), to endorse permitting ABS… Until empirical evidence on the benefits of ABS to access to justice and the market as a whole is available and has been fully and critically reviewed … the introduction of ABS on any level would be premature and, therefore, ill‐advised.”[31]
  • “[M]ore discussion is needed about the true impact for the unemployed licensee before preference is given to non-licensees.”[32]
  • “[T]he deliberations need to remain focused on who will stand to lose the most as opposed to who will gain from ABS.”[33]
  • “[The] impact ABS will have on access to justice in both rural communities and urban communities [should be examined] before concluding that alternative business structures are appropriate.”[34]
  • “What evidence is there to show that ABS has had no negative impact — professional or business on the bar and, in particular, on soles and smalls in Australia and England?.. [We] should be cautious and only proceed once a strong empirical case can be made and only once the practicing bar fully appreciates the impacts to the profession and their business model.”[35]
  • “[C]hanges to the regulation of the legal profession made primarily for the purpose of enhancing access to justice should only be made on the basis of unequivocal evidence of successes from other jurisdictions, and not on theoretical arguments or assertions that ABS will enhance access to justice…[There should be] unequivocal empirical evidence compiled over a significant period of time of substantial net benefit to the public.”[36]
  • “[T]here is a lack of data on the impact of [ABS] on equity and diversity in the legal profession and on access to justice.”[37]
  • “To the extent that proponents of ABS predict benefits from economies of scale in the delivery of service, it is important to determine whether, and to what extent, these require changes to the regulatory framework.”[38]
  • “The decision we face in regards to non-lawyer ownership of law firms will have far reaching consequences that will affect/effect the rule of law, and the very foundation of our government; therefore this issue should be reviewed and discussed exhaustively…There must be a philosophic line of inquiry to accompany the soft science research… To discuss this matter philosophically will help us identify where we want to go as a profession and, ultimately, as a country…We should commission an in-depth study by comparative law scholars and attorneys who practice internationally in order to compare the legal culture, legal structures, and constitutional structures of [the jurisdictions outside the US] to our own.”[39]
  • “There is an absence of empirical data showing savings to consumers of legal services… [T]here are segments in the legal system that have particular access concerns, especially in the family law context [yet] no evidence has been brought forward to show how these access concerns will be effectively addressed and reduced through ABS.”[40]
  • “Proponents of ABS who argue that it offers technological benefits that are unavailable to traditional law firms have thus far fallen woefully short in producing any evidence in support of such claims.”[41]
  • “There is, quite simply, a lack of any empirical evidence that shows:
  1. Why ABS was introduced in the UK and Australia;
  2. Whether the problems sought to be solved in other jurisdictions correlate in any way to the legal landscape in Ontario;
  3. Whether the introduction of ABS has in fact solved the problems it presumably sought to resolve in the UK and Australia;
  4. Whether there has been significantly improved access to justice (particularly in areas of practice where access to justice is a concern);
  5. Whether core values such as avoiding conflicts of interest and the independence of counsel have been compromised to any extent with the introduction of ABS;
  6. Whether the regulatory bodies in the UK and Australia have been effective in dealing with ABS‐related issues as they arise (which includes an examination of the structure of the regulatory bodies and complaints reporting systems); and
  7. What the overall impact has been for the profession and the public interest since the introduction of ABS in jurisdictions where it has been adopted.”[42]

These examples show that there a great many objections that can be raised and calls for evidence that can be made in relation to alternative structures. They are infinite in number and limited only by imagination.

Under the rules of 50 states, only licensed lawyers may provide legal services. As a result of this restriction, licensed lawyers, and the traditional law firm structures in which they practice, hold a monopoly on the provision of legal services. No other person, and no other type of structure — and notably not a multidisciplinary practice or a structure owned in whole or in part by a nonlawyer — may offer legal services without the risk of running afoul of unauthorized practice of law (UPL) and fee sharing rules.[43] (There are two exceptions: since 1990 Washington DC has permitted a limited form of nonlawyer ownership, and in 2015 Washington State began licensing “Limited License Legal Technicians.” These are individuals — not organizations — who are licensed to provide legal advice and assistance in specified areas of the law without the supervision of a lawyer).

Certainly, the full scope of the monopoly is difficult to describe.[44] Further, nonlawyers and non-traditional structures have attempted to chip away at the monopoly, such that some have described the role of the legal profession as having become “a subset of a larger industry that is increasingly populated by nonlawyers, technologists and entrepreneurs.”[45] Others make what is essentially the same observation but from a different perspective — they say, for example, that “legal services to big companies are…already de facto deregulated.”[46]

To be sure, UPL rules have not succeeded in keeping all nonlawyers and all non-traditional structures out of the market — companies like RocketLawyer, LegalZoom, Axiom, Shake and Modria are proof of that. But UPL and fee sharing rules have succeeded in keeping a great many out. As Gillian Hadfield observed: “There are many things that U.S. companies cannot do, and the fact that there is a little going on at the margins does not come close to what could be done if the restrictions were not there.”[47]

Much has been written and said, on the one hand to defend UPL rules (lawyers, by reason of their legal education and training, are more effective and more ethical than nonlawyers) and on the other hand to oppose them (in certain if not many situations, nonlawyers and/or nontraditional structures can provide services of adequate quality and entirely ethically, and thus make legal services available to a greater number of people who otherwise would be forced to go without them altogether).[48]

Without minimizing the importance of that debate, UPL restrictions raise a second and equally important issue: The laws in place in the United States today allocate the entire legal services market to the legal profession — to the legal profession only — and those laws (more or less successfully) support bar associations and other groups of lawyers when they attempt to keep nonlawyers and nontraditional structures out of the market.

Yet, those same laws do not require the legal profession to meet the needs of the entire market. Indeed, when in 2013 the New York Court of Appeals adopted a rule requiring New York attorneys not to provide any minimum amount of pro bono service, but simply to report the number of hours they do spend on pro bono work (as well as any financial contributions they make to organizations that provide legal services to the poor and underserved), the New York State Bar Association (NYSBA) strongly objected. In a letter to the Chief Judge of the State of New York, David Schraver, the President of the NYSBA and a partner at Nixon Peabody in Rochester, wrote that “the provision of legal services to the poor is a public responsibility” and that the reporting requirement was “an invasion of privacy.”[49] In 2015 the rule was scaled back to require only anonymous reporting.[50]

If Schraver is correct in saying that “the provision of legal services to the poor is a public responsibility,” then isn’t the effect of the monopoly to severely limit the public’s room for maneuver in meeting its responsibility? Doesn’t the monopoly essentially mean that the only way “the public” can meet its responsibility is to provide money to pay lawyers to provide legal services to the poor? That the public will not be permitted any other means to meet its responsibility?

Further, if “the provision of legal services to the poor is a public responsibility,” why isn’t the provision of legal services to the middle class and to the rich also a public responsibility? If Schraver is drawing a line in order to allocate what is the responsibility of the legal profession as opposed to what is the responsibility of the “public,” why does he draw the line at “legal services to the poor”?

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?  Beverley McLachlin, the Chief Justice of the Supreme Court of Canada, has stated it in this manner: “If you’re the only one who can provide a fundamental social need from which you benefit, I think it follows that you have to provide it.”[51]

If the United States is not willing to change its laws, either at the federal or state level, in order to oblige the legal profession to serve the needs of the legal service market in its entirety, then doesn’t the United States have the obligation to change its laws in order to open the market to others — including nonlawyers and alternative structures? As discussed in Part III, one of the many objections made to alternative structures is that there is no proof they will increase access to justice. But why should such proof be required? If the provision of legal services to the poor is a public responsibility, shouldn’t members of the public be allowed to try to provide them, even if they may fail? Isn’t this all the more true in light of the examples of Australia and England and Wales — which demonstrate, each with its own example, how nonlawyers and non-traditional structures can play a greater role in the delivery of legal services safely — without the dire consequences to ethical standards that so many have predicted?

Viewed from this context, all of the arguments made in opposition to alternative structures and all of the calls for greater evidence lose their relevance. The bottom line is that there is a massive unmet need for legal services in the United States — a need that some consider a human rights crisis. By law, the members of the legal profession are the only persons who are allowed to meet this need. Yet, the legal profession does not have the means to meet it, and, speaking through its bar associations, it rejects that it has the obligation to do so. At the same time, the Government of the United States is obliged under international treaties “to provide effective remedies to rights violations,” “to guarantee equal treatment before the tribunals and other organs administering justice,” and “to protect against discrimination and provide equal protection under the law.” And under the Agenda for Sustainable Development, the United States has committed to “ensur[ing] equal access to justice for all,” as well as to “develop[ing] effective, accountable and transparent institutions at all levels” that are needed for that purpose.

In this context, what continues to justify the lawyer monopoly on legal services in the US?

Ending the lawyer monopoly on legal services will not, by itself, solve the access to justice problem in its entirety, but it is an important and necessary element. And it will certainly be cheaper than spending an additional $46.3 billion per year on legal aid not to mention more realistic than expecting (let alone requiring) the 1.2 million lawyers of the US to increase their average number of pro bono hours to 900 per year.

Notes

[1] The Advocates’ Society, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, December 19, 2014, 2, http://www.lsuc.on.ca/uploadedFiles/The%20Advocates’%20Society.pdf.

[2] Ibid.

[3] Ibid., 3.

[4] Nicholas E. Gehl, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, December 9, 2014, 2, http://www.lsuc.on.ca/uploadedFiles/GEHL,%20Nicholas.pdf.

[5] Illinois State Bar Association, “Issues Paper Regarding Alternative Business Structures: Request for Comments,” 3.

[6] Ibid., 4.

[7] International Association of Defense Counsel, “ABA Commission on the Future of Legal Services – Alternative Business Structures,” 1.

[8] Ibid., 2.

[9] Ross, Letter to Katy Englehart, 2.

[10] Richard M. Leslie, “Nonlawyer Ownership of Law Firms,” May 1, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/richard_m_leslie_abs.pdf.

[11] McLeish Orlando, “Submissions Regarding the Implementation of Alternative Business Structures in Ontario,” December 17, 2014, 4, http://www.lsuc.on.ca/uploadedFiles/McLeish%20Orlando.pdf.

[12] Ibid., 5-6.

[13] Ibid., 14.

[14] Ibid., 15-16.

[15] Ontario Bar Association, “Alternative Business Structures,” 8.

[16] Ibid.

[17] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1.

[18] Ibid., 19.

[19] Women’s Paralegal Association of Ontario, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, January 30, 2015, 2-3, http://www.lsuc.on.ca/uploadedFiles/Womens%20Paralegal%20Association%20of%20Ontario.pdf.

[20] Ibid., 3.

[21] Ibid.

[22] Bradley Wright, December 30, 2014 (6:28 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion.”

[23] Ibid.

[24] Bradley Wright, January 2nd, 2015 (4:45 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion.”

[25] Bradley Wright, January 20, 2016 (8:00 pm), comment on Karen Dyck, “Innovating Regulation on the Prairies,” Slaw, January 20, 2016, http://www.slaw.ca/2016/01/20/innovating-regulation-on-the-prairies/.

[26] Laura Bellegie Sharp, “Comments Regarding the Alternative Business Solutions Issues Paper,” April 28, 2016, 2, http://www.americanbar.org/content/dam/aba/images/office_president/laura_sharp_abs.pdf.

[27] J. Richard Caldwell, Jr., “Report on ‘Alternative Business Structures,’” April 29, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/j_richard_caldwell_jr_abs.pdf.

[28] New York State Bar Association, “New York State Bar Association’s Comments,” 7.

[29] Perlman, “Towards the Law,” 85.

[30]Richmond, “Discussion Paper on Alternative Law Practice Structures,” 3.

[31] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1-2.

[32] Lorne Berndt et al., 2.

[33] Ibid., 3.

[34] ABA Standing Committee on Legal Aid & Indigent Defendants, “Comments on Issues Paper on Alternative Business Structures,” May 5, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/legal_aid_and_indigent_defendants.pdf.

[35] The County & District Law Presidents’ Association, “CDLPA’s Response to the Discussion Paper on Alternative Business Structures: The Voice of the Practising Lawyer in Ontario,” n.d., 14, http://www.lsuc.on.ca/uploadedFiles/The%20County%20District%20Lawyers%20Presidents’%20Association%20(CDLPA).pdf.

[36] Thunder Bay Law Association, “Submission to the Law Society of Upper Canada’s Working Group on Alternative Business Structures,” February 18, 2015, 1, http://www.lsuc.on.ca/uploadedFiles/thunder-bay-law-association.pdf.

[37] Equity Advisory Group Working Group on Alternative Business Structures, Memo to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, January 21, 2015, 2, http://www.lsuc.on.ca/uploadedFiles/Equity%20Advisory%20Group%20Working%20Group%20on%20ABS.pdf.

[38] Ontario Bar Association, “Alternative Business Structures,” 8.

[39] William M. Leech, “Comment: Issues Paper Regarding Alternative Business Structures April 8, 2016,” May 2, 2016, http://www.americanbar.org/content/dam/aba/images/office_president/william_m_leech_abs.pdf.

[40] Ontario Trial Lawyers Association, “Submission on Alternative Business Structures,” 1, 9.

[41] Ibid., 17.

[42] Ibid., 35.

[43] See generally Derek A. Denckla, “Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters,” Fordham Law Review 67 (1999): 2581-2599, http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3572&context=flr. See also Hadfield, “Innovating to Improve Access,” 3-4.

[44] Laurel S. Terry, “Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context,” Fordham Law Review 82 (2014): 2907, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Terry_May.pdf.

[45] William D. Henderson, “A Blueprint for Change,” Pepperdine Law Review 40 (2013): 461-507, 462, http://ssrn.com/abstract=2202823.

[46] Michael Mills, “The Future of Legal Services: The American Bar Association Commission,” Neota Logic Blog, April 13, 2015, http://www.neotalogic.com/news/the-future-of-legal-services.

[47] Laura Snyder, “Does the UK Know Something We Don’t About Alternative Business Structures?,” ABA Journal, January 1, 2015, http://www.abajournal.com/magazine/article/does_the_uk_know_something_we_dont_about_alternative_business_structures.

[48] See, for example, W. Bradley Wendel, “The Profession’s Monopoly and Its Core Values” (Forward to “Colloquium: The Legal Profession’s Monopoly on the Practice of Law”), Fordham Law Review 82 (2014): 2563- 2585, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Wendel_May.pdf; Deborah L. Rhode and Lucy Buford Ricca, “Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement,” Fordham Law Review 82 (2014): 2587-2610, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/RhodeRicca_May.pdf; Laurel A. Rigertas, “The Legal Profession’s Monopoly: Failing to Protect Consumers,” Fordham Law Review 82 (2014): 2683-2703, http://fordhamlawreview.org/assets/pdfs/Vol_82/No_6/Rigertas_May.pdf.

[49] David M. Schraver, “Mandatory Reporting of Pro Bono Service and Contributions,” 1.

[50] “Pro Bono Reporting Requirements – Attorney Registration,” New York State Unified Court System, last modified May 4, 2015, https://www.nycourts.gov/attorneys/probono/reportingreqs-intro.shtml#a.

[51] Kirk Makin, “Access to Justice Becoming a Privilege of the Rich, Judge Warns,” The Globe and Mail, February 10, 2011, http://www.theglobeandmail.com/news/national/access-to-justice-becoming-a-privilege-of-the-rich-judge-warns/article565873/.

Democratizing Legal Services

Ch 20 Unmet Need As Human Rights Crisis

Unmet Need as Human Rights Crisis

Alternative structures can be used to help to meet the huge unmet need for legal services in the US and in doing, so, end real suffering of real people. If we are unable — if we refuse — to see this, how are we different from all the others who observed Lauren’s abuse yet took no action to stop it?

A variety of studies and surveys evidence that while large organizations, such as corporations and public sector bodies, and high net worth individuals are able to obtain legal assistance, most low and middle income individuals as well as small businesses are all but shut out of the legal market. In particular, it is estimated that 80% of the legal needs of low income persons in the United States are not met.[1]

The average market rate for lawyers in the US has been estimated at $200 to $350 per hour,[2] and it is difficult to find lawyers that charge less than $150 per hour.[3] From this perspective, it is easy to see how most Americans, not just the poor but also middle class and many businesses, simply cannot afford a lawyer.

The source of the problem of unmet need is often seen as lack of monetary resource: that many people cannot afford legal services. Accordingly, the solutions most often proposed are more legal aid from government sources in order to pay lawyers (a topic discussed in detail in Part II), and more pro bono (free or volunteer) work from lawyers. But to the extent such solutions are available, they are available only to the most impoverished — they are not solutions made available to the middle class, let alone to entrepreneurs and small businesses, even though those populations also suffer from a huge unmet need for legal services.

Gillian Hadfield has explained that given the huge amount of unmet legal need in the United States, neither more legal aid nor more conventional pro bono offers even a remote solution:

Increased public funding of legal aid is clearly not feasible as a means of meeting the demand for legal help: at the rates estimated for solo and small firm practitioners, it would cost on the order of $50 billion annually just to secure one hour of legal help for all the American households with an unmet dispute-related need; the current total expenditure on legal aid in the US, counting both public funds and charitable donations, is less than 10% of that figure: $ 3.7 billion annually.[…] Even those living in poverty, who are eligible for civil legal aid, often are unable to obtain assistance: the Legal Services Corporation estimated that in 2009, half of those seeking assistance from LSC-funded services were turned away […] As for pro bono work: American lawyers average about 30 hours of pro bono work per year. That’s less than 2% of all legal effort. If every American lawyer in the country did an additional 100 hours per year, that would be enough to secure less than 30 minutes per dispute-related problem per household.[…] There is simply no way for the pervasive need for legal services experienced by ordinary Americans to be met through the conventional means advocated by the legal profession.[4]

At the time he was head of the Department of Justice’s Access to Justice Initiative, Laurence Tribe described Americans’ access to justice as a “dramatically understated crisis.”[5]

While the unmet need for legal services affects virtually every person of low and middle income, it disproportionally affects women and racial minorities. A 2014 report to the United Nations Committee on the Elimination of Racial Discrimination[6] explains that this occurs for two reasons. The first reason is because women and racial minorities are more likely to experience poverty in the United States, and because they are more likely to experience discrimination that gives rise to legal claims.[7] The second reason, the report explains, is that such groups make up a disproportionate number of litigants without representation.[8]

The 2014 report also explains:

[E]xisting studies indicate that lack of legal representation dramatically impairs the ability of low‐income people to effectively navigate the court system and attain successful outcomes. Represented parties enjoy statistically more favorable results in housing, family law, child welfare, small claims, and employment‐related civil rights cases. Those who are represented by an attorney before administrative agencies governing such vital issues as social security, immigration, and unemployment also have higher success rates — in some cases up to two or three times higher — than those who are unrepresented in comparable cases. In a survey of trial judges from thirty‐seven states, the majority reported that pro se [unrepresented] litigants were ineffective in their self‐advocacy because they failed to present necessary evidence, committed procedural errors, or were unable to properly examine witnesses.[9]

In fact, the extent of the unmet legal need in the United States is so high, it is considered a human rights crisis by some,[10] with the result that the United States is in breach of its obligations under a number of human rights treaties,[11] which require the United States, for example, to provide effective remedies to rights violations,[12] to guarantee equal treatment before the tribunals and other organs administering justice,[13] and to protect against discrimination and provide equal protection under the law.[14]

The United States itself has acknowledged the problems, stating to the United Nations Committee on the Elimination of Racial Discrimination that:

[T]he United States faces challenges in … its provision of free and affordable civil legal services to the poor and middle class. We recognize that these challenges are felt acutely by members of racial and ethnic minorities.[15]

The access to justice problem in the United States in also made acutely apparent in The World Justice Project Rule of Law Index for 2015. While on a general basis this index ranks the legal system of the US 19th out of 102 countries,[16] on the specific question of affordable and accessible civil justice, the US is ranked 65th out of 102 (behind countries such as Russia and Kyrgyzstan, Mongolia and Ukraine),[17] and is ranked last out of the regional group of North America and Western Europe, behind countries such as Romania and Bulgaria (the Report places Mexico in the region of Latin America & the Caribbean). Commenting on the US, the prior year’s (2014) report stated that “Civil legal assistance is frequently expensive or unavailable, and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the court system is significant.”[18]

The repercussions of the failure to meet this pervasive need for legal services are not limited to the individual themselves. It hurts other litigants: for example, when only one party to a matter is represented by counsel, the result is typically a higher legal bill for that party. It hurts the court system: unrepresented litigants unschooled in procedure clog the courts, consuming the time of court staff, producing delays and creating dilemmas for judges who may wish to help but who must also remain neutral and fair to both sides.[19]

And it hurts society as a whole: Access to legal services is “a catalyst for change in discriminatory and prejudicial societal structures.”[20] If all citizens do not have the means to resolve their claims, then individuals as well as companies “can take advantage of one another without much fear of recourse, resulting in an inequitable and immoral society.”[21] It is a Canadian who has perhaps summed it up best: “Being without a lawyer means being without power in our society.”[22]

What it means to be without power — and the unmet need for legal services as human rights crisis — is illustrated in the story of Lauren McConniel, as told by a decision of the Court of Appeals of Indiana: [23]

Born in October, 2004 Lauren was not yet two years old in July 2006 when her parents, Ryan McConniel and Amber Huggins, separated. After the separation, Amber and Lauren (together with Lauren’s older sister Kaylynn) moved from Indiana to Tennessee, and Ryan moved to Arkansas.

In November, 2006, Ryan filed for divorce in Arkansas. Ryan was represented by an attorney. Amber sought representation, but legal aid in Tennessee could not represent her because the case was out of state, and legal aid in Arkansas could not represent her because she was not an Arkansas resident. Because Amber could not afford to pay attorney’s fees, she was obliged to represent herself.[24]

The divorce was final in May, 2007. At the time of the divorce proceedings both children were living with Amber and Amber’s fitness as a mother was not questioned. Nevertheless, custody of both was awarded to Ryan, and Amber was ordered to pay Ryan $104 per week in child support. However, Ryan and Amber verbally agreed that Lauren would remain with Amber and that Amber would not pay child support. During the time that Amber had custody of Lauren, Lauren was described as a healthy child who was toilet trained and was well behaved and talkative.

In October 2007, Ryan married Brittany McConniel, the stepdaughter of Ryan’s cousin Robert Lee. At the time of the marriage, Brittany had a one year old son and she and Ryan later had a daughter. After their marriage, Brittany pressured Ryan to enforce against Amber the order for payment of child support, and Brittany told Ryan that he was “a worthless piece of crap” because he did not enforce his right for custody of Lauren.

Lauren lived with Ryan and Brittany from December 2007 to June 2008 and then again from October to December 2008. When Amber picked up Lauren in December 2008, Amber discovered that Lauren had bruises on many parts of her body. In addition, Lauren was withdrawn and had reverted to peeing in her pants. Amber called child protective services to report what she had observed; later Ryan called Amber to ask her if she had called child protective services. After Amber affirmed that she had, Ryan asked Amber if she would like to keep Lauren with her “like forever.” During her time with Amber, Lauren returned to being toilet trained.

In March 2009, Ryan and Brittany moved to Indiana, first to Winchester and, three or four months later, to Farmland. In Indiana, they lived with Robert Lee, his wife Angela Lee and their daughter Samra — at that time, Brittany disclosed to Ryan that Robert Lee has molested her as a child.

Brittany continued to pressure Ryan to enforce the order for payment of child support, stating that they needed the money and that Ryan was a worthless father who did not love his daughter because he let her stay with Amber.

At some point, Brittany called a 911 center in Tennessee to “have a welfare check on Lauren.” She told the Tennessee authorities that Ryan was custodial parent and that Amber refused to give the child back. She then pressured Ryan to drive to Tennessee to collect Lauren, which Ryan did, in August 2009. Without informing Amber of his intentions, he arrived at her house with the custody order and two law enforcement officers. At the time that Ryan took Lauren from Amber’s house in Tennessee to Indiana, Lauren was healthy, toilet trained, outgoing and did not demonstrate any eating disorders.

Ryan initiated an action for back payment of child support from May 2007, and Amber was given Ryan’s former address in Winchester, Indiana as a contact address.

Shortly after bringing Lauren to Indiana, Ryan, Brittany, Robert Lee, Angela Lee and the children moved from Farmland to Muncie, Indiana. Amber was not provided with the new address or with any telephone number.

Amber tried different ways to reach Ryan, but she was only able to make contact with Brittany, who lied to her by saying that they were living in Winchester, that Amber should pay the back child support and that Amber should not attempt to reach them again.

Amber threatened to seek contempt charges if the girls did not telephone her; In December, 2009 Amber received a call from a restricted number, and for eight minutes she was able to speak with both girls. The call ended when Amber heard Brittany say “you’ve talked long enough,” and the line was cut.

At the end of January 2010, Amber traveled from Tennessee to Winchester, Indiana to try to find her daughters, but found the house at the address she had been given to be empty.

Over the period from August 2009 to March 2010, Lauren suffered greatly at the hands of Robert Lee and Brittany. As Ryan later reported, he observed Robert Lee and Brittany hit Lauren with a stick on the palms of her hands and the soles of her feet. Immediately after being beat on the feet, Lauren was forced to do jumping jacks for anywhere from 5 to 50 minutes at a time, often not stopping until she was vomiting. Lauren was also forced to run, or to hold up heavy objects, for long periods of time without being allowed to stop. Robert Lee and Brittany would hit Lauren on the backs of her legs with wet rags or hand towels, later explaining that this way there would not be bruising. Brittany force fed Lauren, which led to more vomiting and then more beatings. Brittany forced Lauren to take Benadryl at night, in order that she would sleep. In December 2009, when Ryan returned home from work, Lauren’s hands were full of feces and she tried to smear the feces on Ryan and the other children in the house.

Lauren was taken to the emergency room on more than on occasion, with various problems such as a red and painful eye, broken fingers, and a vaginal area that did not “look normal.” After one medical exam, she retracted into a defensive position and hit herself repeatedly on the forehead with her fists.

On March 3, 2010 Ryan took Lauren to the emergency room again. At her arrival, she was described as “malnourished,” “emaciated,” “dehydrated and… extremely lethargic.” She weighed just 28 pounds; her bones, ribs and clavicle were pressing against her skin, and she had little or no subcutaneous fat. When she cried, she did not have any tears and the mucous membranes in her mouth were dry, indicating that she was dehydrated. She had multiple bruises on her face and extremities and a laceration on her thigh. Her sodium level was very high, and her blood pressure was very low. Lauren was dying, and, indeed, on March 4, 2010 she became nonresponsive, developed multi-organ failure, and was likely brain dead. A few days later she was later taken off the ventilator and on March 9, 2010 she died.

One of Ryan’s relatives contacted Amber when Lauren was admitted to the hospital. Amber drove from Tennessee, arriving at the Indiana hospital shortly before Lauren’s death.

It is clear that many people let Lauren down — her father Ryan, the other people who lived in the house with Robert Lee and Brittany and who visited the house and observed her abuse, Child Protective Services, the health care workers on Lauren’s prior emergency room visits — all of them had opportunities to intervene and try to stop the abuse but none did.

It would be easy (and facile) to stop there. It would be easy (and facile) to say that because of the failings of all those others, our legal system could not — should not — also be blamed. It would be easy (and facile) to say that, but it would also be wrong. It is not because others are also guilty that our legal system is less so. Any assertion that it is can only serve to perpetuate the problem, dooming cases like Lauren’s to be repeated.

At the time Amber and Ryan divorced, Ryan was able to pay for his own attorney, but Amber was not, and Legal Aid was not available to her. At the time of the divorce, both daughters were living with Amber, and there was no suggestion that she was an unfit mother. The statements that Ryan made later suggest that he never wanted custody of the girls, and there is no indication that he was ever concerned with Lauren’s welfare. There is no reason to explain why he was awarded custody except that he was represented by an attorney who understood how to navigate the court system in order to obtain custody for his client, while Amber was not.

In her 2012 testimony before the Task Force to Expand Access to Civil Legal Services in New York, District Attorney Kathleen Rice described the link between the civil access to justice gap and public safety in this manner:

Access and quality representation for all those in front of the court is at the heart of a preventative, front-end public safety strategy. As a [District Attorney], without such a strategy and without such civil court access and representation, I can tell you that our communities will be more dangerous and [we] will … continue to repeat public policy failures at great financial and human cost.[25]

New York Chief Judge John Lippman echoed this connection between access to civil justice and public safety when he stated: “If what happens inside this courthouse or any courthouse … is anything short, even by the smallest amount, of promoting equal justice… [t]he most vulnerable in our society, they’re the ones who have suffered the most.”[26]

In his book Children, Courts and Custody: Interdisciplinary Models for Divorcing Families, Andrew Schepard explains the challenges that divorcing parents face when they are unable to secure representation:

Divorcing parents must resort to a complicated court system to settle their differences. Yet the system does not provide them with the lawyers they need to navigate it, treating representation as a privilege for the wealthy or as charity for a small number of the very poor.

The increase in pro se [unrepresented] representation poses special challenges for the child custody court. At their best, lawyers can guide parents through a mystifyingly complex system at a time of great emotional turmoil, identify problem-solving strategies to help their children, encourage them to participate in education and mediation, and prepare and present their cases in court with full knowledge of the formal rules of procedure. Pro se parents do not get the benefit of this help. As a result, they suffer serious disadvantages in the legal system. Substantial numbers of pro se parents have difficulty finding out where to file court papers, understanding and completing forms and obtaining evidence to support their position in court. Parents with representation are more likely to be awarded physical custody than parents without representation. Where both parents are represented, they received joint legal custody 92% of the time, as compared to 50% of the families where neither parent was represented.[27]

A 2013 report to the Arkansas Access to Justice Commission confirms this situation specifically for self-represented litigants in Arkansas, where Amber and Ryan were divorced. After explaining the difficulties that poor persons have to obtain legal services, the report states that in Arkansas, self-represented litigants are, for the most part “left on their own and flounder.”[28] For example, very few Arkansas lawyers provide limited scope representation and, in particular, no family law lawyers do so: either they handle the entire matter from start to finish, or they decline representation.[29] Further, the report states, in Arkansas almost every family law matter has at least one unrepresented party.[30] Those unrepresented parties are at a huge disadvantage because, among other reasons, many judges require self-represented litigants to perform as if they were lawyers; if they do not, they are denied the relief they request.[31] In a survey of judges, 80% reported that self-representation has a negative impact on case outcomes, with one judge stating “there have been times [self-represented litigants] prevailed, but very, very seldom.”[32] Understood in this context, Amber never had a chance. And if she didn’t, neither did Lauren.

In order to help self-represented litigants in Arkansas, the report advocates for a number of changes, including the greater use of limited scope representation,[33] the wider development and availability of forms and document assembly technology,[34] the “repurposing” of the Supreme Court Library as the center of a network of court-based services for self-represented litigants,[35] improved court case management systems,[36] and the promulgation of clear policy guidelines for judges, clerks and librarians on how to work with self-represented litigants.[37] These are all worthwhile proposals, of course, that should be put in place. They will benefit many persons. But the report contains no allusion that, alone, they will be sufficient to close Arkansas’s access to justice gap.

In Australia, the ILP Salvos Legal Humanitarian provides, among other services, family law services. In the late 19th and early 20th centuries in the US, a number of social service organizations provided free legal assistance for divorce and child custody matters. What if a service like Salvos or those social service organizations had existed in Arkansas, Tennessee, or Indiana when Lauren McConniel was still alive? What if such a service had represented Amber Huggins in her divorce from Ryan McConniel, and had succeeded in maintaining Amber’s custody of Lauren? Or, what if such a service had been able to represent Amber Huggins when she first noticed that Lauren was bruised, so that Amber could have obtained custody at that time?

Those are a lot of what-ifs. We cannot wind back the clock and replay Lauren’s short life, in order to know with certainty whether such a structure would have effectively provided a lifeline to her — if it would have successfully represented Amber in order that she could protect Lauren from her suffering and death at the hands of Robert Lee and Brittany McConniel.

But we do not need to know for sure. We only need to know that it could have offered Lauren such lifeline; that the possibility is real. And that it can offer a lifeline to parents and children in the future who find themselves in situations comparable to Amber’s and Lauren’s. We need to see in those structures real-life examples of how alternative structures can be used to help to meet the huge unmet need for legal services in the US and in doing, so, end real suffering of real people. If we are unable — if we refuse — to see this, how are we different from all the others who observed Lauren’s abuse yet took no action to stop it?

Lauren McConniel had the right to not be tortured to death. That right was violated in a horrific manner. If Lauren’s mother had had access to civil legal services at the time of her divorce, it is more than possible that Lauren would be alive and well today. Lauren’s story illustrates in a dramatic fashion how the unmet need for legal services in the US constitutes a human rights crisis. The examples of Salvos Legal Humanitarian and the late 19th and early 20th century social service organizations illustrate the potential for alternative structures to help (certainly, along with other solutions such as those mentioned in the Arkansas report) to alleviate the crisis. To be clear — it is only a potential — there is no guarantee that they will do so. As alternative structures will not offer a panacea for lawyers, neither will they offer one for poor persons. That is, they will not offer a utopia or a universal remedy for all poor persons who are otherwise unable to obtain legal services. But the potential that they will help some people is real, and mere the fact this potential exists is highly significant. The story of Lauren McConniel (and others like her) places upon us a moral obligation to pursue this potential fully. It is too late for Lauren McConniel, but it is not too late for the other Laurens that will surely come after her.

And it is not just children that experience the unmet need for legal services as a human rights crisis:

Another example is that of the many persons in the United States who are incarcerated because of their inability to pay a fine. This occurs when someone with few resources is, most typically, cited for a traffic offense. Because of their limited resources, they do not seek legal counsel. Then, they do not attend the court hearing — because they fear arrest because of their inability to pay the fine,[38] because they are unable to get time off from work, because they are unable to make arrangements for child care for the time they would be at a court, because they do not realize that it is possible to challenge the ticket, even if they believe the ticket was issued unfairly.

And that is when their troubles really start — when they do not show up at court, additional fines are issued, court costs are assessed, and a warrant is issued for their arrest — all not because of the underlying violation, but because of the resulting failure to appear at court. Once arrested under the warrant and incarcerated, their lives enter a downward spiral of loss of access to jobs and housing — the very stability that they need to be able to pay the increasing fines. A typical scenario is that a person enters and leaves prison on several occasions over a period of several years as they struggle and fail to pay ever increasing fines and court costs, all originating from the same traffic offense.[39]

Today there are estimated to be thousands of such persons incarcerated across the United States. All are low income, and nearly all are members of racial minorities. Certainly this outcome is a result of a multiple of factors — underfunded municipalities and courts under pressure for additional sources of revenue, the increased use of private probation companies who seek their fees from offenders rather than from the state, and racial profiling that results in the ticketing of minorities for traffic violations at a higher rate — factors which cannot be addressed (at least not directly) by changes to the way legal services are regulated.

But one important factor can be addressed by changing the manner by which legal services are regulated — the lack of legal information: not knowing if it is better to appear in court, or better to not appear because if you do and you are unable to pay the fine, you will necessarily be incarcerated, not knowing whether it is possible to request a more convenient court date in order to maintain employment, not knowing if children are allowed in the courtroom and not having access to child care, not knowing if the citation itself can be challenged, and, if so, how. Unable to access legal representation or advice, this ignorance is prevalent and is an important factor in the suffering — imprisonment, job loss, homelessness — that results.

England offers us an example of how persons in this situation could be helped, both free of charge as well as for a low, fixed fee. That example is Road Traffic Representation (RTR), a web-based service that is operated by the ABS Legalmatters Limited. Described in detail in Part I, RTR provides an online legal advice service for road traffic offenses. After posing the user, accused of a traffic offense, a series of questions, the service assesses whether the authorities have followed the proper procedure (and thus whether any procedural or technical objections can be raised) and makes a diagnosis both of the likely penalties the client will face if convicted and of any defenses that may be asserted. It is easy to imagine that the information offered by the service could be adapted to address additional topics, such as whether and how a hearing date could be rescheduled, what is likely to happen if the user is unable to pay the fine, whether payment arrangements may be available, and whether restrictions on the presence of children at a hearing may apply.

A service like RTR would not offer a panacea to the thousands of Americans whose lives face a downward spiral after they are issued a traffic ticket. A mere website, even one applying a sophisticated rules based expert system, cannot solve the myriad of underlying problems, like the underfunding of courts and municipalities, the conflict of interest when private probation companies receive their revenue from offenders, or the targeting of racial minorities for traffic stops. But RTR demonstrates in a concrete manner how technology can be used to fill an unmet need for legal services; in this instance, to help someone faced with a traffic offense to quickly obtain basic but pertinent information at little or no cost, in order to understand his/her specific rights, obligations and options.

Notes

[1] William C. Hubbard, “Remarks of William C. Hubbard, President of the American Bar Association” (presentation to Meeting of American College of Trial Lawyers, Miami, Florida, February 28, 2015), http://www.americanbar.org/groups/leadership/office_of_the_president/selected-speeches-of-aba-president-william-c–hubbard/american-college-of-trial-lawyers–february-2015-.html. See also Ethan Bronner, “Right to Lawyer Can Be Empty Promise for Poor,” New York Times, March 15, 2013, http://www.nytimes.com/2013/03/16/us/16gideon.html?pagewanted=all&_r=1. See generally Legal Services Corporation, “Documenting the Justice Gap in America — The Current Unmet Civil Legal Needs of Low-Income Americans: An Updated Report of the Legal Services Corporation,” September, 2009, http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.

[2] Deborah Beth Medows, “Justice as a Luxury?: The Inefficacy of Middle Class Pro Se Litigation and Exploring Unbundling as a Partial Solution,” October 28, 2013, 11, http://dx.doi.org/10.2139/ssrn.2346267.

[3] Nathan Koppel, “More Strapped Litigants Skip Lawyers in Court,” Wall Street Journal, July 22, 2010, http://www.wsj.com/news/articles/SB10001424052748704229004575371341507943822?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052748704229004575371341507943822.html.

[4] Hadfield, “The Cost of Law,” 45-46.

[5] Channing Turner, “Tribe: Gap in Justice a ‘Dramatically Understated’ Crisis,” Main Justice, June 18, 2010, http://www.mainjustice.com/2010/06/18/tribe-gap-in-justice-a-%E2%80%98dramatically-understated%E2%80%99-crisis-2/.

[6] Columbia Law School Human Rights Institute and Northeastern University School of Law Program on Human Rights and the Global Economy, “Equal Access to Justice: Ensuring Meaningful Access to Counsel in Civil Cases, Including Immigration Proceedings — Response to the Seventh and Ninth Periodic Reports of the United States to the Committee on the Elimination of All Forms of Racial Discrimination,” July, 2014, http://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/equal_access_to_justice_-_cerd_shadow_report.pdf.

[7] Ibid., 4.

[8] Ibid.

[9] Ibid., 2-3

[10] Carrie Johnson, “Rights Advocates See ‘Access to Justice’ Gap in U.S.,” NPR, March 10, 2014, http://www.npr.org/sections/thetwo-way/2014/03/10/288225649/rights-advocates-see-access-to-justice-gap-in-u-s.

[11] See generally Zachary H. Zarnow, “Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States is Doing Instead, and How Legal Empowerment Can Help,” Journal of Gender, Social Policy & the Law, 20 (2011): 273-309, http://ssrn.com/abstract=2090054. See also Kristel Jüriloo, “Free Legal Aid — A Human Right,” Nordic Journal of Human Rights 33 (2015): 203-219, http://dx.doi.org/10.1080/18918131.2015.1066143.

[12] International Covenant on Civil and Political Rights, December 16, 1966, Art. 2(3)(a), http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. See also The Universal Declaration of Human Rights, Art. 8, http://www.un.org/en/documents/udhr/.

[13] International Convention on the Elimination of All Forms of Racial Discrimination, December 21, 1965, Art. 5(a), http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx.

[14] International Convention on the Elimination of All Forms of Racial Discrimination, Art. 6. See also The Universal Declaration of Human Rights, Art. 7.

[15] United States of America, “Periodic Report of the United States of America to the United Nations Committee on the Elimination of Racial Discrimination Concerning the International Convention of the Elimination of All Forms of Racial Discrimination,” June 12, 2013, 37, http://www.state.gov/documents/organization/210817.pdf.

[16] The World Justice Project, Rule of Law Index 2015, 6, 20.

[17] This ranking is derived from the data (xls) that is available for download from the World Justice Project website.

[18] The World Justice Project, Rule of Law Index 2014, 2014, 57, http://worldjusticeproject.org/sites/default/files/files/wjp_rule_of_law_index_2014_report.pdf.

[19] See, for example, Terry Carter, “Judges Say Litigants Are Increasingly Going Pro Se —  At Their Own Peril,” ABA Journal, July 12, 2010, http://www.abajournal.com/news/article/judges_say_litigants_increasingly_going_pro_se–at_their_own_/; and “More People Acting as Their Own Lawyers: Courts Clog Up as Americans Represent Themselves, Even in Complex Cases,” NBC News, November 24, 2008, http://www.nbcnews.com/id/27894755/ns/us_news-crime_and_courts/t/more-people-acting-their-own-lawyers/#.VdijULKqqkp.

[20] Jüriloo, “Free Legal Aid,” 203-204.

[21] Medows, “Justice as a Luxury,” 5.

[22] Julia H. Bass, W. A. Bogart, and Frederick H. Zemans, Access to Justice for a New Century: The Way Forward, (Toronto, Ontario, Canada: Law Society of Upper Canada, 2005), 12.

[23] Brittany L. McConniel v. State of Indiana, In the Court of Appeals of Indiana, Opinion for Publication, September 11, 2012, http://www.in.gov/judiciary/opinions/pdf/09111201ebb.pdf (hereinafter, “Court of Appeals of Indiana”).

[24] Facebook, Inc. “Remembering Lauren McConniel, 10/3/2004 – 03/09/2010,” accessed May 21, 2016, https://www.facebook.com/pages/Remembering-Lauren-McConniel-1032004-03092010/128472153894713?sk=info&tab=page_info.

[25] Task Force to Expand Access to Civil Legal Services in New York, “Report to the Chief Judge of the State of New York,” November, 2012, 9, https://www.nycourts.gov/accesstojusticecommission/PDF/CLS-TaskForceREPORT_Nov-2012.pdf

[26] Ibid., 4.

[27] Andrew I. Schepard, Children, Courts and Custody: Interdisciplinary Models for Divorcing Families (Cambridge, UK: Cambridge University Press, 2004), 41.

[28] John M. Greacen, “Services for Self-Represented Litigants in Arkansas: A Report to the Arkansas Access to Justice Commission,” July 26, 2013, 3, http://www.arkansasjustice.org/sites/default/files/file%20attachments/Arkansas%20Final%20Report%207-26-13.pdf.

[29] Ibid., 17-18.

[30] Ibid., 10.

[31] Ibid., 16.

[32] Ibid., 11.

[33] Ibid., 20-21, 31-32.

[34] Ibid., 20, 25-26, 27.

[35] Ibid., 29-31.

[36] Ibid., 22-26.

[37] Ibid., 28-29.

[38] See, for example, Shaila Dewan, “A Surreptitious Courtroom Video Prompts Changes in a Georgia Town,” New York Times, September 5, 2015, http://www.nytimes.com/2015/09/05/us/a-surreptitious-courtroom-video-prompts-changes-in-a-georgia-town.html?_r=0.

[39] See, generally: Chrissy Brown, “How to Go From Citizen to Criminal in Under 10 Minutes,” Thoughts On Liberty, July 23, 2013, http://thoughtsonliberty.com/how-to-go-from-citizen-to-criminal-in-under-10-minutes; Casey Smith and Carey A. Spinwall, “Increasing Number Going to Jail for Not Paying Fines: Inability to Pay Costs Plenty for All,” Tulsa World, November 13, 2013, http://www.tulsaworld.com/news/local/increasing-number-going-to-jail-for-not-paying-fines/article_8b8d2229-c7ad-5e7f-aea2-baeb13390880.html; Hannah Rappleye and Lisa Riordan Seville, “The Town That Turned Poverty Into a Prison Sentence,” The Nation, March 14, 2014, http://www.thenation.com/article/town-turned-poverty-prison-sentence/; “Without Funds to Pay Fines, Minor Incidents Can Mean Jail Time,” PBS Newshour, April 12, 2014, http://www.pbs.org/newshour/bb/without-funds-pay-fines-minor-incidents-can-mean-jail-time/; Radley Balko, “How Municipalities in St. Louis County, Mo., Profit From Poverty,” Washington Post, September 3, 2014, https://www.washingtonpost.com/news/the-watch/wp/2014/09/03/how-st-louis-county-missouri-profits-from-poverty/; “ArchCity Defenders Municipal Courts White Paper,” 2014, http://s3.documentcloud.org/documents/1279541/archcity-defenders-report-on-st-louis-county.pdf.

Democratizing Legal Services

Ch 19 Access to Justice Comes in All Shapes and Sizes

Access to Justice Comes in All Shapes and SizesSometimes Obvious and Sometimes Not

[These examples] demonstrate that alternative structures open quite wide a very large spectrum of possibilities with respect to access to justice — possibilities that today we can easily predict, as well as ones that only the future and our own creativity will reveal.

As mentioned above, a common argument made in relation to alternative structures is that there is no evidence they increase access to justice.[1] A work that is often cited in support of this argument is that of Canadian Professor Jasminka Kalajdzic. In her 2014 paper commissioned by the Ontario Trial Lawyers Association, she examines “the empirical literature in the UK and Australia with a view to identifying any data that would speak to these five metrics:” reduced cost of legal services, increased number of represented litigants, greater availability of legal services in smaller city centers, fewer unmet legal needs, and better quality of work performed.[2] Applying these five metrics in her examination of the available literature, she concludes that there is “a dearth of empirical evidence to support any of the contentions” that alternative structures lead, directly or indirectly, to an increase in access to justice.[3]

As also mentioned above, it is true that there is no “empirical” evidence that alternative structures increase access to justice. However, that does not mean that there is no evidence at all.

In the excerpts below[4] founders, managers and employees of England and Wales-, Australia-, and Washington DC-based alternative structures describe their how their structures work (or, in the last excerpt, how they plan it will work in the future). These excerpts expose a multitude of examples of access to justice, in a large variety of shapes and sizes. Sometimes the example is obvious from the excerpt, but sometimes it is less obvious (but no less significant) and for that reason the excerpt requires attentive reading:

Jenny Beck, Partner with UK-based ABS Stephensons Solicitors, explains how, using fixed prices, unbundling, and technology, the firm makes its services accessible on a number of levels:

Some of our services remain eligible for legal aid; those that are not are provided at a fixed price, so people need not fear the uncertainty of not knowing what the service will cost them…; We offer modular [unbundled] services, so that we can put together bespoke packages that suit everyone’s pocket; We offer extended services by phone and email, so that people who do not want to come into an office don’t need to (whether it’s because they are simply busy or because they’ve been subjected to violence and prefer to remain in a place where they know they are safe); We offer flexible hours, including evenings and weekends; We demystify law by talking to clients in plain English…

The Constant hub provides free access to legal support and many client loyalty benefits. Constant is unique in its offering to clients who can access a helpline open 24-hours a day / 365 days a year for 30 minutes of free legal help. Constant includes additional extras relevant to a client’s legal needs, such as access to a network of counsellors and advice on managing the media. Finally, the Constant hub also offers access to a range of guides [and] DIY legal advice videos … Constant provides a person with the assurance that their lawyer is ready to work with them at all times, delivering this message in a client-friendly way.

Andrea Pierce, Legal Services Director of UK-based ABS Kings Court Trust, explains how the company’s case management processes and software enable a high volume of client matters to be handled faster as well as with fewer errors and provides clients with greater visibility:

[A]t any given moment we have in excess of 500 open files. In contrast, in a traditional structure, typically a lawyer would deal with 10, 20 maximum, probate files a year….While the client has one point of contact, there are at least five, if not six, pairs of eyes that work on a file until it is completed. From a risk perspective, this offers a great advantage. In private practice, typically only one person oversees a file from start to finish — potentially something could be overlooked…. Another advantage we offer clients is a shorter life cycle for a file. This happens in part because of our project management software which has allowed us to build in efficiencies into our processes, and in part because of the way we structure our work — each person who works on a file is highly specialized and is able to provide solutions very quickly… [Finally,] technology is a very important part of driving our cases forward. In treating a file, we’ve broken the process into ten stages, and each stage has certain required components. With our technology, everyone knows what stage a file is in, and everyone knows what work they need to be doing. And the best part is that everything that we see in-house, our clients see too — it is fully transparent — they can track their files as we do.

Dina Tutungi, General Manager — Personal Injury Victoria, for Australia-based ILP Slater and Gordon, describes how the firm’s automated case management system allows the firm to handle a high volume of cases at the same time that it reduces errors and increases transparency:

We have created a “flow” for every type of matter that we handle in personal injury. It anticipates different combinations and permutations for how that matter can progress. It is like a “choose your own adventure” because it can go off in so many different ways by using prompts and checklists.

For example, it will prompt questions such as: Are you pursing a common law or statutory claims for damages, or both? Do you have a medical report? Will you make a claim for lost wages? Did you want to get a police report? Do you want to speak with witnesses? Do you need updated medicals?

There are thousands of these interactions in each “flow.” No, it will not teach you how to take a witness statement, or how to provide great customer service or how to manage your client’s expectations or undertake high level legal analysis. But it does minimize risk and improve efficiency, expertise and client service in a busy practice. And it is really empowering for the legal assistants because they can see exactly where the matter is at, keep the clients well informed and plan and manage their workload.

Tamyn Hearne, Associate of UK-based ABS Radiant Law, explains how the firm uses technology to systematize the collection and internal transmission of knowledge about its clients, and how the firm uses that technology to provide greater value-added:

We create what we call a “Playbook.” This is a live document which captures client-specific information and evolves as we develop a deeper and more practical understanding of the client and its operations. Depending on the work stream (client’s needs, type and complexity of an instruction), we refer to the information and/or processes within the client’s Playbook … some of the Playbooks contain a substantial amount of information, and we avoid client information sitting specifically within the knowledge realm of one person. We are always looking at ways to see how technology can assist in capturing an employee’s real time knowledge and ensure the quick and easy dissemination of Playbook information.

Compare this to how a traditional law firm typically serves its clients: One or more lawyers in the firm may or may not invest time to get to know the client. If they do, it would be exceptional that they would make the investment to get to know a client in the depth that we do, and unheard of to record their knowledge in a systematic and easily transferable way like we do. What’s more, traditional firms often shift responsibility for a client from one lawyer to another, especially from one junior lawyer to another, but without the necessary transfer of knowledge about the client and its specific needs. This is very frustrating for the client, and it limits the value that the firm may add to the client.

Karl Chapman, Chief Executive of UK-based ABS Riverview Law, describes how the company’s technology simplifies and accelerates the analysis of large volumes of contracts:

[I]magine you are [an in-house] lawyer… and you have all the contracts relating to a particular area of [your company’s] business. Imagine that all those contracts need to be re-negotiated to be sure they are in compliance with new regulations and a new company risk profile. And we also have to consolidate the number of suppliers that we have. How on earth do you start such a task? You have to find the contracts, you have to analyze them, you have to decide the strategy…[W]e can put all of the contracts in front of you on your screen, showing you how they connect, and suggesting which ones needs to be re-negotiated first. The lawyer then needs to review it and decide if that is, in fact, the right way to do it. What we are doing is short circuiting the decision making process, and making it better. You don’t take out the human interaction — quite the opposite — what we do take out is the foundation work that comes before, in order to present it to the lawyer in a way that they can interpret it and make the analytical decisions.

Jeff Winn, Managing Director of UK-based ABS Winn Solicitors, explains how the firm’s brand reduces client search costs and provides clients with peace of mind — because Winn Solicitors is a multidisciplinary practice, its clients need to deal with only one service provider:

What clients like about us, and why they come to us, is that we [offer a] one-stop-shop… Our clients know us as the place to go if the accident was not your fault — as the place that will take care of everything.

Julia Hulme, Managing Director of UK-based ABS Omnia Strategy, a multidisciplinary firm, explains how the firm’s clients are comforted from the knowledge that they will get a consistent message from a variety of professionals and experts:

[As an] ABS … we can assemble the entire team that the client needs. Take high-profile litigation for example: Normally, a client needs to hire a law firm for the litigation itself, a government relations firm for government advocacy, a communications firm for reputational and communications issues, and a strategy firm to help with how to move forward. With us, it’s a one-stop shop. The client can pick up the phone and speak to just one person, who understands all of the different work streams, and from who they can be confident they will receive a consistent message.

Martin Langan, founder of UK-based Road Traffic Representation (RTR, operated by the ABS Legalmatters Limited), explains that RTR is different from other services because RTR provides specific information and advice, tailored to the individual situation of each user:

The difference between RTR and other sites is that RTR offers much more than just generic information — it offers a diagnosis of the user’s case and information specifically tailored for that user, and it offers that for free… For a great many people, the free advice is all they want or need. It provides them with reassurance as to where they stand and what might happen to them.

Keith Arrowsmith, Partner of UK-based ABS Counterculture Partnership, explains how the multidisciplinary nature of his firm enables him to reach clients who need legal services but would otherwise not seek them out:

There are clients who talk to me now because I am sitting with them wearing a Counterculture badge that wouldn’t dream of walking through the door of what they see as a law firm. There is something about the perception of being in this more comprehensive structure that allows them to be more comfortable in engaging with me. Some of it might be related to concerns about cost, but I think that the real reason is that because I am wearing a Counterculture badge, I can begin conversations that otherwise I never would have been able to have. Many people in the arts start with the premise that their world and the legal world are so far apart, a lawyer could never understand them. With Counterculture, I am able to communicate with clients in a much more open way because they don’t see us as a traditional law firm.

Randy Price, Co-Founder & Managing Partner of Washington, DC-based Tandem Legal Group, explains how his fellow Co-Founder and CEO Mike McDevitt reassures the firm’s clients for the very reason that he is not a lawyer:

It is because of Mike that Tandem has been able to grow so quickly. He brings a combination of assets to the firm. … he is able to reassure our young CEO clients. Young CEOs are much more inclined to not trust lawyers than they are to trust them; with Mike sitting at the table, there is an immediate trust factor. Mike helps new clients to become comfortable with us much faster than with another law firm.

Ursula Hogben, Practice Leader and General Counsel of Australia-based ILP LegalVision, explains that many of the businesses that are clients of her firm had never worked with a lawyer before:

For clients, their first point of contact with us is usually our website, because it provides a vast amount of information. Their next point of contact is usually with our client care team… We do not charge for initial consultations or for preparing quotes and we offer fixed fees where possible. Our quotes include consultations and rounds of amendments to help us take the time to explain the advice or documents to our client… [I]t’s about honesty and certainty…Many of our clients have never used a lawyer before. It’s not because there was no lawyer in their locality, or because they couldn’t have gone into a city to use a lawyer. It’s because for some reason they did not engage those lawyers, whereas they did engage us. So, even if those clients theoretically had access to business law services before, they had not accessed those services.

Anne Copley, Head of Legal of UK-based BPIF Legal, explains how the ABS uses specialized industry knowledge and a privileged relationship to provide enhanced services to its clients:

Our [SME] members come to us because of our expertise in the industry. They do not have to explain to us how the industry works, they do not have to explain the terminology, the production methods, the processes. We know what our members are and we can ask questions that other lawyers might not know to ask because we know frontwards and backwards what goes on in a printing company. In addition, the relationship we have with our members is different than the one a traditional law firm would have with them. For lack of a better word, the relationship is more intimate. Since they are members, they consider that they have some ownership of us, rather than coming to us cap in hand. And since we liaise with the other services in our organization, we have a much more rounded view of their businesses.

Viv Du-Feu, Director of Legal Services, BMA Law, explains how in providing legal services to the members of the British Medical Association, BMA Law is able to learn about the types of issues they are facing and communicate that to the association’s leaders, who can then take that into account in formulating the association’s positions and policies:

[O]ur “core” activities are done in-house and […] our “core” expertise is located in-house. This is because the work they do is on the matters that keep our members awake at night. By having the lawyers that do that work in-house, I can keep my finger on the political pulse — I can feed into the association’s committees and management the types of things that the members are worried about. It’s a conduit for information and a virtuous circle.

Chris Byron, Managing Director of UK-based ABS Aspire Law, explains how the firm offers its clients with spinal cord injuries both a reduced fee as well as the opportunity to support a charity that helps others with spinal cord injuries:

Aspire Law provides to clients a better choice when they seek representation for spinal cord injury. They can go with firms like Irwin Mitchell or Slater and Gordon, or they can go with Aspire Law. If they go with Aspire Law, they know that a large contribution will be made to a charity that supports others who are in their circumstances. They also know that they can retain all of their compensation, rather than just 75% or less.

Jenny Holloway, Associate Dean, Nottingham Law School and Nick Johnson, Pro Bono Director, Nottingham Law School Legal Advice Centre, explain how the law school’s newly created ABS can be used to create a research center focused on developing new models for the delivery of legal services:

We can become a research establishment, experimenting with different ways of providing legal services. Like other university departments that research developments in science, we can research and develop new methods of delivering legal services and access to justice that could be exploited commercially later on. Universities do that — they develop things, and the good ideas are used by the rest of society, and help people in that way. For example, what about a short module on how to conduct your own litigation, that is available to people for a fee, like car mechanics classes?

Some of the above examples of access to justice are those that are commonly predicted by advocates of alternative structures: business models that facilitate reduced and fixed price legal services and/or unbundling, technology that enables standardization and improved processes to handle large volumes of cases or contracts, branding that reduces the client’s search costs and increases their level of trust, multidisciplinary services that significantly ease the client experience notably because they do not need to assemble or coordinate different streams of work.[5] Other examples are not so commonly predicted (if, indeed, they are predicted at all), yet are no less significant: business models that facilitate free legal services, the use of non-legal (notably industry and business) knowledge and experience to increase client trust in and comfort with the firm and with legal services more generally, the collection of knowledge about the legal issues of individual clients in the same industry for use by a trade association to assist and defend the rights of all in that industry on a collective basis, a severely injured client’s reassurance and comfort in knowing that in selecting a certain legal services provider the client is not just receiving highly specialized advice but also benefitting an association that helps others with the same type of severe injury, the development of a legal research establishment for experimentation with different ways of providing legal services. Indeed, this second set of examples steps far outside the five metrics that Kalajdzic applied in her research of secondary literature, and these examples demonstrate that alternative structures can operate to increase access to justice in ways that were not predicted, that do not lend themselves easily to metrics or empirical research, and that seemingly are limited only by creativity and imagination.

Could any or even all of these examples be developed by traditional structures, without changing the regulations to allow for alternative structures? Surely some of them could be, at least theoretically. Of course, as already mentioned, the theory of what traditional structures could do and the reality of what they actually are doing (and appear likely to do in the future) are very different things. The examples in this chapter demonstrate that alternative structures open quite wide a very large spectrum of possibilities with respect to access to justice — possibilities that today we can easily predict, as well as ones that only the future and our own creativity will reveal. And the examples in this chapter demonstrate that, with alternative structures, these possibilities can become very real.

This chapter is an excerpt from Democratizing Legal Services: Obstacles and Opportunities. To learn more about the book, please click here.

Notes

[1]See, for example, Sands McKinley, “The Access to Justice Myth,” Sands McKinley On the Future of Law, March 6, 2015, http://www.sandsmckinley.com/access-justice-myth/; and Kristian Bonn, “The Future Law Firm: Lawyers in the Minority,” Boon Law, December 3, 2014, http://bonnlaw.ca/2014/12/03/lawyers-minority-access-to-justice/.

[2] Kalajdzic, “Memo to Linda Langston,” 6.

[3] Ibid., 14.

[4] These are excerpts from the stories that can be accessed here.

[5] Again, a number of persons have made these predictions, as detailed in the notes to the Introduction to this book.