Category Archives: Legal Aid

Blog, Legal Aid

Legal Aid: What Am I Missing?

I am clearly missing something. I just don’t get what it is.

Yesterday (February 20) Linda Klein, the President of the American Bar Association, posted this on the ABA website:She didn’t mention it, but it’s likely she posted this in reaction to the recent news that the Legal Services Cooperation is included on a list of federal programs targeted for elimination, ostensibly as a budget-saving measure.

Just in the past week, on Twitter Klein also posted this:And this:It’s all great. Who can argue that it isn’t important to have a “robust” Legal Services Corporation? Who can argue that veterans shouldn’t receive pro bono legal services? Who can argue that, more generally, lawyers shouldn’t offer more services on a pro bono basis?

And Klein is by no means the first person (or the last) of the ABA to argue in favor of more pro bono and, in particular, of more financial resources for the Legal Services Corporation and other legal aid organizations.

Just have a look at this page on the ABA website: It states that:

Financial resource limitations remain one of the largest barriers preventing civil legal aid providers, even with their pro bono allies, from addressing the needs of low-income communities.

The page contains a wealth of information, resources and advice for persons interested in seeking more money to fund legal aid. It’s clear that a great many people spent a lot of time and energy on it.

Again, it’s all great. Who can argue with it?

Let’s look again at the justification Klein gives for the ABA’s support of a “robust” Legal Services Corporation. She says that the LSC is needed “to assure justice for all:”

Our nation’s core values are reflected in the LSC’s work in securing housing for veterans, freeing seniors from scams, serving rural areas when others won’t, protecting battered women, helping disaster survivors back to their feet, and many others.

Again, it’s impossible to argue with this. All these people, and more, need legal help. In many cases, they need it desperately. Yet, even with the money currently going to the Legal Services Corporation and other legal aid providers, it isn’t enough. Of those who seek legal aid, at least 50% are turned away for lack of resources. The shortage of civil legal services in the United States, for the poor as well as for the middle class, is so great is has been described devastating, as well as a human rights crisis. In sum, as important as the Legal Services Corporation is, it does not “assure equal access to justice for all.” It would need a lot more money for that to be the case.

Money for legal aid. Money for legal aid. Money for legal aid. That is the mantra of the ABA, and of a great many bar associations. And why do we need money for legal aid? To provide legal assistance to those who need it but cannot pay for it. Because, Klein states, it is part of our nation’s core values.

It is part of our nation’s core values to reject ways of providing legal aid that do not rely upon public funds or on pro bono work?

Apparently it is because it is what we are doing.

Both the current day as well as history provide us with examples of how free legal assistance can be provided without reliance on public funds.

The best examples of the current day are the Australian “sister” corporations Salvos Legal and Salvos Legal Humanitarian, both wholly owned by the Salvation Army. Salvos Legal is a commercial and property law practice that serves corporate clients. Salvos Legal Humanitarian is a law firm that provides services to the “disadvantaged and marginalized” in a variety of areas, including family law, housing, migration and refugee matters, debt and criminal law. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the income, less expenses, of Salvos Legal. Salvos Legal Humanitarian receives no government funding, nor any funding from the Salvation Army — it is funded from the income earned by Salvos Legal, which serves its corporate clients on a paid basis. As of today, Salvos Legal Humanitarian has provided free legal services for approximately 18,113 matters across its 16 offices in eastern Australia.

Salvos is not a well-kept secret. To the contrary, its contributions to Australia have been recognized and highly lauded on a number of occasions: In 2014, Salvos Legal was named “Law Firm of the Year” by the Australian Lawyers Weekly. In 2015 it was named “Corporate Citizen Firm of the Year” and “Boutique Firm of the Year” by Australasian Lawyer, and it again won a Lawyers Weekly award, this time in the category “Pro Bono Program of the Year.  In 2016 it won yet again, Australasian Lawyer naming it both “Law Firm of the Year (up to 100 lawyers)” and “Corporate Citizen Firm of the Year.” In addition, Luke Geary, the Managing Partner of both firms, was listed in Pro Bono Australia’s impact25, which recognizes the social sector’s most influential people of 2015. Pro Bono Australia described Luke Geary as having “managed to create a self-sufficient law firm that helps some of the most needy people in the community.” In doing so, Pro Bono Australia continued, “he has changed the face of the funding of pro bono legal services in Australia.”

The past also provides us with examples of how legal services can be provided to the poor without reliance on public funds. Those examples can be found in Felice Batlan’s book Women and Justice for the Poor: A History of Legal Aid, 1863-1945. This fascinating book details how, over a period of decades in the late 19th and early 20th centuries, a number of women’s social services organizations in the United States provided free legal services to the poor. They did this sometimes with the assistance of professional lawyers, but, in most cases, with “lay” lawyers — that is, with women who did not have a formal legal education and were not admitted to the bar but who did have extensive legal knowledge and experience. In either case, the services were provided free of charge (as well, in many cases, in combination with other, nonlegal services, such as help to find employment, housing or clothing) yet also without any allocation of public funding.

Today women’s social services organizations no longer play the role in society that they once did. That does not mean, however, that the types of legal issues that they dealt with or the types of causes that they championed have disappeared. To the contrary, they are still very much alive and championed in a large variety of community organizations and advocacy groups that seek to help poor and disadvantaged persons with respect to housing, labor conditions, domestic violence,… While these organizations of course provide information to their members and constituents, to the extent that information is legal in nature, and certainly to the extent it is tailored for any specific individual or case, the organizations enter a gray area where their activities could be characterized as the unauthorized practice of law. In this manner they must limit the legal services they provide in order to not run afoul of unauthorized practice of law rules.

What stops us from creating in the United States a Salvos Legal/Salvos Legal Humanitarian? What stops us from creating modern-day versions of the social services organizations so vividly described in Batlan’s book? In other words, what stops us from creating structures that can provide legal services to the poor without reliance on public funding?

Just this: the regulations that restrict nonlawyer ownership and control of law firms combined with rules on the unauthorized practice of law.

Again, Salvos is not a secret. It is well-known in the US among those who are interested in the topics of alternative structures and the regulation of legal services. However, those same people, as far as I can tell, reject the Salvos model for the United States. Perhaps the best example of this is a Twitter conversation I had just a few days ago. When I argued that regulations need to be changed in order to allow for a greater number and variety of legal services providers to enter the market, my correspondent challenged me, stating “so far no one has found something I can’t do today that regulatory change would allow me to do.” When I responded that the Salvos model (among several others) would be impossible in the US, he retorted that Salvos could be replicated in the US with a law firm that donates its profits to legal aid. And he went one step further, saying “We already can do better.”

If my Twitter correspondent is right – if both the Salvos model can be so easily replicated with “a law firm that donates its profits to legal aid,” and if “we can already do better,” then why does the ABA (and others) spend so much time and energy seeking funding for legal aid? Instead, shouldn’t they be focusing their time and energy on creating “law firms that donate their profits to legal aid,” and shouldn’t they be doing that already “better” thing my Twitter correspondent mentioned? Couldn’t we, in that way, end our reliance upon public funding for legal aid?

In sum, there is something I really struggle to understand. If we don’t need to change our regulations to allow for a US version of Salvos Legal because we can already create structures that serve the same purpose (provide free legal services to the poor) – in fact, if we can already, as my Twitter correspondent said, even “do better” – then why do we need public funding for legal services at all? Why aren’t we, instead, out there creating all those law firms that will donate their profits to legal aid? If our regulations are so great and don’t need to be changed, then why isn’t that enough?

What am I missing?

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Related posts on this site:

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

Chapter 12: Opportunities for Legal Aid

Chapter 20: Unmet Need as Human Rights Crisis

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

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

Blog, Legal Aid

What’s Wrong With This Picture?

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

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

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

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

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

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

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

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

And yet.

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

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

To take just one example:

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

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

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

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

One program in Washington described:

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

Another program, this one in Georgia, reported:

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

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

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

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

All this is true.

And yet.

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

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

They are obviously motivated to help those in need.

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

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

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

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

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

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

Related posts on this site:

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

Chapter 12: Opportunities for Legal Aid

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

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

Glenda Terry, Practice Manager, Castle Park Solicitors

Martin Langan, Founder, Road Traffic Representation

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

Blog, Legal Aid

Legal Aid and Lazy Journalism

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

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

The article concludes:

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

This editorial is incredibly lazy journalism, for two reasons:

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

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

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

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

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

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

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

Related posts on this site:

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

Chapter 12: Opportunities for Legal Aid

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

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

Glenda Terry, Practice Manager, Castle Park Solicitors

Martin Langan, Founder, Road Traffic Representation

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

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

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, Legal Aid

Ch 12 Opportunities for Legal Aid

Opportunities for Legal Aid

It is clear that alternative structures offer a real and meaningful opportunity for legal aid: the opportunity to provide free legal services without the allocation of public funds.

Few (if, indeed, anyone) would claim that legal aid is sufficiently funded. To the contrary, many assert, and assert on a repeated basis, that legal aid is woefully underfunded. Two noteworthy examples include:

1)         The Conference of Chief Justices (CCJ): This organization, founded in 1949, brings together the highest judicial officer of each state, as well as of the District of Columbia and certain territories. It is governed by a Board of Directors, it works through a variety of standing, temporary and special committees, and it often works in close collaboration with the Conference of State Court Administrators (COSCA). The principal output of the CCJ is Resolutions proposed by a specific committee and adopted by the CCJ as a whole, often jointly with the COSCA.[1]

Between 2002 and 2015, the CCJ adopted no less than eight resolutions calling for increased funding of legal aid. Most of these resolutions call specifically upon the US Congress to provide greater funding to the Legal Services Corporation;[2] others call upon the members of the CCJ to do more on a state level to attract greater funding for legal aid.[3]

In addition to the no less than eight resolutions, in March 2012 the CCJ and the COSCA jointly issued and shared with Congress a Position Paper entitled “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.”[4] In this 7-page paper, the CCJ and the COSCA explain to Congress the importance of equal justice, the extent of the “justice gap” in the US, the importance of legal aid for meeting that gap, and, as a consequence, the importance of adequate funding for legal aid. The paper concludes with an appeal to Congress for increased funding for legal aid.

2)        The ABA: Near the top of the page of its website entitled “Civil Legal Services,” the ABA states:

Adequate funding for the federal Legal Services Corporation is one of the ABA’s highest legislative priorities.

The ABA strongly supports a significant funding increase for the Legal Services Corporation. ABA advocacy seeks to gain or reinforce Congressional Members’ support for LSC, to get their signature on a letter in support of LSC’s funding increase and to keep them involved on behalf of LSC funding throughout the appropriations process.[5]

On another page of its website, entitled “Civil Legal Aid Funding,” the ABA states:

Financial resource limitations remain one of the largest barriers preventing civil legal aid providers, even with their pro bono allies, from addressing the needs of low-income client communities.[6]

The ABA has created a “Resource Center for Access to Justice Initiatives.” The home page for the Center states that the Center’s “two main focuses” are “supporting the growth and development of state-based Access to Justice Commissions,” and “collecting and analyzing data on the various sources of funding for civil legal aid.”[7]

The Center has developed a 2-page document entitled “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid” (ABA Best Practice Document). The document lists and describes “best practices” for a state’s highest court to follow in seeking to attract greater funding for legal aid, including:

  • “Create a high‐powered [Access to Justice (ATJ)] commission… ATJ commissions have been instrumental in obtaining or increasing state funding,”
  • “Speak and write publicly on behalf of the funding,”
  • “Call for and/or host hearings,”
  • “Visit with legislators,”
  • “Find funding sources. Helping campaign leadership and legislators identify the most appropriate sources of state funding for legal aid,” and
  • “Administer the funds.” [8]

The ABA Best Practice Document provides examples from the states of Texas, New York and Wyoming, as follows:

 Example of Texas:

The Role of the Supreme Court: Funding for basic civil legal services is included in the supreme court’s budget, and the court actively advocates for additional funding. There is a bipartisan consensus on this key principle: that providing assistance for those who cannot afford a lawyer is a critical part of the justice system and essential to the integrity of the rule of law. The chief justice and individual members of the court play a public role, making the case for legal aid funding by giving speeches, visiting with individual legislators, meeting with newspaper editorial boards and authoring op‐ed pieces.

The Result: In 2013, Texas legal aid programs received approximately $20.8 million in funds through appropriations and court fees and fines, almost 300 percent more than the $5.4 million received 10 years ago.

Example of New York:

The Role of the Chief Judge: The current chief judge, when he was appointed in 2009, made increasing funding for civil legal aid a priority. He created the Task Force to Expand Access to Civil Legal Services, which includes leaders from the bench, bar, law schools, and legal aid, as well as legislators and representatives of unions, corporations, foundations and the medical community. He conducts annual public hearings to assess the unmet civil legal aid needs throughout the state. The task force prepares an annual report, based on the hearings and other research, which the chief judge then uses to make his case to the legislature and the governor.

The Result: New York’s state funding has increased more than any other state over the past 12 years, going from $4.6 million in 2003 to $85 million for 2015.

Example of Wyoming:

The Role of the Supreme Court: An ATJ commission was established by the court in 2008. The chief justice designated an associate justice to chair the commission, and he worked tirelessly to lead the effort to document the need for civil legal aid and then find additional funding. Community meetings were held throughout the state, gathering documentation of the unmet need. The commission took responsibility for both leading the campaign and doing the hard day‐to‐day work to get the legislation passed and signed by the governor.

The result: Wyoming obtained its first‐ever state funding, through a filing fee surcharge, in 2010. It generates about $1,250,000 annually, making Wyoming fifth in the country in terms of state dollars per poor person, and more than doubling the total amount of funding available for civil legal aid in the state.[9]

Indeed, the CCJ was sufficiently impressed with the ABA Best Practice Document that one of the most recent of its eight resolutions mentioned above was to encourage its members (as well as the members of the COSCA) to consider it “as a worthy guide for their own endeavors to obtain increased funding for civil legal services.”[10]

Given the severity of the unmet need for legal services in the US (discussed in detail in part III), it is difficult to find fault with these and the many other calls that are repeatedly made for greater public funding for legal aid. At the same time, these calls are remarkable in the way that they focus nearly exclusively on the allocation of greater public funds, by the US Congress and/or by state legislatures. These calls seem to be premised upon the (for the most part) unstated assumption that the only possible source of funding for legal aid, or, at least the only potentially adequate source, is public funds. (Other sources of funding, such as Interest on Lawyers Trust Accounts [IOLTA], of course exist, and private donations are certainly encouraged and accepted, but there is no pretense of the adequacy of these other sources). On the basis of this unstated assumption, neither the CCJ nor the ABA (nor nearly any other individual or organization that calls for greater funding for legal aid) suggests or even appears to have considered the potential of alternative structures as a viable complement to increased public funding.

This failure is puzzling, for two reasons.

The first reason is that as desirable as increased public funding is, it can never come close to being enough. As discussed in detail in Part III, today total public spending for the Legal Services Corporation and other legal aid, combined with charitable donations for legal aid, is about $3.7 billion per year,[11] whereas Professor Gillian Hadfield’s research estimates that $50 billion per year would be required to secure one hour of legal assistance for households with unmet dispute-related needs.[12] An increase in public funding for legal aid by $46.3 billion — not just once but on an annual basis — would, at a minimum (taking inspiration from the ABA Best Practice Document), require highly intensive, non-stop, long-term lobbying efforts at the federal level as well as at the level of each and every one of the 50 states, the District of Columbia and the territories. And it still would not be enough.

The second reason is that other options for funding legal aid exist — options that do not require the allocation of public funds and that, at the same time, are sustainable and scalable.

An evident example are the Australian “sister” corporations Salvos Legal and Salvos Legal Humanitarian, both wholly owned by the Salvation Army. As described in detail in Part I, Salvos Legal is a commercial and property law practice that serves corporate clients. Salvos Legal Humanitarian is a law firm that provides services to the “disadvantaged and marginalized” in a variety of areas, including family law, housing, migration and refugee matters, debt and criminal law. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the income, less expenses, of Salvos Legal. Salvos Legal Humanitarian receives no government funding, nor any funding from the Salvation Army — it is funded from the income earned by Salvos Legal, which serves its corporate clients on a paid basis. As also noted in Part I, at the time this book went to press, Salvos Legal Humanitarian had provided free legal services for approximately 16,000 matters across its 16 offices in eastern Australia.[13] In addition to the number of awards that Salvos Legal and Salvos Legal Humanitarian have won (as detailed in Part I), Luke Geary, the Managing Partner of both firms, was listed in Pro Bono Australia’s impact25, which recognizes the social sector’s most influential people of 2015. Pro Bono Australia described Luke Geary as having “managed to create a self-sufficient law firm that helps some of the most needy people in the community.” In doing so, Pro Bono Australia continued, “he has changed the face of the funding of pro bono legal services in Australia.”[14] There is just one thing that prevents The Salvation Army, and, indeed, any other charitable organization that is so inclined, from creating comparable structures in the US — that is the regulations that restrict nonlawyer ownership and control of law firms.

Another example is the website Road Traffic Representation (RTR), operated by the UK-based ABS Legalmatters Limited. Also described in detail in Part I, RTR provides an automated 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. The service provides that information to the user free of charge — payment is requested only if the user requests additional assistance either in the form of a phone call with a solicitor or in-person representation in court.

Additional examples, perhaps less evident but no less compelling, can be found in Felice Batlan’s book Women and Justice for the Poor: A History of Legal Aid, 1863-1945.[15] As discussed in Part I, this book details how, over a period of decades in the late 19th and early 20th centuries, a number of women’s social services organizations in the United States provided free legal services to the poor. They did this sometimes with the assistance of professional lawyers, but, in most cases, with “lay” lawyers — that is, with women who did not have a formal legal education and were not admitted to the bar but who did have extensive legal knowledge and experience. In either case, the services were provided free of charge (as well, in many cases, in combination with other, nonlegal services, such as help to find employment, housing or clothing) yet also without any allocation of public funding.

Today women’s social services organizations no longer play the role in society that they once did. That does not mean, however, that the types of legal issues that they dealt with or the types of causes that they championed have disappeared. To the contrary, they are still very much alive and championed in a large variety of community organizations and advocacy groups that seek to help poor and disadvantaged persons with respect to housing, labor conditions, domestic violence,… While these organizations of course provide information to their members and constituents, to the extent that information is legal in nature, and certainly to the extent it is tailored for any specific individual or case, the organizations enter a gray area where their activities could be characterized as the unauthorized practice of law. There is just one thing that prevents these organizations from providing to their members and constituents the legal aid that they so desperately need — and doing so without public funding — that is the regulations that restrict nonlawyer ownership and control of law firms.

Lifting such regulations in order to allow community organizations to provide legal services to their members and constituents, and, in particular, to the poor and disadvantaged, is one of the first recommendations that was made by the Commission on Legal Empowerment of the Poor. This independent international organization, hosted by the United Nations Development Programme, was established in 2005 as the “first global initiative to focus on the link between exclusion, poverty, and the law.”[16] The Commission was co-chaired by Madeleine Albright, former US Secretary of State and Hernando de Soto, Peruvian economist and founder of the Institute for Liberty and Democracy, and its members were made of up policy makers and practitioners from around the world, including:

  • Anthony Kennedy,[17] US Supreme Court Justice,
  • Lawrence Summers, former President of Harvard University and former US Secretary of the Treasury,
  • Mary Robinson, former President of Ireland and former United Nations Commissioner for Human Rights,
  • Fernando Henrique Cardoso, former President of Brazil and former president of the Club of Madrid, and
  • Lloyd Axelworthy, former Minister of Foreign Affairs of Canada.[18]

During a period of three years, the members of the Commission and other contributors for its five working groups conducted 22 national consultation processes with representatives from local governments, academia, civil society, and grassroots movements.[19] In 2008, the Commission published its two-volume report entitled Making the Law Work for Everyone.

The report of the first working group “Access to Justice and Rule of Law” contains a number of observations and recommendations with respect to “reforms to the law and justice sector that will provide poor people with the institutional environment, the protections, and the incentives they need to realise their full capabilities and reap the maximum potential return of their existing assets.”[20] Among other topics, those observations and recommendations address the unauthorized practice of law, as well as community based organizations and advocacy groups.

On the topic of the unauthorized practice of law, the working group writes:

[A] potential problem [in the supply of legal services] may arise when countries adopt stringent ‘unauthorised practice of law’ rules — that is, when countries mandate that certain legal services can only be offered by certain legal professionals, such as licensed attorneys…While these restrictions may arise from the purist of motives — such as the desire to maintain minimum quality standards and to protect consumers from exploitation — they often have the effect of conferring a monopoly on a particular set of legal service providers. This drives up the price of legal services to the disadvantage of consumers in general and poor consumers in particular….

There is a small but growing body of empirical research — most of it, admittedly, conducted in rich countries — that indicates that nonlawyers (especially paralegals) and lay people can perform a variety of ‘legal’ services as effectively as lawyers, and that market mechanisms and less intrusive regulation can be effective in protecting consumers from exploitation. This evidence, though suggestive rather than conclusive, indicates that liberalisation of the market for legal services — in the form of weakening restrictions on who can provide particular legal services — is likely to improve access to justice for the poor substantially, while imposing relatively few costs on society so long as alternative quality-control institutions are in place.

A major attraction of [this reform strategy] is that, compared to many other legal reform strategies, it may require fewer government or donor expenditures, at least in the medium- to long-term. Instead of compensating for a market distortion through continuous payments to individuals, the liberalisation strategy focuses on curing a market distortion through a change in the regulatory scheme.[21]

On the topic of community based organizations and advocacy groups, the working group writes:

The use of local community-based organizations [can be expanded to allow individuals to pool their risks, as a form of emergency legal insurance]. For example, labor unions can — and often do — provide legal services on behalf of their members…Tenants’ associations can provide emergency legal assistance to contest evictions; similarly, while landlords’ associations can offer emergency legal assistance to take action against unruly or destructive tenants. The advantage of relying on small community-based representative groups to provide emergency legal insurance is that these groups may be able to better monitor and police their members and to apportion insurance costs in proportion to risk.[22]

In sum, no matter how intensive or extensive any lobbying efforts for increased public funding for legal aid may be over any period of time, they will never lead to an allocation of funding at a level sufficient to close the justice gap in the US. At the same time, the Australian sister corporations Salvos Legal and Salvos Legal Humanitarian and the UK-based website Road Traffic Representation provide compelling present-day examples of how legal aid (free legal services) can be provided without public funding. In addition, Felice Batlan’s book, Women and Justice for the Poor: A History of Legal Aid, 1863-1945, provides a multitude of equally compelling examples from the past of how community organizations can provide free legal services without public funding — examples that remain fully relevant today. Finally, a global initiative hosted by the United Nations and led by high profile policymakers, including US Supreme Court Justice Anthony Kennedy, has recommended the liberalization of the regulation of legal services in order to allow nonlawyers and community-based organizations and advocacy groups to provide legal services to the poor, stating that “it is likely to improve access to justice for the poor substantially while imposing relatively few costs on society,” and that a “major attraction” of such liberalization is that it may require “fewer government or donor expenditures.”[23]

In short, it is clear that alternative structures offer a real and meaningful opportunity for legal aid: the opportunity to provide free legal services without the allocation of public funds. What is less clear is why the CCJ, the ABA and other organizations continue to focus so much of their limited attention and resources on seeking increased public funding — and call on others to do the same — rather than devoting some of that attention and resource to changing the regulations in order to allow for alternative means of providing legal aid and, as a consequence, to also allow for alternative means of funding.

 Stories

Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian: Geary explains how Salvos Legal Humanitarian provides free legal services in Australia without funding from either the government or The Salvation Army.

Martin Langan, Founder, Road Traffic Representation: Langan describes how Road Traffic Representation’s automated system provides to persons charged with a traffic offense a certain amount of free legal services. Langan also describes how RTR’s system can be adapted for use in other areas, notably family law.

Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law: Batlan describes how for decades in the later 19th and early 20th centuries women’s social services provided legal aid without government funding.

Notes

[1] See generally, “Conference of Chief Justices,” Conference of Chief Justices, accessed August 27, 2015, http://ccj.ncsc.org/.

[2] “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 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 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 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 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;

[3] “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 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.

[4] 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.

[5] “Civil Legal Services,” American Bar Association, accessed December 30, 2015, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/civil_legal_services.html.

[6] “Civil Legal Aid Funding,” American Bar Association, accessed December 30, 2015, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/resources—information-on-civil-legal-aid-funding.html.

[7] “Resource Center for Access to Justice Initiatives,” American Bar Association, accessed May 21, 2016, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice.html.

[8] ABA Resource Center for Access to Justice Initiatives, “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid,” July 15, 2015, 1, http://www.americanbar.org/content/dam/aba/images/legal_aid_indigent_defendants/ls_SC%20Best%20Practices.pdf.

[9] Ibid., 2.

[10] “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, 2, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Support-Statement-Best-Practices-State-Funding-Civil-Legal-Aid.ashx.

[11] Hadfield, “The Cost of Law,” 45.

[12] Ibid. See also Hadfield and Rhode, “How to Regulate Legal Services,” 3-4.

[13] Salvos Legal maintains an online counter of the number of matters for which is has provided free legal assistance since 2010: https://slh.salvoslegal.com.au/counter.

[14] “Luke Geary,” Pro Bono Australia Impact25, accessed December 30, 2015, http://www.pbaimpact.com/#!luke-geary-/oinwt.

[15] Batlan, Women and Justice for the Poor.

[16] Commission on Legal Empowerment of the Poor (CLEP), 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), 16, https://www.unicef.org/ceecis/Making_the_law_work_for_everyone.pdf.

[17] Interestingly, Justice Kennedy later authored the US Supreme Court’s 2015 decision North Carolina Board of Dental Examiners v. FTC, described in part I.

[18]Ibid., v-vi.

[19]Ibid., 2.

[20] Commission on Legal Empowerment of the Poor (CLEP), Making the Law Work for Everyone, Volume II: Working Group Reports (New Jersey: Toppan Printing Company America, 2008), 2, 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.

[21] Ibid., 29-30.

[22] Ibid., 33.

[23] Ibid., 30.