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It’s the Least We Could Do

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

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

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

Meet he did.

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

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

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

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

Perception. PR. Stories.

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

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

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

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

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

Lawyer Monopoly on Legal Services

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

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

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

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

Related posts on this site:

Chapter 20: Unmet Needs as Human Rights Crisis

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