Category Archives: Lawyer Monopoly

Blog, California, Democratizing Legal Services, Lawyer Monopoly, Modernizing Legal Services

California ATILS (2 of 2): California Dreamin’

The State Bar of California is seeking public comment with respect to proposed regulatory “reform options” developed by the Task Force on Access Through Innovation of Legal Services. The due date is Monday, September 23, 2019.

If adopted, the most significant elements of the proposals would allow:

  • Nonlawyers to provide some legal services, subject to regulation,
  • Entities that provide legal services to include lawyers, nonlawyers or a combination, again subject to regulations, and
  • Nonlawyers to hold a financial interest in law firms and other structures that provide legal services.

A few days ago I submitted comments. (Comments received to date have been made available at this link).

The immediately preceding post contains the first half of the comments I submitted, which addresses the substance of the proposals. This post contains the second half of my submission, which addresses the Task Force’s approach with respect to public engagement.

STATE BAR OF CALIFORNIA

ACCESS THROUGH INNOVATION OF LEGAL SERVICES (ATILS)

Public Comment

Dr. Laura Snyder

Part II: The Task Force’s Approach towards Public Engagement

Next I would like to comment on the Task Force’s approach towards public engagement.

(A) The Model Chosen Does More to Divide than to Contribute to Good Decision-Making

The Task Force has chosen to implement what Donald G. Lenihan refers to as the “consultation model.” In his article “Public Engagement Is a Must in a Multi-Stakeholder World,” contained in the 2009 OECD publication Focus on Citizens: Public Engagement for Better Policy and Services (https://www.oecd-ilibrary.org/governance/focus-on-citizens_9789264048874-en), Lenihan describes this model as follows:

Some sort of government panel is given the task of finding solutions to an issue. The public is invited to express their views. This can happen in many ways, from town-hall meetings to online chat-rooms. Once the submissions have been made, the panel reviews them, deliberates, reaches conclusions and finally makes recommendations to government, which then decides how it will respond. (page 208)

While this description may sound innocuous, Lenihan explains that this model does more to divide the public than contribute to good decision-making. This is because it pits different interest groups against each other, who then seek to create a sense of urgency and bring competing claims into disrepute. It encourages participants to adopt uncompromising positions that they are not willing to modify in the face of conflicting evidence, and it discourages them from engaging in genuine debate or discussion. As a result, when the panel reviews the positions and decides upon its recommendations, it necessarily results in at least some participants perceiving they have “lost,” and that their demands have been ignored. It also causes the panel to become secretive about its rationale and defensive about its choices which, in turn, makes the public even more suspicious of the process and the advocates more strident in their criticism. (Lenihan, pages 208-9).

There is ample evidence of the accuracy of Lenihan’s observations. The most pertinent examples are the consultation processes carried out by the American Bar Association (ABA) in 2009-12 (Commission on Ethics 20/20) and again in 2014-16 (Commission on the Future of Legal Services); as well as the consultation process carried out by the Law Society of Upper Canada in 2012-15 (Alternative Business Structures Working Group). The manner by which each of these consultation processes transpired fits squarely within Lenihan’s prediction above as to how it would transpire. (For a detailed analysis of how each of these processes transpired, see Modernizing, pages 137-48, 171-224. Some of that material is also available online at http://notjustforlawyers.com/ch-15-ontario-false-start/; http://notjustforlawyers.com/ch-20-indestructible-model-rule-5-4/; and http://notjustforlawyers.com/ch-21-two-commissions/).

Each of these consultation processes resulted in failure. In Modernizing, I argue that this is for a number of reasons and principally because of the failure of each to take into account two conditions that were essential for the successes of England & Wales and Australia, namely the adoption of entity regulation and of compliance-based regulation (Modernizing, pages 139, 142-45, 206-8). (In its Attachment G, the July 11, 2019 Board of Trustees Open Session Agenda Item 701 briefly touches on the concept of compliance-based regulation, with its references to “anticipatory regulation” and “the focus on risks”).

However, the failure of those consultations can also be attributed to the model for public engagement that was implemented. In each case the use of the “consultation model” did not bring people together; to the contrary, it drove them further apart. And in the case of what is now the Law Society of Ontario, it did so with such bitterness it produced a fallout that the Law Societies of all the Canadian provinces—not just Ontario’s—grapple with still today.

In light of Lenihan’s astute observations and the prior examples of the ABA and the Law Society of Ontario, it is easy to imagine that  the same model for public engagement implemented here by the Task Force of the State Bar of California could produce a similar result.

(B) The Online Form is Overly Complex and Heavily Prescriptive

For the average person who might like to submit comments, the online form is remarkably complex. The user is asked to select from a drop-down menu of no less than 16 “reform options” on which he/she would like to comment, plus a 17th option of “Other.” The description of many of these options is complex. It is not clear on their face just what many of the descriptions mean, for some options it is not clear what purpose public consultation is intended to serve, and often it is unclear how one option relates to others. When an option is selected, a short explanation of the option appears, but those explanations are also complex. There is a link for more information but when the user clicks on that link it is not clear where the relevant information can be found.

Given such complexity and lack of clarity, it is easy to imagine that a certain number of would-be commentators could find the form to be daunting. It is especially easy to imagine this with respect to those without a legal background: the online form seems to have been created by lawyers for lawyers with little to no thought for those without the background necessary to understand the complex jargon or to understand how to negotiate the complex options.

Finally, in addition to being complex, the reform options are also heavily prescriptive. This belies one of the apparent objectives of the proposals, which is to move towards a compliance- or risk-based regulatory approach (again, what Attachment G of the July 11, 2019 Board of Trustees Open Session Agenda Item 701 refers to as “anticipatory regulation”). As Attachment G alludes, an overly-prescriptive approach can be stifling. In this case I would predict that the overly-prescriptive nature of the majority of the 17 options will, among other factors, stifle needed public engagement on the more essential, structural regulatory changes that are necessary to better assure access to justice and rule of law. I urge the Task Force not only to develop proposals for regulatory reform that more clearly reflect the lessons from England & Wales and Australia with respect to compliance- or risk-based regulation but also that it take those lessons on board with respect to public engagement itself by eschewing overly prescriptive proposals that obscure more fundamental discussions about the overall environment for the regulation of legal services in California.

(C) OECD Publications Contain Extensive and Helpful Research on Best Practices for Public Engagement in the Regulatory Process

This complexity, combined with the choice of the “consultation model,” is unfortunate. The OECD has made available extensive research which explains both the importance of doing more to facilitate true public engagement in the regulatory process and how to carry it out. The OECD research notably emphasizes the importance of developing public engagement models that both (1) are open and inclusive, and (2) foster cooperation rather than divisiveness. I would encourage the Task Force to consult that research, and most notably that which is contained in the book cited above: Focus on Citizens: Public Engagement for Better Policy and Services (https://www.oecd-ilibrary.org/governance/focus-on-citizens_9789264048874-en).

In the meantime, in Modernizing, this is how I summarize some of the OECD’s teachings with respect to public engagement in the regulatory process:

“In order for citizen engagement to succeed, it must […] include as wide a variety of citizen’s voices as possible. This means going beyond the highly selective and unrepresentative ‘usual suspects.’ That is, this means going beyond highly-resourced industry and other special interest groups to include all the stakeholders as well as those who have specific knowledge or expertise with respect to the subject at hand. Because many of those who are the ‘least equipped’ for public participation are often those from whom input is important if not vital, the OECD states that policymakers must make extra efforts to reach out and ensure they are included. Merely creating a ‘level playing field’ which allows for passive access to information, consultation and participation is not enough because it will not result in the needed diversity of voices. [Emphasis added].

“In making those extra efforts, policymakers have to overcome the “many good reasons” that people have for not participating in policymaking. As one French commentator observed: “many people continue to perceive public authorities as distant from their concerns and do not dare imagine that their opinion, even if it is very personal or noninstitutional, could legitimately be heard in a public decisionmaking process.”” (Modernizing, page 8; also available online at http://notjustforlawyers.com/ch-1-good-regulation/#_edn45).

The OECD publication Focus on Citizens: Public Engagement for Better Policy and Services (pages 83-165), contains a number concrete examples of citizen engagement practices in different countries and policy areas. These examples were selected for study in part because they go past the “consultation model” in an attempt to genuinely engage a larger and—especially—a more diverse cross-section of the relevant population. In this context, a “diverse cross-section” does not or does not only refer to gender, race, or national origin, but also—if not especially—to training or occupation, public vs. private sector, level of education, socio-economic status,… In sum, the participants were persons who, because of their backgrounds and experiences, had reason to come to the issue at hand from very different perspectives. In some examples participants were selected from the general public at random and were provided with the information and support that they needed to participate in the process in an effective manner.  

Another reason why the examples in this OECD publication were selected for study was that they employed engagement processes intended to foster cooperation, understanding, and the exchange of ideas among participants, in contrast to pitting one person’s opinions against another’s. This was done in a variety of manners depending upon the purpose and the objectives of the engagement. Examples include public awareness campaigns; interviews, presentations, and workshops; identifying and specifically seeking input from representatives of relevant organizations and interest groups; soliciting and supporting project applications; and polls and surveys.

A common feature was the organization of informational meetings (not town halls) for members of the general public. These were organized most notably in the context of processes for determining local government budgets and budget priorities; the purpose of the meetings was to provide prospective participants—again, members of the general public with no prior relevant knowledge or experience—with the information they needed to participate in a meaningful and effective manner. Other examples featured training for public servants to increase their sensitivity to the importance public engagement and to better understand how to carry it out.

One of the most compelling examples contained in the OECD publication is that of the City of Port Phillip, Australia (pages 119-26). Among other activities, the city organized a one-day “participatory democracy” summit for 750 participants to develop an agreed list of priorities for the city through the vehicle of a ten-year Community Plan. The purpose of the summit was to facilitate discussion and learning between participants and to establish a ranked list of priorities to be achieved through voting by all participants. To achieve these objectives the summit utilized groupware computing systems, individual key pad polling, and audiovisual communication tools. More specifically the day was described as follows:

Participants came from all walks of life and represented the diversity of the Port Phillip community. People were randomly allocated to tables to achieve a variety of viewpoints in each group and to separate friends and family members. Trained and non-partisan facilitators helped groups explore ideas and differences of opinion, and topic experts were on hand to answer questions. Responses from each small group were transmitted to a central “theme team” who then collated responses to identify themes. Individual keypad polling was used to establish collective priorities across all participants. (page 124).

This model of public engagement bears little resemblance to the “consultation model” that the ABA, the Law Society of Ontario and, today, the Task Force of the State Bar of California have implemented. Also in contrast, it was by all accounts successful: in the short term the participants expressed appreciation for the immediacy of results and the transparency of processes enabled by the technology (page 120) and in the longer term the Community Plan had an influence on the city council’s strategic planning and allocation of resources (as attested to in city council documentation: http://www.portphillip.vic.gov.au/default/CorporatePlanningandPerformanceDocuments/CouncilPlan_2007-08.pdf).

To summarize:

  • If the comments the Task Force receives are difficult to differentiate from the comments that were submitted in response to comparable calls for public comments by the two ABA Commissions and the Law Society of Upper Canada, such a result was predictable. The Task Force has engaged in essentially the same kind of process with essentially the same “kind” of people—lawyers, law firms and bar organizations. People who, while they may be diverse with respect to gender, race, national origin, and even practice area and practice structure, have little diversity when it comes to one crucial characteristic: they are all lawyers. For the most part they will come to this problem with essentially the same perspective. And they will naturally, understandably and entirely predictably prioritize what they perceive to be their own interests over the interests of the public more generally. This is especially the case when they are asked to submit comments in isolation, without first being exposed to and obliged to learn from and contend with persons who have different perspectives and ideas.

The alternative models for public engagement described in the OECD publications may appear like pie in the sky for the Task Force because of the considerable resources they would require to implement, even in some modest form. At the same time, because today the Task Force has implemented essentially the same model of public engagement as the ABA and the Law Society of Ontario, the expectation of achieving an outcome different from theirs is no less pie in the sky.

  • In the event the Task Force would like to truly engage a wider public—the California public as a whole and not just the California lawyers who are sufficiently motivated to negotiate a complex online form—and would like to engage them in a manner that fosters cooperation and understanding, then I encourage the Task Force to develop and implement a different kind of public engagement model. The Task Force can consult the relevant OECD publications for inspiration, without the need to slavishly imitate any alternative models described there. I recommend focusing on pages 83-165 of the book Focus on Citizens: Public Engagement for Better Policy and Services, which contain concrete examples of citizen engagement practices in different countries and policy areas. The Task Force will see that the organizers in those cases overcame a number of obstacles in order to carry out the relevant engagement process; I can’t imagine that the obstacles faced by the Task Force of the State Bar of California would be greater. Developing and implementing a different kind of public engagement model, among other steps, will better assure the success of the Task Force’s endeavors to change the regulations.

The regulatory changes are very badly needed and they can—I hope—serve as a beacon for the rest of the United States and other countries in the world.

More information about Democratizing is available at http://notjustforlawyers.com/democratizing-legal-services/.

More information about Modernizing is available at http://notjustforlawyers.com/modernizing-legal-services/.

 

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

 

Blog, California, Democratizing Legal Services, Lawyer Monopoly, Modernizing Legal Services, Stories

California ATILS (1 of 2): Same Old Song

The State Bar of California is seeking public comment with respect to proposed regulatory “reform options” developed by the Task Force on Access Through Innovation of Legal Services. The due date is Monday, September 23, 2019.

If adopted, the most significant elements of the proposals would allow:

  • Nonlawyers to provide some legal services, subject to regulation,
  • Entities that provide legal services to include lawyers, nonlawyers or a combination, again subject to regulations, and
  • Nonlawyers to hold a financial interest in law firms and other structures that provide legal services.

I’ve just submitted comments. (Comments received to date have been made available at this link).

I’m not under any illusions that anyone who matters will give my submission anything more than a passing glance, if that. Few people will read it and even fewer (anyone?) will care about it. But for entirely inexplicable reasons I wasn’t comfortable with allowing the period for public comment to pass without making a submission of some kind.

I organized my comments in two parts, one addressing the substance of the proposals and the other addressing the Task Force’s approach with respect to public engagement.

There are a multitude of other topics that could and should be addressed, but I didn’t have time to develop them in any meaningful way. If I had had the time, I would have focused on some of the many issues that California regulators will need to address in the event the Task Force’s proposals are implemented in any significant manner.

I would have prioritized these two issues in particular:

(1) The assurance of effective enforcement of anti-trust (competition) laws to prevent the development and abuse of monopoly power in the legal services market; and

(2) The recognition that regulation is a public service – that it is something that we as a society need and value because it brings economic and social value to everyone. Further, the proper regulation of legal services is necessary to assure access to justice and rule of law. For these reasons, new regulations for legal services must not be developed or financed privately; to the contrary, they must be developed by public, democratic processes and they must be financed publicly through equitable, progressive revenue sources. 

But, as I just mentioned, I didn’t have time to get into those issues. They are highly complex. Or, perhaps it would be more accurate to say that I wasn’t motivated to find the time given that those comments  also would be unlikely to garner even a passing glance.

In this and in the immediately following blog post I will show what I did have time to get into. Namely, this post contains the first half of the comments I submitted, which addresses the substance of the proposals. The next post will contain the second half of my submission, which addresses the Task Force’s approach with respect to public engagement.

STATE BAR OF CALIFORNIA

ACCESS THROUGH INNOVATION OF LEGAL SERVICES (ATILS)

Public Comment

Dr. Laura Snyder

Part I: The Substance of the Proposals

A multitude of articles and books have been written on these topics. Of course I can’t help but mention the two books that I’ve written: Democratizing Legal Services: Obstacles and Opportunities (“Democratizing”), and Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? (“Modernizing”). Nor can I help but mention my website which contains excerpts of the books as well as supplemental materials: http://notjustforlawyers.com/. I would, of course, be among the first to admit that my books and website are among the least read on these topics, and perhaps even the very least read.

Because hope springs eternal, just in case someone might be interested in Democratizing and Modernizing, links to more information about them are provided at the end of this commentary.

(A) The Objections Raised in this Consultation Process Have Been Long Anticipated and Addressed

In reading the comments submitted to date in this consultation process one could be forgiven for thinking that the objections they raise are new—that no one has yet made those objections, and certainly no one has yet fully considered them. But nothing could be further from the truth. Such objections have been raised repeatedly over a number of decades and they have been addressed extensively by a number of persons. Most if not all of what they have written has been much more widely read and respected (dare I say even revered?) than my own material.

Nevertheless, I can’t help but again mention my book Democratizing. It anticipates, categorizes, and addresses in-depth many of the objections that have been made in the comments submitted to the Task Force. These objections, and detailed responses to them, include:

  • Alternative structures will undermine professionalism and ethics
  • There is no way to regulate alternative structures
  • The adoption of alternative structures will jeopardize self-regulation of the profession
  • There is no demonstrated need, demand, or problem
  • New delivery models can be developed without changing the rules
  • The payment of salary is adequate compensation for nonlawyers
  • No one in their right mind would want to invest in a law firm
  • Alternative structures will lead to a consolidated market controlled by large firms
  • Alternative structures cannot help those who cannot pay for legal services
  • Alternative structures will make things harder for un- and underemployed lawyers
  • The burden of proof has not been met

(Democratizing, pages 1-93, 217-22; also in part available online at http://notjustforlawyers.com/chapter-1/; http://notjustforlawyers.com/chapter-3/; http://notjustforlawyers.com/chapter-5/; http://notjustforlawyers.com/chapter-6/; http://notjustforlawyers.com/chapter-9/; http://notjustforlawyers.com/chapter-23/)

(B) Alternative Structures Come in a Wide Variety of Shapes and Sizes

Via the link http://notjustforlawyers.com/stories/ you can read the stories and experiences told firsthand by 65 people who have created, are managing, are employees of, and/or have invested in alternative legal structures, as well with persons who regulate them. (And, in one case, by a person who has closely studied alternative legal structures that existed in the United States a century ago: http://notjustforlawyers.com/felice-batlan/). The stories offer unique, direct perspectives on the objections that this consultation process has collected.

Many people think that alternative structures are only about allowing investment-fueled, technology-focused companies to deliver legal services in the manner of LegalZoom, or about large corporations establishing “law factories” in the manner of Slater & Gordon. Certainly they are about that, but they are also about much more. There is huge variety in the structures that have been created in England & Wales and Australia, as regards both size and substance, that many people overlook. Here are just a few examples of the structures profiled at http://notjustforlawyers.com/stories/ and discussed in Democratizing, which expose this variety—three of the four are small structures, none are technology-based, none have outside investors, each would violate current California rules:

  

Salvos Legal is a not-for-profit law firm with five “partners” that provides commercial and property services to corporations, government agencies and not-for-profits. The fees collected by Salvos Legal, less expenses, are used to fund Salvos Legal Humanitarian. Salvos Legal Humanitarian is a full-service law firm that provides services to the “disadvantaged and marginalized” in family law, housing, social security, migration and refugee matters, debt, criminal law and other areas. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the funding of Salvos. As Luke Geary, Managing Partner of both Salvos Legal and Salvos Legal Humanitarian, explained:

Salvos Legal Humanitarian, to date, has provided free legal assistance on [many thousands of] matters, at no cost either to the government or to The Salvation Army. That’s [many thousands of] cases of access to justice that otherwise would not exist. And that number goes up with each passing day.

BPIF Legal offers legal support and advice to members of The British Printing Industries Federation (BPIF), a trade association representing the UK’s print, printed packaging and graphic communications industry. Their services are offered holistically with the other services that BPIF also offers to its members, in the areas of human resources, health, safety and environment, quality, marketing, sales and finance. As Anne Copley, Head of Legal, BPIF Legal, explained:

Our members come to us because of our expertise in the industry. They do not have to explain to us how the industry works…  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.

Counterculture Partnership offers to cultural and creative not-for-profit organizations holistic services in the areas of strategic planning, funding, financial and project management, legal and governance advice, capital projects, training and advocacy. Counterculture has thirteen partners of which five are lawyers. In 2019 The Legal 500 recommended Counterculture as a Leading Firm in the North West of England. As Keith Arrowsmith, Partner, Counterculture Partnership LLP, explained:

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. We’ve had real success in that way, and it has been helpful for the arts sector.

Stephens Scown provides legal services to companies and high net worth individuals. The firm specializes in areas important to the South West region of England, such as mining & minerals, renewable energy and tourism. Inspired by the share ownership scheme of John Lewis, Stephens Scown is one of the first large law firms in the UK to implement a limited employee share ownership scheme in which not just lawyers but all eligible employees may participate. In 2019 Stephens Scown was included in the Sunday Times 100 Best Companies list for the fifth consecutive year. As Robert Camp, Managing Partner, Stephens Scown LLP, explained:

For the past five years, we’ve been focused on client service, and we’ve won several awards for client service. We’ve recognized that client service is dependent upon staff engagement, and we want our staff to feel part of our firm, and not just a cog in a bigger wheel. This is the context in which we decided to become an ABS [alternative business structure]—in order to increase staff engagement. Research shows that if you can engage your entire staff so that they are all working for the same common goal and not just for rewards for those at the top, then the quality of service will go up. So you get happy clients who recommend you to others, and you get a virtuous circle. 

(C) Bottom Line: The Lawyer Monopoly on Legal Services Can No Longer Be Justified

If the laws of California accord to the legal profession the exclusive privilege to serve the entire market for legal services in California then 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 California 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? By what right can California lawyers exclude other kinds of service providers from a market that the lawyers either cannot or will not serve in its entirety?

And if the legal profession in California is either unable or unwilling to serve the entire market then doesn’t the State of California have the obligation to change its laws in order to open the market to others—including nonlawyers and alternative structures? Isn’t this even more of an imperative given that England & Wales and Australia demonstrate that this can be done safely? More specifically, these two jurisdictions are evidence that it is possible to open the market for legal services to a wider range of service providers without harming those who need legal services or the public more generally. They have done this by respecting these two essential conditions: (1) the implementation of entity regulation alongside the regulation of individual lawyers, and (2) moving away from prescriptive, rules-based regulation in favor of compliance-based regulation (also termed “proactive, management based regulation,” or “outcomes focused regulation”). (I discuss how important both these conditions are in Democratizing pages 11-17 and in Modernizing pages 206-208; also in part available online at http://notjustforlawyers.com/ch-21-two-commissions/).

Many assert that there is no proof that opening the market for legal services in England & Wales and in Australia increased access to justice in those countries. While I disagree with that assertion (Democratizing pages 167-84, also in part available online at http://notjustforlawyers.com/chapter-19/), my first response is to ask: why should such proof be necessary? Certainly there is proof that the current restrictions on who may provide legal services have not solved the access to justice problem. To the contrary, the problem is so severe in California and around the country that it has been described as a human rights crisis (see Democratizing, pages 185-94, also available online at http://notjustforlawyers.com/chapter-20/). Further, appeals to the federal and well as to state and local governments for funding for legal aid demonstrate that the provision of legal services to those who cannot afford it is considered to be a public responsibility. In that case, why is the public allowed to fulfill that responsibility only with (taxpayer) money? Why can they not be allowed other means—notably by doing it themselves—given that, again, England & Wales and Australia evidence that it can be done safely and demonstrate how. (For a more detailed discussion in this regard, see Democratizing, pages 222-24, also available online at http://notjustforlawyers.com/chapter-23/).

Over two decades and more these topics have been discussed and written about ad nauseum—those discussions and writings are readily available online and in-print. Naturally, in my entirely unbiased opinion, my books are the best place to start. There is little point in entering into more detail here.

The next post (2 of 2) will contain the second part of the comments I submitted, which addresses the Task Force’s approach towards public engagement.

More information about Democratizing is available at http://notjustforlawyers.com/democratizing-legal-services/.

More information about Modernizing is available at http://notjustforlawyers.com/modernizing-legal-services/.

 

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

 

Blog, Lawyer Monopoly, Legal Aid

Who Deserves Legal Help and Who Doesn’t? The Answer Is Not In Words, But Actions

Section 81.102(a) of the Texas Government Code states that “a person may not practice law in this state unless the person is a member of the state bar.” Section 81.102(b) then allows for the Supreme Court of Texas to “promulgate rules prescribing the procedure for limited practice of law” by lawyers admitted out-of-state and by law students.

On August 29, 2017, the Supreme Court of Texas took advantage of this power, by adopting “Emergency Order After Hurricane Harvey Permitting Out-of-State Lawyers to Practice in Texas Temporarily.”

The Order provides that a lawyer who is admitted to the bar of another state and is in good standing in that state may, for a period of six months from August 29, 2017, “practice law in Texas” if that lawyer “is retained by a legal-aid or pro bono program or a bar association that provides services to victims of Hurricane Harvey.”[1]

It is important to note that no one, at least not in any online forum, has criticized the Order. Most notably, no one has said that out-of-state lawyers will provide inferior legal services to victims of Hurricane Harvey, by virtue of not being admitted to the Texas bar. No one has complained that the out-of-state lawyers will steal legal aid or pro bono work from Texas lawyers. No one has even complained that the out-of-state lawyers, working for free, will deprive Texas lawyers of paid work.

No, rather than criticizing the Order, it was welcomed. On the very day the Order was issued, the blog of the Texas Bar (of which all lawyers admitted to the bar in Texas are obligatorily members) posted an entry announcing the Order and providing a link to a form for out-of-state lawyers to fill out in order to volunteer. On the next day (August 30), the ABA Journal published an online article to publicize the Order and provide information about how out-of-state lawyers can assist. And the bars of other states, like Florida, Tennessee and Maryland publicized the Order, encouraging its lawyers to volunteer and providing links for additional information. Indeed, the only negative comment I was able to find about Texas opening itself to out-of-state lawyers was one by Margaret Becker of Legal Services NYC, who was involved with recovery efforts after Hurricane Sandy. As reported by Bloomberg BNA: “A lot of outside firms came to help with flood insurance and ‘they’re a mixed bag,’ Becker said. Some were conscientious but others were not, she said.”

While the Order itself was not criticized, that does not mean that its issuance did not prompt criticism. That criticism was directed at the circumstances that required the Order, and namely the restrictions that Texas and other states (either on the basis of ABA Model Rule 5.5 or otherwise) place upon multijurisdictional practice. One commentator to the ABA Journal article, Josh Effron, wrote that the Order:

helps to show the silliness of preventing lawyers from practicing across State lines in the first place: if an out-of-State lawyer is good enough to practice law in one case (i.e., pro hac vice) and is good enough to practice on a temporary basis (such as in this case), then clearly that lawyer is good enough to practice in general.

The only reason why we make it hard for lawyers to practice across State lines is not to protect the public but, rather, as a form of protectionism, for in-State lawyers to insulate themselves from competition. This runs completely counter to the alleged goal of State bars as protectors of the public interest (rather than the economic interests of the lawyers in that State).

Another commentator was equally harsh: On the website Above the Law, Elie Mystal wrote an article entitled “Texas Allows Out-Of-State Lawyers To Help, Kind Of Highlighting The Stupidity Of State Bar Restrictions.” He continued:

While we’re casting about for silver linings, might this kind of assistance lead us down a path where state bars more generally loosen out-of-state prohibitions on lawyers willing to work pro bono? I mean, I get the economics of out-of-state restrictions. This State’s bar can’t have That State’s lawyers flying in and scooping up all the legal work. It’s stupid and leads to economic inefficiencies, but I get the reasons for it.

But surely, when it comes to pro bono work, why should it still matter what state you are barred in? Why should we make people willing to help for free endure the friction of finding “local counsel” and all that? I don’t mean to sound like Jim Harbaugh, but Legal Aid should be a backbone of our social safety net, and limiting that service based on state bar requirements doesn’t seem to be helping anybody.

The point that Effron and Mystal are making is, essentially, that if a state can allow multijurisdictional practice in order to help victims of Hurricane Harvey, then why can’t other states —all states —allow multijurisdictional practice in other contexts? Mystal limits his question to the context of pro bono (free) legal work, while Effron asks it with respect to all legal work, without differentiation. Both complain that restrictions on multijurisdictional practice do not serve the public interest. To the contrary, they are nothing but a form of economic protectionism for in-state lawyers that operate to limit the public’s access to legal services.

These are entirely accurate observations about the Order, and they raise entirely legitimate objections to restrictions on multijurisdictional practice. However, they do not go far enough. Here is how they could, and should, go further:

1)         While there is no count—official or otherwise —of the number of victims of Hurricane Harvey who will need legal assistance, it will likely be a high number. And many of those persons won’t need legal help for just one matter or requiring just one type of legal expertise. To the contrary, they are likely to require help with respect to multiple matters and a wide range of subject areas: insurance, real property and mortgage, landlord/tenant, family law, bankruptcy, litigation, wills and estates, probate, consumer protection, employment. In this context, it is quite possible if not likely that the demand for free legal services by victims of Hurricane Harvey will be greater than the supply that lawyers, be they from Texas or out of state, will be willing or able to provide. That is, just as legal aid organizations across the country are not able to serve the needs of everyone who is eligible for legal aid, so many victims of Hurricane Harvey will not be able to access free legal services because the demand will be greater than the supply. Some of those persons will be able to pay at least something for legal services. Who will they turn to? If they are paying for the services, they will be limited to lawyers admitted in Texas. Where is the logic in that? According to the laws of supply and demand, the fees charged by the Texas lawyers should be higher than they would be if Texas were open to competition from out-of-state lawyers on a fee-paying basis also. If the victims of Hurricane Harvey can access out-of-state lawyers for free legal services and no one claims that the quality of those services will be harmful to those victims, or even simply inadequate, then on what basis can it be legitimate to deny the victims access to out-of-state lawyers on a fee-paying basis in a more competitive marketplace than one that is limited to Texas lawyers only?

Keep in mind that the Order is valid for six months—unless the Supreme Court issues an extension, all of the out-of-state lawyers (again, working for free) will need to wrap up their work by late February/early March 2018. It is unlikely that all outstanding legal issues connected to Hurricane Harvey will be fully resolved by then. Regardless of whether the Supreme Court issues an extension or not, the Order will at some point expire and when it does, victims of Hurricane Harvey will no longer have access to free legal services by out-of-state lawyers (not legally, anyway). And if they can’t find a Texas lawyer willing to work for free then they’ll have to get in line and pay for a Texas lawyer, just like everyone else.

It is in considering the situation from this urgent context that the pure protectionist purpose of Model Rule 5.5 (the protection of in-state lawyers) is laid bare—indeed, stark naked—and the need to end such protectionism becomes even clearer.

2)         The Order itself is an acknowledgement on the part of the Supreme Court that how lawyers are regulated generally, and the unauthorized practice of law rules specifically, have a direct and demonstrable effect upon the extent to which citizens of a state are able to access legal services. (This is a topic that I explore in my book Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind?). Going further, the Order is an acknowledgement that the exclusion of out-of-state lawyers (Model Rule 5.5 and its counterparts) has the effect of denying needed legal services to a population. Hurricane Harvey did not invent this situation, it simply made it more acute and more blatant for a very particular population: one that is large but still contained and easily identifiable, as well as highly mediatized and easy to sympathize with.

3)         The Order exposes the belief on the part of Supreme Court of Texas (if not all legal regulators) that some legal needs are more worthy than others. As regards the victims of Hurricane Harvey, the Supreme Court considers their legal needs so worthy, the court acted very quickly (just four days after Hurricane Harvey hit the Texas coast on August 25) in order to take very rare (unprecedented?) steps to expand the supply of free legal services, even if some (many?) of the beneficiaries of those services could pay at least something for them. (Unlike the rules of most legal aid organizations, there is nothing in the Order that restricts the beneficiaries of free legal services by out-of-state lawyers only to victims of Hurricane Harvey who are unable to pay for them.)

Contrast what the Supreme Court of Texas presumably learned back in June, 2017 from a report by the Legal Services Corporation (LSC), “The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans.” This 68-page Report offers these startling statistics: 71% of low-income households in the United States have experienced at least one civil legal problem in the past year, and 25% have experienced six or more civil legal problems. Of those civil legal problems, the Report states that 86% of them received inadequate or no legal help.” 86%.

The Report lists the most common civil legal problem areas as health, consumer & finance, rental housing, children & custody, education, disability and income maintenance. These problems (together with a host of others, such as domestic violence) afflict the more than 60 million Americans across the country that have family incomes at or below 125% of the Federal Poverty Line (FPL), including senior citizens, persons with disabilities, veterans and residents of rural communities. The Report calls out Texas as having 5.7 million people with incomes under the FPL, a large number as compared to other states. More specifically, of Texas’s total population of 26.8 million, 21.1% have incomes under the FPL. Based upon an average household size of 2.84 persons, this means that there are approximately 2 million low-income households in Texas. Extrapolating from the national figures of 71% and 86%, this means that last year in Texas approximately 1.4 million low income households experienced at least one civil legal problem, and of those, no fewer than 1.2 million of those problems received inadequate or no legal help. Contrast that number to these currently available numbers for Hurricane Harvey: as of Friday September 1, it was estimated that 185,149 homes were damaged or destroyed and 364,000 people had registered with FEMA (Federal Emergency Management Agency) for assistance. Those numbers are considerable, but they do not surpass the 1.2+ million unmet legal needs of low-income households in Texas in the past year.

Underscoring these issues, and going further back, in December, 2016, the Texas Commission to Expand Legal Services issued a report containing eight recommendations to the Supreme Court with the purpose of expanding the availability of civil legal services to low- and middle-income Texans. Those recommendations include “The Court should form a standing committee to maintain accountability for closing the justice gap and to monitor the effectiveness of reform initiatives,” “The Court should encourage the State Bar of Texas, the Texas Access to Justice Commission, and local bar associations to create pipelines of services for modest-means clients,” and “A primary objective of future rulemaking projects should be to make the civil justice system more accessible to modest-means clients.”

There is no evidence in the public record that, since December, 2016, the Supreme Court of Texas has acted upon these or any of the other recommendations in the Texas Report. Nor is there any evidence that since June, 2017, the Supreme Court of Texas has taken any steps to address the situation of the 1.4 million low-income Texas households described in the LSC Report. Why would the Court would be utterly inactive with respect to the dire needs described in those Reports and at the same time be so quickly reactive with respect to the needs of the victims of Hurricane Harvey, if the Court did not believe that some legal needs are more worthy—more deserving of resources and attention—than others?

Do we agree? We can all agree that the victims of Hurricane Harvey deserve legal assistance. Lawyers can demonstrate that agreement by volunteering to help them on a pro bono basis. By all accounts, many lawyers have volunteered, all within a matter of days. But do we also agree with the Supreme Court of Texas that the 1.4 million low income households in Texas (and by extension the 60 million low-income persons throughout the United States) are less deserving of assistance with their legal issues that are unrelated to Hurricane Harvey? We can declare over and over that they are equally deserving of assistance, but, like the Supreme Court of Texas, our inaction says otherwise: We do believe that some legal needs are simply more worthy than others.

[1] The Order also allows a lawyer to “practice law in Texas” if that lawyer was displaced form his/her home state due to Hurricane Harvey and works remotely from a Texas location to provide legal services in his/her home state.

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Related posts on this site:

Chapter 9: Alternative Structures Cannot Help Those Who Cannot Pay

Chapter 12: Opportunities for Legal Aid

Chapter 20: Unmet Need as Human Rights Crisis

Chapter 23: Endless Objections and The Lawyer Monopoly

Blog, Lawyer Monopoly

It’s the Least We Could Do

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

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

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

Meet he did.

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

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

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

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

Perception. PR. Stories.

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

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

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

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

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

Lawyer Monopoly on Legal Services

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

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

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

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

 

Related posts on this site:

Chapter 20: Unmet Needs as Human Rights Crisis

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