Ch 9 Alternative Structures Cannot Help Those Who Cannot Pay

Alternative Structures Cannot Help Those Who Cannot Pay for Legal Services

Is the only legitimate use of an alternative structure to provide free legal services to those who cannot pay for them at all?

Some argue that alternative structures can be used only to provide legal services for payment — that they are of no use for providing free legal services to clients who are unable to pay.[1] For this reason, they argue that alternative structures will serve no valid purpose, since legal services for payment are already available. As one commentator wrote:

[T]he changes spurred by non-lawyer ownership will not lead to significant access gains.… persons in need of civil legal services frequently have few resources, are often involved in complicated cases, and commonly are not sophisticated at navigating either the legal services market or the legal system. Non-lawyer ownership provides few new options … For these individuals, legal aid often will be the only way to address their legal service needs. The legal market, even a deregulated one, is unlikely to provide for these persons legal needs because they do not have the money to purchase the frequently rather sophisticated legal services they require.[2]

There are two levels of response to this argument:

At the first level, as discussed in the Introduction, even if legal services for payment are already available, they are nevertheless out of reach for a large portion of the US population. This population includes people who are so poor that they cannot afford to pay anything for legal services, but it also includes the middle class, as well as start-ups and small and medium-sized businesses. Generally speaking, they are able to pay some amount. But they are not able to pay any amount — there are limits to how much they are able to pay, and they are not comfortable committing in advance to pay unknown amounts (the consequence of hourly billing). Further, both types of populations — those who can pay nothing and those who can pay something within limits —also struggle to access legal services for reasons not directly related to price. As also discussed in the Introduction, those reasons include not realizing their issue is a legal one, not knowing who can help them, not knowing where to go to find help, not knowing who they can trust to help them, …

If alternative structures offer a means to develop different ways to provide legal services in order to better reach the middle class and businesses, at affordable, predicable prices, is this not a legitimate and sufficient use of the structure? Or is the only legitimate use of an alternative structure to provide free legal services to those who cannot pay for them at all?

The second level of response to the argument is this: alternative structures offer the means to provide free legal services to those who cannot pay for them at all. In addition, in contrast to traditional forms of legal aid, alternative structures offer the means to provide those services on a sustainable and scalable basis. There are examples of this from the present day as well as from the past:

With respect to the present day, a good example is the “sister” corporations, Salvos Legal and Salvos Legal Humanitarian. They are two Australian ILPs, both wholly owned by the Salvation Army:

  • Salvos Legal is a commercial and property law practice whose lawyers have worked for prominent national and regional firms as well as in-house legal departments. Its clients are corporations, government agencies and not-for-profits, including CBRA Australia, Commonwealth Bank and Transport for New South Wales. Salvos Legal provides advice and legal assistance on a paid basis; the fees it collects, 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 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 commercial clients on a paid basis.[3] In 2014, Salvos Legal was named “Law Firm of the Year” by the Australian Lawyers Weekly.[4] In 2015 it was named “Corporate Citizen Firm of the Year” and “Boutique Firm of the Year” by Australasian Lawyer,[5] and it again won a Lawyers Weekly award, this time in the category “Pro Bono Program of the Year.”[6] Since its founding in 2010, Salvos Legal Humanitarian has opened 16 offices across eastern Australia, and, at the time this book went to press, had provided free legal services for approximately 16,000 matters.[7]

It is true that in the United States, a certain number of social service organizations provide free legal assistance. Many of them do this not with paid staff attorneys but in reliance upon volunteer attorneys who work on a pro bono basis.[8] However, some of these organizations have attorneys on staff who provide clients with direct representation — this is notably the case with respect to Catholic Charities, which provides this kind of representation in particular with respect to refugee and immigration matters.[9] At first glance, this model appears highly similar if not identical to the one of Salvos Legal Humanitarian. However, there is a fundamental difference: Catholic Charities is funded in part by donations from diocesan churches and in large part (about 65%)[10] by local and federal government donations. (One commentator has described Catholic Charities as “an arm of the federal welfare state”[11]). In contrast, again, Salvos Legal Humanitarian receives no government funding, nor any funding from The Salvation Army.

It is also true that in the US lawyers are free to establish income-generating law firms, and use the profits to fund free legal services. Indeed, any law firm whose lawyers provide pro bono services in any amount without a corresponding reduction in salary are arguably doing just that, albeit in the absence of a separate, formalized structure. However, as Hadfield explains in detail, the amount of pro bono services that are provided in this manner do not even scratch the surface of the number of hours that would be required to fulfill the unmet need for legal services in the US.[12] Further, while it is certainly possible in theory, in reality it is rare indeed that one or more lawyers in the US, acting independently and notably outside the context of a social services organization, have actually chosen to establish such structures, and notably without reliance upon government funding of any kind. While it is possible to speculate in many ways as to why this is so rare, some insight may be found in a 2013 letter from David Schraver, the President of the New York State Bar Association to Jonathan Lippman, then Chief Judge of the State of New York: Objecting to a newly adopted rule that required New York attorneys merely to report the number of hours they spent on pro bono work (without imposing any minimum number of required hours), Schraver wrote that “the provision of legal services to the poor is a public responsibility.”[13] That statement is in stark contrast to this explanation of Luke Geary, the Managing Partner of both Salvos Legal and Salvos Legal Humanitarian: “the reason for [the] existence [of the two firms] is to serve people in need. They are an expression of the social work of The Salvation Army, in a justice sense.”[14] In other words, rightly or wrongly, the provision of legal services to the poor / to people in need fits much more squarely within the purposes and objectives of a social services organization than it does with one or more lawyers acting independently of a social services organization. While certainly some lawyers go to law school with the intention of pursuing a career in public interest law, even those lawyers do not go to law school with the intention (let alone the ability) to work for free.

The model of Salvos Legal Humanitarian is a versatile one. It can be duplicated by any charitable or philanthropic organization as well by other types of organizations, like educational intuitions and business incubators, in order to offer legal services in fulfillment of the organization’s mission and objectives. One variation is the example of Salvos Legal — that is, the creation of two sister structures, one which provides legal services on a paid basis in order to fund the other, which provides legal services on a free basis. Another variation is where the structure providing free legal services is funded not by paid legal services but in some other manner — by other, non-legal, types of paid goods or services or through charitable donations or grants. (That being said, funding by charitable donations or grants would severely restrict the sustainability and scalability of the model — it is the reason why not-for-profit law firms in the US, which rely heavily on donations and grants, struggle to expand their services).

The model of Salvos Legal Humanitarian is echoed in a proposal by two Canadian researchers: Myra Tawfik and James Hinton of the Centre for International Governance Innovation in Waterloo, Ontario. They propose that “entities such as a law school, an innovation hub or a philanthropic organization,”[15] own pro bono clinics, and notably pro bono clinics offering services in entrepreneurship and IP. They explain that such clinics would benefit both start-up communities by providing them with support, as well as law students by proving them with training. And because such clinics would not need to rely upon public legal aid, they could operate in a more financially sustainable manner.[16] Tawfik and Hinton go even further — they argue that such structures are the means for the IP legal community to support the fulfilment of Ontario’s and Canada’s economic strategies — that they will allow Canada to “[shore] up our start-up and entrepreneurial capacity in order to grow our knowledge economy and to effectively compete on a global scale.”[17]

Also in the present day, the model of Salvos Legal Humanitarian has been turned on its head — to use paid legal services to fund non-legal charitable services. England and Wales offer two examples of this:

The first example is Aspire Law, a joint venture of Aspire, a spinal cord charity, and Moore Blatch, a personal injury law firm. Aspire Law specializes in persons with spinal cord injuries. It is different from its competitors in the personal injury legal services market in two manners: (i) it does not deduct fees from its clients’ compensation awards (instead Aspire Law’s fees are paid solely by the insurer that recorded the accident), and (ii) half of the profits earned by Aspire Law are paid to Aspire, the charity, which uses it to provide support, funding and housing for persons with spinal cord injuries.

The second example is Castle Park Solicitors Community Interest Company, an ABS established and owned by Community Advice and Law Service (CALS). CALS is a Leicester-based not-for-profit organization and registered charity that provides advice, representation and advocacy in the areas of debt, housing and welfare benefits. CALS created Castle Park Solicitors in response to the UK’s cuts in legal aid. It created the ABS for two purposes: (i) to serve at affordable rates low and middle income clients who would have been eligible for legal aid in the past, in the areas of family and immigration law, and (ii) in a manner akin to Aspire Law, to generate a sustainable income stream for CALS, so that it can continue to provide its services for free, but reduce its reliance on government funding and grants.[18] Castle Park Solicitors offers to certain low income clients a reduction in fees of 50% and the possibility to pay in monthly installments. Castle Park Solicitors also offers free legal services, notably in the form of weekly drop-in clinics, at different locations such as the Family Court in Leicester, the Leicester Sikh Temple, and its own offices.

The present day offers another example in the form of Road Traffic Representation (RTR). This website, operated by the UK-based ABS Legalmatters Limited, provides an online legal advice service for road traffic offenses. In a first stage, a user accused of a traffic offense visits the site in order to respond online to a series of questions (the questions are posed on the basis of conditional logic). On the basis of the user’s responses, the site 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. These services are entirely automated as well as free of charge. Depending upon the complexity of the matter, that information may be sufficient for the user to adequately understand his/her rights and to make informed decisions about how to proceed.

As a next stage the user may, if he/she chooses, request a telephone call with a solicitor — in that case, the call is charged at a fixed price of £35 and is unlimited in time. Finally, at a third stage, the user may, for an additional fixed price, opt for representation in court. In this case, the system’s automatic process triggers the allocation of a barrister to handle the case, notifies the user of the allocation, and generates a brief for the barrister to consult to obtain full information.[19]

Of course there already exist websites that provide generic information regarding traffic violations and a person’s rights and options when they are faced with one. What differentiates RTR from those other websites is RTR’s application of a rules based expert system in order to offer advice that is tailored for the specific person and the specific offense. In this manner, a person seeking information, someone typically not trained in legal research, does not need to search for the information themselves, nor, once (if) they find it, do they need to wade through the generic information in order to determine for themselves what is and is not pertinent for them. In this way, RTR makes the information much more accessible and relevant, thus more likely to be used effectively.

RTR was named a finalist for the 2015 Legal Aid Practitioners Group’s Legal Aid Lawyer of the Year awards, in the category of “Access to Justice through IT.” The judges described it as “an interesting model which could be adapted to other areas of law.”[20] Indeed, RTR’s founder, Martin Langan, is currently exploring the development of RTR’s software for use in the area of family law, notably in order to facilitate the offering of unbundled services with respect to divorce and child custody matters.

The past also offers important examples of how alternative structures have been used to provide free legal services to low income persons. These examples are important not only from a historical perspective, but also from a modern-day one in that they can be replicated more or less closely today. Further, these examples come not from a foreign country, but from the United States itself:

In her 2015 book Women and Justice for the Poor: A History of Legal Aid, 1863-1945, Felice Batlan unveils an otherwise unknown but exceptionally rich history of how free legal assistance was provided to poor and disadvantaged persons, and, in particular, to poor and disadvantaged women in the United States, over a period of decades. This assistance was not provided by traditional law firms, by the organized bar, or by legal aid organizations in the manner we know legal aid today. Instead, it was provided by a number of women’s social services organizations, the most active of which included the Protective Agency for Women and Children in Chicago[21] and the Women’s Educational and Industrial Union in Boston.[22]

At Batlan explains, while some of these organizations saw themselves primarily as providing legal aid, many of them performed a wide range of reform work as well as providing services to poor women.[23] In that manner, legal assistance was integrated on a continuum with other types of assistance, such as to help to find employment, housing or clothing and to enrich the cultural and spiritual lives of their communities.[24] (In today’s parlance, we might describe it as “multidisciplinary”).

The organizations that offered these services were not owned, controlled or managed by lawyers. They were charitable or not-for-profit organizations that were founded and run by, for the most part, middle- or upper-class women.[25] Further, the women who provided legal assistance were, for the most part, not professional lawyers in that they did not have a formal legal education and were not admitted to the bar.[26] This does not mean, however, that they did not have legal knowledge or experience. To the contrary, as Batlan explains, many of these “lay lawyers” acquired extensive knowledge and experience, and were accepted and even respected by professional lawyers and judges.[27] Going further, Batlan states “there is no evidence that, historically, the work of nonlawyers was inferior to that of lawyers.”[28]

Batlan has estimated that in a given year, one of these organizations would have handled anywhere from a couple of hundred to a couple of thousand cases or more.[29] That being said, because precise records were not always kept, it is not possible to know exactly how many of these organizations existed.[30] (Batlan’s research focused on organizations founded by white, Christian women in the Midwest and Northeast of the United States. She exhorts others to pick up the mantle of her research, in order to gain a better understanding of comparable organizations in other parts of the country as well as of comparable organizations founded by others, and notably by African-Americans and by immigrants.[31])

By the 1930s, these organizations ceased to exist. While several factors contributed to their demise, Batlan explains that the principal factor was the professionalization of legal aid, on the one hand, and of social work, on the other. With respect to legal aid, professional lawyers, in nearly all cases men, created legal aid societies which worked to progressively take over the legal work done by the women’s social services organizations. These men believed both that only professional lawyers could provide the relevant services and that only men should be professional lawyers. At the same time, social work was undergoing a professionalization process of its own, creating a profession in which one would attend school, and learn the new discipline of social work. As a result of these dual processes, women “lay lawyers” working in social services organizations lost their place. They became sandwiched between professional lawyers, who were nearly exclusively men, and professional social workers, who were nearly exclusively women. [32]

In addition to losing their place, these women were written out of the history of legal aid. Batlan explains how this happened: Our principal source of knowledge about the history of legal aid comes principally from the 1919 book Justice and the Poor, by Reginald Heber Smith.[33] At the time Smith was doing research for his book, he visited fourteen cities and met with a many people, including a limited number of women lay lawyers.[34] To his shock, Batlan explains, he discovered that these women knew what they were doing: they knew the law, they followed cases through, and their work was effective.[35] The problem was that their model was radically different from the model that matched his vision for legal aid. For him, legal aid needed to look like any other law firm, which meant that legal services could be provided only by professional, male lawyers.[36] He and his colleagues saw no role for women to play, believing that their mere presence would diminish the prestige of legal aid.[37] For these reasons, in writing his book, Smith deliberately deleted references to them.[38]

Because generations of scholars have accepted Justice and the Poor as an accurate account of the history of legal aid,[39] one consequence of the book was to render the legal work of the social services organizations invisible.[40] As a result, the real-life examples they provide have also been invisible — examples of how alternative structures not only have been but also can again today be used to provide free legal services. And, again, these examples come not from a foreign country but from the United States. More specifically, these examples, as finally brought to life in Batlan’s book, show how social service, charitable and other not-for-profit organizations could once again provide legal services to poor and underprivileged persons, as they did a hundred years ago. But to see that requires a rejection of Smith’s highly restrictive view of what legal aid (and, indeed, legal services more generally) is and how it must be provided in favor of a view that is more flexible, expansive, and open to a variety of different models.

Stories

Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian: Geary describes how Salvos Legal Humanitarian has provided free legal services with respect to 16,000 cases to date and counting, without funding from the government or from The Salvation Army.

Chris Byron, Managing Director, Aspire Law: Byron describes how Aspire Law both represents its spinal cord injury clients for a reduced fee, and provides an income stream to Aspire, the charity, which uses it to help persons with spinal cord injuries in a variety of ways.

Glenda Terry, Practice Manager, Castle Park Solicitors: In a model similar to that of Aspire Law, Terry describes how Castle Park Solicitors provides legal services to low-income clients at a reduced fee, and channels its profits to the charity Community Advice and Law Service for use in supporting its activities.

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 together with options for additional telephone information and in-person representation at low, fixed prices. 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 in greater detail the legal aid work of women’s social services organizations in the late 19th and early 20th centuries and she explains how these organizations offer examples for legal aid today.

Jenny Holloway, Associate Dean, Nottingham Law School and Nick Johnson, Pro Bono Director, Nottingham Law School Legal Advice Centre: Holloway and Johnson describe how as an ABS, Nottingham Law School’s Legal Advice Centre can charge below market rates for certain legal services, and use those amounts to fund the Centre’s free legal services.

Notes

[1] See, for example, Gillian Hadfield and Larry Fox, “Regulating the Future Delivery of Legal Services,” webinar, 39:45, http://bcove.me/la7z1w1b. See also Goldfinger Personal Injury Law, “Alternative Business Structures and the Legal Profession in Ontario,” Toronto Injury Lawyer Blog, April 16, 2015, http://www.torontoinjurylawyerblog.com/2015/04/alternative-business-structures-and-the-legal-profession-in-ontario.html; and David Wiseman, “Alternative Business Structures and Access to Justice … for Whom?,” Slaw, August 28, 2014, http://www.slaw.ca/2014/08/28/alternative-business-structures-and-access-to-justice-for-whom/.

[2] Robinson, “When Lawyers Don’t Get All the Profits,” 41.

[3] Salvos Legal, “The 2010-2014 Media Collection,” 3, accessed August 21, 2015, https://fliphtml5.com/qokx/mguh.

[4] Leanne Mezrani, “Legal Stars Shine Light on What Is Possible,” Lawyers Weekly, August 12, 2014, http://www.lawyersweekly.com.au/news/15615-legal-stars-shine-light-on-what-is-possible.

[5] Samantha Woodhill, “Australasian Law Awards Winners Announced,” Australasian Lawyer, May 22, 2015, http://www.australasianlawyer.com.au/news/australasian-law-awards-winners-announced-200668.aspx.

[6] Felicity Nelson, “Australian Law Awards Winners Revealed,” Lawyers Weekly, September 18, 2015, http://www.lawyersweekly.com.au/news/17171-australian-law-awards-winners-announced.

[7] 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.

[8] See, for example, Catholic Charities Archdiocese of Washington, “Catholic Charities Legal Network Annual Report 2015,” https://www.catholiccharitiesdc.org/file/Legal_Network_Annual_ReportFY2015.pdf.

[9] See, for example, “Immigration Legal Services,” Catholic Charities Archdiocese of Washington, accessed April 25, 2016, https://www.catholiccharitiesdc.org/ILS.

[10] Kelly Riddell, “Catholic Church Collects $1.6 Billion in U.S. Contracts, Grants Since 2012,” The Washington Times, September 24, 2015, http://www.washingtontimes.com/news/2015/sep/24/catholic-church-collects-16-billion-in-us-contract/?page=all. See also, for example, “Immigration Legal Services,” Catholic Charities Archdiocese of Washington: this webpage explains that “The generous support of Maryland Legal Services Corporation, Montgomery County, MD, and individual and law firm donors enables our Immigration Legal team to continue to offer in-depth comprehensive services to our clients.”

[11] Riddell, “Catholic Church Collects.”

[12] Hadfield, “The Cost of Law,” 45-46; Hadfield, “Innovating to Improve Access,” 5.

[13] David M. Schraver, “Mandatory Reporting of Pro Bono Service and Contributions,” June 26, 2013, 1, http://nylawyer.nylj.com/adgifs/decisions/062813letter.pdf.

[14] Luke Geary, interview with author, December, 2014.

[15] Myra Tawfik and James Hinton, Letter to the Law Society of Upper Canada’s Working Group on Alternative Business Structures, December 23, 2014,3, http://www.lsuc.on.ca/uploadedFiles/Centre%20for%20International%20Governance%20Innovation%20(CIGI).pdf.

[16] Ibid.

[17] Ibid.

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

[19] The founder of Road Traffic Representation, Martin Langan describes the service in this video: “Martin Langan — AI Law,” Reinvent Law Channel, n. d., https://vimeo.com/72383554.

[20] Legal Action Group, “Legal Aid’s 2015 Roll Call of Honour,” June, 2015, http://www.lag.org.uk/magazine/2015/06/legal-aid%E2%80%99s-2015-roll-call-of-honour.aspx.

[21] Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (New York: Cambridge University Press, 2015), 49-81.

[22] Ibid., 36-46.

[23] Ibid., 47-84.

[24] Ibid.

[25] Ibid., 4

[26] Ibid.

[27] Ibid., 5.

[28] Ibid., 14.

[29] Felice Batlan, interview with author, November, 2015.

[30] Ibid.

[31] Batlan, Women and Justice for the Poor, 11.

[32] Ibid., 123-153.

[33] Reginald Heber Smith, Justice and the Poor (New York: Carnegie Foundation, 1919).

[34] Batlan, Women and Justice for the Poor, 140.

[35] Ibid., 142.

[36] Ibid., 142-143.

[37] Ibid., 148.

[38] Ibid., 143.

[39] Ibid., 6.

[40] Ibid., 4.

Leave a Reply

Your email address will not be published. Required fields are marked *