ABA Journal

The New Normal

Lawyers need to move beyond ‘access to justice’ to close the legal services gap

By Dan Lear

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Dan Lear

Dan Lear

By many measures, lawyers’ “access to justice” initiatives are entirely ineffective:

• A study (PDF) from the American Bar Association’s Standing Committee on the Delivery of Legal Services found that high-volume state courts are at “saturation level” of pro se litigants.

• According to the 2012-2013 World Justice Project’s Rule of Law Index (PDF), more than four out of five low-income litigants in the United States go it alone because they feel priced out of the legal market.

• Almost 60 percent of small business owners who had a legal issue did not hire a lawyer for that problem according to a study (PDF) done by legal insurance provider Legal Shield.

• A recent study by the Administrative Office of the Courts found that pro se bankruptcy filings are increasing twice as fast as overall filings.

• U.S. District Court’s 2012-2013 data (PDF) shows that 10 percent of nonprisoner federal court filings are now pro se.

• And there a really large and growing list of online document services and sites that individuals are using to do for themselves what lawyers could be doing for them.

But don’t blame lawyers. They’re trying. ABA Model Rule 6.1 says they should render at least 50 hours of pro bono public legal services every year. Also, while it has seen its funding decreased somewhat in recent years, the Legal Services Corporation receives more than $300 million each year to deliver legal resources to the underserved.

So what’s wrong?

Expanding legal services access beyond the poorest and most disadvantaged is a significant challenge. Attempts to bring similar types of services and resources to large numbers of people—from infrastructure to transportation to medical care—have been tremendously expensive and time-consuming. Doing the same for legal services will certainly be a unique challenge.

Lao Tzu said: “The journey of a thousand miles begins with one step.” And one good initial, but admittedly small, step for legal services is semantics. Specifically, instead of talking about an “access to justice” gap let’s switch the rhetoric and consider the “access to legal services” gap instead.

Many modest means or middle-income individuals seeking legal services are not seeking “justice” through the legal system. Most just want a will, an estate plan, some limited advice on their employment contract or business, or any number of other things that don’t have anything to do with “justice.” Besides what justice is and what it means varies widely from person to person and situation to situation. aThe pursuit of an arguably amorphous definition of justice is a waste of time and resources when all someone wants is, for example, a will.

Modest-means clients are also different than the access-to-justice clients. For one, while they may not be able to afford traditional full representation legal services but they can pay something. Further, many modest means clients are middle-income individuals, so they’re more likely better educated with better access to technology or other resources that would help them self-educate, receive unbundled legal services delivered partially or fully though technology or online, or navigate the legal system with only limited guidance from an attorney.

Under the traditional “access to justice” model, access-to-services clients would receive extensive one-on-one attention from an attorney to address their legal need. And at no cost.

This is staggeringly inefficient. While one-on-one representation may be ideal for true miscarriages of justice, the lack of a will or even someone to review your employment agreement is not a miscarriage of justice. It may not even involve justice. Further, there’s no reason not to let those who can pay some to do so.

But let’s not confuse the justice and services problems by using the same term for both.

There are pervasive legal access issues throughout the economy—from pro se litigants, to entrepreneurs who need business help, to families without wills or simple estate plans. This access gap is a significant problem for the legal profession and it won’t be solved overnight. It might not even be solved in our lifetime. But greater precision in how we talk about access challenges is an easy first step in the right direction.

Dan Lear is currently director of industry relations for Avvo. As a technology-focused business lawyer, he advised companies from startups to the Fortune 100 and helped develop agreements and terms for early cloud services offerings. In 2015 he was named to the FastCase 50 list—and in 2014 Dan was honored with the Washington State Bar Association President’s Award for his participation in and and advocacy of legal technology projects locally and nationally.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, Patrick Lamb, founding member of Valorem Law Group and their guests. New Normal contributors spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. You’re invited to join their discussion.

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