America has a
major problem. In 2014, the World Justice Project ranked
the United States 65th out of 99 nations, in terms of access to
civil justice. These findings come in the wake of a study showing that 80% of
the civil legal needs
of America’s poor aren't being met. Despite greater disposable income, much of the
middle class doesn't fare
much better. With even the most affordable private attorneys often charging at
least $200
per hour, affordable
legal guidance remains out of reach for most Americans.
Not having a lawyer
often carries major negative consequences. Many litigants have a limited
understanding of their legal options, and of the legal process itself. As a
result, they suffer substantially worse legal outcomes than those with full
representation. This is especially true in eviction,
debt
collection, and family
law matters.
To overcome
this challenge, advocates of legal access are organizing for a right to counsel in civil matters,
to ensure that, just as in criminal cases,
those who can’t afford an attorney will be provided with one. Unfortunately,
with many states facing budget shortfalls,
funding such programs isn’t feasible in much of the nation.
However, there
are other highly effective ways to meaningfully expand legal access. Traditionally,
only licensed attorneys were allowed to offer substantial legal guidance to
those in need. This is starting to change. Washington recently implemented the Limited
Licensed Legal Technician program, which allows trained non-attorneys to
offer a variety of legal assistance.
Since these
professionals aren't burdened with large amounts of student loan debt, and are
taught to offer limited, focused legal guidance, they can effectively assist
those of modest means, at a substantially lower cost than most lawyers. Other
states, including
California and New York, are exploring adoption of similar programs. A number
of lawyers are quite apprehensive
about such changes, viewing it as a threat both to their livelihoods, and to
clients who might not be properly served.
The rise of Internet-based
self-help platforms also offers compelling approaches to making the law more
reachable. The success of LegalZoom has
paved the way for a variety of startups to meet a range of legal needs, ranging
from mobile apps which help small
businesses prepare contracts, to software which simplifies
the immigration process.
These
innovations have often met with considerable resistance.
Lawsuits, often backed
by state bar associations, seek to restrict the growth of technology-focused legal
businesses, frequently by claiming that they engage in the unauthorized
practice of law. Such litigation, while supposedly rooted in a need to
protect consumers of legal services, is often motivated
more by a desire to ensure attorneys avoid competition.
As an attorney,
I have worked with paralegals and legal assistants whose practical legal
knowledge is often critical to providing clients with the best possible guidance.
In many cases, even without the presence
of an lawyer, I’m confident that these knowledgeable professionals could lead clients
through a case as capably as a competent attorney. Fears that well-trained
non-lawyer professionals lack the skills to directly serve clients, are largely
unfounded.
What’s more,
when I work with pro bono clients, or offer basic legal guidance to friends and
family, I frequently see that they have used online tools, sometimes to prepare
documents, or obtain a range of information about the law. The Internet isn’t
going anywhere. Today, we use browsers and mobile apps to learn math, buy and sell homes, and seek medical
guidance. Trying to restrict the shift of the law to the Internet, whether
through lawsuits or anti-competitive regulations, is ultimately a futile
endeavor, and harmful to consumers seeking a greater array of affordable legal options.
None of this is
to suggest that we don’t need strong protections against misconduct in the
practice of law. Rather, regulators (primarily bar associations) ought to
develop a more expansive view of who should be allowed to offer legal guidance
and advice. They should then focus on
punishing those who genuinely harm clients, whether through incompetence or
fraud, rather than penalizing useful legal service providers for not having law
degrees.
Lawyers must
accept that an attorney need not be ultimately responsible for every single
legal matter. A better approach is one where well-defined issues of low to
moderate complexity are resolved through a mix of online solutions, and direct
guidance from specialized non-lawyer professionals, while more challenging
cases remain the exclusive territory of attorneys.
Our legal
system is in crisis. The doors of civil justice are closed to tens of millions
of our fellow Americans, simply because they can’t afford lawyers. Fortunately,
there are promising solutions on the horizon. By allowing a greater variety of
skilled individuals and businesses to offer relevant legal assistance, we can
make the law more accessible, and build a society which truly offers justice
for all.
