Time To Open Up The Practice Of Law

America has a major problem. In 2014, the World Justice Project ranked the United States 65^th 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.