Vol. 39, No. 1

Mind the gap: Bar associations work toward a ‘watershed moment’ for legal services

by Robert J. Derocher

Commission on Ethics 20/20 — 2009
Task Force on the Future of Legal Education — 2012
Legal Access Job Corps — 2013

For new ABA President William C. Hubbard, the 28-member Commission on the Future of Legal Services he unveiled at the August Annual Meeting is the next logical step in what he sees as a potential “watershed moment” in the history of legal services in this country.

“We’re going to be building on all of those previous efforts, bringing all of these different threads together in a tapestry,” he says. “I’m optimistic that this is our chance to fundamentally change the way we do what we do.”

As the ABA joins with bars across the country for the National Pro Bono Celebration in October, Hubbard says it is a critical time for this new commission to address the issues of pro bono and, overall, legal access to justice—what Hubbard sees as one of the pillars of the profession.

Hubbard is also reaching out to state and local bar leaders, calling on them to take more visible and active roles in promoting improved legal access, as well as in the overarching work of the commission. He says their leadership—along with new programs and initiatives that many of their bars are already implementing—is key to the ABA’s continuing efforts to explore new approaches to bolster badly needed access to legal services, while also utilizing technological advances to reshape the future of the profession.

‘There is no adequate funding’

The challenge of providing legal services to low- and moderate-income Americans, of funding the groups that provide such services, and the bleak future for meeting those needs continue to be documented across the country.

The Legal Services Corp. reported that 65.5 million Americans were eligible for LSC-funded legal assistance in 2013—an all-time high. The LSC says little has changed from a 2009 study that estimated that 80 percent of the civil legal needs of low-income Americans were unmet.

An American Bar Foundation report released in August 2014 at the ABA Annual Meeting—based on a 2013 study of the typical civil legal needs of an unnamed mid-sized American city—said that 46 percent of those surveyed who needed legal services ended up going the self-help route. Additionally, 58 percent of those surveyed agreed with the statement that “Lawyers are not affordable for people on low incomes.”

At the same time, funding to address the issue continues to be scarce. Congressional funding for the LSC in 2014 stood at $365 million—$121 million less than what the LSC requested, and $35 million less than 20 years ago, when the demand for services was much less. While direct state funding for civil legal services increased slightly in 2013, according to the Center for Law and Social Policy, much of that was provided to offset the continued decline in IOLTA funds. ABA statistics show that $86.2 million in IOLTA grants were disbursed in 2012—less than a third of the $263.4 million disbursed in 2008.

“It’s time to think about how we might need to change to better deliver legal services,” says Hubbard, a South Carolina business litigation lawyer. “There is no adequate funding for the current structures we have in place.”

That is why Hubbard created a large, wide-ranging commission with members covering virtually every area of the legal profession: from legal services providers to academia, from young lawyers to bar leaders. The hope, he says, is to tap their innovation, technological know-how, and passion to help create a blueprint for the future of the profession—with a focus on access to legal services.

The latest on limited license legal technicians

Among those named to the commission is Paula Littlewood, executive director of the unified Washington State Bar Association. The WSBA is part of Washington’s judicial branch, responsible for licensing the state’s 35,000 lawyers.

“If you’re going to bring about systemic change, you need to bring in the regulators,” Littlewood says, explaining the need for a regulatory bar on the commission. 

The WSBA is now in the final stages of implementing a first-of-its-kind change in the legal profession that is attracting widespread interest—and trepidation—from lawyers and bars nationwide: the addition of a Limited License Legal Technician designation, as mandated by the state Supreme Court a couple of years ago.

LLLTs are state-licensed nonlawyers who will be trained to advise and assist people in specific areas of the law, beginning with family law. The first group of 16 LLLTs is expected to begin practice next spring, Littlewood says, and the hope is that they may be able to help fill the justice gap in Washington.

“Lawyers and the bar fought this for 10 years,” she says. “But if we don’t get out ahead of this, it will be put upon us.”

During a TED talk-style program at the Annual Meeting of the National Association of Bar Executives in Boston this August, Littlewood shared some further detail about the current status of the LLLT designation. Here are some of the highlights:

  • “We’re moving into a world where law looks like the medical profession.”
  • LLLTs must be at least 18 years old, with a minimum of an associate’s degree. Their law-related curriculum involves 45 credits at a community college and 15 hours of courses at a law school. Along with a character and fitness test, LLLTs will take two bar exams: a general one that is designed for LLLTs, and another that is specific to their area of law. They also must have 3,000 hours of law-related experience under a practicing attorney.
  • After family law, the next areas in which LLLTs will be trained include landlord/tenant and immigration law.
  • All three law schools in the state developed the family law curriculum together. Every class is co-taught by a law professor and a practicing lawyer. All three law schools want to stay involved with the LLLT process because, similar to national trends, they’ve seen a precipitous drop in law school applications and know that “they’re not coming back.”
  • One participating community college reports that it receives three or four calls a week from prospective students who are interested in becoming LLLTs.
  • The people whom LLLTs will help are not necessarily what we might think of as poor. Moderate income—an income level where the majority of legal needs are currently unmet—is considered to be as high as $97,000 for a family of four.
  • Conduct rules for LLLTs are now being finalized.
  • The process of implementing the LLLT designation has been “pretty much like starting a whole other bar association.”
  • Because of the undeniably large gap in access to legal services and the need to be proactive rather than reactive, Littlewood’s message to other bars is “Come on in—the water’s fine.”

Beyond desperate, and beyond ‘outside the box’

Joe Dunn, executive director of the State Bar of California, agrees with Littlewood that bar associations need to get out in front of the changes that are coming. In addition to closely tracking the LLLT rollout in Washington, his unified bar is preparing to implement a mandatory 50-hour pro bono requirement as part of new lawyer admissions to the bar next year.

“We’re a huge regulator, and our [Executive] Board did not want to defer to academia on practice skills,” he says.

As in Washington, there was initial widespread opposition to the requirement, he says, although that has subsided now that the bar and law schools have been working together on developing the final requirement. But the decision by a state bar task force to explore the LLLT program and other potential changes in law practice has generated a wave of “nasty emails,” he says.

Still, Dunn says the explosion of legal document preparers such as We the People, combined with cuts in legal access funding and increasing demand for services, warrants a new way of looking at the profession—at least in California.

“Our access crisis is beyond desperate. The current programs in place are not sufficient,” he says. “This entire issue [of the future of the legal profession] is particularly critical for legal services to the poor. IOLTA, Legal Aid, state funding—they can’t be the only solutions anymore.”

That is also the thinking in South Dakota, where the state’s primary legal services provider for the poor is “truly in a death spiral,” says Tom Barnett, executive director of the State Bar of South Dakota. A task force appointed by the state’s chief justice is in the midst of an extensive survey to gauge the depth of the problem and to find solutions.

“We are beyond ‘outside-the-box.’ There is no box,” Barnett says. “We are going as far afield as we need to go.”

A look at how bars will use ‘catalyst grants’

For some bar associations, the work of ABA commissions and task forces is already playing a role in the development of initiatives geared toward improving legal access. Two bar associations—the Nebraska State Bar Association and the Vermont Bar Association—each received $15,000 as part of the first round of “catalyst grants” from the Legal Access Job Corps formed last year by then ABA President James R. Silkenat. The Job Corps aims to improve legal access while also helping find jobs for unemployed and underemployed recent law school graduates.

In Nebraska, where 12 of the state’s 93 counties have no lawyers at all, the grant is being used to help pay for housing and related living expenses for summer clerks participating in the bar’s fledgling Rural Practice Initiative, launched in 2012. Similar to South Dakota’s acclaimed Project Rural Practice, the goal of this initiative is to encourage law students from the state’s two law schools—the University of Nebraska and Creighton University—to consider establishing a practice in rural, low-income areas of the state, says NSBA President G. Michael Fenner.

In the program’s first year, two clerkships were provided and two permanent hires were made in rural areas.

“To me, that’s a huge success,” says Fenner, a Creighton Law professor. “I’ve had students come back and tell me what a great opportunity this was.”

Rural Vermont faces similar problems, and the ABA grant will help three recent graduates from the Vermont Law School as they embark on practices in rural areas of the state, says Bob Paolini, executive director of the Vermont bar. The Solo and Small Firm Incubator Pilot Project not only provides financial assistance, but it also offers regular mentoring and practice management assistance. And a condition of the grants to the lawyers, he says, is that they take on pro bono and “low bono” cases in their towns.

“Vermont is not a friendly place if you’re a 3L with a lot of debt,” Paolini says. “We want to get them some training and match them with an attorney who might be retiring or stepping back.”

A ‘critical juncture’ for bar associations

As the new commission begins its work, Littlewood says it is clear to her that bar associations—perhaps especially those that, like her bar and Dunn’s, have regulatory duties—will play pivotal roles in its success.

“For bar associations who are the regulators and are there supporting our members, we’ve got a lot at stake,” she says. “Bar associations sit at a critical juncture.”

In his discussions with individual bar leaders and with groups such as the National Conference of Bar Presidents, Hubbard says he has made it clear that “we need bar leaders to lead. The ABA is a part of this, but it will require all of us to look forward.”

Grassroots meetings, national convocation planned

An example of this leadership, he says, is the series of grassroots meetings that are being planned throughout the country over the next year, which will bring commission members together with state and local bar leaders and other stakeholders in order to gather input and suggestions. Participants in each grassroots meeting will be charged with identifying five specific areas in their communities where innovation is needed, according to commission planning documents. The first of six such meetings was held this summer in St. Louis, with plans in place next year for a national convocation that will eventually lead to a “field guide or blueprint for change,” Hubbard adds.

As in many new initiatives that contemplate widespread change, Hubbard expects there will be resistance—and difficult, fundamental questions to answer. But he believes that bar leaders will be important players in developing the blueprint that will lead to change.

“We hope to significantly close the justice gap in this country,” Hubbard says. “The circumstances we’re in today require us to change, or we risk being diminished in the administration of justice and legal services. We need to lead that change, rather than react to external forces."