While there may be hope for low-income Americans to access our justice system and obtain the legal representation they need, there are others who may not be so lucky – people of modest means. People of modest means are people who do not qualify for legal aid –mainly because they make too much money to qualify, but also due to other reasons (such as the adverse party beating them to legal aid or as is my experience, their legal immigration status impeding them from obtaining legal representation) — yet they cannot afford a private attorney.
So, what can the legal profession do to try to bridge this gap? This is a question that I ask myself almost daily. I am the only Spanish-speaking attorney in my city. As you can imagine, I receive many Spanish-speaking calls weekly. While not every call is a matter I can help with, there are some that could transfer into a client. There is just one problem…this population tends to be people of modest means and cannot afford to pay a typical retainer of $3,000 upfront or pay a private attorney’s hourly fee of $300. What do these potential clients do? They either do not hire an attorney or they hire an attorney who charges a cheaper rate; however, that attorney cannot speak the same language they do, which is an even bigger issue altogether.
As an attorney, and as someone who went to law school to be able to provide a legal service to those in need, this problem has been bothering me in my short time of practicing law. This is not a new problem and studies show that each year, more and more people are opting to proceed Pro Se. Not surprisingly, this is largely in part because they cannot afford to pay a private attorney.
Below I offer some suggestions of what we, as legal professionals, can do to try to bridge this gap:
- Sliding Scale Programs
Sliding scale programs have become a growing trend across the nation. A sliding scale program is not free legal services. Rather, under a sliding scale program, a client is charged based on the client’s income. Let’s take, for example, Micah Legal’s Sliding Scale Rates. For a household of two, who falls between 350-399% of the federal poverty level, the attorney’s “reduced fee” is $150 per hour.
With a sliding scale program, “the higher-income clients pay more, effectively subsidizing the lower-income clients who pay less.” By adjusting/reducing the attorney hourly fee, attorneys can help ensure that more people with a wider range of income have access to the legal representation they need.
- Cheaper Up-front Retainer
Many of my potential clients do not have money saved to pay for a typical attorney’s retainer of $3,000. Often, my potential clients will ask if they can pay a cheaper retainer up-front and pay the rest later, say in 30 days. Depending on the nature of the case, or the client’s potential ability to pay in the future, I may accede. Now I understand the concerns this can create, however, there may be cases that may not require much of your time at the beginning of the case, and thus, in those cases, this type of arrangement could potentially work for both you and your client.
- Payment Plans
This arrangement may somewhat mirror the arrangement previously discussed. However, in some situations, instead of charging a cheaper retainer fee up-front, entering into a payment plan may be a better option for both you and your client. For example, in addition to practicing family law, I also practice immigration law. I generally charge a flat fee for that type of service. Generally, I require half of my retainer fee to be paid upfront and the other half to be paid before filing the client’s immigration application. Now I know with family law, this type of arrangement may not work for every situation. However, in some situations, this may be possible. For example, if your client retains you to review and/or draft a Settlement and Separation Agreement, this type of arrangement may just work very well for both of you. A benefit to this arrangement is that it could potentially create more work for you in the future if your client requires representation beyond the specific task for which you were hired.
- Recurring Monthly Fee
It is common nowadays to make purchases and either put it on credit and/or make monthly payments on it. Many of my potential clients have inquired whether they can make monthly installments. While this idea may not seem appealing, this may be the only option for this potential client. And in some cases, a recurring monthly fee arrangement may work. For example, if you have a client whose trial date has been set out far enough, and there is nothing much to do in the case in the meantime, then this may be the perfect client for a recurring monthly arrangement. You can set up automatic payments to be withdrawn monthly and that money can be deposited into your client’s trust account. If the case happens not to require much of your time pending trial, the monthly payments can increase your client’s trust balance thereby ensuring that there will be enough money in your client’s trust account to pay your attorney fees when the case is ready to proceed.
- Unbundling Legal Services
Over recent years, there has been a growing trend in unbundling legal services (“unbundling services”) also known as “limited scope representation” or “a la carte representation.” Unbundling services is an alternative to full-service representation, in which the client hires an attorney to perform a specific task of the client’s case and the client handles the other parts. This can be anything from reviewing documents, drafting an agreement, or attending a specific court hearing. Generally, an attorney will charge a flat fee for performing the specific task. Attorneys should be cautious, however, and ensure they are complying with the rules of their state bar with regard to limited scope representation. Additionally, attorneys should ensure that the client fully understands that the attorney’s representation is limited to the specific task and that it is clearly stated in their engagement letter.
While I understand the concerns about implementing any of the above suggestions in your practice, it is crucial that legal professionals remember that we offer legal services to those in need. If we have the ability to help those in need and can do it, then let’s do it! As a legal profession, we must ensure that we are doing what we can to help bridge this gap in our justice system and help people obtain the legal representation they need.
