February 09, 2014

Structure of profession presents obstacles to resolving justice gap, panelists say

There’s a problem out there. Lawyers have always known it’s there, though they haven’t paid much attention to it, said Bob Glaves, executive director of the Chicago Bar Foundation. That problem is the lack of access to justice for the working poor and middle class. 

During a panel discussion at the American Bar Association Midyear Meeting in Chicago, Glaves issued a call to action to his fellow lawyers to help find solutions to this justice gap. “If we don’t do something ourselves about it, someone else is going to do it to us,” he said.

As an example, Glaves referenced the website Legal Zoom, which provides customers with legal document services for a flat fee. With Legal Zoom, clients must know the correct form that they need and what to do with it, he said, so it’s not an ideal place for people to turn for legal help. “What they are selling is a fixed price,” he said.

“Pricing matters a lot, Glaves explained. “The billable hour, which I’ve never been a fan of, is a real barrier to a lot of people who might be able to afford us as lawyers but don’t think they can. They don’t know they can because they have no idea what they are going to get charged when they go in. There are not many other things in the world that work that way, where you have no idea how much it might cost you.”

Unless the legal profession starts “taking the bull by the horns,” many more of these kinds of businesses will begin popping up, Glaves said.

Breaking the Law of Supply and Demand

Moderator R. Alex Acosta, dean of the Florida International University College of Law, asked panelists why they thought the legal profession was breaking these “economic rules” and flouting the law of supply and demand.

“We are so committed to the way we have done things for so many years, and clearly, if you can’t make it in a practice by charging less than $260 an hour … something’s wrong,” Glaves said.

Edward I. Grossman, co-founder of the Chicago Legal Clinic, said many law students graduate with a lot of debt and would love to work at a legal aid organization but can’t afford to.

“When people come to work at an organization like mine … it’s because the mission resonates with them, “Grossman said. “If you work at my organization because you need a job, you will last a couple of months. You will burn out. … People do this kind of work because this is something that’s near and dear to their heart.”

Panelist Niya K. Kelly, a domestic violence advocacy fellow at Chicago Legal Advocacy for Incarcerated Mothers, said she believes that starting in law school lawyers are conditioned to think they must make a certain amount of money. “I remember my first year of law school we were told that our first year out of law school we would be worth $250 an hour,” she said. “That has stuck in my mind.”

However, working in public interest now, Kelly said, “I might be worth that, but I know that is not what is on my check every two weeks. … We are taught that we are part of this noble profession and that we are worth a lot, but that mindset goes back to when times were better for attorneys.”

Looking at the Medical Profession

Acosta posed the idea of the legal profession adapting to these new circumstances by learning from the medical profession. The medical field has nurses, nurse practitioners and physician assistants in place to help leverage the actual physicians’ time so the maximum number of people receives medical care, he explained. But the legal profession has resisted that model, Acosta noted, pointing out the opposition to the notion of a limited licensed legal technician, a person who does not have a J.D. but meets certain educational requirements and can advise clients in certain approved legal areas.  

Glaves countered that while he could see a place in the field for something like a limited license legal technician, “when you look at how many lawyers are out there already who somehow aren’t connecting to this client base in an affordable way, I think there is so much more we can do before we go looking to that as a solution.”

Grossman supported the idea of enacting a system similar to the medical community model. “The fact of the matter is, we couldn’t have the capacity to make the legal system accessible to the poor without that model,” he said, noting that his organization uses volunteers, interns and others to function.

“There’s a balance to be struck between balancing access to justice and the theme of protecting consumers from the unauthorized practice of law or the shoddy practice of law,” he emphasized. “You want to maintain some quality control but at the same time make the justice system more accessible.”

Acosta challenged that perhaps the legal profession’s argument that it needs to “protect the consumer” is really more about protecting the profession. “What is more important than health care? And yet when someone’s life is at stake, they are able to use this leverage model,” he argued. “When the legal profession says legal services are so critical that we can’t have limited license lawyers, I’m left wondering, is that us as a profession being protectionist? Because you can’t say we’re more important than a physician for someone’s future.”

Grossman and Kelly both agreed that the legal profession’s resistance stemmed from wanting to protect itself.  

Passing Off the Business Side

Acosta also brought forward the idea of non-lawyers owning law firms, which England allows but the U.S. does not. “As lawyers, we turn very, very frigid and really worried about merging business and law. Yet I wonder, is maybe the other side of it, if someone else worries about the business side, do you think it frees up the lawyer to focus more on ethical obligations and less on business obligations?” he asked.

Panelist Gary S. Laser, director of clinical education at the IIT Chicago-Kent College of Law, said he didn’t have a problem with a corporation being in charge, as long as the structure of the system provides that the lawyer giving the legal advice is the one responsible for that advice and that clients can still bring malpractice lawsuits if the lawyer does not do his job satisfactorily.

“Overall, I think there is room for that type of a model,” Grossman agreed. “It just has to be executed correctly.”

Glaves put it more bluntly: “We have no right to say no to that right now. Because we are basically right now as a profession saying, you can’t afford us when you need help, but we are still keeping the door locked.”

Luz E. Herrera, chair of the ABA Commission on Hispanic Legal Rights and Responsibilities, which sponsored the panel, said the legal profession should look at itself in the mirror and be honest about what it has done to justice. “There’s an ethical code that as a profession we have collectively violated by not having a modest means platform in which we can really address these issues,” she said.