The Associated Press published a story this weekend titled “Lawyers across US urged to give more free services,” and a read-through inspired me to write this blog. Solving the huge gap between legal services offered (by lawyers) and legal services needed (by the public) is of particular interest to me and Zlien, as Zlien offers legal document services as an alternative to hiring an attorney.
Let me explain to you why the “pro bono” solution is all wrong, and why the legal industry is absolutely clueless in America.
Explaining The Problem and the “Pro Bono” Proposal
The Associated Press article does a good job of framing part of the problem with the legal industry by reporting on how that problem is manifesting itself in courthouses across America: more and more people are representing themselves in court.
The Associated Press article reports there is a “crush of people…representing themselves in the nation’s civil courts because they can’t afford lawyers…The boom has overwhelmed courts.” This is the not the first report on this phenomenon. In the current economy, a report like this recycles at least once per year (see last year’s report, for example).
The problem is simple: people can’t afford lawyers, and they can’t afford expensive, drawn out legal proceedings. Some may think pro se representation is fine, but under hte current system, there are heavy challenges.
The legal industry is particularly interested in this issue because they’re advertised mission is to “serve the public.” How can they claim to be adequately serving the public if most of the public can’t afford to deal with a lawyer or refuses to hire one?
So the American Bar Association and individual state bar associations have created “tasks forces” to study this problem and produce reports with proposed solutions. Spoiler alert: these tasks forces are composed of lawyers, and the proposed solutions are accordingly biased.
After examining this pro se problem in America the bar associations have come up with a proposal whereby they ask (or as is the proposed case in New York, force) licensed attorneys to do more work for free.
Why The Pro Bono Solution Is Tragically Flawed and Unfair
Asking lawyers to do more work for free is not a solution to the pro se problem. In fact, the proposal is a reflection of just how clueless and desperate our country’s legal industry has become.
(1) Pro Bono Service Addresses Only Indigent Litigants And Not The Rest Of American (Including Businesses) Who Are Left Behind By The Legal System
One of my strongest frustrations with the legal system is how out of touch it is with the cost and utility of a legal proceeding for businesses. When the bar associations publish these pro bono proposals and other pro se “solutions,” they are talking about a tiny segment of the US population: very poor people.
[pullquote style="left" quote="dark"]The legal industry couldn’t care less about small businesses who cannot afford legal representation.[/pullquote] Of course these low income people deserve and require attention from the legal powers that be. A large portion of the pro se litigtants in civil courts are individuals involved in some type of domestic proceeding, like a divorce or custody battle. You can see some striking numbers on Wikipedia, like, for example, that over 85% of cases in New Hampshire’s district courts have at least 1 pro se litigant!
The problem is not limited to low income individuals, however. About half of all workers in the United States are employed by small businesses. When a small business is thrust into a legal action, they have a very serious and expensive problem, and the legal system couldn’t care less about them.
I’ll repeat that: The legal industry couldn’t care less about small businesses who cannot afford legal representation.
Every pro se report in the United States focuses on the challenges low income folks have in domestic or criminal proceedings. They simply do not care about the legal burden placed on small businesses. While the legal industry ignores these parties, it’s clear that they are underserved. Almost all legal document form services are catering to these small business (see LegalZoom, RocketLawyer, MyCorporation, and even Zlien).
The “Pro Bono Solution” focuses on having attorney volunteer more to help poor and low income individuals. It does zero to address the underlying problem, which is that the legal system and lawyer offerings are not compatible with the public (and small businesses’) needs.
(2) Lawyers Aren’t Rich!
What really angers me about the pro bono solution is the burden it places on attorneys.
It’s funny that on the one hand the American Bar Association and New York Bar Association is urging attorneys to volunteer more, but on the other hand they are struggling to deal with unemployed lawyers (see: Law School No Longer A Golden Ticket). There is an obvious friction between these two challenges.
Sure, most attorneys are better off than the “indigent” population. That doesn’t mean they can afford giving up 20, 30, 40 or more hours a year in helping the indigent population. Jobs in law are few and far between, they have absurd hours already, and law firms are barely making ends meet. How do you squeeze it in? How can the bar association demand it get squeezed in without at least acknowledging the challenges a volunteering attorney would face?
Many lawyers make a lot of money. Many lawyers are rich. Lawyers, however, are not rich as a matter of rule, and they do not have the physical and mental availability to solve such a foundational problem with the legal industry.
The Answer Is Deregulation And More Transparency
There are two things the United State legal system desperately needs: (1) Deregulation; and (2) Transparency. These two things will solve the pro se problem.
Deregulation Doesn’t Mean The End Of Lawyers
Lawyers regulating everything that has absolutely anything to do with the law has got to end, and the whole industry needs to see looser regulations. I love this article from Forbes magazine: Non-Lawyers Find It Hard To Avoid Breaking Bar’s Vague Rules. I particularly find this quote to be illustrative of the legal industry’s stubbornness:
Defenders of these laws make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.
Lawyers have a huge and important purpose in our society…or at least they should. They are defenders of our rights. They are advocates who lead the interpretation of our laws. They are counselors to individuals and businesses to help guide them through complex legal questions. You know what they shouldn’t be? Form fillers. Scribes. Legal compliance managers. Spell-checkers. Business consultants. Tax preparers. The list goes on and on.
If the legal industry would clear all the “unauthorized practice of law” clutter, the public could more easily find small-time legal information and help from reputable non-attorney channels, and lawyers could focus their efforts on being lawyers.
Transparency Is Critical To A Quality Legal System
[pullquote style="right" quote="dark"]The result is that there are a lot of unfairness. If the system is unfair, it’s a failure to everyone…and the system is unfair.[/pullquote] Many may think our legal system is transparent. Maybe there are a few (lawyers, of course) who would argue that the system shouldn’t be transparant. In both cases, they couldn’t be more wrong.
So much of our justice system happens in a closed network. Trial court records are useless for anyone wanting to do research on them, with thousands and thousands of court decisions happening every day in complete practical secrecy. Appeal decisions are routinely ”unpublished,” meaning that the courts can make a decision that gets completely swept under the rug.
The result is that there are a lot of unfairness. If the system is unfair, it’s a failure to everyone…and the system is unfair.