Monday, November 26, 2012

Should we allow non-lawyers to help the unrepresented?

That's the argument made by Professor Gillian Hadfield (USC) in this editorial at  Millions of Americans face relatively non-complex legal problems ranging from foreclosures, to small business compliance issues, to how to read a lease yet they can't afford the typical hourly rate most attorneys charge. Professor Hadfield suggests that one way to meet the legal needs of the unrepresented is to train non-lawyers to dispense advice in these rather routine matters. (Perhaps law schools could provide the training by offering masters degrees like Vermont Law School is proposing as a way to both fill this unmet need for low cost legal representation as well as fill their own seats in light of the precipitous drop in J.D. applications)

I think this is what Rocket Lawyer is hoping to do by giving clients access to online attorneys who are admitted in their jurisdiction for a rock bottom rate.  And then there's emergence of kiosk syle law practices that are aiming to do the same thing (and here).  Perhaps Professor Gillian's proposal recognizes that these low cost alternatives to the traditional law firm model for dispensing legal advice are not going to be economically feasible given the average educational debt of today's law school graduates.  Most recently graduated law students simply can't survive by billing only $25 to $50 per hour.  Thus enter Professor Gillian.

Lawyers, make room for nonlawyers

In our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.

Increasingly, the only "persons" with access to legal help are "artificial persons" -- corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.

These numbers are just the tip of the iceberg. For every person who is unrepresented in court there are probably tens of thousands who didn't have any legal advice when they did the things that landed them in hot water in the first place. Who can afford $200 to $300 an hour to get advice on local small business regulations, the fine print in a mortgage document, or how not to make mistakes that will cost you in court when fighting over kids and money with your soon-to-be ex-spouse?

. . . .

I believe there is no way to help ordinary people with their legal problems without fundamentally changing the way lawyers and judges regulate the practice of law.

What we need are more efficient ways of delivering legal help and less expensive nonlawyers who can provide legal assistance. Supreme court judges in every state have the authority to accomplish this with the stroke of a pen.

. . . .

It doesn't take high-level legal expertise to advise a person facing eviction for unpaid rent that if she wants to contend that her apartment has no heating and the ceiling is falling down, she should bring some photographs or other evidence to court to back up her claim. The same applies to people who need to understand what the arcane legal language in a court order or rule means.

There are many basic issues that could be handled by nonlawyers. Allowing nonlawyers to work for businesses that invest and specialize in giving this kind of help would supercharge the potential for reducing the cost of legal help.

The use of non-JD legal assistants and nonlawyer dominated businesses is not a venture into uncharted waters. The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations provide legal assistance, and studies show that the practice works very well. In many cases, people are better served by a nonlawyer organization that specializes in a particular type of legal help—navigating housing or bankruptcy matters, for example—than they are by a solo practitioner with a general practice.

Furthermore, when people have access to lower-cost alternatives to full-fledged attorneys, they use these resources. In practical terms, that means that only 5% to 10% ignore their legal issues in the United Kingdom. Compare that to New York, where significant majorities of low-income households with legal problems—65% with housing problems, 59% with financial issues, 50% with health insurance problems—do nothing in response to their problems. But as often is the case, untreated problems lead to worse problems—and bigger headaches for our courts.

Continue reading here.


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The biggest issue I see is regulating malpractice and ethical concerns with these nonlawyers. I suspect consumers frustrated with the results from some of these low-cost options will have plenty of complaints. Is it reasonable to put this additional and likely substantial burden on the bar (many with limited budgets and resources)?

Posted by: Kendall Isaac | Nov 26, 2012 11:46:03 PM

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