While the U.S. legal system has many virtues, it also has glaring flaws. One of its chief failures is access: Most of us in America simply can't afford the help of a lawyer that is so often necessary for navigating the complex landscape of the law. This underrepresentation is particularly true in matters like family law, immigration, home foreclosure or social benefits, where there is no outside pot of money that a contingency lawyer can set her sights on. Statistics vary, but in the sizable majority of such cases in state after state, people hoping for a just result come into court unrepresented, without the expert help they may need to get that justice. Many others don't bother to come to court at all. Similar gaps show up in non-litigation processes, like small business formation, social benefit disputes, and estate planning.
Commissions, reformers and critics have wrung their hands over this reality for decades, but the problem has only gotten worse, notwithstanding worthy efforts like Legal Aid. It is time to be honest with ourselves. This crisis of representation is not an aberration. It is a structural feature of the system of lawyer professionalism we have built, and it will not go away until we build a different way to deliver the benefits of law to people in need of them.
Lawyer professionalism, as we currently know it, is not a terrible thing in itself. We set high qualifications of education, admission and conduct for attorneys, and wrap their role in the status and responsibility-laden package we call a lawyer. We then give the people in that package a monopoly on providing legal services, and back that monopoly up with a set of restrictions on investment, geography, and advertising. This arrangement was an advance in its day, serving as a reform to the less structured, and rather rough-and-tumble versions of the bar that went before it. That day, however, dawned in the late 19th and early 20th Centuries, and its sun is setting. The plain fact that needs to be acknowledged is that the economics of this arrangement have always left the less affluent behind, and we need to fix this failure.
Fortuitously, advances in technology, scale and business process science are helping us to develop alternatives modes for delivering the benefits of law more broadly. In the commercial arena, online services like LegalZoom and Rocket Lawyer are the Uber and Lyft of the legal world. Non-profits and governments are also providing technology-based solutions. But these alternatives are butting up against the regulatory structures of traditional professionalism.
What needs to change? The basic rules of the current system of legal practice are determined on a state-by-state basis. Every state has based its approach, with some individual variation, on the Model Rules of Professional Conduct. The American Bar Association promulgated the original version in 1983. Although the Model Rules have been tweaked in various ways over the years, some core, restrictive principles on questions such as outside investment, cross-border representation, and unauthorized legal practice, have remained in place and enshrine the traditions of professionalism in ways that limit most of the innovations that could help solve our problem.
The existing rules and the model of professionalism which they support need to evolve. The concerns over quality and honesty which inspired the rules should not be jettisoned. Rather, those concerns should continue to animate the new strictures, but they need to do it in the context of 21st Century possibilities, including the connectivity, scale and automation that technology can provide.
The transition to the new will sometimes be messy, with experimentation in the individual states running simultaneously with the centralized considerations of the ABA. In fact, some states may well get ahead of the ABA. The power to set the rules resides in the states themselves, and the courts that oversee those rules know better than anyone that the current system often fails the majority of our citizens. Furthermore, as it dawns on the lawyers of an open-minded state that they could actually prosper from embracing change ahead of the rest, we will see some interesting jumps forward. Some mess may need to be tolerated as the new emerges from the old.
Innovation is difficult and carries risks; but the cost of failing to innovate around access to legal services is simply too great a price for our system of justice to sustain.
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