I blogged recently about testimony at the New York Access to Justice hearings about the potential of non-lawyer practice.
Professor Gillian Hadfield of USC sums it up with absolute clarity:
Being both a lawyer and an economist, and an academic to boot, I’m at triple threat of hiding behind “on the one hand, on the other hand” statements when it comes to addressing public policy problems. But I am here today to make a clear unequivocal statement: there is no way to solve the crisis of civil access to justice without fundamental change in the way the judiciary regulates the practice of law. More precisely, there is no way to generate the kind of legal help that ordinary New Yorkers need solely through the expenditure of public money on legal aid and the provision of pro bono and other charitable assistance. No way. Any solution that makes a dent in the problem will also have to involve expanding the types of people and organizations that are authorized to provide legal help. I realize that is a statement that is at odds with almost everything lawyers talk about when they talk about access to justice. But it shouldn’t be. It should be the main topic of conversation: how will we expand access by expanding the range of options available to ordinary people when they face the ordinary legal needs of everyday life? This is not a scary option. It is not an unethical option. It is, in my view, the only responsible option.
Using New York numbers, Professor Hadfield makes clear that the current approach can not even begin to meet the need:
Suppose you wanted to provide every household experiencing civil legal problems just one hour of legal help with each problem they faced. What would that cost? The average hourly rate for a general practitioner working in solo or small firm practice in New York—the kind of lawyer who provides services to ordinary folks rather than corporations—is about $200. A little more math: 1 million households times 1.5 problems times $200 per hour equals $300 million. That’s for one hour for each problem. Even if you think you could find enough lawyers willing to work for, say, $150 an hour (which no survey of lawyers that I’ve seen suggests is possible), you’re still talking $225 million. Of course, for very few legal problems is one hour of help much help at all.
She also applies New York numbers to the potential for pro bono to fill the gap:
And if you didn’t want to pay hourly rates for that assistance? It would require every one of the approximately 150,000 New York licensed attorneys to work an additional 10 hours pro bono a year for each hour of help provided for all those facing a legal problem. To put this number in perspective, in the 2008 ABA Pro Bono survey, American lawyers provided an annual average of 28 hours of pro bono services to persons of limited means. The average time spent on a single pro bono case was 24 hours—meaning that on average, American lawyers are helping the equivalent of one person or household a year with a legal problem. If this average applies in New York, it means 150,000 households receive pro bono help—that’s 10% of the 1.5 million legal problems low-income households tell us they are facing. (footnote omitted.)
The Professor goes on to discuss the medical analogy, the potential of non-lawyers appropriately licensed to perform certain tasks including explanation and advice giving, the successful experiences in the UK, and the Washington State limited experiment with “legal technicians,” now being launched.
But New York should not wait to see how Washington turns out. It should act now to evaluate its options for expanding the supply of legal assistance to New York’s citizens. And it should do so in a firmly policy-oriented and evidence-based way. For too long this issue has been allowed to become buried under the intuition-based objections of existing members of the legal profession. (These are often sincerely held worries about the capacity to help those with legal trouble, although they are also, one must admit, sometimes plainly motivated by protectionist fears of competition.) If we treat this, as we absolutely must, as a matter of serious policy and we put our intuitions to the test of theory and empirical evidence, I guarantee we will find that the traditional fears are unfounded. There are numerous ways to ensure levels of quality and care in legal matters that outperform our current situation by substantially decreasing cost and increasing access. How about an RFP—a request for proposals—from a wide range of possible providers and policymakers, not merely the current members of the legal profession? I think New York, given your energy and devotion to this question, could turn the corner on innovation in legal services and take a major leadership role in a matter that is of desperate need of fresh thinking both here and throughout the country.