There is now a lot to report on non-lawyer practice — with much of it not yet getting the attention it deserves.
First development. In New York Housing Court (Brooklyn) non-lawyer “navigators” are now actually in place helping litigants day-to-day. Its a revolution now happening. As announced by University Settlement on their website:
Our court navigators are trained non-lawyers that assist unrepresented litigants in housing cases. These navigators accompany litigants to court and respond to questions from the judge, providing moral support and information to litigants. Navigators can also help tenants keep paperwork in order, assist them in accessing interpreters and other services and, before they even enter the courtroom, explain what to expect.
This program represents a partnership with two other groups that serve different levels in the process. First, Housing Court Answers will be at the court during the early petition stages – before a date is set – to answer any questions about forms and determine if additional help is needed. Representatives will refer tenants needing additional assistance to either a New York State Access to Justice Navigator – who is on-site the day of hearings – or, in cases where individuals need additional preparation and help, the Housing Court Answers representative will direct them to us.
Our program is the first of its kind in NYC. We’re here to level the playing field and tackle the threat of eviction head on, and we’re not alone. New York’s Chief Judge Jonathan Lippman led the charge to establish this program, and we even received support from the editorial staff of the New York Times. (Note: first link modified to blog summary)
Second Development: In Washington State, seventeen students are now taking the classes that will enable them to be Family Law Limited License Legal Technicians. I understand that the expectation is that those of these who pass the exam, to be held early next year, will be in actual practice in the spring of 2015. Information about the enrollment is announced here at the March 26, 2014 meeting of the Washington State Board for Community and Technical Colleges, with video here, at one hour and three minutes and 54 secs. There is lots more info here.
Third Development: In California, as reported by the Bar Journal, the State Bar Civil Justice Strategies Task Force held a hearing which included extensive testimony by Gillian Hadfield, an advocate of dramatic change in the structure of the market based delivery system. Professor Hadfield’s work has been highlighted before by this blog. As the Bar Journal reported Hadfield:
She said the typical hourly rate for lawyers must be reduced from more than $200 an hour to about $40 so low- and middle-income people could afford them. “The thing we have to come to grips with is, the problem is cost,” Hadfield said.
The California Daily Journal piece on the hearing, sadly behind a paywall, discusses her advocacy of non-lawyer practice in more detail.
At the same hearing, as reported by the Bar Journal, Associate Justice Laurie Zelon, spoke of a variety of approaches that include an expansion of the role of non-lawyers:
Among solutions showing promise, she said, are using non-lawyers in legal self-help centers and as “navigators” in courtrooms, and “unbundling” legal services, so a lawyer would represent a client for only part of a case. Court rules, forms and processes also must be greatly simplified, she said.
This all suggests that things are really starting to move, and that we are getting to the place that success with one idea in one state will be useful to those moving forward in other states.
Disclosure: I am on the New York Task Force on this topic, and have had a number of conversations with people in states and in the access movement. I am particularly concerned that we are able to do good evaluations that are built on a common approach, at least asking the same questions, and using data that is sufficiently similar that real comparisons of the costs and benefits of different approaches can be made.
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I found this fascinating and pleased that Canada was taking the initiative. I once taught a course called “The role of middle size powers,’ using Canada as an example based on the idea that they have more freedom of social action for experiment.al programs.
Long time follower, first time comment. THANK YOU for your pioneering work in Access to Justice. I am a strong proponent of navigators and want to help in any way. My sphere of influence is the faith-based world. While I focus on Christians, I intentionally work with all faiths particularly Jews and Muslims. Wanted to make you aware of unique work being done by the Tennessee Access to Justice Commission which is holding the first faith based summit on access to justice this Monday at Lipscomb University. This is another untapped resource in our country by engaging places of faith in support, volunteers, and encouragement of private attorneys in getting more engaged.
I am one of the presenters along with Paul Monteiro whio is on staff with the White House in the Faith Based Initiatives arena. I am leading a workshop at the Equal Justice Conference on Restoring Faith in Justice which is a panel with Bet Tzedek (a great Jewish organization), CAIRN (a wonderful muslim organization) and Neighborhood Christian Legal Clinic (a Christian organization). I saw you are at the conference as well and hope to meet you. Keep up the great work. Whether we might agree on matters of faith or not, I want you to know I am praying for your cancer. You are deeply appreciated.
It is a mistake to believe that a lower hourly fee, regardless of whether the service is provided by a lawyer or someone else, is a solution to the affordability of legal services. If Service Provider X charges $200/hour and finishes the job in two hours and Service Provider Y charges $40/hour and takes 11 hours to do the job, the client actually pays more. We need to work on the expansion of the many options for compensation that lawyers are now providing. We don’t hear critics complaining about the “affordability” of contingency fees, which could be used for legal services far beyond personal injury. We don’t hear people complain about shifted fees, which are available to tenants and consumer issues in some jurisdictions. Lawyers are experimenting with set fees, for example for incremental aspects of unbundled services.
Two things happen when we focus on the billable hour for personal legal services. First, we rob the potential client of making a determination of whether the services is of value to him or her. Cost + outcome = value. If the person has no basis to determine the ultimate cost, they cannot determine whether the service is worth it. This may be more of a reason for the proliferation of self-representation than the presumption that the services are unaffordable. Second, the focus on the billable hour makes it too easy to advance a mythology that personal legal services in general are unaffordable and therefor the solution is not alternative billing methods by lawyers, but alternative legal service providers. To that extent, both the conversation and the alternatives are misdirected.