Update: The comment period has been extended to Dec 20.
I should have blogged about this weeks ago. But the due date of Dec 10 for comments on the ABA Commission on the Future of Legal Services has almost crept up on us.
The paper on which we are supposed to make comments asks for reactions on a myriad of issues. It is here.
The list includes:: Better service, Most important problems in delivering legal and law-related services, Alternative providers and regulatory innovations, Underserved communities, Policy changes, Insights from other fields, Data, Legal education and training, Diversity and Inclusion.
If you are not convinced that this is a massive project, go read the detail. The issues will be addressed in working groups that are listed in the document. There are some very fine people on the Commission, and that is a very good sign that making comments is worth the effort.
So, rather than try to address every issue, I am trying to shape a few general points that maybe will be of use to the Commission as they work through these many issues.
Access as the Ultimate Criteria
The Commission needs a framework for assessing the appropriateness of the current situation and of proposed changes. I submit that there is really only one question. Does the current system of rules, practices, processes and professions provide access to all? Given how appalling the answer is, we have to make major changes throughout, and while there may be legitimate disagreements about the potential impacts of the changes, the only legitimate debate is about those impacts on access, not on the profession itself. If we fail to deploy this perspective, we abandon any claim to self-regulation.
The Outdatedness of State Level Regulation and Structures
Most of the regulatory environment is federal, and it is hard to find real justification for the huge differences in bar admission, professional training, and the like. They create barriers to entry that are indefensible in economic terms.
The Financial Obligation of the Profession to Access
The massive income levels at the top of the profession (see this article about NY associate bonuses) are destroying the legitimacy of our claims to support access for the poor and middle income folks. If you take the LSC budget, and a rough average of the bonuses described in the article linked to, it turns out that about 7,000 bonuses would pay the entire LSC budget. Somebody is going to call us on this one of these days. We have to find a way for the the vast amounts of money going into legal services (with small letters) to generate at least a tiny percentage for access. I personally would support a 1% access fee on all legal bills over a set amount or a set hourly fee. Why not? Its not going to stop anyone sending their kid to college, and might save a lot of people from disaster.
Management of Pro Bono
I fear that the apparent mismatch between the public reports of self-reporting on pro bono hours and the number of cases is staggering.
DC Bar pro bono full representation clinics represented 438 people according to the December 2o14 issue of the Washington Lawyer, (at page 28). In an obviously inexact comparison, Maryland’s voluntary reporting asserted an average of 31 hours per attorney in the state. While obviously, there are huge reporting issues, with the definition of “pro bono” being very varied, and this being a comparison between different states, at a minimum we have to conclude that the actual number of full representation pro bono cases can not be used to say that the volume of pro bono shows that the bar is doing all that it can (or else that the system is astonishingly varied between states, and we would have to ask why).
Legal System Simplification
Many of us believe that the underlying problems come from a system that is both procedurally and substantively much too complex, and that access for middle income and poor people will only happen when we simplify. This needs major and politically very sensitive attention.
Sorry to be so blunt. And congratulations to the Commission and the President for raising these big questions. But lets do a good job of doing so.
I encourage all to say their piece to the Commission by December 20 (as extended). Send to IPcomments@americanbar.org.