I find it remarkable that there so few regulatory and economic incentives towards access to justice built into our system.
It is now true that you have to do a certain number of pro bono hours to get to be a member of the New York Bar, that you can jump ahead in the NY admission process if you pledge six months of pro bono access service, again in NY, and attorneys in NY and a few other states actually have to report their pro bono hours (albeit now anonymously in NY, what a relief!). But that is about it.
To be more specific:
- As a general matter, the possession of a bar card, with all its enormous financial and prestige advantages, and all its monopoly benefits, is conditioned by no access to justice obligations or requirements, beyond the rhetorical.
- There are no economic or other incentives for those who do make pro bono or low bono contributions, beyond the reputational ones.
- Even those attorneys who become more efficient, such as by use of technology or nonlawyers, often reap little benefit if they remain on an hourly billing model.
- Courts which become better or even just more efficient at providing access to justice, such as through simplification approaches or service redesign, receive no concrete benefit from doing so, except possible media attention. (Because of the lack of metrics, the fact that they are doing so is probably largely unknown.)
- Legal aid programs that do a good or efficient job similarly derive no benefit, given that in most states most of the funds are distributed by formula. Again, the absence of comparability metrics makes the rational distribution of funding largely impossible.
So, is it any surprise that the underlying access to justice systems are changing much more slowly than they should? The problem is not a lack of models, or even a lack of resources to deploy models (provided it is done sensibly), it is a lack of energy and planning to integrate those models into the delivery system.
So, I would urge that we start to think about the kinds of economic and regulatory changes that might provide the incentives that would make getting to 100% access to justice a more realistic possibilities. I will be blogging in the next few days about how this might be done in the bar deregulation context.
Suggestions and ideas always welcome in the comments.
How does the requirement to provide pro bono hours work for a firm that specializes in a type of law that no poor person would need? Do you want someone who does mergers and acquisitions working pro bono on your criminal or divorce case?
Perhaps those firms could satisfy their pro bono requirement by way of a payment of money directed to a poverty law clinic.
All good thoughts, but I am not necessarily advocating mandatory pro bono here.
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As Theodore Roosevelt said:
“The country needs and, unless I mistake its temper, the country demands bold, persistent experimentation. It is common sense to take a method and try it: If it fails, admit it frankly and try another. But above all, try something. The millions who are in want will not stand by silently forever while the things to satisfy their needs are within easy reach. We need enthusiasm, imagination and the ability to face facts, even unpleasant ones, bravely. We need to correct, by drastic means if necessary, the faults in our economic system from which we now suffer. We need the courage of the young. Yours is not the task of making your way in the world, but the task of remaking the world which you will find before you. May every one of us be granted the courage, the faith and the vision to give the best that is in us to that remaking!”
Hopefully all the new pilots and initiatives will share their data/findings/successes and failures and with that we can continue trying to find a path forward in terms of ATJ across firms, solo practitioners, legal aid, legal non profits, courts, libraries, law libraries and other sectors that overlap (including mediation and arbitration).