A few months ago, the Georgetown Journal of Legal Ethics invited me to submit a paper on the relationship between access to justice, commercialization of the legal practice, and judicial ethics.  The paper will be published in the summer of 2016 in their Symposium issue, and it will be discussed with other papers on the relationship between legal ethics and commercialization at the associated Symposium to be held on March 18, 2016, an event I am very much looking forward to.  With the Journal’s kind agreement, I am today posting a two page abstract of my paper.

The reason that I cam doing this is that I hope very much that it will stimulate discussion in the community about these issues.  I suppose that what I have tried to make worthwhile about this paper is to “think outside the box” and offer ideas that have not previously been widely aired about how we could make use of the ferment about the possibility of deregulation to focus on the most important goal, access.  In other words, how can be not just deregulate while minimizing harm (which is the focus of much of the current discussion), but rather how can be change everything to get 100% access together with quality.  There are five suggestions that hopefully might increase confidence that that might be achieved.  Many would work through changing incentives, as generally proposed in an earlier blog.

ABSTRACT (click here for pdf of abstract)

An Introductory Exploration of Five Broad New Ideas on How to Cut Through the Access to Justice-Commercialization-Deregulation Conundrum

Richard Zorza, richard@zorza.net

In editing process for 2016 Symposium Issue of the Georgetown Journal of Legal Ethics

Most of the current deregulation discussion focuses on permitting both non-lawyers and lawyers to do more than currently authorized. While such changes would presumably contribute to solving the problem of increasing access to justice while maintaining quality and consumer protection, such discussions alone are unable to offer any realistic hope of achieving the 100% access to justice services for all envisioned by the recent Resolution of the Conference of (State Court) Chief Justices and the Conference of State Court Administrators. This paper discusses the potential for fully achieving that 100% goal by integrating broad regulatory changes with economic incentives on courts, bar and legal aid to increase efficiency and reduce costs, and with politically achievable ways of bringing in additional resources.

The five proposed, albeit potentially controversial, solutions are:

1. Releasing non-profit legal-serving entities from almost all regulation, and moving the subsidy system of legal aid to a genuinely competitive model,
2. Deploying a mix of more limited de-regulation on the bar as a whole, combined with inter-related mandated sliding fees and tax incentives, for both litigants and providers,
3. Maintaining almost all regulation, but placing the obligation of 100% access to justice on the bar as a whole, and giving the bar the authority to tax its members to fulfill that obligation,
4. Internalizing all costs of access to justice into the court system, in order to incentivize court simplification and some appropriate deregulation,
5. Allow for National Technology Limited Practice Licenses on condition of free services for the poor and reasonable ones for middle income, and with appropriate regulatory relaxations.

The paper proposes a conceptual framework for assessing such solutions, as follows:

• Does it ensure that everyone with significant legal need would be appropriately served, regardless of financial or other barriers?
• Does it provide the resources to fill the resource gap?
• Would it meet the political and economic requirements of being highly cost effective?
• Would services be varied, flexible and matched to need?
• Would the solution incentivize changes in the system as a whole?
• Would the solution protect the consumer, either through the relevant traditional formal values of the profession or through some other means such as a structuring of market incentives?
• Could one be sure that any new resource mechanism would not introduce or exacerbate any additional general non-neutrality into the system?

The solutions are then compared in detail under the framework, with the conclusions summarized below in this table from the paper (click here for pdf version of chart).

p.s.  I can not resist adding that, since this paper ends up suggesting fundamental changes that perhaps impinge on every institutional interest, I have been calling it the “Life of Brian Paper”.  I so named it to a friend in the UK to whom I sent it, and he immediately replied “You are not the Messiah, you are a very naughty little boy.”  My response: “That is why I am on Ritalin.”  Seriously, I have been very encouraged by the positive response that I have gotten from stakeholders when I have offered these ideas.  This suggests that there is a broad openness to some fundamental rethinking.

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