By Bob Glaves | CBF Executive Director
Lawyers often joke that they couldn’t afford themselves if they ran into a serious legal problem. While that is (usually) an exaggeration when a lawyer says it, it reflects a reality we all know to be true for most people in our community. It was not always like this, but somewhere along the way our profession managed to price the proverbial “regular guy” out of the market for most legal services.
As lawyers, we like to think of ourselves as problem solvers. This time the problem is us, and in 2019 we all need to make it a priority to solve it.
If You Are Thinking This Is Someone Else’s Problem…
You are wrong. When a majority of our community has little or no access to affordable legal help when they need it, the system is not sustainable, and that is a problem for all of us wherever we are in the legal profession.
At a time when we have more lawyers than ever before, it is cruelly ironic that we also have more people than ever before going without legal help when they need or would benefit from it. That reality appears most starkly in the huge numbers of people going to court on their own, which now happens in 3 out of 4 civil cases according to the National Center on State Courts. A growing share of those representing themselves are middle-income people who would prefer to be represented and are willing to pay something for it, but are unable to connect with affordable and accessible legal help.
To be clear, we will not solve the larger problem without significant increases in public funding for legal aid. The long-term underinvestment in legal aid by government at all levels continues to be by far the largest driver of the persistent shortage of these critical services for low-income and disadvantaged people.
But even if we solved that problem tomorrow, the larger share of the community who make too much to qualify for free legal aid but not enough to afford traditional legal fees would still be effectively shut out of the market. And the reality is, we will never build the broad public support necessary to properly fund legal aid if the people in the middle don’t feel they have affordable access themselves.
No One-Size-Fits-All Solution
Any real solution to our access problem for people in the middle class has many parts, but the start of it is acknowledging that we own this problem as a profession.
I hear a lot of armchair economists say that the real problem is people just don’t have the money to afford our services. While it may be true that people can’t afford what most lawyers are selling today, that is fundamentally different than saying they could not afford legal services that are marketed, priced, and delivered in different ways.
The growing number of lawyers in the CBF Justice Entrepreneurs Project network are among those proving that lawyers can create sustainable practices serving this market by doing things differently. The corporate legal market is seeing many promising innovations that make legal services more efficient and accessible as well.
To scale the impact of these innovations in the broader legal market will require a combination of new business and practice models that responsibly incorporate technology and effectively utilize other marketing and business professionals. Modernizing our Rules of Professional Conduct will be a critical step towards doing this.
As I wrote with our CBF Board President Carrie Di Santo in an op-ed in Crain’s Chicago Business earlier this year, we need to bring the same urgency of innovation to the “people law” part of the legal market as we are seeing in the corporate legal market today. Martyn Beauchamp, a lawyer from across the pond, put it well: “law firms need to disrupt the legal market themselves, or someone else will do it for us.”
The solution will also require the courts to be full partners in prioritizing process improvement, simplification, technology, and customer service so that people can handle lower-stakes matters and more routine aspects of their cases on their own, and without necessarily having to come to the courthouse. Among other benefits, this will enable lawyers to focus on the more critical aspects of the case where we add the most value in a more flexible and affordable way.
I’ll have more to say on the path forward in my next few posts. The key for now is that we all resolve to make it a priority to tackle this problem as we start the new year.
My 2017 and 2018 Resolutions Carry Over Too
My resolutions for the profession the past two years carry over too, both because they continue to be applicable and because they are inextricably tied to this 2019 resolution.
My 2017 resolution struck a chord for many: stop calling people non-lawyers. This unfortunate lingo continues to be widely used in our profession, and it betrays a shortsighted and artificially limiting mindset that has a number of negative consequences for access to justice, the future of our profession, and our public image as lawyers. We can expand this resolution going forward to include the rest of my banned words list for access to justice as well.
For 2018, my resolution was to make it a priority to incorporate technology into our work but to set clearer boundaries for it. In order to meet the legal needs of low and moderate-income people in our community in an affordable and effective way, technology needs to become an integral part of our service delivery model. But we need to be mindful that technology is not a panacea for all of the legal market’s ills. We also need to understand that for technology to be our friend, we need to put clearer boundaries around our use of it to keep a sustainable balance. An article just last week made a similar case about setting these boundaries, and the title says it all: “Do Lawyers Need a Digital Detox? Very Likely.”
These two ongoing resolutions are important in their own right and help carry out my 2019 resolution as well. Fixing our affordability and accessibility problem for the middle class will require active collaboration with other marketing, business and technology professionals. Referring to these other professionals by who they are rather than who they are not, and treating them as integral partners in the solution, is essential for success in solving our problem. The same goes for responsibly incorporating technology into both the delivery of legal services and in the larger justice system.
Stepping Boldly into 2019
Fixing the growing failure in our market for legal services will not get us to equal access to justice by itself. It is not a substitute for pro bono or funding of legal aid, or for the continuing efforts to make the courts more user-friendly and accessible.
But those efforts will never be successful if we don’t get our arms around fixing the market for regular people. Whether or not your practice touches that area of the market, this should be one of your priorities in 2019, and a collective priority for our entire legal profession.