It started eight years ago with the crazy idea that I would write a post about pro bono every day of Pro Bono Week in 2015. When I did that and realized a few people were actually reading these posts and reacting, I decided to keep going, though at the much more sustainable pace of one per month.
Having now reached 100 posts, thank you to everyone who has been along for any part of this ride, you have been and continue to be my inspiration. We laughed (once in a while), we cursed (a lot I am sure), we cried (okay, maybe not), and hopefully, we thought in new ways about access to justice and how we can better fulfill our leadership responsibility as a profession.
To be clear, many of these posts landed with a thud or were met with a shrug (if a tree falls in the forest…), but some definitely got a bigger reaction. I narrowed those down to a top ten and, having reread them for this post, I think they all still resonate today. So here goes, in descending order to the #1 post that by far struck the biggest nerve.
When we think about the huge gap in access to justice, it is hardly a revelation to say pro bono cannot come close to being a solution on its own. Does that make pro bono less important and less worthy of our resources and attention as a result?
Heck no! In this post, I reviewed the many ways that pro bono plays an integral part of the larger quest to fulfill our nation’s ideal of a fair and accessible justice system for all, and as we approach this year’s Pro Bono Week festivities next month, these points are as true as ever today.
Innovation. It’s what all the cool kids are talking about. It’s something the CBF is proud to be a longtime leader in on the access to justice front, and it’s something we could use a lot more of in our profession and in our justice system.
Thus, the title of this month’s post. In the quest for the promised land of a justice system that is fair and accessible for all, we need to identify the legal versions of PB&J sandwiches and toasters that have served us well over the years and continue to do so and distinguish them from our legal equivalents of typewriters and toll booth operators, former mainstays that were overtaken by far superior solutions.
Access to justice or equal access to justice, as it often is stated, is the promised land we all are seeking. But what does it mean?
The answer is not always the same for everyone working towards what is assumed to be a common goal, and we all will do better by agreeing on a clear definition. The CBF has had some good internal board conversations since the time of this post that has led to a much stronger definition we have formally adopted:
Everyone facing a legal issue (1) has timely and affordable access to the level of legal help necessary for them to get a fair and efficient outcome on the merits of their legal issue, and (2) objectively can believe they were treated fairly in the process.
The 1980s called, and they want their Rules of Professional Conduct back. And they can have them.
As the world around us has changed dramatically since those heady days when seeing a music video on MTV was mind-blowing, we have seen only modest changes in the Rules governing the business of law. The result is our profession has gradually priced the everyday person out of the market for legal services even though we have more lawyers practicing than ever before.
Something is clearly wrong, and as this post laid out in more depth, modernizing the Rules of Professional Conduct to account for the realities of today’s legal market is one of the critical steps we need to take to turn the tide.
The billable hour continues to be a significant and self-inflicted barrier to access to justice. Whatever its merits may be in the corporate market, for low and moderate-income individuals and small businesses the billable hour makes legal services less affordable and accessible because it lacks transparency and certainty and misaligns incentives for efficiency, innovation, and value.
That was the intro to the original “top ten” Bobservation format, and this is another post that sadly remains equally relevant more than five years later.
Take a trip down bad memory lane to about ten years ago when you needed to get a cab but were not in a place where taxis tend to be plentiful on the street. Remember what that was like?
Hold that thought for a moment, and now think of what it is like today for someone who is looking for a lawyer and doesn’t know where to turn. While it is sure to get most lawyers upset to be compared to the taxi industry, the similarities in these two market failures are striking. We can write a different script for what happens in the legal market but need to start now.
That was the intro to this post in March 2019, and the analogy is only looking more on point since then.
(April 2018 original version, September 2021 v. 2.0)
This one really struck a chord, so much so that I added a version 2.0 three years later. It is a hit list of commonly used words in access to justice spaces that should be put out to pasture.
Just a few of the phrases that should be retired in this context are “low bono,” “legal services,” and acronyms that are meaningless or confusing for people who don’t do this work every day.
One of my very first Bobservations in January of 2016 was driven by a coincidental set of readings during the preceding holiday season that got me thinking about the future of our profession in the age of fast-evolving self-help technologies.
It got a lot of response then, and almost eight years later, this one still holds up well today as technology-based options are accelerating even more rapidly. I don’t know if it was being rested up coming into the new year, but I still think this one was one of my best and it was far more prescient than I could have imagined at the time.
There was a time not long ago in our country when everyday people generally could find and afford legal services when they encountered a legal issue. Not so today.
How and why did this happen, and what can we do about it?
I took a deeper dive into those issues, and whether you agree or disagree with my diagnosis, this is an issue we all need to prioritize and tackle in the work to improve access to justice.
My first New Year’s Resolution for the Legal Profession as we were heading into 2017 remains by far the most popular in the history of Bobservations: Stop Calling People Nonlawyers!
It is one of our profession’s worst habits and a lazy one at that. Not only do we minimize the many other professionals who play integral parts in the court system and any successful law practice when using this unfortunate language, but we also unnecessarily make it harder for the other client-facing advocates and responders to deliver justice.
Calling people by who they are not (and too often then treating them accordingly) violates just about every principle of inclusion and does us no favors as lawyers, but there thankfully are more green shoots today as more and more voices make similar points and are modeling better behavior in their actions.
The Next 100
Thanks to the countless friends, colleagues, and partners who have inspired so many of these posts over the years, and to all of you for reading some or all of them. A special thanks to my colleagues at the CBF who have provided feedback, suggestions, and many helpful edits.
There is a lot more we still can and need to do to bring our profession and justice system closer to our ideals. I’ll keep writing these as long as they let me, thanks again for coming along for the ride so far and onward and upward!