The Affordability Action Plan

Over the course of the past several months, I’ve used this blog to discuss four big issues our legal profession needs to address to carry out my 2019 Resolution: to tackle our affordability problem for everyday people. The common denominator on these issues is that the solutions to making legal services more affordable and accessible to the middle class are almost entirely within our power as a profession and court system. 

To paraphrase a famous saying, we have met the enemy, and it is us. The following, interconnected action plan can help us defeat that enemy and strike a major blow for access to justice in the process.

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What Do Courts Have to Do with the Affordability of Legal Services?

Quite a lot, as a matter of fact. The fundamental mission of the courts is to deliver justice for all by protecting rights and liberties, upholding the rule of law, and serving as fair and neutral arbiters to resolve disputes. Promoting affordable legal representation is a central part of fulfilling that mission, yet some of the key steps to doing so are too often overlooked by courts today.

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Uber, Taxis and the Legal Market

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.

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What Are We Selling?

It seems a simple question to ask, but one we do not think enough about in law and too often answer incorrectly. Getting that answer right is the first essential step towards carrying out my New
Year’s Resolution for 2019
for the legal profession to tackle our affordability problem for everyday people.

Two recent commentaries in the New York Times and the Atlantic challenge us to re-examine our profession’s longstanding assumptions on this question, and offer a good jumping off point for discussion.

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A Make or Break Issue for Access to Justice

Whether an issue is a challenge or an opportunity is often simply a matter of perception. As Winston Churchill once put it, “The pessimist sees difficulty in every opportunity, the optimist sees opportunity in every difficulty.” Over the CBF’s first 70 years, we have taken pride in confronting challenges head on and converting them into opportunities, and that has led to a number of significant innovations and long-term improvements in access to justice.

But sometimes an issue really is both a challenge and an opportunity at the same time. There is one such issue for access to justice looking ahead, a central one where our legal community will need to lead the way in striking the right balance if we are to reach the ultimate goal of a legal system that is truly fair and accessible for all.

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2019 Resolution—Time to Tackle our Affordability Problem for Everyday People

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.

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Access to Justice: How We Will Know When We Get There

When I recently took a stab at defining what we mean when we say access to justice, I looked to the great Yogi Berra for inspiration: If you don’t know where you’re going, you might not get there.

Now that we have established a working definition of where we are going (at least I have!), the question becomes how do we measure our progress to that promised land.

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Stand by Someone Who Needs You, In a Way Only You Can

This year’s Pro Bono Week theme, Celebrating the Power of Pro Bono, invites us to think about what that power looks like in real life to someone who is facing a serious legal issue but unable to afford the legal help they need. As I often do, I am turning to music for my inspiration, echoing the choice of theme song for our Pro Bono and Public Service Awards Luncheon earlier this year.

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What Do We Mean When We Say Access to Justice?

Access to justice or equal access to justice, as it often is stated* is the promised land we all are seeking. But what is it? And what is necessary to achieve it?

After I proposed a banned words list for access to justice earlier this year, several people commented that we should add another phrase to the list: access to justice! That was not meant as snark, but as genuine concern that the phrase has grown too amorphous and inconsistent to be meaningful. And that presents a big problem for all of us who care about these issues.

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Our Profession’s Losing Battle Against the Market

By any definition, we have a failure in the market for legal services for everyday people today, and a growing one at that. We have more lawyers than ever before at the same time as record numbers of people who need or would benefit from legal help are not getting it. Yet when faced with proposed changes to the Rules of Professional Conduct to address this market failure, the default response of our profession is to fight to maintain a losing status quo perhaps making some technical changes but avoiding the larger issues.

Lipstick on a pig, as the saying goes, when what we really need is a new regulatory approach that does not force lawyers to compete in the market with one hand tied behind their backs.

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