Wednesday, August 24, 2011

Addressing the "Justice Gap"

Editorial from the New York Times highlights the fact that the vast majority of Americans have no access to meaningful legal representation. (While I don't have the numbers "on the ready", the explosion in the number of pro se plaintiffs would appear to support this assertion.)

As the editorial points out, all this comes at a time when in 2010, only two-thirds of law school graduates nationwide were able to obtain employment for which a law degree was actually required. In addition, budgetary pressures have resulted in big cuts to government funding to organizations like the Legal Services Corporation. The Editorial also  has the obligatory call to practicing lawyers to devote more time to pro-bono work.

From my perspective, here are some suggestions to help address the "justice gap":

1) As the NYT editorial suggests, have the ABA and state bars modify Rules of Professional Conduct to attenuate what I believe are antiquated "unauthorized practice of law"restrictions. There is a large pool of talented non-lawyers (paralegals and others) who can provide valuable advice and support in areas such as basic contracts, family law, and basic real estate transactions.

2) Legitimize so-called Alternative Litigation Financing ("ALF"), which is estimated to be a $1 billion industry, in many jurisdictions, but operates in a kind of murky and uncertain regulatory and legal environment. ALF providers, while taking many shapes, typically offer litigation financing in the form of non-recourse loans, to plaintiffs. If the plaintiff loses the case, the ALF provider receives nothing. If the plaintiff wins, the ALF firm receives the principal of their loan, plus a pre-determined (often high) interest payment on that principal. ALF has been widely criticized, including by the NYT, as taking advantage of unsophisticated plaintiffs and charging excessive interest rates.

3. Encourage larger and mid-size law firms to "lend" their junior attorneys to public interest and other advocacy groups for periods of 1-2 years. The law firm could pay, say 30-50% of the attorney's regular salary coupled with a limited student loan reimbursement program effective the duration of the young attorney's secondment. This is great way for junior attorneys to get good experience, for firms to have better, more seasoned lawyers upon completion of the attorney secondment and for  the legal needs of the broader society to be met. Such programs could be encouraged by the ABA, state bars, law schools and would be a marketing advantage in the law firm recruiting process.


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