President's Perspective: The Justice Gap
By Catharine Arrowood
The issue of delivery of legal services to the poor and unrepresented has received lots of press and study. Over and over again, scholars, policymakers and the organized bar bemoan the situation. Over and over again, these same groups call on lawyers to volunteer, to provide pro bono legal services or expect government to fund free or “more affordable” legal services for the underserved.
The justice gap is in fact bigger than this. It is not just the poor who cannot easily access legal advice and services. Small to mid-sized businesses find themselves priced out of basic legal services and are devastated when they get sued. Moderately wealthy individuals find themselves no longer moderately wealthy after a divorce.
A recent study shows that, amazingly, in the 21st century, self-help is now the most commonly used response to civil justice situations. The American Bar Foundation study found that many people fail to engage a lawyer or fail to turn to the courts to solve their problems not because they cannot afford an attorney but because they do not understand that their problems are legal in nature. See Accessing Justice in the Contemporary USA, Rebecca L. Sandefur, August 8, 2014. This study used a survey sample that represented the entire population, not just those of low and moderate incomes. It concluded that “Americans respond to their civil justice situations in a wide variety of ways, but this variety masks a powerful consistency: rarely do they turn to lawyers or courts for assistance.”
Yet lawyers are critical to this process. A mismatch between lawyers and the people who need their services leads to unsolved and escalating community problems and a court system clogged with pro se litigants who slow down the docket and become more frustrated when they cannot prevail in a system they do not understand.
For the last five years, law schools have been turning out thousands of lawyers who remain unemployed or underutilized. Despite the recent dramatic drop in law school applications, the oversupply of lawyers remains. Why are these new lawyers not meeting the demand for legal services that we hear so much about?
Some suggest that our legal education system is at fault and is producing lawyers incapable of general practice and saddled with so much debt that they cannot afford to go where the demand for their services is located. See, e.g., ABA Journal October 2014, pp. 37-45, “Too Many Lawyers? Not Here. In rural America, lawyers are few and far between.” The thinking is that the lack of training coupled with extreme education debt prevents new lawyers from financing their own practices, forces them into some sort of salaried jobs, mostly available in urban areas, and causes them to avoid opening their own practices or moving to smaller communities, where the need for legal services is perceived to be greatest.
But implementing corrective legal education methodologies and improved economics alone will not solve the problem. There is clearly something about how we permit (or do not permit) legal services to be delivered that is contributing significantly to this justice gap. Plainly, our regulatory system, developed at the state level during the 19th century and workable during much of the 20th century, no longer facilitates the delivery of quality, reasonably priced legal services where it is needed.
Law firms are now interstate and global; our attorney regulatory scheme is not. Did you know that there is a Uniform Bar Examination? This exam was developed by the National Conference of Bar Examiners to test “knowledge and skills that every lawyer should be able to demonstrate prior to becoming licensed to practice law.” States can combine this basic skills exam with a state law specific exam. The exam is “uniformly administered, graded, and scored by user jurisdictions and results in a portable score.” Some 15 states have adopted the UBE and more (New York for example) are considering it.
This development of uniform law and practice is not just national. It is global. According to a recent speech by Justice Breyer, there were 242 treaty-created organizations that made rules applicable worldwide. By 2010, the number had increased to over 2,000 such organizations employing over 250,000 people across the world. Even in the world of litigation, things are getting more uniform. Guidelines created by the International Bar Association, a voluntary organization, are frequently followed in international arbitration, no matter where the arbitration takes place.
As laws and legal practices become more uniform, numerous entrepreneurs have created legal services companies that offer consumers the opportunity to obtain legal services online, like they do with nearly every other good and service they buy each day. Think LegalZoom which operates in many states but continues to run afoul of the policies in some states, including the policies of the North Carolina State Bar.
Other entrepreneurs have created companies that “lend” an in-house lawyer to corporations. Axiom is a prime example. It provides temporary in-house lawyers. In many states, including North Carolina, in-house lawyers are not required to be licensed in the state in which they work. Axiom has taken advantage of this exception but has run up against the requirement that the lawyer be employed by the corporation. In many instances, the company wants the lawyer temporarily or for limited services and the lawyer does not become an employee of the company but provides services under a contract. This latter practice has been challenged in some states, including North Carolina.
The regulation of our profession should be and is focused on protection of the public from the unskilled and unscrupulous. But the justice gap requires that we question whether the regulations intended to provide protection for the public are having an unintended and unnecessarily restrictive effect on the public’s access to quality, reasonably priced legal services. The existence of so many unemployed lawyers in the face of so much unfulfilled demand for services and the self-help conclusion of the American Bar Foundation study place this issue right in front of us.
As a profession, we must be open to change and we must be the source of change. We must examine not only how we educate lawyers but also the existing regulatory process to see if there are better, more efficient and more economical ways to train lawyers and deliver legal advice and services without compromising quality or sacrificing public protections.
The North Carolina Bar Association has been and will be actively involved in considering solutions for the Justice Gap. In 2013, under the leadership of President Alan Duncan, the NCBA set up a committee to begin the examination of these issues. More recently, on November 3, 2014, the ABA’s Commission on the Future of Legal Services produced an issues paper and invited comment to define the scope of the study needed, leading the North Carolina Equal Access to Justice Commission to announce a meeting with law school deans and other stakeholders to initiate a statewide dialogue on this problem.
We are pleased that all three of these initiatives will come together on May 27 at the N.C. Bar Center, where a daylong invitation-only convocation will focus on the way in which legal services will be provided in the future. Plenary speakers and breakout discussion groups will consider how to best address the access to justice gap, examine the causes and possible solutions to this problem, consider the role that technology plays in the practice of law, and discuss new models for the efficient and effective delivery of legal services.
Our profession must lead the way to solutions. We look forward to being a part of the discussion.
Catharine Arrowood serves as president of the North Carolina Bar Association. This article originally appeared in North Carolina Lawyer magazine as the President's Perspective for May 2015.