Responsive Law testified this week at a District of Columbia Council hearing regarding a proposed bill to expand funds for legal service providers representing low-income DC tenants in housing matters. Responsive Law supports the bill's spirit and objectives, but we expressed concerns that the limits imposed in the bill's text will stifle innovation in the provision of types of legal services available to the public.
The bill's aspirational goals are noble and sorely needed – studies indicate that only 3% of tenants in DC Housing Courts have access to counsel, and this shortcoming has extreme and far-reaching consequences for tens of thousands of Washingtonians. Responsive Law wholeheartedly supports any legislative attempt to increase the accessibility of legal assistance and representation, particularly for low-income individuals and families.
However, both the bill itself and the other testifying witnesses failed to address the reality that legal needs come in a wide range of forms, only some of which necessitate full and formal representation by a Bar-certified attorney. The bill's text limits groups eligible to receive funding to particular types of nonprofits and law school clinics – eliminating the possibility of funding for novel approaches by other organizations.
Of the 29 witnesses who testified before the Council, only Responsive Law addressed the importance of innovation in the legal services market. Every other witness—most of whom represented nonprofits and clinics that would see increased funding if the bill is passed—focused their testimony on the scope of the problem and the good works done by their organizations, specifically by lawyers. Without doubt, lawyers provide invaluable assistance in legal housing matters. However, a number of jurisdictions across the country now offer alternatives to traditional representation, including New York City's Navigator Program and Washington State's LLLT Program.
Furthermore, as Responsive Law Board Member Fritz Mulhauser testified, in even the most halcyon vision of the future legal services market, "lawyers will remain a scarce good." He raised the uncontroverted fact that, if the proposed bill is given a (wildly optimistic) budget of "$1-2 million per year," such a budget could "sustain at most a few dozen new attorneys." Given the scope of the problem, this will certainly be insufficient. It is therefore imperative that legislation addressing this issue both encourage creativity by service providers and leave room for previously unimagined approaches.
You can read the full text of Responsive Law's testimony to the DC City Council on this proposed legislation here.
UPDATED, 11/03/16: In response to the bill's lackluster approach to innovation in the provision of legal services, on November 3, 2016 Responsive Law submitted supplementary testimony regarding the bill. This summplementary testimony suggests specific proposed amendments that will address the bill's shortcomings through two types of significant revisions.
First, the amendments proposed by Responsive Law will expand the class of providers eligible for funding to allow innovative approaches by any group or provider capable of offering "effective assistance" - not just by lawyers and law school clinics. By opening the the door to a wider range of applicants representing a wider range of approaches, the amended bill would be better suited to meet the needs of a wider range of individuals.
Second, the amendments would increase the program's capacity and obligation to learn from the variations on effective assistance permitted under the bill. Given the extreme and ongoing shortage of legal aid available to indigent communities, only continued study and innovation will enable the bill to fulfill its goal of improving access to justice among low-income Washingtonians.
You can read the supplemental testimony submitted by Responsive Law here.
Lynn Bechtol is a Responsive Law Legal Fellow.
Responsive Law has submitted an amicus curiae letter urging the Supreme Court of California to require the State Bar of California (SBC) to reform its governance structure to address insufficient public oversight of the bar.
The current structure of the SBC is inadequate to meet its titular primary mission of public protection. Currently, the State Bar Board of Governors consists of 13 attorneys and only six public members. When an industry's regulatory body is composed predominantly of industry members, inherent conflicts of interest arise. Lawyers, for example, have incentive to exclude competition (from both non-lawyers and out-of-state lawyers), restrict innovation (in the structure of law firms or new forms of advertising), maintain the status quo, and minimize the need to adapt their business models to a changing marketplace.
The California Legislature adjourned its most recent session without authorizing the SBC to collect annual dues from its more than a quarter million members. In directing the SBC to request a funding assessment, the California Supreme Court instructed the SBC to also formulate a policy addressing "proposed Board actions that implicate antitrust concerns." However, the SBC's recent request for a Special Regulatory Assessment failed to acknowledge this directive.
Responsive Law advocates structural change that will vest the ultimate authority to determine whether particular regulations are in the public interest in representatives of the public, not in members of the legal industry. "Although the Special Regulatory Assessment requested by the SBC cites public protection rationales," noted Responsive Law Executive Director Tom Gordon, "it tellingly ignores the Court's request for a proposal addressing the shortcomings of its current governance structure and neglects U.S. Supreme Court precedent and Federal Trade Commission antitrust guidelines that make clear a need for public oversight over legal services' regulation.
For this reason, Responsive Law urged the Court to tie the requested Special Regulatory Assessment to a requirement that the SBC propose structural reform aimed at imposing active state supervision over potentially anticompetitive actions taken by the SBC.
You can read the full text of Responsive Law's comment to the California Supreme Court here.
Lynn Bechtol is a Responsive Law Legal Fellow.
The Florida Supreme Court is considering amendments to its rule regulating lawyer referral services which could drastically restrict consumer access to justice.
Lawyer referral services collect legal information and resources in a single forum and play a vital role in making community members aware of the legal aspects of their problems. These agencies describe lawyers’ qualifications and experience, provide cost comparisons between lawyers offering similar services, and guide consumers toward lawyers specializing in specific services, such as assistance with consumer debt or child custody issues. Such recommendations are invaluable to ordinary consumers, who are generally inexperienced with the legal system and have considerable difficulty determining which lawyer will best serve their needs.
Despite a continually growing need, particularly among first time consumers, such services remain out of reach for most low and middle income individuals, organizations, and families. Many individuals fail to recognize the legal components of their problems. For example, a tenant facing eviction may view her issue as purely financial even though she has a legal right to challenge the eviction. Even when a consumer recognizes that she has a legal need, she may be unable to determine what sort of aid is needed and how it can be located. A 2013 study found that two-thirds of random adults in a mid-sized American city experienced at least one significant legal issue within an 18-month period, but only one-fifth of those sought formal help. Consumers often find the legal system confusing and inefficient. They fail to seek formal assistance because they believe such help would be ineffective, too difficult to locate, or too costly.
In response to the increased availability of online referral services, the Florida Supreme Court asked the Florida Bar to propose amendments to Florida Bar Rule 4-7.22, regulating lawyer referral services. If approved by the Florida Supreme Court, the Bar’s proposed amendments would merge referral services into a larger category of “qualifying providers,” including not only traditional referral services but also directories, online matching systems, grouped or pooled advertising, and tips or lead systems. Underlying the amendments is a concern that such services, particularly when operated for profit, encourage agencies to favor certain attorneys and firms over the consumers that the services are meant to aid.
Responsive Law opposes this change because it will make legal services less available to consumers. This definition will fail to address the consumer harms feared by theBar, and it will also significantly and negatively affect such agencies’ ability to provide high-quality, affordable legal services to consumers. Responsive Law submitted an official comment encouraging the Florida Supreme Court to reject the expanded definition the amended rules propose.
If you would like to read Responsive Law’s full comment to the Florida Supreme Court, click here.
Lynn Bechtol is a Responsive Law Legal Fellow