A recent unpublished study by two Harvard researchers has arguably called into question the effectiveness of free legal aid and started a conversation as to whether such organizations help or hurt those they serve. It’s a conversation, however, that should be placed in a wider context. The vast majority of Americans are priced out of the legal system, not just the indigent. The question should not be about the effectiveness of legal aid societies – such organizations are struggling with limited resources to meet huge demand. Instead, we should be asking how the legal profession has continually permitted the need for affordable legal services go unmet, not just for the poorest amongst us, but indeed for the majority of American consumers.
In the current legal environment, most of the services provided are concentrated at the upper end of the marketplace. The average American can’t afford to hire a lawyer when they need one and the resources available to those who wish to deal with their legal affairs on their own are insufficient. This arrangement is preserved institutionally. Current rules prevent alternatives to the traditional legal service model from being offered to the public. Allowing lay-practitioners to perform routine legal tasks would significantly lower the costs of basic legal services, open access to the legal system for millions of Americans, and lessen the burden on legal aid societies. As long as such alternatives are foreclosed by existing rules, demand for legal services will continue to go unmet.
Any examination of the effectiveness of legal aid that does not consider the vast unmet legal needs of the majority of Americans is incomplete. Legal aid cannot be considered in a vacuum. Unquestionably, we need the safety net provided by legal aid societies, but we also need a vibrant and responsive legal marketplace that embraces new and innovative methods of providing legal services and encourages active participation in the legal process. The impossible demand born by legal aid societies should be a sign to all who might criticize their effectiveness that a far more comprehensive solution is needed.