by Owen Walsh
On a late night in my first semester of college, I received a strange text from my older brother. I had always known him as a stubbornly independent kid, and now adult. The guy I knew would let a wound fester, and a black and blue limb fall off. Then, and only then, might he ask for Scotch tape to reattach it. So, I was disarmed when he asked for my help.
The problem was simple: he was moving out of his apartment, and the landlord company refused to return his deposit. No damage, no violation of his contract, no explanation beyond some vague misstep in some process. He had kept the issue to himself, sending multiple letters and leaving voicemails to the company asking for help resolving the mystery issue. No response. When at long last he did get a representative on the phone, he was told resolutely that his pleas had been “lost” in the mail. My brother did not know which law the landlord company had violated; if it even had violated the law; how much a lawyer would cost; whether a lawyer would be worth the investment; plainly, what to do. My rather thin resume encompassed a few high school internships, but I was the most legally versatile person he had access to. It shouldn’t come as a surprise that I wasn’t the font of wisdom he had hoped.
He continued to fight his landlord with the limited information he could find online, eventually representing himself in front of a state mediator. He lost, and for a long time the incident sat uncomfortably with me. Obviously, it disturbed me as a remarkable little injustice, but only after I began working at Responsive Law did I learn that the incident was an itch on the back of a giant. My brother’s inability to find help was not an exception, his experience was just one tame example of the shocking scope of failure plaguing the civil legal system.
Academics coined the term ‘justice gap’ only in the past decade to describe the civil legal system’s gaping inability to address the legal issues of lower income Americans. We deal with legal issues more often than you might think: marriage, divorce, raising kids, caring for elderly parents, saving money, buying or renting shelter; indeed, almost everything is regulated by civil law. Consequently, even if you do everything right, you’re likely to have a legal issue at some point. The most recent report compiled by the Legal Services Corporation—the largest non-profit representative of civil legal aid for those in need—estimated that 71% of low-income Americans households experienced at least one civil legal issue in 2017. Of those households, 86% received inadequate or no legal assistance. Even of the approximately 1.7 million problems brought to LSC-funded legal aid organizations, the majority received deficient resources. The World Justice Project’s 2020 report ranks the United States 109th of 128 countries in the affordability and accessibility of our civil justice system.
Severe access issues in civil law are often overlooked because the problems in criminal law are just as severe and more visible. Prosecutorial misconduct, draconian sentencing minimums, police brutality, and the omnipresence of racial disparity in the criminal justice system (just to name a few) directly and violently uproot the lives of their victims. These systemic problems are immediate, but legal access issues frequently manifest themselves as missed opportunities and the victim may never be aware that they were neglected by the legal system’s impenetrability. Criminal justice issues must be addressed, but thinking of civil and criminal problems as separate will lead to the solution of neither. The loose threads in legal access and criminal justice are inexorably tied to each other, stemming from and exacerbating inequality. It’s hardly shocking that research has shown representation in court significantly increases the litigant’s chances. When those holding power have advantageous resources that lower-income families do not, the outcome is as tragic as it is predictable.
The good news is that innovative solutions are being tested as I write this blog. Fresh initiatives, in varying ways, increase the involvement of non-lawyers in the legal system. Some entail licensing professionals for limited practice in strained areas like simple family law issues and landlord-tenant disputes of the kind my brother faced. This year, Arizona began to allow ‘Legal Paraprofessionals’ to offer limited legal services. A State Bar of California working group is currently deliberating a similar model for their state. One proposed law in New York would extend limited practice to social workers.
Some states are also considering allowing lawyers to bring in non-lawyer investment to support alternative business structures. This would allow companies to provide discrete, affordable legal services to a mass-market. These models would have allowed my brother to pay a small fee to speak with professionals familiar with landlord-tenant issues to gauge his options and plan accordingly. Utah operates a limited regulatory ‘sandbox’ to supervise experimental business models and record data on their efficacy. Arizona followed suit last year on permitting alternative business structures, and California is considering whether to launch its own sandbox.
I take special care to emphasize innovative solutions, because the bad news is that state bars and courts counterintuitively work to fight innovation. Given that bars and courts are groups of lawyers that regulate the practice of law, you may suppose that issues would arise out of a group of watchmen “watching” themselves. You would be correct. Although state bar officials and state supreme court judges generally act in good faith, inevitable conflicts of interest arise from lawyers trained rigorously to think like lawyers tasked with regulating the profession they have a stake in.
Some bars have long used their ability to restrict unauthorized practice of law (UPL) to regulate out competition under the guise of protecting consumers. Most UPL laws first took hold during the Great Depression in a wave of protectionist regulations monopolizing the power of the bar as an entity. They have been used accordingly since, such as when Norman Dacey published the legal self-help book, How To Avoid Probate, in 1965, and the bar had mixed success in blocking its publication under UPL laws. As Columbia law professor Walter Gellhorn wrote, “Licensing has only infrequently been imposed upon an occupation against its wishes. . . . Licensing has been eagerly sought—always on the purported ground that licensure protects the uninformed public against incompetence or dishonesty, but invariably with the consequence that members of the licensed group become protected against competition from newcomers.”
Ask a general for a solution to a foreign policy problem, and it’s likely to involve the military. Ask a lawyer for a solution to a problem in the law and, surprise, it’s likely to involve lawyers. In his answer to the New York Times editorial board’s appeal for expanding non-lawyer resources, the former American Bar Association president warned that a “rush to open the practice of law to unschooled, unregulated nonlawyers... would cause grave harm to clients.” It is not surprising that the ABA’s proposed solution calls for more lawyers through funding and pro bono work. Sure, this would be lovely, but such efforts will not meet the gap. In a system suffering from endemic dysfunction, the bar is unlikely to find a panacea in the traditional arsenal of tools that have failed, again and again, to solve the problem. Perhaps this is what Einstein meant when he said that the definition of insanity is doing the same thing over and over, expecting different results.
We’re on the cusp of a new era in legal innovation. The justice gap is cavernous, but it’s also mendable. As his fight wore on, my brother grew frustrated, worried, and eventually hopeless. Getting embroiled in an exorbitant legal battle was unthinkable, and the reasonable solution was to move on. He’s lucky that it was just a few thousand dollars, and that he’s young and independent enough not to have been ruined. Others are not so fortunate. The bar is right that some basic UPL measures are necessary to protect citizens from unqualified legal services. But, if the restrictions on those who can provide legal help are so stringent that predatory businesses can rely on inaccessibility to prey on vulnerable Americans, it should be clear that the bar has gone too far in their “correction”. We should do what’s right, not for lawyers, but for the vulnerable individuals they purport to defend. The bar must make way for innovation.
Owen interned at Responsive Law during his Fall and Spring semesters 2020-2021. The opinions expressed are his own and may not reflect those of Responsive Law.