Gillian Hadfield, lawprof at the University of Southern California who’s visiting Hahvahd at the moment, offers this controversial proposition in an op-ed at the Washington Post. The basic premise is that we, lawyers, have priced legal services out of reach of ordinary folk, while holding onto our monopoly for dear life.
The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.
In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.
Nonprofit organizations as well as for-profit firms can develop specialized expertise in particular areas of legal need — housing, immigration, debt-management, child custody and so on. Often, studies show, specialized non-lawyer providers ultimately offer better service than the solo and small-firm practitioners who do someone’s taxes one day and provide criminal defense the next.
No need to point out all the problems. We know what they are. Studies fail to address those who are ruined when their $2,99 form from LegalZoom doesn’t do the trick. But it still fails to provide anything remotely resembling a solution to the problem, that normal people cannot afford legal representation and advice.
My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can’t turn to local volunteer organizations, their unions or consumer organizations. They can’t buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.
This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice — $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles — not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.
Hadfield is absolutely correct that we’ve done little to nothing to advance the cause of providing affordable legal services in this country. This is a discussion that is way overdue, and the controversy created here is a welcome invitation to sort things out.
Much of what she argues is obviously silly and counterproductive. Hey, what do you expect from an academic. But read the comments to her op-ed and see the seething hatred that the public has for lawyers. We can talk amongst ourselves and rationalize why the delivery of legal services in this country can’t be improved, but the public isn’t buying.
True, the public isn’t exactly on target with much of its criticism. They complain bitterly, but simultaneously want the law to remedy every harm, real or perceived, immediately and at no cost to them. As crazy as the law seems when it’s some other guy complaining, every individual believes that their grievance is worthy and deserving of a few mil, their damage worse than anyone else’s, their harm the most egregious ever suffered. Ridiculous and hypocritical, but then, they aren’t supposed to understand. That’s why there are lawyers.
Norm Pattis recently proposed a universal public defender system. I don’t agree with the idea (and Norm doesn’t agree with me), but it’s part of an important discussion. We’re not delivering now. We all agree on that.
Maybe legal services from your local Wal-Mart is the right idea. Maybe it’s got the seeds of the right idea. Maybe Wal-Mart, via economy of scale or some of its other tricks, can allow lawyers to provide quality legal services at a significantly lower cost to consumers. I’m not saying it can, but I am saying it’s time to start thinking seriously about such notions that are immediately written off as “absurd” by the bar, especially the formal groups who love to spout platitudes but never hold the hand of a client whose life has been ruined by the beloved system, “not perfect but the best ever created.” We’ve got a platitude that forgives us every failure. Spouting platitudes doesn’t do much to help clients.
Much of what Hadfield says seems silly, naive, wrong-headed or just poorly conceived. She solves one problem at the expense of another. But what she does do is give us a good reason to talk about ways that the legal profession can do better to serve the needs of human beings. And if that’s all she does, it’s good enough for me. This is a discussion that needs to be had, before the local townspeople march on our law offices with torches and pitchforks. Before more lives are ruined by the law.