A Bridge Over Troubled Waters: The “Justice Gap”

In his 2013 State of the Judiciary address, New York Chief Judge Jonathan Lippman spoke the unspeakable, announcing the formation of a committee to ” to study the feasibility of allowing non-attorneys to provide legal services to poor New Yorkers in “simpler” civil matters.”  You’ve got to give him credit for using the fiat of his office to begin the process of making change, as he did with the  50 hours of pro bono as a requirement for admission to the New York bar.

That there are systemic problems is nothing new, at least to those of us paying any attention at all. So what pushed Lippman into the fray?

Despite the pro bono contributions made by attorneys and the courts’ funding of civil legal services, Lippman said the state “simply cannot keep pace” with the growing need for legal services among low-income New Yorkers.

Some civil legal services providers say they turn away as many as seven in eight people who seek services because of insufficient resources.

The new committee will examine to what extent “non-lawyer advocates” who are expert in certain areas “can help the most vulnerable and the most disadvantaged,” Lippman said in an interview.

Right off the top, this smells like the same welfare-state rhetoric that gave rise to the current state of affairs, like the office in 111 Centre Street to help tenants fill out forms for landlord tenant court. While I’m sure they know the forms, does that make the non-lawyers who do it to help the poor expert advocates, capable of appearing in court on the behalf of tenants? And where are the bodies needed to bridge the gap going to come from? A few people may be sufficient to hand out forms to a long line of clueless tenants, but handling their cases in court is a different matter.

The notion is to expand the authority of non-lawyer to allow them to advocate for the poor, but that is only a tiny and problematic piece of the puzzle. Who is charged with figuring this out?

Roger Maldonado, a partner at Balber Pickard Maldonado & Van Der Tuin in Manhattan, and Fern Schair, chairwoman of the Feerick Center for Social Justice at Fordham University School of Law, will co-chair the Committee on Non-Lawyers and the Justice Gap. Lippman said the committee will make preliminary recommendations for pilot programs by November.

The 20 members of the committee in addition to the two co-chairs include private attorneys, civil legal services providers, bar association representatives, advocates for the poor and one judge, Jenny Rivera of the Court of Appeals.

Ah yes, the usual suspects, each with their own perspective, their own piece of the pie to promote. Aside from it taking six months to make the introductions around the table when 20 people are on a committee, what are the chances that civil legal services providers will promote ideas that spell the death of the very organizations they fought for years to promote? And will advocates for the poor concern themselves with the middle class? And will the same “official bar association” types do more than huff and puff, which is all they’ve ever done?

Judge Lippman has made a bold move in taking the first step away from the lock lawyers have had on the practice of law, but made a horrible mistake by framing the solution in terms of legal welfare for the poor.  There is clearly a need, but this isn’t the way to fill it. 

I’ve offered an idea for a fundamental systemic shift, a market-based solution to provide competent and ethical low-cost services via an entirely new tier of legal services, what I call the Legal Practitioner.  It’s not a matter of liberal noblesse oblige, but a self-sustaining concept that benefits all involved by providing a new niche of jobs designed to serve those who are underserved now. And that’s not just the poor.  Washington State has  come up with rules that follow along the same lines as my concept, but it’s nothing like what Judge Lippman is asking his committee to consider.

Ironically, NYU lawprof Stephen Gillers slams the practicing bar at Legal Ethics Forum for its failure to deal with the problem:

Meanwhile, the bar has categorically refused to investigate how educated and character-tested non-lawyers may participate in the delivery of legal services and how that participation will help make legal services available to those who cannot now afford them but can afford something. The fact that the near-poor are largely cut off from legal help in civil matters has been long decried and as long uncorrected. 

Given the traditional bar’s new competitors (outsource companies; differently trained lawyers abroad in differently constituted firms; compliance officers who, after all, advise on compliance with law; companies selling computer-driven legal advice like Turbo Tax sells tax help; Axiom and its competitors), you’d think the organized bar would want a seat at the table, if only to help formulate adaption to the new world that technology and cross-border practice entail. 

By throwing in the “organized bar,” Gillers picks at the low-hanging fruit. The “organized bar” is made up of official people who wouldn’t know a solution if it bit them in the ass. Their concerns are limited to giving each other awards and extolling their own virtues.

That doesn’t mean, however, that practicing lawyers have “categorically refused” to become involved. Some have and continue to be involved. And if you want to know who, I would  be happy to tell you, but you won’t find them appointed to the Chief Judge’s blue ribbon, very official bar association leader-type committee, where very polite voices will advocate for more funding to expand what they’ve done in the past to serve the poorest among us by providing them with pencil pushers who are going to be rhetorically transformed into expert advocates.

To sum up, society needs race horses. The Chief Judge has formed a committee to design a draft horse. And the committee will eventually produce a design for a camel, for which practicing lawyers will be blamed and lawprofs can point at the failed outcome to show how only the virtue of the legal academy can fulfill the pressing cutting edge needs of society. 

And the poor and middle class will continue to suffer the “justice gap” by lacking competent and ethical counsel at prices they can afford.

11 thoughts on “A Bridge Over Troubled Waters: The “Justice Gap”

  1. Steven Warshawsky

    I do not see how creating a new class of “legal professionals” who are less trained (and less capable) than lawyers will address the issue that many people (not just the poor) cannot (or will not) pay for basic legal services. Even “simple” legal tasks take time and effort and knowledge to perform effectively and responsibly. Minimum wage, or thereabouts, is not reasonable compensation to perform this work, and few lawyers – or other “legal professionals” – will take on such work for such little money. Creating a new class of legal professionals mainly will benefit the schools that offer the certification programs. But the graduates will be in an even worse position than law grads are today. Ultimately this kind of proposal is likely to further erode the economics of the profession without improving “legal access” for the poor and working class. (Plenty of middle class people could afford legal services, but they prefer not to pay for it. Legal services, like health care, increasingly is viewed as something people should not have to pay for themselves.)

  2. SHG

    Does it really take three years of law school to prepare a simple will? Or fill out immigration forms? Or do an uncontested divorce? Or form an S corporation? If you lose that guy with the simple will, is it going to destroy your practice? A properly trained and ethically bound practitioner will know when the needs exceed his authority, and send the client to a lawyer. But he can also handle the small stuff, fast, well and inexpensively.

    In conjunction with other necessary solutions, like shuttering half the law schools, this will provide a viable, low-cost solution for a lot of people without harming the profession. You may not like it, but it could be what saves the legal profession from implosion.

  3. Steven Warshawsky

    Perhaps not. But each of these tasks requires time and effort and knowledge to do right. Not to mention the ethical duties and malpractice risks one must accept to perform these services. A “simple” will? Not necessarily so simple to properly advise a client in this area and to draft documents that are legally correct and appropriate for the client. What in the law truly is simple, procedurally or substantively? I predict malpractice lawyers are going to have a field day with this new class of legal professionals. The bottom line remains, that competent legal services cost money, no matter who is providing them.

  4. SHG

    So you didn’t click on the link in the post about Legal Practitioners, did you? You may see what you’re looking for.

  5. Jim Majkowski

    This is probably not sufficiently pertinent, but I submit that something that would enormously help poor litigants is an effort to improve the quality of the court services at the initial (trench?) levels. Such as, clerks who are efficient or, at least, don’t give litigants incorrect information; judges who know the law they are obliged to apply and rule accordingly, and who are good enough at their jobs that they can be both patient and efficient; and, perhaps, a staff person whose job it is to turn that high quality judge’s ruling into an adequate written instrument. I would think the state high court would be better able to improve the quality of a relatively small number of courts than to create a class of effective and inexpensive special practitioners. If it was willing to do so, that is.

  6. SHG

    They need legal assistance. Everything else would be great, but they still legal assistance.

  7. Norm DeGuerre

    Access to courts is definitely a problem; attorneys fees can bankrupt a middle class family, and even a company that is flush with cash can go under defending itself from patent lawsuits.

    I totally agree that creating a second-tier practitioner is not a solution. There is probably no single solution at all.

    Maybe there is a role for non-lawyer advocates based on subject matter, and not based on income level? Like you said, no-fault divorces, basic wills, and most landlord/tenant disputes may not require expensive representation.

    Also, regulating attorney’s fees based on subject matter might help too. Contingency fees ensure court access for low/middle class folks in the personal injury contexts. But having the “loser pays the other’s attorney’s fees” model would allow small business and start-ups to defend themselves against bigger competitors and the reviled “patent trolls” that lurk in so many California jurisdictions.

    Subsidizing law school tuition would also help; attorneys would not be pressured by five figures of debt to only take jobs that pay them above a certain level. You would then have a class of lawyers who would be able to pull a modest salary (say, comparable to that of a teacher) without going bankrupt and service a clientele with more modest means.


  8. SHG

    Does no one click on links anymore?  No one? No one at all? <sad face> This is a very complicated issue, requiring a great deal of thought about many moving parts.
    But one part of your comment is particularly pernicious. Regulate legal fees to make them affordable? Will lawyer’s rent be regulated? Will car dealers have to give lawyers discounts? What about restaurants? And will servers have to tip the lawyers instead of the other way around? 

    This notion was used to regulate med mal lawyers, because the myth was they are making huge fortunes off other peples misery and docs who would settle any case no matter what. This has proven to be a disaster. People with great liability but insufficient damages to cover the high costs of suit are screwed. Instead of making services more affordable, they made them unavailable to the people who need representation.

    And while loser pays has much surface appeal, what about the close case? There are no guarantees who will win, so does a middleclass family put their home and kids’ college education at risk with a good, but not guaranteed, case? Or one they lack the funds to pursue as needed against a mega corp?

    There are worthwhile ideas. Just not the ones you mentioned.

  9. Robert Beckman

    I agree, but if you were on the losing side of a transaction such that you want to sue, doesn’t that mean you’re already f*cked?

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