Among the pervasive themes of law in general, and criminal law in particular, is that too many people lack access to justice, which has become a minor movement using the cool title, A2J. Its verity is seen on different levels, some undeniable such as the failure of society to provide adequate funding for those indigents hauled into court to face criminal accusations, and some more dubious, such as those who have the ability to pay but prefer not to and feel little compulsion to spend their hard earned money on lawyers.
But it’s Labor Day! A day to reflect on the contributions of organized labor to the betterment of our society. Of course, the bar is organized, and most of us work for a living, even if that wasn’t quite what Congress meant when establishing the bright line test of when to stop wearing white.
And yet, the days when being a lawyer assured someone of a life of relative comfort, provided one did one’s job, pushed the pencil as far and often as necessary to provide effective representation, seem to have disappeared.
There is a disconnect between the needs of society and the demands on lawyers. Maybe it’s that we haven’t shaken off the notion of privilege that comes with being a professional, even as lawyers struggle to find work, to obtain paying clients or earn sufficient income to put food on their table every day. So why not put another burden on the lawyer’s plate, solving society’s demand that lawyers give it away for free, or at a price that will be painless to those who prefer to spend their money on shiny things?
At the ABA Journal, in a feature they call “Legal Rebels,” because it creates that James Dean thing for people who are about as rebel-y as vanilla pudding, Dan Lear says that we need, not should but “need,” to “move beyond ‘access to justice’ to close the legal services gap.”
Dan looks pretty pleased with himself for coming up with this “need.” Or maybe just getting himself a post in the ABA Journal. From a guy who’s about to inform practicing lawyers about what more they can do to serve mankind (not the cookbook version), who does not practice law because he gets a paycheck from Avvo for being its Director of Industry Relations, which I guess means he’s supposed to help a business that picks at the bones of dead lawyers not be totally despised by the ones still living.
After acknowledging the criminal side of A2J, serving the poorest and most disadvantaged, and absolving the profession of sin because we’re “trying,” he goes after the other white meat:
Many modest means or middle-income individuals seeking legal services are not seeking “justice” through the legal system. Most just want a will, an estate plan, some limited advice on their employment contract or business, or any number of other things that don’t have anything to do with “justice.” Besides what justice is and what it means varies widely from person to person and situation to situation. The pursuit of an arguably amorphous definition of justice is a waste of time and resources when all someone wants is, for example, a will.
Modest-means clients are also different than the access-to-justice clients. For one, while they may not be able to afford traditional full representation legal services but they can pay something. Further, many modest means clients are middle-income individuals, so they’re more likely better educated with better access to technology or other resources that would help them self-educate, receive unbundled legal services delivered partially or fully though technology or online, or navigate the legal system with only limited guidance from an attorney.
The key to this dilemma, Dan informs the reader based upon a generic Lao Tzu quote, is semantics:
Lao Tzu said: “The journey of a thousand miles begins with one step.” And one good initial, but admittedly small, step for legal services is semantics. Specifically, instead of talking about an “access to justice” gap let’s switch the rhetoric and consider the “access to legal services” gap instead.
See? Now that Dan has been kind enough to play with the rhetoric so as to separate the truly needy from the generally cheap, those who are forced into court at gun point from those who make choices, like starting a business, but didn’t budget for a lawyer because, well, they had no clue what is needed to start a business, we can more clearly see the problem.
And so Dan has dedicated a third of his time to drafting free wills for moderate-income people who can’t afford $250 for a simple will? Nooo. Dan ain’t doing squat. He’s telling us to do it for him. Because he works for Avvo, and Avvo is a huge supporter of novelty ideas that make it seem edgy and cool.
But let’s not confuse the justice and services problems by using the same term for both.
There are pervasive legal access issues throughout the economy—from pro se litigants, to entrepreneurs who need business help, to families without wills or simple estate plans. This access gap is a significant problem for the legal profession and it won’t be solved overnight. It might not even be solved in our lifetime. But greater precision in how we talk about access challenges is an easy first step in the right direction.
I agree, let’s talk about “access challenges” with “greater precision.” Like the rest of organized labor, lawyers work for a living. Nobody hands them free groceries. There’s an access to income problem for lawyers, who lost three years of earnings for the joy of going to law school, and assuming a couple hundred thou in tuition debt, all so they could be society’s whipping boy to cover the burden caused by tens of thousands of criminal laws and the necessity of making life less painful for the modest income folks who suffer the requirements of law imposed on every facet of every person’s life.
You don’t like the burden of paying for lawyers? Stop demanding that your government criminalize every bit of human conduct that could conceivably hurt your feelings. You don’t think you should have to spend your hard-earned money earmarked for that shiny new iPhone on a lawyer? Stop demanding that government regulate every waking moment.
But you adore all those crimes that keep those other people out of your happy place. And you adore all those regulations that fulfill your fairer version of the world. And you want lawyers to carry the weight for you.
So here’s a bit of precise language to address the problems Dan Lear raises: Either pay for the lawyers or don’t make a mess you can’t clean up without them. It’s not that we don’t care deeply about you, your problems, your deepest desire for a shiny thing, but that lawyers, just like you, have families to feed and have to work for a living. Just like you.
As for Dan, until you’re ready to spend your days delivering what you tell others to deliver, and on your own dime, maybe you would do well to wipe that smile off your face. And happy Labor Day.