Blog | On The Future of Law

Change the Legal System at its Core

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I have been writing about Washington State’s Limited License Legal Technician (LLLT) program a lot over the last few weeks. A program purportedly designed and sold on the premise that it will make a measureable impact on the “access to justice” crisis both in Washington and around the country. While I agree there is a “justice gap,” I do not think the LLLT program is the logical starting point for implementing systemic change to the legal services construct.

In reality, meaningful modernization and reform should start at the core of an afflicted system and the effects will then work their way outward in a more orderly and controlled manner. The following is an overview of five core steps I believe are needed to improve and even preserve access to justice:

  1. Modernize the Court System

Last week I elaborated on an interview I had with Bloomberg BNA.  In that post I suggest several challenges that must be addressed to improve access to justice. My first suggestion was modernization of the court system. If courts are truly committed to access to justice reforms, they should look inward and begin reforming themselves first.  Currently, the system is, for the most part, incredibly antiquated and most certainly not designed for the convenience or efficient ease of use by pro se parties, or even lawyers for that matter.

Until the courts attend to reforming the foundation of the system itself – the way law is communicated, the way the judicial process is managed, and the court system overall – all of these other efforts are nothing but show, with no substance.For example, in my firm’s family law practice, an enormous amount of time is needlessly wasted by lawyers, clients, and pro se parties traveling to and from court for hearings for no reason other than to appear in person before a judge – even when no oral testimony is provided.  Almost all hearings should be done by video conference instead of in person.  This would cut down on transportation costs, client costs, loss of lawyer time while sitting in court waiting for a brief hearing to be called, the cost of courtroom staffing and security, etc.  Leveraging video conferencing technology is just one relatively easy modernizing change that would create an enormous difference for pro se parties, lawyers, and clients. Over time, it would also create significant savings and flexibility for the court system.

However, change is hard and significant modernization that would create simplicity, predictability, efficiency, access, and better overall “customer service” would be an enormous challenge of will, imagination, time, and money.  It is much easier to look outward for improvement opportunities.

  1. Improve Public Education and Communication

The 2003 Washington Civil Legal Needs Study told us that the access to justice gap is primarily caused by the fact that people do not even know they have a legal problem for which there is available help or where to access that help.  Even if they realize they have an issue, the law is communicated in a confusing and arcane manner – most people cannot begin to understand the law itself or the courts’ procedures.  This is not necessary, but rather habit and custom. There are tremendous opportunities to change the way government (including courts) communicates the laws and procedures that govern its citizens.

  1. Modernize Lawyer Ethics Rules

In reality, sensible reforms start at the foundation of the matter and work their way outward.Another suggestion I raised in my last post is modernization of the lawyer ethics rules.  In addition to changes within the courts, the regulation of lawyers needs to change.  These regulations are ultimately set by the court.  Regulation and ethics rules that restrict lawyer advertising, restrict raising non-lawyer investment capital, restrict multidisciplinary practices, restrict engaging in financial arrangements with clients that would allow greater access, restrict the ability to practice in each state without separate exams and licensing – all of these rules are outdated and systemically prevent lawyer innovation, modernization, and the ability to provide optimal legal services to the public.

These regulations and many others should be reviewed from the ground up. When considering each rule and any modification, we should critically and objectively ask the following questions: Does the rule impede or promote the interests of clients?  Does it enable or impede innovation and modernization in legal services delivery?  Does it maintain the integrity of the legal profession and thus the legal system itself?

  1. Reform the State Bar Association Model

It is time to re-architect the legal services regulatory framework.  If alternative business structures (ABS) are expanded, the LLLT program is expanded, and other reforms and stakeholders emerge, the current regulatory framework cannot support or fund the regulatory management and enforcement of the new paradigm.  State bar associations simply do not have the bandwidth for this added complexity and courts are not ideal regulators.  Just as legislators enact laws but do not micromanage or selectively direct the activities of the agencies created to regulate, Courts should set rules that govern the practice of law but should not engage in regulatory administration.   If a party believes that the regulator has acted improperly, the lawyer or association can sue the regulator and the case can be heard by a court.

Courts should set rules and resolve disputes, regulators should regulate, and professional associations should represent and advocate for the interests of their members.  “Dues” should be paid to associations, not to regulatory agencies that normally charge a licensing fee and are otherwise funded by taxpayer dollars.

After the foundation of the system (the courts) and the regulatory scheme are reformed, we can more accurately assess what really impacts access to justice.Moreover, integrated bars should end now.  Particularly in Washington, as there is no longer a true “association” within the Washington State Bar Association (WSBA).  In fact, a recent WSBA task force report stated that it is a “breach of fiduciary duty” for the WSBA Board of Governor (BOG) to advocate or promote member interests (which is not a position supported by the bylaws). This position is even more bizzare given that the LLLT Board, which is housed within and funded by the WSBA, is constantly advocating and promoting the interests of LLLTs (including their business interests).  Even more interesting, LLLTs are a constituency that presently does not exist – there is not a single LLLT currently in existence.

Within the integrated bar model, tensions will inevitably emerge between stakeholders and regulators, conflicts of interest will emerge, opposing factions will develop, and the organization will become dysfunctional as it begins to disintegrate from the inside out.  I can already see this occurring in Washington.

  1. Increase Investment in Legal Aid and Preserve Pro Bono

I am puzzled by the lack of appreciation for the value of legal aid and pro bono work (performed largely by attorneys) in providing access to justice. I have heard people say, “there is no money for legal aid.” There is money; the question is one of social/political priorities.  Courts and bar associations should be lobbying lawmakers for increases in government legal aid programs and other funding.   The only known way to address access to justice for those of no and low means is legal aid in the form of pro bono, adequately funded non-profit programs, and other government  funded programs.

Moreover, if the hundreds of millions of dollars that lawyers provide in pro bono and legal aid contributions are not able to solve access to justice, tossing LLLTs into the mix certainly will not.  In truth, it is lawyers who perform pro bono work.  It is lawyers who work in legal aid clinics. It is lawyers who collect the money held in trust accounts, the interest of which is used to fund legal aid.  It is lawyers who are the primary non-governmental financial supporters of legal aid non-profits.   The rule of law has infiltrated every aspect of life. It is preposterous to expect that lawyers alone should bear the full burden of solving access to justice through pro bono.  Access to justice is a societal need and requires a societal solution.

Moreover, during the process of future change making and the consequences thereof, we should also consider how access to justice would be impacted if lawyers – for whatever reason – substantially reduced their commitment to pro bono and other financial contributions to legal aid.

As we architect the future of legal services in the U.S., it is important to develop a road map that makes sense and is likely to produce the best outcomes.  One that starts at the logical beginning of meaningful reform and modernization, to wit: at the foundation of the system itself.

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