In a new article in the Florida Bar Journal, bar president Abadin lays out the proposals for filling the access to justice gap by exploring different business models and (gasp) allowing non-lawyers to give quasi-legal advice.
Right now only 14% of people with civil legal problems have a lawyer assisting them. People with little or no income are able to get legal aid organizations to help, people with high incomes and net worths are able to hire the lawyer of their choosing, but people in the middle can’t afford a lawyer to help them.
This is, as Abadin says, the “justice gap.” And it’s clogging the court system with pro se litigants. Part of the solution is creating an efficient system that lets people more effectively get what they need from the court system. From Abadin’s article:
We need to look at technology and artificial intelligence platforms for solutions. We need to examine every obstacle that has allowed this festering civil justice gap to grow.
That’s great and all (and it sounds good) but let’s start with getting lawyers and court systems out of the 18th century.
Courts and lawyers in the dark ages:
The problems and inefficiencies in the court system are, well, staggering. Court forms are complicated and extremely hard to locate. Want to get a Marchman Act petition filled out to help a family member suffering from substance abuse to the point of self harm? Good luck finding that on the county clerk’s website.
Did I mention many of the circuit courts have their own webpages, with forms? They both cover the same jurisdiction. Why have different sets of court forms on different web pages? Were the forms themselves not confusing enough?
Try reading a court docket for a court case online if you’re just a member of the public. Better yet, try finding it online if you don’t know precisely where to look.
Not only are the courts in the technological dark ages, other county and state government entities are as well. Try sending an email to a state attorney who works for Bernie McCabe, even though e-service of court documents has been around for a while. Hell, try asking a state attorney in Pinellas or Pasco county for their email address. They don’t have them, apparently. Even though our tax dollars pay their salaries. Try sending a fax to the county clerk in Pasco county. They don’t have fax machines. Only snail mail.
Another solution is to loosen the restrictions on the practice of law and law firm structures so that, in theory, it would be easier for normal people to get the help they need. The bar is looking at a set of revisions to do the following:
• Revise Rule 12 of the Rules Regulating The Florida Bar to eliminate barriers to pro bono representation. The proposed changes would permit retired judges, retired lawyers who are living in Florida but may not be members of The Florida Bar, law professors, both retired and active, to serve as emeritus attorneys and volunteer their services in expanded roles. It would allow emeritus attorneys to provide advice and assistance to clients who are not subject to litigation.
• Reexamine our current UPL rules. The unlicensed practice of law is a prevalent issue when clerks of courts try to help consumers standing at their counter asking for help filling out and filing the proper legal forms. Clerks want to help, but they don’t want to engage in UPL.
• Explore the creation of nonlawyer “civil legal assistants,” such as those in California, Illinois, and New York — akin to how physician’s assistants help doctors.
• Explore the creation of a “Navigator” system where trained experts can work with the public to help direct them to resources, either through the Gateway portal or outside of it.
Let’s go back to the phrase I bolded – Clerks want to help, but they don’t want to engage in UPL – the unlicensed practice of law. For telling people how to fill out forms, or using the correct form. Think about it this way: if you didn’t know what end a suppository was supposed to go in and you asked the receptionist at your doctor’s office, should they get in trouble for telling you?
Outside of a courtroom the “practice of law” is a very nebulous concept. Is helping someone fill out a court form practicing law? Is answering a question about general court procedures? Is telling someone where to find a statute online? Right now the bar’s definition of “the practice of law” is “whatever we decide that it is.” Until this changes we’re going to see things like court clerks being afraid to help people perform simple tasks.
Civil legal technicians are also a good idea, but keep in mind that this is how lawyers see the idea of letting non-lawyers into the legal field playing out:
In reality, lawyers will always believe that the solution to the legal justice gap will involve more lawyers. To a lawyer, the phrase “access to justice or the courts” really means “access to lawyers.” That would mean our surplus of underworked lawyers would have more work. We’ve created a reality where most lawyers couldn’t afford to hire themselves.
Bringing the court systems into the 21st century, exploring new business structures, and eliminating the more boneheaded prohibitions against the unlicensed practice of law are a start. But they shouldn’t be the end. The solutions to the access to justice problem are going to be hard, complicated, and painful for many lawyers. But maybe, just maybe, we’ll end up helping the public instead of ourselves.