Why Can’t The Legal Profession Deliver Access To Justice?

I routinely witness the lack of access to justice in our courts. I see people all the time attending hearings like they’ve been called into the manager’s office at work. With rare exceptions, they’re so out of sorts. They’re uncomfortable, anxious, on unfamiliar terrain. And they don’t often get a chance to present their arguments, if they even have arguments to present. The worst part is watching pro se litigants consult the opposing lawyer to find out what’s happening, or more often, what just happened. It’s usually not good. Their experience in court makes it painfully obvious that the right to represent oneself is not the same as access to justice.

Access to justice is the right to be heard and to have your legal position carefully considered by a court. A person with access to justice has a legal position a judge can understand, as well as the ability to have it put to a judge and argued in court. Delivering access to justice is the purpose of the legal profession, the whole reason we have lawyers. So why don’t lawyers act like access to justice is their job? Why isn’t it a priority for the profession? Yes, I know there are some token efforts.

There’s an ethics rule that encourages lawyers to donate 50 hours a year in pro bono services. There are legal aid agencies in every state. There are research groups trying to figure out how to deliver legal services to all who need them. Yet somehow three of every four people in civil court are unrepresented and 9 out of 10 of them are dragged into court by a lawyer. It’s a disgrace. That’s not access to justice. In fact, when you consider the adversarial nature of litigation, that’s a slaughterhouse for justice.

At his legal blog, Above The Law, attorney Robert Ambrogi has diagnosed some of the factors contributing to the access to justice problem. As Ambrogi sees it, the problem is a combination of over-regulation and legacy. On the regulatory side, prohibitions against non-lawyers owning law firms stifle the types of innovation that could earn venture capital. Concerns for unauthorized practice of law limit the types of assistance that companies like Courtroom5 could offer.

Ethical restrictions on lawyer advertising, lawyer referral services and a la carte (unbundled) legal services also make the task of finding clients more difficult than it should be. And then there’s legacy, the way things are and have been. Ambrogi points to several attributes of the typical lawyer that limit their capacity to do better, including lack of competence in technology, inadequate entrepreneurial mindset, and a conviction that no alternatives exist to legal services offered by lawyers.

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Ambrogi also blames the profession’s attachment to hourly billing and the threat innovation poses to that business model for the legal profession’s failure to deliver on its promise of access to justice. With law schools shutting down and potential clients increasingly choosing to represent themselves, the profession has to change. Could a commitment to delivering access to justice reinvigorate the profession? There’s no doubt about it, in my non-lawyer opinion. But I believe that commitment is too much to ask of lawyers. I mean no disrespect there. What I’m saying is that the first duty of a lawyer is to advocate for one client at a time, to provide access to justice for one client at a time, not for society as a whole. And by and large, that’s what they do for clients who can afford to pay them.

The reason the legal profession doesn’t take access to justice as seriously as we might expect is because it flies in the face of that first duty. When you think about it, people hire lawyers to get a leg up on someone else. Anyone who hires a lawyer wants that lawyer to be better than the other side’s lawyer. That’s what litigation is all about, defeating the opposing party. So lawyers working to advance access to justice for all are sacrificing a duty to their own clients. Even those who don’t serve clients directly — law school professors, researchers, policy groups — are working against their training and the interests of their profession when they advocate equal access to justice. It’s too much to ask.

That’s why we don’t bat an eye when the occasional lawyer throws a tantrum about what we do at Courtroom5. We help people represent themselves so they can get a fair hearing in court. We help people get access to justice on their own. We don’t practice law, but we help people learn and practice whatever’s necessary to serve their own legal interests. Because lawyers just aren’t going to do it.

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