The neglected middle class

By Jeff Bleich
President, State Bar of California

Bleich

Of the many challenges that we face as a profession, the one that should concern us most is that we now have a legal system in which the majority of Americans cannot afford adequate legal service. As the medical profession discovered some years ago, a system that a majority of the public can’t meaningfully access will not (and should not) continue indefinitely.  Either we’ll need to adapt our system to actually meet more of society’s needs, or society will change the system for us. This is not meant as some apocalyptic prediction — it is a sober-eyed assessment of the facts of our system and the choices we face. 

It should not come as any surprise to us to hear that — as a profession — we are not meeting the needs of a good portion of the public. Most of us have friends or relatives who have gone without a lawyer, or chose someone outside of their field, or settled a case that they shouldn’t have, simply because they couldn’t afford the right lawyer. A quarter of all California attorneys earn less than $50,000 per year, and so if they faced a serious legal problem, they likely could not afford themselves. I routinely counsel friends that they would be better off absorbing some slight or injustice rather than face the cost, risk and pain associated with full litigation.

And so our legal system is increasingly serving only the wealthiest interests or the very poorest ones: those who have great resources and those who are lucky enough to get help through legal aid, despite the serious underfunding of that system.

No meaningful access

As a nation, we would consider it intolerable if a large number of Americans had to choose an unqualified doctor, forego needed treatment, or perform surgery on themselves because they could not get proper medical care.

But every day, Californians who are at risk of losing things just as precious — their homes, their livelihood or their families — arrive at our courthouses having no idea what they need to do to protect themselves, and unable to hire someone else who could help them out. While in some cases, their issues can be addressed by the excellent court-based self-help centers across the state, in most cases they cannot. And so these Californians often make poor choices or face bad results, not because of the merits, but because they never had meaningful access to legal services. 

The problem of access is as much a middle class problem as it is a problem for the poor.  Most of the time, when we talk about access to justice, we focus only on the neediest members of society. This year, for example, the State Bar and other organizations properly devoted enormous effort to increasing funding for legal services for the poor. But even with increases in Legal Service Corporation funding, IOLTA resources and gifts and grants from our profession, we know that we will never come close to meeting the legal needs of people who are eligible for free legal services, let alone those who are not.

In California today, there is only one legal aid lawyer for every 8,000 low-income persons needing legal service; even if we quadrupled the budget we’d still have only one lawyer for every 2,000 low-income persons. For middle-income Californians, there are more attorneys available, but the problems of access are nearly as acute because of cost and other barriers. 

The vast majority of unrepresented parties today at all income levels are in family court, housing disputes and consumer credit claims. Their lives and their families’ futures — their living arrangements, their security, their homes and their possessions — depend on these cases. And yet often only one side has a lawyer, or in some cases neither side has one.

In 2005, only one in eight family law litigants had a lawyer; 34 percent of landlords and more than 90 percent of tenants were unrepresented in their housing disputes. As any lawyer who has sat through a long calendar and watched unrepresented parties try to navigate the system knows — and despite the best efforts of the self-help centers in the courts — our system is not equipped to deliver on the promise of equal justice to most pro se parties. They know it too. In fact, there are blogs and Web sites that are only too ready to describe the shortcomings of the system. 

So what is the solution? For one thing, it is not simply money. While the system is underfunded, there would likely never be enough money to ensure full legal services to every litigant, and in some cases even money or having more lawyers would not solve the problem. There are language barriers, mobility problems and shortages of lawyers in rural communities.

But more fundamentally there is the fact that sometimes litigants need something less than a fully trained lawyer but more than what they can learn themselves over the Internet. And while our legal systems and procedures are designed well for criminal cases and certain types of civil cases, for other claims they are too complex, time-consuming and confusing for their (and our) own good.

And so if we are to meet our duty to deliver justice, that means we need to consider not simply the traditional idea of increasing legal services funding, but also to consider some bold changes in that system.

Here are three.

Right to counsel

Other countries and now some states have guaranteed counsel to all parties in certain types of proceedings. The United States guarantees counsel in criminal cases following Gideon v. Wainwright, in which the U.S. Supreme Court held that a criminal defendant has a Sixth Amendment right to an attorney even if he or she cannot afford one. After Gideon, there were also calls to extend this principle to civil matters involving restraining orders, involuntary commitment, child custody or property disputes based on the separate Fifth Amendment guarantee that “No person . . . shall be deprived of life, liberty or property without due process of law.”

The U.S. Supreme Court, however, effectively rejected that suggestion in Lassiter v. Dep’t of Soc Services of N.C. (1981). Lassiter held that even when the government is taking away a mother’s parental rights to her children, due process did not entitle her to counsel, and it created a test for appointing civil counsel that is virtually impossible to meet.

In light of the legal services crisis, however, some states have begun to take a second look, and to consult their own constitutions and laws to provide relief. Recently, in Gordanier v. Jonsson, an Alaska trial court found that the state’s due process guarantee does require that the state provide counsel to indigent parents in a custody case.

Here in California, Chief Justice Ronald George has proposed a pilot project that would grant litigants in important types of cases, such as child custody and elder abuse, the right to counsel in a few counties as a way of gauging the value of such a program. Other countries, such as Canada, have actually found that by providing counsel to all citizens in divorce cases, they actually increased public appreciation for the value of lawyers and support for other legal services.

Alternative models

Another possible solution to the shortage of legal services is to move away from the traditional model of purely adversarial litigation and develop more cost effective models for non-criminal cases. The American criminal process rests on adversarial presentations and highly complex rules. There is nothing that requires that civil cases be treated the same way as criminal cases or that all civil cases be treated alike. California already has small claims courts, for example, in which lawyers are not even allowed, so the state obviously has some latitude here. The problem with the small-claims court model is that while costs there are kept low too often the quality of presentation is also pretty low.

Instead, groups such as the Bellow-Sacks project at Harvard have proposed a range of assistance. First, the state might create planning and preventive law services to help avert litigation over household crises in the first place. Second, some types of cases — particularly in housing or family disputes — could have optional models available.

Instead of each side paying a lawyer, for instance, specialized judges who already know that field might simply appoint specially trained investigators to impartially collect information and present a report to the court on their findings. This would free up courts to conduct adversarial trials with appointed counsel for cases in which a person might lose his liberty — involuntary commitment, TROs, etc.

Alternatives to lawyers

Finally, we may need to consider changing our system of licensing lawyers to allow for other models. Specifically, we might allow some legal services to be performed by less-than-full-service lawyers including students, specialists (sort of the legal equivalent of nurse practitioners) or apprentices.

Even more radically, we might consider certifying some non-California lawyers — for example, in West Virginia or Canada, for that matter — to perform certain types of work that can be done over the Internet and which does not require broad knowledge of California law.

For example, many types of tax issues can be resolved simply by mastering the federal tax code, federal patent prosecutions do not necessarily demand California experience, and other such advice can be outsourced to the extent that it is in too short supply in our state.

To keep things in perspective, America still has one of the best legal systems in the world. But we are slipping further and further from our ideal of equal access and equal justice for all. If the systems we have in place are not allowing lawyers to deliver justice to all, then it is up to lawyers to figure out new systems.

I am hopeful that as a profession we will not merely consider new ideas to fix this justice gap, but champion them. If we are to remain the best legal system in the world, it will be up to us to take the lead.