On November 11, 2015, Diane P. Wood (Chief Judge of the United States Court of Appeals for the Seventh Circuit), Goodwin Liu (Associate Justice of the California Supreme Court), and David S. Tatel (Judge on the United States Court of Appeals for the District of Columbia Circuit) discussed issues of access to the justice system. The program, which served as the 2027th Stated Meeting and the Inaugural Distinguished Morton L. Mandel Annual Public Lecture, was streamed to gathering of members in four cities around the country: New York, Washington, Chicago, and Berkeley. The program concluded the first day of a two-day Academy symposium on the state of legal services for low-income Americans, which brought together federal and state judges, lawyers, legal scholars, and legal aid providers concerned about the state of legal services for Americans. The following is an edited transcript of Chief Judge Wood’s, Justice Liu’s, and Judge Tatel’s remarks.
Diane P. Wood
Diane P. Wood is the Chief Judge of the United States Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School. She was a elected a Fellow of the American Academy in 2004 and serves as Chair of the Academy’s Council and Vice Chair of the Academy’s Board of Directors.
It is our privilege to continue the conversation that some of us have been having during the day in our conference on the state of legal services for low-income Americans. The exact figure can be disputed, but on the civil side the unmet need for legal services might be as high as 80 percent. Even if the figure is “only” 60 percent, that still represents a huge number of people who would benefit from legal services but lack the financial ability to acquire them. It is a percentage that is very damaging to our social fabric.
On the criminal side, the story is not much better. That might surprise you a little more. We have all seen plenty of TV programs that show police officers reading people their Miranda rights and telling them they have a right to a lawyer at public expense should they be unable to afford one. And, indeed, with exceptions for undocumented aliens (who face not prison but deportation) and people who have been charged with traffic offenses or misdemeanors that are regarded as too trivial, people do get a lawyer.
But what kind of a lawyer? One with an unmanageable caseload who may spend only five minutes with the client before walking into the courtroom and entering a plea?
We have two outstanding people to talk about this issue: first, Justice Goodwin Liu of the California Supreme Court, recognizing that the state supreme courts play a critical role in the question of accessibility of justice; and second, Judge David Tatel of the United States Court of Appeals for the District of Columbia Circuit.
Goodwin Liu is an Associate Justice of the California Supreme Court.
Making justice accessible is important because of a simple truth. We can have all the laws and guarantees we want written on paper, but none of them really mean anything unless they are put into practice. And that gap between what is on paper and what is in practice happens to be a big one in our country.
But it need not be that way. Other nations and other systems of legal-service delivery do not have the big gaps we do. So we really need to rethink this issue, lest the rule of law simply be something we observe in theory and not in practice.
In the interest of providing a descriptive map of the domains into which discussions of this issue typically fall, I offer three categories.
The first category I call the substantive law of access to justice. We have a lot of law to structure the way litigation proceeds. And the way it is structured affects greatly who can actually get their rights vindicated in court.
A prominent type of litigation is the class action lawsuit, which has become a hot point of controversy in the law and in the business world. The federal and state laws that modulate whether class actions can proceed have a huge effect on who can get their rights vindicated, especially in the consumer and employment fields.
Another example is fee-shifting statutes. The American rule is typically that each side bears its own fees. But sometimes, when legislatures want to incentivize the bringing of particular kinds of claims, they allow fees to be shifted, which means the winning party (the notion of who is a winning party is itself a concept in the law that needs to be elaborated) can collect its attorney’s fees from the other side.
Another big area is arbitration, which originated as a mechanism for parties of equal bargaining power, typically merchants, to resolve disputes at low cost and great speed, achieving all the efficiencies that entails. Today arbitration is much more widely used in situations that perhaps were not originally foreseen a century ago.
With each of these strategies, the basic idea is that we have to achieve balance between ensuring legitimate access to the legal system and deterring frivolous and wasteful litigation. Of course, different people can have different senses of where that balance lies.
American society is law-dense. We codify into the law lots and lots of things. All of these laws are well-intentioned. But as a whole, they create a system in which the accessibility of law depends increasingly on one’s ability to navigate this morass.
One example is the Individuals with Disabilities Education Act (IDEA). I don’t think anybody would dispute that it is a well-intentioned law. But studies of the IDEA show that it can create a situation of haves and have-nots. Those who are aware of the rights guaranteed to kids under the law and can afford to hire a lawyer to use the procedural mechanisms detailed in the statute are going to have better results than those who are unaware or who cannot find a lawyer to help navigate the same morass. The law itself poses a “density” problem that creates inequalities of access.
The second category consists of more conventional reforms or initiatives within the legal profession or within law schools; that is, using the existing tools of the legal profession but reforming, reorganizing, and fundamentally reworking them within the four corners of the profession, as we understand it today.
For example, the Legal Services Corporation provides legal services to indigent people. Its public financing and political support and the breadth of its mission have ebbed and flowed. But we have a lot of levers we can use to adjust that particular mechanism.
Another example is the pro bono efforts of law firms and individuals. In some states, laws mandate or strongly encourage these kinds of efforts, with varying levels of success. But the overall idea is that members of the profession ought to be giving back, especially to communities that are in need. And so we use exhortation – and sometimes regulation – to utilize that particular lever.
I am involved in a California initiative that uses “incubator programs” to put young law graduates into training programs that help them start their own solo or small group practices that serve ordinary people. The idea is to promote a model of lawyering that ordinary people can afford in the way that ordinary people can afford a plumber. If your toilet is broken, you call a plumber to come fix it. Can we provide legal services for roughly the cost of what people might pay a plumber, or an electrician, or a car mechanic? Can we habituate people to use lawyers in the same way they use these other professions when they need to fix important problems in their lives?
The third category is economic regulation of the legal profession. The vantage point here is to step outside the four corners of the legal profession and ask more fundamental questions about why the legal profession is structured the way it is. That structure is a model that has survived at least a century. Our profession consists of qualified people who belong to one category only: lawyers. They do all the functions of lawyering, typically through brick-and-mortar enterprises that serve clients in a personal, one-on-one relationship.
Contrast this with medicine. One prominent feature of medicine in the contemporary period is the intense differentiation of function with respect to the delivery of healthcare services. The medical industry has proliferated categories of people: doctors, nurse practitioners, technicians of whatever stripe, nurses differentiated by many categories. This allows the industry to triage your needs to the lowest-cost provider who can take care of those needs, and then move you up to the next-higher-cost person only if necessary. Imagine if instead the healthcare profession had just one category: doctors.
Law is very different, and we need to ask some fundamental questions about whether the current structure of the profession produces unnecessary inefficiencies.
What is the scale of unmet legal need? Some of the work that has been done on this is startling. USC law professor Gillian Hadfield reports that legal aid lawyers contribute 1 percent of the total legal effort that is made in the country each year. One percent.
American lawyers average about 30 hours of pro bono work per year, which is another 2 percent of the total legal effort. What if we asked every lawyer in America to do 100 more hours of pro bono work a year? If on top of a typical 1,800-hour or 2,000-hour billing year, each lawyer added 100 more hours of pro bono work, what would we get? A drop in the bucket. All that additional work would be enough to secure less than 30 minutes per problem per household in America.
Average billing rates for lawyers in modest solo practices or small firms are roughly $200 an hour. If we used that as our rate (ignoring the big firms that can charge $500, $600, even $1,000 per hour), we would need $50 billion annually to give one hour of legal help to every American household every year. What do we actually spend on legal aid for such households? Less than 10 percent of that amount: $3.7 billion.
We are not going to engineer our way to a solution that is truly at scale by working within the four corners of how we do law today. We need to figure out how to lower the cost of doing law. The ideas for how to do this are wide-ranging, but I think technology will have to be a part of the solution.
To make a dent in the vast problem before us, we need to put everything on the table for examination, including the role of technology, the role of different organizational forms, and the role other service providers (in categories other than lawyers) might play in the legal profession.
David S. Tatel
David S. Tatel is a Judge on the United States Court of Appeals for the District of Columbia Circuit. He was elected a Fellow of the American Academy in 2015.
To be totally candid, when I received the invitation to this conference a couple of months ago, I put it aside. I’ve been attending conferences like this since the 1960s, when the legal services program was part of the Office of Economic Opportunity. All of the conferences had similar titles – “Improving Access to Justice,” “Serving the Unmet Legal Needs of the Poor,” etc. – and over the years, the number of poor people without access to the legal system has steadily increased. So attending another conference wasn’t high on my agenda.
It hasn’t always been this way. In the years immediately after the Legal Services Corporation was created, the situation was quite different. At that time, the Corporation had, in inflation-adjusted dollars, twice the budget that it has today, and it served half the number of poor people. Additionally, a network of university-based backup centers provided technical assistance and expertise in substantive areas like housing, welfare, education, consumer rights, etc. These centers functioned as think tanks for legal services lawyers throughout the country.
In addition to that, the Reginald Heber Smith Fellowship program funded 250 of the smartest law school graduates to work in legal services programs. Two of my classmates at the University of Chicago Law School – both of whom were top students, and both of whom had elite federal court clerkships – went on to be “Reggies” in the Chicago legal services program. As an associate in a Chicago law firm, I worked with them on a pro bono case. I’ll always remember the sign on their office door: “OEO Legal Services: Class Action and Test Case Division.” If a legal services office put up a sign like that today, Congress would defund it faster than it is trying to defund Planned Parenthood.
In the late 1960s and early 1970s, we actually believed that we would solve this problem – that poor people would have equal access to the legal system. We thought that goal was attainable. But today, some forty years later, 80 percent of poor people who need the help of a lawyer cannot get one. In Washington, D.C., that number is 90 percent. And in some fields, like housing, it’s 98 percent.
Despite all this, I’m glad I came today. This conference has been extraordinary, and the ideas that have been discussed are important and intriguing. These ideas have focused on the nuts and bolts of providing legal services to the poor, as well as on the structural and substantive problems that need to be solved if we are to make meaningful progress.
But we must also be realistic. Even if all of the ideas we have discussed today bear fruit, millions of poor people will still lack meaningful access to the legal system. For example, pro bono services are important, and the LSC taskforce on pro bono work produced a very helpful report. In fact, when law firm lawyers ask me what they can do, I hand them the report and say, “Here, this lays it out.” But everyone agrees that even greatly expanded pro bono cannot meet the vast legal needs of the poor. In my view, the only way to do that is by dramatically expanding federal, state, and local legal services programs. These are the programs that know how to provide high-quality, cost-effective legal services to large numbers of poor people. The problem, of course, is that Congress will never fully fund legal services. In fact, it will probably reduce its funding.
There is, however, an institution that is capable of fully funding legal services for the poor, that is responsible for doing so, but that has failed to step up to the plate: the legal profession. Because not everyone agrees that the legal profession has such an obligation, let me explain.
Of course, the responsibility for meeting the legal needs of the poor is shared by many institutions: Congress, federal agencies, state legislatures, etc. But it falls to the legal profession to lead the way. Unlike people who run airlines, deliver packages, sell iPods, or operate virtually any commercial business, lawyers should not measure their success merely by how well they serve those able to pay their bills. As officers of the court, lawyers have a broader responsibility to ensure that the legal system, society’s mechanism for resolving disputes and protecting the rule of law, functions effectively – something it cannot do when a vast number of people lack access to it because they can’t afford a lawyer.
The legal profession has this obligation for yet another reason: Lawyers enjoy a monopoly on the practice of law. No one can practice law who does not pass the examinations the profession administers and obey the ethical standards it establishes. With this privilege, along with the enormous profits it yields, comes a weighty responsibility. As gatekeeper to the legal system, the legal profession has an obligation to ensure that the gates are open not just to those who can pay its fees, but also to everyone entitled to the protection of the law.
Our efforts to satisfy the legal needs of the poor have fallen short in great part because the Model Rules of Professional Conduct define a lawyer’s responsibility to provide legal services to those unable to pay as an individual obligation. For example, the Model Rules call on every lawyer to perform fifty hours of pro bono service each year and to contribute a specified amount of money to legal aid. But the people who set that standard have absolutely no idea whether fifty hours from each lawyer will make a difference. As Justice Liu pointed out, it is unlikely to even come close. In my view, the profession should adopt a declaration of responsibility requiring that every lawyer’s obligation, in addition to doing pro bono work, is to provide whatever financial support is necessary to ensure that legal services programs in their community have sufficient resources to meet the legal needs of every poor person. And the legal profession has the resources to do just that. Let me give you a couple of facts.
Fact number one: According to the census, the legal profession grossed $250 billion in 2013. Just 0.15 percent of that – that is, 15 cents for every $100 earned – would double the budget of the Legal Services Corporation and allow it to serve every client it now turns away. You might think that number is unrealistic, but in Washington, D.C., some twenty law firms have made financial commitments to local legal services programs that come close to that 0.15 percent. The country’s hundred largest law firms alone could double LSC’s budget with contributions of less than half a percent of gross revenues.
Fact number two: When law firms hire Supreme Court clerks, they give them very large bonuses. A year ago, the thirty-two clerks who joined law firms after their Supreme Court clerkships received almost $12 million in bonuses. That $12 million could have funded 150 legal services lawyers, doubling the number of such lawyers working in Washington, D.C.
Given these earnings, no one in this country should be denied access to the courts simply because he or she cannot afford a lawyer. Our task now is to take a step back and determine what combination of private and public funding and pro bono services is necessary to accomplish that goal. Were I the president of the American Bar Association, I would convene the leaders of national, state, and local bars and urge the development of a national declaration of responsibility to serve the legal needs of all poor people. I would then sit down with the leaders of national, state, and local legal services programs and figure out how much money we can realistically get from Congress and how much from other sources. Then, through voluntary contributions, increased dues, or some other mechanism, the legal profession would provide the rest.
© 2016 by Diane P. Wood, Goodwin Liu, and David S. Tatel, respectively
To view or listen to the presentations, visit www.amacad.org/events/making-justice-accessible.