What do you call a million lawyers at the bottom of the ocean? A “good start” an old—and well-worn—joke goes. But according to recent data, a more appropriate answer might be “wasted resources.”
The Access to Justice Epidemic
Counter intuitive though it may sound, we actually need more lawyers … sorta. I know our profession isn’t exactly popular, and most of you probably know plenty of Esquires. But it’s a fact--according to a 2017 study by the Legal Services Corporation “86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help.”
This is particularly acute for family law, landlord-tenant and bankruptcy matters, where at least one party appears pro se in something like 70 to 90 percent of cases.
Whatever our lot in life, most of us need legal advice at one point or another, if not multiple times a year. But some studies suggest as many as half of all U.S. households are unable to afford an attorney.
Considering the vast number of legal issues one may grapple with over their lifetime, millions of Americans find themselves without adequate representation way, way, way too often for us to go on ignoring this problem. And while our profession has made efforts and strides on this front, we still need to do much, much more.
We Can’t Mint New Attorneys Quickly Enough
Theoretically, a million more attorneys might help, since the price of legal services would go down as the availability of legal services went up (note: those who wanted to continue charging the same hourly rate probably could while others could develop new billable structures to serve more of the pent up demand).
But in practice there are only 203 ABA-approved law schools in the United States, admitting approximately 40,000 new 1Ls every year.
While most law students graduate and pass the bar within a couple years of graduation, we only add about 30,000 newly licensed attorneys per year, and not every law grad stays in law.
Moreover, due to demographic shifts and other factors, we’re adding 20 percent fewer attorneys than just eight years ago while a large population of baby boomer attorneys continue to retire. As such, we must consider other solutions.
1. Technology that makes lawyers more efficient. Cliche, ubiquitous, and true. If we can’t mint more lawyers quickly then we need existing lawyers to get more efficient so they can each serve more clients more effectively. Many have written on this but I can’t exclude it. It’s paramount.
2. Technology that empowers consumers. We need more LegalZooms. The good news is we seem to be on our way—more startups, investment dollars and attention is being paid to legal tech than ever before. And given the vast shadow market of people who need legal help but cannot afford standard legal fees, this trend is good for all stakeholders if done properly. Lawyers can continue to serve existing clients even as millions of Americans get direct access to more affordable legal services.
3. More non-lawyer legal experts and paralegals. There are three essential components of a classic legal education: (1) rewiring our brains to think like attorneys (this often happens first semester 1L year, and starts during LSAT prep); (2) studying for the Bar Exam, which further crystallizes our legal reasoning and knowledge; and (3) practicing law, the greatest teacher of all.
Assuming this formula is essentially valid—and it was for me and many of the lawyers I know—perhaps we could adopt streamlined licensing standards for legal professionals who want to help people with specific legal problems, while those of us who want to practice in multiple areas of law or have Article III aspirations can opt in for three years of study.
Beyond the direct socioeconomic impact of improving access to justice, these specialists would have less debt (enabling them to charge less for their services, perhaps), relatively more expertise in their particular area of study (arguably), and be empowered to help people that much quicker (definitely).
Maybe that’s why the states of Washington, Utah, and Oregon have developed a set of regulations to license legal paraprofessionals in areas such as family law, eviction, and consumer debt matters. It’s not rocket science after all, it’s just learning to think like a lawyer about a particular area of law. And more of us can do that than we might think.
Stephen Kane is the founder and CEO of FairClaims, an online dispute resolution platform, and a fellow of Stanford CodeX Center for Legal Informatics. His previous work includes litigation associate at O’Melveny & Myers LLP, in-house at a communications company, small business attorney, and part of the early team at Lex Machina. Kane is also a founder, and Board Chair Emeritus of Los Angeles-based community development organization GRID110.