Who Can Work Toward Justice For All?

Justice for AllI am currently recovering from foot surgery. My surgeon’s Physician Assistant handled my pre-operative visit and my first post-operative visit. Although I would have preferred to see my surgeon, I understand that his expertise was not necessary to review lab results and give last minute pre-op instructions nor to change my dressing during the post-op visit. Nor should I pay his rate for these services. The Physician Assistant was friendly and quite competent.

Is there an analogy in the legal profession? Have we in the legal profession determined that all legal services must be delivered by lawyers? Even the legal equivalent of a dressing change? Is the corresponding price tag discouraging would-be clients from seeking legal services? Who can work toward justice for all?

Non-Lawyers Can Provide Some Legal Services

In Washington State, as I wrote about before, a new category of paraprofessionals, called “limited license legal technicians” may deliver legal services in the area of family law. Somewhere between a paralegal and a lawyer, Washington’s LLLTs cannot represent clients in court proceedings or negotiations, but can assist clients in gathering documents and explaining deadlines and documents that must be filed.

The first class of LLLTs completed the education requirements and took the three part examination this past May. Seven out of nine passed. This fall, fifteen more LLLTs took the examination and the third class of LLLTs began their classes. Whether this model ultimately provides a viable career path for LLLTs or eases the severe access to justice problem that was the animus for their creation, remains to be seen.

Other States Study Washington’s Access to Justice Model

In 2013, California began the process of exploring solutions to the justice gap. The Civil Justice Strategies Task Force Report and Recommendations include designing a pilot LLLT program in one subject that will, with the input of the state supreme court, address governance, oversight and licensing.

Similarly, the Oregon Bar Association assembled a task force that issued its report earlier this year. One recommendation is that the “legal technician” concept be explored as a means to address the justice gap. The recommendations were based on: (1) the vast need for legal assistance in low to moderate income populations; (2) a concern the legislature would act with legislation if the bar did not take meaningful action; and (3) the need to balance access to justice with protection of the public.

Moving easterly, the Minnesota State Bar Association in June adopted a recommendation to form an Alternative Legal Models Task Force to “examine the advisability of creating a new type of limited-scope certified legal provider to increase access to justice for those who cannot afford a lawyer.”

Civil Legal Needs Studies Document Access to Justice Problem

In enacting Washington’s radical program, the court relied on the state’s 2003 Civil Legal Needs Study documenting that low and moderate income residents found civil legal services unaffordable. The study aimed at the population above those eligible for legal aid. Noting that the unaffordability of civil legal services caused many folks to turn to unregulated services, the Court created the limited licensed professional to ensure that public citizens had access to legal services from trained and regulated professionals.

Events since 2003, including the severe economic recession, had greatly affected the living conditions of people in in the state, and the court decided it needed to update the 2003 civil legal needs study. In October of this year, Washington’s updated Civil Legal Needs Study was released. The goal of the survey was not only to update the nature and gravity of legal problems experienced by low income individuals and families but also to generate more information about how race, gender, age disability and other factors may affect who receives legal help, who does not, and the effectiveness of long-term solutions.

The report is sobering. The average number of legal problems experienced per household was 9.3, whereas in 2003 it was 3.3. The types of problems shifted as well. Health care problems skyrocketed: 43% of all 2014 survey respondents had at least one problem related to health care whereas only 19% reported this type of problem in 2003 when housing was the biggest concern.

One of the many disturbing items contained in the report is the finding that who you are matters for the legal help you receive. Native Americans, African Americans, people who identified as Hispanic or Latino, victims of sexual assault, young adults and families that include military members or veterans experienced a substantially greater number of problems and different types of problems than the low income population as a whole.

More than 40% felt they had little or no chance of protecting their rights or those of their families in court; nearly 60% of respondents feel they were not treated fairly in the civil justice system and about the same percentage reported that they did not feel the civil justice system was a forum to which they could confidently turn to for resolution of important legal matters.

Reading that “Many lack confidence the civil justice system can or is even willing to help people like them” and “a significant majority of low income people do not believe that they or others like them will receive fair treatment by the civil justice system” hit me in the gut. It should hit all lawyers in the gut. Although other states may not have generated survey results quantifying this reality, anecdotal evidence that a large percentage of the population feels excluded by and not treated fairly by the legal system abounds.

Justice For All?

In the executive summary to the Washington updated report, Justice Charles Wiggins says that the report challenges us to:

  • ensure that low-income residents understand their legal rights and know where to look for legal help when they need it.
  • squarely address not only the scope of problems presented, but the systems that result in disparate experiences depending on one’s race, ethnicity, victim status or other identifying characteristics;
  • be aware of the costs and consequences of administering a system of justice that denies large segments of the population the ability to assert and effectively defend core legal rights.

The challenge applies to all lawyers. Justice for all ensconced in our Constitution, recited in the Pledge of Allegiance by students and citizens regularly, does not reflect reality. It is our job to change this. One way may be by creating new types of legal practitioners. Surely there are others. Lawyers have been the architects of change from the beginning of our country’s existence. We must do this.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

3 thoughts on “Who Can Work Toward Justice For All?

  1. Have we in the legal profession determined that all legal services must be delivered by lawyers?

    That depends on what you mean by “we”. Yes, the legal profession has intentionally designed the legal system to ensure that all legal services must be delivered by lawyers.

    However, this was done a long time ago. Attorneys entering the profession over the past I-don’t-know-how-many decades are given no choice but to continue this practice if they want to survive. State bar associations and attorney registration and disciplinary commissions control the system and have little incentive to change.

    They’ve written the rules that prevent non-attorneys from providing legal advice. They’ve written the rules that ensure that all law school graduates must spend several months preparing for a very expensive test with subject matter that is largely irrelevant to the work that most attorneys perform in an era of specialization.

    They’ve also instituted a very expensive process of scrutinizing the “character and fitness” of would-be members of the bar. This process is tilted toward the well-to-do by its content as well as its expense. No one gets to be an attorney without resolving all of their credit problems and debt issues. This is obviously much easier to do if you have plenty of money. You probably won’t even get into this sort of situation if you have plenty of money. But people from poor backgrounds may have debt problems that were caused by lack of resources and cannot be resolved due to lack of resources. In many cases, the debt issues may not really be their own, but were caused by family members or friends in need of assistance obtaining credit who then defaulted leaving their co-signer with the red mark on their records that will prevent them from becoming an attorney.

    And we know that certain minority groups are more likely to have limited resources than your prototypical upper middle class white family whose children are expected to become professionals.

    So delivering legal services without being a licensed attorney is prohibited, and the process of becoming a licensed attorney is also high, and biased toward the wealthy. And that’s what the people who created the attorney regulatory system wanted: a system that would ensure that most attorneys were from a certain social class. They also used to ensure that most attorneys were white males, but that’s been beaten back slowly.

    But the provision of legal services was *never* intended to be available to all. Indeed, many of the architects of this system believed that the legal system and attorneys should be used as a tool to ensure that the prevailing social order remained in place, with wealthy white men at the top.

    “Many lack confidence the civil justice system can or is even willing to help people like them” because that’s the foundational truth. “[A] significant majority of low income people do not believe that they or others like them will receive fair treatment by the civil justice system” because that’s also a foundational truth. And racial and ethnic minority members and women believe these things more strongly because that was also intentionally woven into the legal system.

    The medical profession used to be very similar. Seeing a doctor was a privilege for the wealthy. Others made do with treatment and advice from local unschooled specialists dealing in folklore and remedies that were often mixed with religious practices with results that ranged from highly effective to extremely dangerous. But for a very long time, even people who were considered to be professionally trained doctors were dangerous. Bleeding as a remedy led to many deaths. Many doctors in the 19th century dismissed the germ theory of disease and considered the use of bloody tools and hands to be a sign that they were busy people healing many. Many doctors refused to let others examine their work, even other doctors. President James Garfield died of an infection following an assassination attempt in 1881 because he put his trust in an imperious doctor who believed massive amounts of pus pouring from a wound was a sign of progress, considered germs a myth, and saw no need to remove the bullet from the body as it would heal around the poisonous lead ball – and refused to let others challenge anything he said or did.

    But real scientific progress was made and the medical profession was forced to accept that progress. Medical professionals were also, from the early 20th century onward, forced to deal with insurers and other associations that fought back on expenses.

    The legal system, though? Judges are accorded immense deference like the authoritarian doctors of the 19th century. Their decisions are respected as long as they are within the bounds of reason, no matter how close to the edge. They have no duty to learn about how people think when promulgating upon the states of mind of litigants and especially criminal defendants. No duty to understand the cultural and social systems that differ from theirs. No reason to consider statistical rates of behaviors or outcomes of chains of events. They consider themselves to be immune from basic psychological processes that unconsciously affect all human beings. Suggesting that they might be affected by such petty psychological issues may result in a charge of contempt of court. So too for the mental decline that may come with advanced age.

    Justice is all too often based on what a judge thinks society should be like, regardless of reality, and regardless of changes that have taken place during their lifetime.

    And these are the role models for the legal system. Imperious of mind and impervious to claims of limits on ability to reason. Of course just about everyone knows this isn’t true, that certain judges are exceptionally punitive when lunch recess is delayed, or biased against particular attorneys who appear before them, or going senile. But the pretense of impartiality is maintained.

    So too with attorneys. The pretense is that all attorneys are highly qualified due to their training and experience. Reality says otherwise. But in reality, how much an attorney charges is often the proxy for their ability. The more you charge, the more exceptional you appear.

    But even you buy into the myth. “Justice for all” is not ensconced in our Constitution. The three-fifths compromise was ensconced in our Constitution. The native peoples of the continent were excluded from citizenship and the justice it might bring – if you’re going to commit genocide it helps if the victims can’t vote or protest in court. The common rabble were prevented from participating in the selection of senators, the president, and the supreme court. Only the house of representatives featured real elections, unless various literacy tests or land-holding requirements were used to exclude the “wrong” sort of people. Many of these things were slowly changed. Wars were fought, and repression returned after the occupiers left the locals to reassert control. There is a most obvious negative bias against African Americans that we now see almost every day. Cell phone cameras have contributed more to justice than generations of attorneys.

    And there is your force for change. Technology is what will bring legal protection and legal services to people without the ability to spend hundreds of dollars an hour. The legal system won’t reform itself. It will battle tooth and nail against democratization of legal services because that comes with a decrease in financial rewards and social standing. Consider the litigation against companies that provided cheap but accurate forms for people to use instead of spending a few thousand dollars on a simple contract or will. Unlicensed practice of law! People can’t be trusted to understand what they are doing with these materials! A danger to themselves and others!

    Even the surveys and polls you discuss were a technological advance pioneered by psychologists and logistics personnel in the late 19th and early 20th centuries. Before standardized survey and polling techniques became available, any undesirable information was mere rumors to be dismissed. And, of course, the use of these surveys and polls was battled against as an intrusion against the sanctity of the law by those who had no legal training.

    Who can work toward justice for all? Information technology companies, scientists, and engineers.

  2. to clarify things with regard to my point of view, I am an attorney, and have experience working in a large firm environment as well as various levels of the eDiscovery world. I also have a PhD in psychology, including areas where psychology and IT interact. I’ve also published research on authoritarianism and studied the history of science and technology and their impact on societal change.

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