In the March 12, 2010 Washington Post, Harvard Professor Gillian Hadfield argued that the lawyer monopoly is denying equal access to justice. Professor Hadfield posits that justice would be cheaper and more accessible if trained non-lawyer specialists were permitted to provide legal assistance to those who cannot afford a lawyer. The professor went on to suggest that posting these legal advisors in Wal-Mart and other similar locations would help reduce access barriers.
There is a great deal to be said for this argument. Access to justice is beyond reach for many poor and working people. A small percentage of those who are eligible for free legal assistance actually get counsel and many people who are above income, but not wealthy, cannot afford a lawyer to help them resolve a dispute.
However, there are real problems with the argument:
First, advice and self-help can be of great assistance in some circumstances, but it is naïve to ignore there are a high percentage of cases in which a fair result can only be achieve where one or both of the parties have a lawyer. Matters involving complex legal issues, difficult factual questions, or expert or opinion evidence may be beyond any lay person. Moreover, litigants with mental disabilities, persons who face language barriers or individuals who are vulnerable to intimidation because of age, victimization or other factors are at a particular disadvantage.
Self help advice, whether by a lawyer or a non-lawyer advocate, may be palliative for some litigants and give the illusion that the system is responding to their needs, but it won’t achieve justice. It provides a fig leaf over the shame of a fundamentally unfair judicial process.
Second, lawyers matter. The unavailability of lawyers to represent tenants facing eviction is an oft-cited problem here in the District. More than 40,000 cases are filed each year in the landlord and tenant branch of our Superior Court. Eighty-five percent of landlords have lawyers, but 3% of tenants are represented by counsel. Most tenants who end up in court are poor, many work in low-paying jobs, often have difficulty finding child care so they can come to court, and a significant percentage have limited English proficiency. Admittedly, these facts don’t resolve if having a lawyer would change the outcome. Do tenants actually have a defense or would a lawyer merely be form over substance? A study of the housing court in New York City found a dramatic difference in outcome between represented and unrepresented tenants. Attorneys were randomly assigned to litigants and compared to an unrepresented control group. The researchers found that the rate of entry of judgment against tenants was reduced from 52% to 31%, warrants of eviction were cut nearly in half, and defaults dramatically reduced. Most significantly, 18.8% of tenants with a lawyer obtained a stipulation for an abatement of rent while only 3.2% got one without counsel. Moreover, 45.9% of tenants with a lawyer obtained a stipulation requiring repairs while only 28.2% of unrepresented tenants were able to reach such an agreement.
Third, the proposed approach will lock into place the two tiered system of justice. While there are too few lawyers available to serve low-income communities, there is at least a shared consensus that lawyers are necessary. If the proposal in the op-ed is adopted, it will create the expectation that self-help is good enough. The rich will get lawyers and the poor will talk to a non-lawyer advocate and get a bit of advice. Cases involving poor families frequently have far reaching consequences. If a person living in poverty lacks the ability to assert a claim or raise a defense, her or his life, and the life or her or his family, will be further destabilized. The cost to poor litigants of a wrong decision is often the starting point of a cascade of crises.
If Professor Hadfield had argued that we need a fundamental change to the legal system so that lawyers are less necessary, I might be enthusiastic about breaking down barriers to non-lawyers practicing law. However, to the extent that the legal system helps lock people in poverty, the solution is not to water down their ability to get meaningful help.
A more sensible approach has been proposed by Professor Russell Engler of the New England School of Law. Simplify the system where you can, create structures to guide pro se litigants through the process, including self help and limited task representation and give a lawyer to those who cannot navigate the process without help. Towards a Context-Based Civil Gideon Through Access to Justice Initiatives , 40 Clearinghouse Rev. 196 ( 2006).