State Bar of California seeking public comments on regulatory reforms

The State Bar of California is seeking public comment on proposals for regulatory reform put forward by the Task Force on Access Through Innovation of Legal Services. The task force was set up to improve access to justice through regulatory reform, following a report in 2018 that suggested that regulation was limiting innovations which could improve the public availability of legal services (report available here). The task-force has unveiled sixteen concepts for regulatory reform, including allowing non-lawyers to hold financial interests in a  legal practice, and permitting fee-sharing between lawyers and non-lawyers. The Bar has now opened the options up to comment and they would appreciate the views of foreign regulators on their proposals.

The consultation closes on the 23rd September 2019. Full details of the consultation are available here.

A wave of violence against lawyers is crippling the Philippines’ justice system

The slaying earlier this month of a prominent human rights lawyer in the Philippines who worked on behalf of poor suspects accused of drug-related crimes has sparked a renewed outcry over President Rodrigo Duterte’s brutal war on drugs. The lawyer, Benjamin Ramos, was gunned down by two unidentified assailants on Nov. 6—the 34th lawyer to be killed since Duterte took office in 2016. In an interview with WPR, Imelda Deinla, a research fellow at the Australian National University’s School of Regulation and Global Governance, explains why Philippine lawyers are being targeted and how this wave of violence is affecting the country’s legal institutions.

Read the full story from World Politics Review 

Platform Economy in Legal Profession: An Empirical Study on Online Legal Service Providers in China

Platform economy breaks into the legal profession by pooling lawyers with different specializations into a simple user-friendly platform, consolidating the lower-tier supply side of the legal market and generating economy of scale. This paper is the very first empirical piece looking into China’s online legal service portals. It is found that, the intermediary functions of the portals as the “matchmaker” between the supply and the demand side are often commingled with certain substantive legal services, which cannot be easily unbundled from each other. Given the grand information asymmetry in legal service provision and the potential importance the users may attach to the portals’ recommendation, the quality of such intermediation and matchmaking still leaves to be desired. This being said, because the portals help to improve the access to justice in China by virtue of offering an EXTRA channel for acquiring and comparing potentially useful information, which is made available at a much lower cost than visiting a physical law firm, the regulator should strive to improve the quality, rather than block up the source of the information. To that end, this paper proposes, based on the inspiration of the ABS regime, an alternative license for these online legal service providers, which imposes minimum regulatory and leaves room for new innovative business structures to evolve.

Full Paper Available Here

Jing Li, Tilburg University – Department of Business Law

Encouraging the Development of ‘Low Bono’ Law Practices

For decades, the discussion about access to justice has primarily focused on the ability of low–income individuals to obtain free representation by lawyers. Lawyer representation is the “gold star” of the legal profession and advocates of legal services for the poor have fought difficult battles to ensure the most disadvantaged in our country have access to these professionals. As a result, legal aid programs and pro bono services that assist the most economically disadvantaged in our country are now common in our legal service delivery system.

Despite those important efforts, only 50% of those eligible for free legal services actually receive them. Traditional access to justice platforms, while critical for offering legal assistance to a segment of the poor, have not been funded at levels that allow them to serve all those who need and qualify for their services. In lieu of lawyers, members of the legal profession have created self–help tools and substitutes for attorneys in the form of general advice hotlines, online document automation programs, and self–help law centers. If the profession correlates justice with lawyer representation, then the majority of average income Americans and a significant segment of the poor, are without it. In 2011 the United States ranked 50th out of 66 developed nations in providing accessibility to its civil justice system to its citizens.

In order to address the unmet legal needs of individuals in our country, the legal profession must advance an affordable legal services agenda that includes lawyers who provide competent legal services at reduced or “low bono” rates. Increased funding to help the poor and efforts to provide greater accessibility through the use of technology are efforts that can help bridge our justice gap. However, such efforts are limited in their scope. To make additional gains into providing more access to law, we need to devote attention to a segment of our society that currently receives no support and can potentially also benefit the near poor who go in and out of poverty. According to the research of an expert on U.S. poverty, “nearly 40 percent of Americans between the ages of 25 and 60 will experience at least one year below the official poverty line during that period and 54 percent will spend a year in poverty or near poverty (below 150 percent of the poverty line).” These figures reveal that a larger segment of the population requires a legal system that understands the fluidity of poverty and their financial instability. A lower–cost legal service delivery system must exist for those priced out of free services who need lawyers to get them back into a more stable financial reality.

Law practices that offer services at low bono rates offer a lawyer alternative to the more than 81.4 million households that earned less than the median income of $51,017 in 2012. Many of these individuals make less than $25 per hour but make too much to qualify for free legal services. Like the poor, Americans of average means need lawyers to advise them about legal issues that arise in their everyday lives but many of them cannot afford lawyers who charge hourly rates that exceed $300 per hour. This chapter explores the need to build the framework that encourages the development of low bono law practices.

Part I helps us understand low bono and why it is a necessary component of a broader legal service delivery system. Part II discusses the challenges that lawyers face in building and maintaining low bono practices. It addresses the financial challenges of running low bono practices and identifies the necessary components for developing viable low bono business plans. Part III outlines the framework the legal profession can and should build to support low bono law practices. It addresses the assumption that an affordable legal fee necessitates a lower quality service. It calls law schools, bar associations and courts to devote resources to build the necessary infrastructure for the delivery of legal services to average means Americans. The chapter concludes with a brief reflection of why lawyers may choose to build a career as a low bono lawyer.

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Citation: Herrera, Luz E., Encouraging the Development of ‘Low Bono’ Law Practices (May 2014). University of Maryland Law Journal of Race, Religion, Gender & Class, Vol. 14, No. 1, pp. 1-49, 2014.

Acts Like a Lawyer, Talks Like a Lawyer…Non-Lawyer Advocates Representing Parties in Dispute Resolution

What are the ethical implications for lawyer mediators, arbitrators and dispute resolution providers when the lines between the roles of lawyers and the non-lawyers who are representing clients in dispute resolution become blurry? Traditionally, non-lawyer advocates (hereinafter NARs) have represented clients in the negotiations, mediation and arbitration of legal matters without cause for concern. Yes, labor union representatives, sports agents, and special education advocates are three familiar examples of non-lawyers who represent clients in negotiations, mediations and arbitrations, informing clients of their legal rights. Routinely, the lawyers and neutrals presiding over the dispute resolution procedure have warmly welcomed these non-lawyers, viewing these non-lawyers as valued participants who provide their clients beneficial subject matter expertise to help resolve the legal dispute at hand. However, that welcome has now turned tepid and tentative as FINRA and its neutrals question the ethics of some of those non-lawyers who are representing clients in FINRA arbitration.

The FINRA-NAR issue is actually a reflection of a broader problem: How do we ensure access to justice for all? For many, the escalating costs of retaining lawyers presents a barrier in their quest to access justice. In lieu of lawyers, some are seeking a more affordable alternative and are turning to NARs. This topic calls into question whether we truly believe in the clients’ right to self-determination in which they are free to choose their own representative when participating in a dispute resolution procedure or whether we adopt a more maternalistic stance, believing clients need to be protected when selecting a representative.

We are also forced to confront the limitations of access to justice for all and the remedies we are willing to support to right this egregious wrong. Yes, this problem is also entrenched in the politics of maintaining the exclusivity of the legal profession. Ultimately, however, this issue forces us to personally consider as lawyer mediators and arbitrators what it means to us to maintain a dispute resolution procedure of integrity.

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Citation: Greenberg, Elayne E., Acts Like a Lawyer, Talks Like a Lawyer…Non-Lawyer Advocates Representing Parties in Dispute Resolution (Spring 2018). NYSBA New York Dispute Resolution Lawyer | Spring 2018 | Vol. 11 | No. 1; St. John’s Legal Studies Research Paper.

Access to Justice: Looking Back, Thinking Ahead

This Article seeks to assess our progress and reassess our goals concerning access to justice. It begins in Part I by summarizing the nature of the challenge. Although there is much we do not know about the scope of the problem, the data available suggest a shameful inadequacy of services for the poor and a declining commitment of federal funds to address it. The remainder of the Article explores the most plausible responses. Part II reviews the role of technology, self-help, and nonlawyer services. Part III analyzes the extent of pro bono contributions and what can be done to increase them. Part IV surveys the evolution and contributions of public interest law, and how best to support it. Part V concludes with an agenda for reducing the justice gap. It argues for greater involvement of legal educators and practitioners in expanding understanding of the problem and supporting the most cost-effective solutions.

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Citation: Rhode, Deborah and Cummings, Scott L., Access to Justice: Looking Back, Thinking Ahead (September 29, 2017). 30 Georgetown Journal of Legal Ethics 485 (2017); UCLA School of Law, Public Law Research Paper No. 17-31. Available at SSRN: https://ssrn.com/abstract=3045369