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For many years, there has been a serious debate about the legal profession’s exclusive role in the market for legal representation. The debate has focused on how that role factors into the systematic underrepresentation of poor and low-income people, opines Prof. Ashoka, in the first part of his two-part article. A Different Truths exclusive.
Scholarly literature about the legal profession and the justice gap is generally divided into two camps. One side urges that only lawyers can competently and ethically perform legal work, and that maintenance and protection of the legal profession’s monopoly is necessary to the fair and equal treatment of poor and low-income members of society. The other side asserts that the profession is a mere cover for lawyers’ self-interest: a means of suppressing competition and increasing fees. The first camp argues that lawyers must address the justice gap through increased pro bono or low bono services. The second camp argues that lawyers have proven themselves unwilling to perform such work and that the only solution is to deregulate provision of services for poor and low-income clients, allowing for less expensive providers who are not lawyers. Behind this debate lurks further scepticism about lawyers’ exclusive claim over even the most lucrative legal services, given the lower cost and perhaps comparable quality of nonlawyer alternatives.
The question now is how to ensure that nonlawyer assistance serves, rather than harms, individual and societal interests.
Nonlawyers have arrived in many places, and their arrival is imminent in many others. The question now is how to ensure that nonlawyer assistance serves, rather than harms, individual and societal interests. In particular, when faced with the prospect of others stepping in to address low fee legal work, how should the profession conceive of its relationship to that work and ensure that nonlawyers bolster rather than undermine the value that lawyers add to society?
For many years, there has been a serious debate about the legal profession’s exclusive role in the market for legal representation. The debate has focused on how that role factors into the systematic underrepresentation of poor and low-income people. One side argues that all law-related problems, for all people, require a lawyer’s training and unique social role. As such, law reformers must address the gap in access to justice within the bounds of the legal profession. The other side contends that, whatever the benefits of professional training and oversight, in theory, in reality, lawyers have failed to address the justice gap. As such, to make way for innovative solutions, law reformers should not defend the profession’s exclusive charter, or should not defend it beyond the work lawyers actually perform. Both sides have a point; both sides also oversimplify. The set of solutions proposed by each fails to account for changing social and professional realities and risks short-changing important values.
The question is no longer whether nonlawyer providers (including paraprofessionals and artificial intelligence technologies) should enter the market for legal services; we are already past the point of no return.
A useful starting point is recognising that lawyers and state bars will not continue to corner the market for work they do not do. The question is no longer whether nonlawyer providers (including paraprofessionals and artificial intelligence technologies) should enter the market for legal services; we are already past the point of no return.
I believe that lawyers claim an essential role as connectors in their communities: interstitial figures with the knowledge, skill, and trust to help resolve disputes, move beyond stalemates, dispel tensions, and otherwise bring people and resources together in productive solutions. They should do so, in part, through pro bono work for poor and low-income clients. It would be a mistake to stand in the way of innovative solutions to the justice gap. But it would also be a mistake, and a deep loss, if lawyers–particularly those who do not normally represent poor and low-income clients–turned their backs on the poor and low-income portion of our society.
Jackson’s description sets a challenge for the modern bar to reclaim that understanding by representing all segments of society.
In 1950, Justice Robert H. Jackson described a lawyer who “understands the structure of society and how its groups interlock and interact,” and thereby gains a nuanced understanding of the role of the law in that community. That lawyer understands how the community “lives and works under the law and adjusts its conflicts by its procedures,” and also understands “how disordered and hopelessly unstable it would be without law.” Jackson’s description sets a challenge for the modern bar to reclaim that understanding by representing all segments of society.
What the existing debate misses is that providing legal services to poor and low-income clients not only deepens the kind of community understanding that Justice Jackson highlighted, but also gives the lawyer an opportunity to learn about and embody the profession’s fundamental systemic role. The legal needs of poor and low-income clients often entail complex work, significant legal expertise, and professional judgment. This work can also require an understanding of multiple layers of regulatory bodies and processes, and of possible public and private resources and interventions. This means that serving poor and low-income clients can create meaningful opportunities for lawyers to carry out their integral societal role through law reform advocacy. The bar should reinforce the underused idea that serving the community from within is meaningful education for lawyers, and is at least as worthy of continuing legal education credits as the refresher courses that most state bar associations require lawyers to take periodically
Even if all lawyers were entirely devoted to addressing the justice gap with some portion of their time, the depth and breadth of the gap make it unlikely that the profession could address it on its own.
There is no question that the legal profession is falling short in the provision of legal services to poor and low-income people, and that it can no longer maintain a monopoly over work that it has long failed to perform. Even if all lawyers were entirely devoted to addressing the justice gap with some portion of their time, the depth and breadth of the gap make it unlikely that the profession could address it on its own. But, as we will explain, there is also no question that the legal profession does some things very well, such that taking lawyers out of the picture for poor and low-income clients would impose great costs on society
To start, the profession trains lawyers and judges to understand the importance of legal interpretation by persons deliberately independent from market forces and political pressures: to push against the rule of rulers and toward the rule of law. The profession also trains lawyers and judges to operate according to norms that are counterintuitive to nonlawyers but that are at the basis of our legal system. For example, our society puts a high value on individual liberty: all criminal defendants, even those who appear guilty of heinous crimes, have important rights deserving of protection. Lawyers and judges fulfill structural roles that reinforce the preference to see a guilty person go free rather than an innocent one put behind bars, even for the defendants who make that choice feel wrong.
The profession can produce lawyers who, in the Jacksonian tradition, serve and embrace “persons of every outlook” and background.
Regarding access to justice, the legal profession can produce lawyers and judges who have a day-to-day understanding of the entire range of social life in a community. The profession can produce lawyers who, in the Jacksonian tradition, serve and embrace “persons of every outlook” and background. These lawyers can better understand what it means to be poor or disabled or a member of a minority group and, at the same time, can understand how aggregations of power and wealth are organised and motivated in business, government, and elsewhere. They can put this broad knowledge and experience to good use in solving difficult and recurring social problems for the benefit of individuals and the community. In this way, efforts to troubleshoot the profession’s shortcomings should challenge lawyers to live out the notion that they are an interstitial, unifying, stabilising force in society.
(To be continued)
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