Embracing disruption: how technological change in the delivery of legal services can improve access to justice.

Author:Brescia, Raymond H.
Position:III. The Past and Present of Disruption of the Provision of Legal Services E. Technological Innovation and the Justice Gap through Conclusion, with footnotes, p. 587-621
 
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  1. Technological Innovation and the Justice Gap

    While many of the new and innovative legal services websites have faced some UPL charges across the U.S., (278) there are exceptions to UPL rules; ones that act in such a way that permit technological innovation in the legal field to help close the justice gap. Generally speaking, the type of services offered by companies that offer know-your-rights guides and assistance through standardized forms will typically be found exempt from charges of UPL. (279) The first requirement when seeking exemption from UPL charges, which is common in many cases, is that the service can offer no personalized advice to individuals. (280) When faced with these questions, courts typically have held that when nonprofits do not offer such advice, they escape UPL charges. (281) As described above, in Dacey, in order for there to be UPL the provider of services must form a personal relationship with the client and render legal services to him or her. (282) Under the ABA's Model Code of Professional Responsibility "[t]he essence of the professional judgment of the lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client." (283) Thus, in order for there to be the practice of law, an individual engaged in the practice of law must offer specific advice, must give it to a specific person, and that advice must pertain to that individual's unique legal problem. (284)

    With an understanding of the contours of UPL and how UPL statutes might relate to disruptive innovation in the legal sector, we turn now to the question of the role technology can play in closing the justice gap and improving access to justice for low- and moderate-income individuals, families, and communities.

    1. DISRUPTIVE TECHNOLOGY AND ACCESS TO JUSTICE

    The "Great Recession" of 2008 increased the need for legal services for low- and moderate-income individuals. (285) As the need increased through the throes of the economic downturn, already strapped programs could not provide legal services to all those who qualified for assistance, and a large number of individuals across the United States faced evictions, debt collection actions, bankruptcies and foreclosures, all without the benefit of legal representation. (286) Given the number of attorneys admitted to the bar each year and the number of applicants applying to and graduating from law schools around the country it is hard to believe that individuals have trouble accessing a lawyer. (287) Yet, one estimate of the justice gap in New York State alone concluded that "2.3 million people are unrepresented in civil proceedings annually." (288) In this Part, we will address the numbers behind the justice gap and discuss recent technological innovations that can help improve access to justice for low- and moderate-income communities.

  2. Income-Based Justice

    It is "estimated that more than four-fifths of the individual legal needs of the poor and a majority of the needs of middle-income Americans remain unmet." (289) In addition, many individuals are unaware that they even have a legal problem. (290) According to one study, "about a quarter of middle-income individuals and between a fifth to half of low-income individuals did nothing in the United States [to resolve their legal problems], compared with 5 percent to 18 percent in most other countries." (291) While low-income families typically encounter two to three legal problems a year, only one-fifth of these problems involve the assistance of counsel. (292) Furthermore, "half of those who seek assistance at federally funded [legal services] offices are turned away." (293) According to a survey conducted by the American Bar Association's Consortium on Legal Services, "two-thirds of the civil legal needs of moderate-income consumers were not taken to lawyers or the justice system" for assistance. (294) State surveys have revealed similar results. In Maryland, nearly three-quarters of middle-income citizens do not contact a lawyer when confronted with a legal problem. (295) Many Americans ignore their legal problems for a range of reasons (e.g., the inability to recognize that their legal matters are significant or beyond their ability to handle without legal representation). (296)

    The U.S. Legal Services Corporation (LSC) continues to take efforts to close the justice gap. (297) However, according to a breakdown of LSC appropriations from 1976 to 2012, the funds appropriated to the organization have significantly declined in constant dollars in recent years. (298)

    For example, appropriations in 2012 dollars decreased $64,463,000 from the previous year. (299) Data collected from 2012 suggests that funding for legal services generally totaled $1,293,742,000 in 2011, but the majority of this ($989,785,000) did not include funding from LSC. (300) Comparing this to 2010, where the civil legal assistance system was funded at $1.5 billion, nearly $450,000,000 came from LSC and other federal sources. (301)

    According to the LSC, "less than one in five low-income persons get the legal assistance they need." (302) Thus, to sufficiently fund legal services to meet the need of all those eligible, the LSC finds that "the federal share [of legal services funding] must grow to be five times greater than it is now, or $1.6 billion." (303) Furthermore, because of a lack of resources, "almost one million cases ... per year are currently being rejected [from legal services offices across the country]," the LSC argues, "because programs lack sufficient resources to handle them." (304) These one million cases do not include people who do not seek legal assistance, making the number of low-income people facing a legal problem without a lawyer even larger. (305)

    Two state studies conducted in 2007 by Hawaii calculated the percentage of low-income people whose legal needs were actually met in the state. The first concluded that 14.68% of legal needs were being met by existing legal services providers, while the second study found thirty-one percent. (306) By averaging these estimated figures together it demonstrates that nearly one-fifth of low-income Hawaiians' legal needs are met. (307) While the LSC refers to several national studies that find that "about 80 percent of low-income residents' legal needs are unmet," (308) studies in Washington D.C. estimate that this figure is as high as ninety percent. (309) Still, with the help of legal services, 809,830 cases were closed by organizations receiving LSC funding in 2012. (310) This funding provides one attorney for every 6415 low-income persons eligible to receive representation under LSC guidelines, which typically limits assistance to those at or below 125% of the federal poverty line. (311) And the gap between the number of lawyers and their prospective clients has only widened; cuts in LSC funding meant that in 2011 alone nearly 241 full-time attorney positions were eliminated by LSC funding grantees. (312) In addition, legal services providers that receive federal funding turn away nearly one million cases a year due to insufficient resources. (313)

    One of the reasons so many low-income people go without representation, and so many middle-income people as well, is clearly the cost of legal services. (314) According to the Center for American Progress, "[i]n 2009, the national average billing rate for attorneys was $284 per hour ... [excluding] court costs and paralegal time." (315) At rates such as these, more and more

    individuals are choosing to represent themselves in litigation. (316) Self-representation is prevalent in many family law cases today. (317) In addition, many pro se cases involve "protection orders, landlord-tenant disputes, and probate matters." (318) While this trend has encouraged courts to make processes easier to navigate for nonlawyers (e.g., providing simplified forms, publishing information online and in print, and offering trained personnel to provide information to pro se litigants), the litigation process is still challenging for most. (319) Self-representation is best suited for individuals whose issues are easiest to resolve, and even then it can take a substantial amount of court time to work with pro se litigants, further burdening the courts. (320) In turn, this harms all litigants, both represented and unrepresented alike, because it makes it more difficult for courts to resolve the disputes before them in a timely manner. (321) Research suggests that "pro se litigants can cause the court to spend up to four times as much time on a case." (322) In areas of law predominated by pro se litigants, the problem is compounded.

    Another approach to closing the justice gap is the spread of what is becoming known as "unbundled" legal services. (323) So-called unbundling offers individuals limited representation, often at a substantially reduced cost. (324) In such situations, the attorney and client agree that the lawyer will provide some, but not all, of the work involved in traditional full-service representation. (325) This keeps the cost of providing these services down, whether they are passed on to the client or not. Through such an approach, both attorney and client "agree on the discrete legal tasks to be performed." (326) Such unbundling involves breaking down what the lawyer puts into these tasks, which can include "telephone or in-person advice, client coaching, assisting clients in negotiations and litigation, document review, pleading preparation or assistance, and even assistance with discovery or limited court appearances." (327) The American Bar Association identifies thirteen "types of limited scope legal assistance" including centers that provide information, self-help resources and limited advice; hotlines; online information; preparing or reviewing documents and pleadings; and representation, including coaching, in litigation with limited disputes, to name just a few. (328)...

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