Modern Representation: A Win-Win for Clients and Lawyers, 0317 COBJ, Vol. 46 No. 3 Pg. 77
| Author | Erika Holmes, J. |
Access to Justice Series
Erika Holmes, J.
Access to Justice Series A modern law practice is both aspirational and practical. Modern representation is a vehicle that lawyers can use to close the justice gap while simultaneously building a successful and sustainable law practice. Its mission is to close the access to justice gap by providing legal services to the huge portion of the population that cannot afford a lawyer. This benefits both the client and the lawyer.
This article takes a closer look at the demographics of this varied population, describes some of the fundamental components for establishing a sustainable law practice that serves this population, and highlights the benefits to both clients and lawyers of such a practice. Lawyers will learn how to create a sustainable practice that simultaneously helps reduce the access to justice gap and provides them a fulfilling and prosperous career.
Common Misperceptions
The term “modest means representation“ is misleading-so much so that the CBA’s Modest Means Task Force, formed in 2012, has been renamed the Modern Law Practice Initiative. The reasons for the change are twofold. Fist, the term “modest means“ reinforces the misperception that the justice gap comprises only those with low to moderately low incomes (ie., income within 125% to 300% of the poverty level).[1] The reality is that the justice gap also comprises people with middle and upper middle-class incomes.2In fact, nearly 60% of people with civil cases in 2015 were unrepresented-this is a measure of the true justice gap.3
Just because a person makes a comfortable living does not man that he or she can afford the current cost of traditional legal representation For example, the average hourly rate of a family law attorney in Colorado is $270.4 The cost of a divorce averages between $14,500 for a straight-forward case and $21,700 when minor children are involved.[5] A survey conducted by the Federal Reserve Board found that nearly half of American consumers of all income levels (47%) would have trouble covering a $400 emergency6
Therefore, while this segment of the population can afford to pay something for legal services, they may not be able afford to hire a traditional attorney at the current market rate. People within this demographic are regularly foregoing legal representation because they believe they cannot afford a lawyer. They are just as much a part of the justice gap as those of low to moderately low incomes. Lawyers who align with the goals of the Modern Law Practice Initiative include this overlooked segment of the population in their law practice, thereby serving the full spectrum of those left behind by the justice gap.
The second reason for the name change is to highlight that this type of representation is about more than just providing legal services at a reduced rate. It is a type of law practice management that focuses on providing value (both financial and non-financial) to the client and the lawyer in innovative ways. Offering affordable fee structures is a key component of a modern law practice, but to make a practice truly sustainable, the modern lawyer must consider how legal services are provided and the most effective means to deliver these services.
Creating a Sustainable Modern Law Practice
To achieve the mission of the modern law practice, lawyers must first acquire the law practice management skills necessary to run a viable, sustainable, and successful practice. Below are some of the basic practice management considerations for creating such a practice.
Alternative Fee Agreements
One way that lawyers can make their services more accessible is through pricing structures that work for the client.7 Alternative fee arrangements have proven to be very effective in many legal and non-legal settings. Eliminating or minimizing the use of the billable hour sets the stage for more affordable, accessible, and transparent services for the client and a more fulfilling and successful practice for the attorney. Below are some types of fee arrangements that lawyers in various practice areas are successfully using today.8 This list is by no means exhaustive, and different types of fee arrangements can be used in combination to optimize the benefits for the client and the lawyer.9
Fixed Fee or Flat Fee. The terms “fixed fee“ and “flat fee“ are often used interchangeably. In this type of arrangement, a lawyer charges a specific sum for the completion of a specified service-by the task, the issue, or the case, or on a recurring basis.10 Examples of flat fee tasks or issues include: drafting a pleading, completing discovery, defending someone in a deposition, and representing a client at a specified hearing. A common example of a fixed fee by case is an uncontested divorce, but this fee structure works well in a variety of practice areas, such as estate planning and bankruptcy. There are two types of recurring fixed fee arrangements. Both involve charging a standard fee on a recurring incremental basis (e.g., monthly or quarterly). A non-litigation recurring fixed fee arrangement is often used in advising clients, such as an on-call general counsel arrangement for a small company. A litigation recurring fixed fee arrangement provides clients with more certainty with respect to their litigation budgets, such as paying a set amount for services each quarter that a case is...
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