Panel 3: The Future of Law and Policy

2:20 — Jacqui Bowman of Greater Boston Legal Services kicks off the final panel of the day with a picture of a day at GBLS.

2:24 — Bowman: GBLS makes difficult choices between serving people in dire circumstances, gives example of choosing to represent one battered woman seeking a divorce but not another because the latter’s husband respected the restraining order on him.

2:27 — Bowman: Legal Services has a “twin mission” of promoting access to justice and helping eradicate poverty, but sometimes we forget the second part of that mission.

2:29 — Bowman: A civil Gideon would prevent people from being subject to the vagaries of funding for legal service programs when their critical legal rights are threatened.

2:31 — Bowman: We need to continue to work with law students to ensure that they come out of law school understanding the commitment to access to justice.

2:33 — Bowman: Funding system makes no sense.  There are some federal funds, and then some mirror funds for programs for people who don’t qualify.  Pro bono programs rely on attorneys from those two programs to mentor/train young attorneys, and self-help materials require attorneys from those two programs to write them.

2:34 — John Farmer, from Rutgers, “where we treat our law students better than our basketball players,” begins his presentation.

2:36 — Farmer: In New Jersey, there were 172,000 landlord-tenant disputes, and 99% had no counsel.  Ninety seven percent of small claims disputes had no counsel involved.  This is likely a result of the very high hourly rates, which are largely pegged to Wall Street firm rates.

2:38 — Farmer: The culture of the legal profession is at issue here–aggressive marketing, relentless pursuit of the bottom line has become the rule of the day to the exclusion of the notion of law as a public service.

2:40 — Farmer: Suggests the formation of a non-profit law firm that would hire recent graduates for 2-3 years and try to represent low and middle income clients.  Arizona State has started a similar kind of program.

2:42 — Farmer: Potential models include charging a flat $50/hr rate,  or doing a means assessment and charging people what they can afford.

2:43 — Farmer: A lot of meritorious class action claims exist but don’t have a high enough payoff for the private bar to take them.  The nonprofit, law school affiliated firm may be able to step in and handle some of these meritorious claims.

2:45 — Farmer:  Perhaps the idea of a medical residency could be modified and applied on an even broader scale in the legal profession.  For instance, firms could hire 3 times as many associates, pay them less, and lower hourly rates accordingly.

2:46 — Deborah Rhode begins her presentation by noting that it’s shameful that the richest nation in the world fares so poorly in delivery of legal services and equally shameful that the legal academy has done so little to “address the structural problems in the delivery of legal services and the administration of justice.”  Too many students graduate without an understanding of how the law affects those who cannot afford to invoke it.

2:50 — Rhode: Recites statistics about pro bono–only 39 law schools have a pro bono requirement for students, even fewer for faculty, and those that do have the requirement generally have a minimal one.

2:51 — Rhode: Comes down to resources; schools must invest in staff and support services to ensure adequate supervision.  For too many schools, pro bono seems a luxury good.

2:52 — Rhode: Critics say that “you can’t mandate altruism,” which is a valid concern, but overstated.  Administrators haven’t experienced quality control problems, students who are initially skeptical become converts.  The key is to have a wide array of options.

2:55 — Rhode: Courts could nudge law schools, as the New York Court of Appeals tried to do with its requirement that new bar applicants perform pro bono service.

2:56 — Rhode:  Further research on legal profession might help as well, e.g. determining which experiences lead students to have more favorable views of pro bono.

2:58 — Rhode:  Legal educators must do more to educate themselves and their students about the systemic failures in the profession.

2:59 — Richard Zorza begins his presentation by suggesting that there is consensus in several areas where it may not be obvious.

2:59 — Zorza:  The current system is working for none of the key players (attorneys, courts, legal educators), meaning that perhaps this is a time when the three can come together and achieve reform.

3:01 — Zorza: We haven’t figured out how to address a wide variety of needs that fall somewhere between “online form” and “lawyer for a year,” nor have we sorted out sustainable business models for lawyers serving the middle class.

3:04 — Zorza:  No doubt that you don’t need a law degree to handle all adversarial situations, for instance nonlawyers who know unemployment or social security hearings well do better than lawyers who don’t understand the systems well.

3:10 — Zorza: Today, Ben Kaplan would say that the legal system we designed 100 years ago was designed in a very different world, and because of the different changes, we should consider rethinking the entire federal rules structure, if not for the federal courts then at least at the state level.

3:11 — First question to the panel: There are so many pieces of the legal system facing “crisis” and incentives to change, but do these incentives push them in the same directions?  Are there places where alliances or shared interests where we may see movement?

3:12 — Bowman: GBLS works with the courts a lot, for instance the Lawyer for the Day program in the Boston Housing Court came as the result of conversations between the courts and legal aid providers.  There are very live examples of where people have been able to coordinate and work together.

3:14 — Farmer: The challenging partner to engage is the private bar.  But the level of student indebtedness may push the private bar to help.  Students have so much debt that they have to go to a certain kind of firm and represent a certain kind of interest, and debt relief may push the private bar to action.

3:18 — Suggestion from the audience:  streamline the functioning of the courts so you don’t have a situation where there are 70 cases called at an early hour and attorneys are sitting and spending time.  Related suggestion: flat fee bankruptcies.  Related to how lawyers have streamlined the disability process, brought it to scale, and are making money on it.

3:20 — Rhode: The resource shortages facing most states really replicate the strain facing legal service providers as state courts face massive cuts, and the courts have no organized constituency arguing for court budgets at the state house.

3:22 — Farmer: Odd phenomenon where we hear that we graduate too many lawyers but cases can’t move because parties come in without lawyers.

3:23 — Zorza: Parties face incentive problems, as efficiency can result in lowered budgets and time spent sitting in court can result in increased billing for attorneys.  We need a long-term core vision of 100% access to justice.

3:24 — Bowman:  Conversation about increasing access to justice has to involve people outside the legal profession/academy.  As long as lawyers are the butt of jokes, people won’t care that law students are coming out with debt and without a job, or that people are showing up in court without representation.

3:25 — Dean Martha Minow weighs in, noting that New Hampshire recently made great strides in access to justice, perhaps because it’s a small enough state that person-to-person interactions helped move the issue along.  There’s a real risk that those with access to resources will create their own alternative justice system.  Law schools need to think out of the box and think about the limits of legal expertise in tackling some of these issues.

3:32 — Zorza: Perhaps research on the effectiveness of client members of legal service boards would be interesting to see.

3:33 — And that’s a wrap for the day!  Thanks to all who attended the symposium in person and/or followed via twitter or the HLPR Blog.

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