A Few Ways NOT To Solve America's Unequal Access To Justice

“The very rich,” F. Scott Fitzgerald famously observed, “are not like you and me.”  True enough, Dorothy Parker reportedly quipped: “They have more money.”  Parker's remark also backhandedly lends some perspective on a genuinely serious contemporary problem receiving more currency than usual these days:  America's unequal access to justice.

We find ourselves at a sadly ironic moment in the history of the American bar.  After many years of increasing demand for lawyers, structural changes in the pricing and staffing of legal services that have been both exposed and amplified by the Great Recession have created a downdraft in the demand for new lawyers.  As a result, something like one-third of recent law school graduates have found it impossible to find or keep a job requiring or preferring a law license.  Some appreciable additional quantity of recent graduates have been able to find only episodic "legal process" piecework such as document review, often yielding relatively meager rewards, no security or benefits, and virtually no hope of meaningful training or advancement.  Talk about quiet desperation.

At the same time, for many years legal aid programs have been turning away substantial numbers of applicants for their services, not for ineligibility or lack of expertise, but simply for lack of the resources necessary to meet the poverty population's needs.  The recent slashes in the budget of the Legal Services Corporation (a congressionally created and funded entity that distributes money to programs providing legal services to the indigent), and plummeting revenues from states' IOLTA funds (Interest on Legal Trust Accounts, the funds many states derive by requiring depository institutions to remit the interest on lawyers' trust accounts to the state to fund legal services for the needy) resulting from swan-diving interest rates, have only made things worse.

The irony emerges when we lay these two points side by side:  There are currently tens of thousands of unemployed or underemployed recently-licensed lawyers, and hundreds of thousands of low- and moderate-income consumers in aching need of legal assistance with housing, employment, education, healthcare and government benefits issues (among other things).  Why, it would be fair to ask, has this excess supply not linked up with this excess demand?

One plausible explanation is simply the inverse of Dorothy Parker's rejoinder:  The poor are poor because they have no money.  As a result, an economist might easily conjecture, their needs provide a meager draw for the many lawyers in today's economy with no (or insufficient) work. 

Up to this point, I imagine that my readers (assuming one or the other of them isn't otherwise occupied) will consider this discussion obvious.  But it raises some potentially interesting implications:

First, a hat-tip to David Segal, the New York Times' cheerful basher of the legal academy and the organized bar with a striking knack for getting things almost exactly half-right, who in one of his recent jeremiads suggests that law schools' costs of meeting ABA accreditation standards have so raised the price of a legal education that graduates simply can't afford to serve the legal needs of the poor and middle class.  (Full disclosure:  I spoke with Segal at some length before his recent and widely remarked-upon New York Times piece about how law schools don’t teach “lawyering.”  The story completely ignored several issues with Segal’s perspective I had brought to his attention during our conversation that I thought he had agreed were worthy of consideration.  For the record, I am disappointed.)  Segal offers the alternative of the multi-tier system in the UK, in which there reportedly are different levels of licensure to practice law, with the most modest requiring only limited education at inexpensive institutions roughly equivalent to community colleges, and authorizing the holder to perform a correspondingly limited array of less complicated tasks.  I confess ignorance of the UK's professional licensing scheme (other than the existence of a mandatory two-year postgraduate apprenticeship for at least some practice certifications, which I take quite seriously); and I also confess that this multi-tier idea presents some genuinely interesting possibilities worth examining.  But the notion that it would make any significant dent in our current access to justice problems seems doubtful at best. 

Why?  To reiterate, the poor are poor because they have no money.  The hundreds of thousands of American families currently facing foreclosure can't afford to pay their mortgages.  Obviously they can't afford to pay attorneys, even if they could get them at minimum wage.  To put it slightly differently, if there were any paying market to provide legal services to low- or moderate-income consumers (outside legal aid, whose shrinking resources come from sources other than clients) thousands of recent law graduates would be rushing in to serve it.  In fact, what is striking about the current excess supply of lawyers is that it has not apparently found any substantial untapped lower-price market even among the middle class.

The obstacle is not that these new graduates have large student loans to pay.  Though many of them do, bear in mind that many recent government-funded student loans require the borrowers to pay only a percentage of whatever income they earn, rather than a fixed monthly amount.  More importantly, most unemployed law graduates understand that the best way to clear a path to a more satisfying and remunerative law job is to get actual experience doing legal work, even at subsistence wages; and that the surest way to make yourself less competitive and eventually unemployable in the legal job market is to lie fallow and do nothing (or to put food on the table with work that makes no use of the expensive diploma hanging over that unsightly crack in the wall).

Please understand that I am in no way suggesting that our unemployed law graduates are lazy, or stupid, or elitist.  In fact, I believe exactly the opposite--I think a great many are doing everything they can think of to address a terribly difficult situation, bringing tremendous effort, initiative and creativity to bear day after day after day.  Which is exactly why it ignores reality to recycle old suggestions that all we need to do to moderate the cost of legal services and meet currently unmet needs is lower the cost of entering practice.  (Examples include Segal’s New York Times article referred to above, and the buffoon at Brookings who recently enjoyed his fifteen minutes of fame advocating—as if it were a new idea—the abolition of any license to practice law.)  Excess capacity already exists and has effectively left those problems untouched; why would you want to create even more, even if it spawned none of the serious externalities these suggestions drag into the picture?  There may be other reasons to consider adjusting the barriers to entering the legal profession, but the ones most commonly advanced these days are refuted by current events.

--Bernie

Comments

[David Bernstein]

Buffoon? Seriously?

[BL1Y]

A very simple solution to the problem of the poor having no money, other than giving them money, is to make certain donated services tax deductible. There's a fair chance I'm wrong on the tax law, but I believe you can only deduct your actual expenses (filing fees, research costs, etc), but not the value of donated time or of a donated service.

The poor can't give you money in exchange for your services, but they can give you something very close, a tax break ...which you then turn into money. A poor client might not be able to pay your $200/hr rate, but might be able to get you $40-80/hr in tax deductions. That ain't bad. Certainly better than the zero dollars he was offering before.

Of course, this doesn't help lawyers who don't have any income to tax in the first place.

To give students with huge debt payments a break, I'd suggest making all student loan payments tax deductible; treat it the same way a business treats its expenses. Again, it only helps people who have an income, and enough money to pay back loans, but for most grads it would be a great deal of relief.

(Also, thanks for pointing out that doc review is not real legal work. This is a serious issue that gets overlooked in discussing job stats. Even though people in doc review are not practicing law in any meaningful sense, they still get classified as having a job that requires a JD and bar passage. Not to denigrate people who take these jobs, but they're not practicing law.)

[CHS]

Actually, it was Ernest Hemingway who issued the famous riposte to Fitzgerald. Dorothy Parker said many other witty things, though.