The disgrace of the legal services market

Larry Ribstein —  29 September 2010

The WSJ Law Blog discusses N.Y.C.’s Chief Judge Lippman’s campaign to solve the growing problem of poor people facing civil cases without lawyers – 2.3 million people in all state courts last year. Lippman wants more funding for legal aid lawyers.  The main existing funding mechanism, the Interest on Lawyer Account Fund, has been depleted by the fall in interest rates.

The story links one from July that notes that “many people are likely losing claims and paying penalties they could have avoided with a lawyer at their side.” The July story quotes USC law prof Gillian Hadfield: “You can hardly find a lawyer who charges less than $150 per hour, which is out of reach for most people. The U.S. is unusual in how restrictive the rules are on who can give you assistance in court.  Many of the lawyer-less are too rich for legal aid.” Indeed, the head of the Legal Aid Society in New York City says it “can only help one out of every nine people who solicit our help.”

The July story focuses on a 70-year-old Florida non-lawyer retiree who helped a lawyer-less church friend petition for workers’ compensation benefits by typing legal documents and answering questions in court. The Florida Bar charged the retiree with engaging in the unlicensed practice of law and sought a $1,000 fine. Its counsel says the bar needs “to protect the public from incompetent or unethical representation.” The story concludes by noting that the retiree is defending herself from the unauthorized-practice charges without a lawyer.

A situation in which millions of ordinary people must face increasing legal problems and regulation without legal assistance is a national disgrace.  At the same time it’s accepted wisdom that law schools are producing too many lawyers who can’t get jobs.  But it’s not so easy to funnel these lawyers into working on foreclosures for a few bucks an hour when they leave law school $100,000 in debt. The above stories demonstrate that there’s little prospect the huge gap between supply and demand will be bridged by increased public funding.

The solution is eliminating the lawyer licensing bottleneck and enabling the development of a legal information market that can serve the millions of people who now have little recourse but self-help.  Such a market would give the middle and lower-middle class ready access to paralegals trained to handle lower-level cases and expanded legal offerings of legal software and forms.

Gillian Hadfield, quoted above, has produced several articles analyzing ways to revamp the law and legal services to deal with the above problems.  See The Price of Law, Legal Barriers to Innovation, and her recent Law for a Flat World. I’ve been working with Bruce Kobayashi on an article exploring how contracts and intellectual property laws could be designed to provide incentives for innovations leading to a more robust legal information market.  Here also is my critique of lawyer licensing laws.

The bar’s protestations about “incompetent or unethical representation” are obviously designed to protect current lawyers’ jobs.  Consumers of legal information can be protected by regulation without broad restrictions on who can provide what services.  This may not be perfect, but it’s better than forcing millions of people to face legal problems with no help at all.

The legal profession needs to understand that irresistible pressures are coming not only from markets, as I discuss in my Death of Big Law, but also from consumer advocates who are making some pretty convincing arguments about overpriced legal services.  Pressure for deregulation of legal services in the UK came from consumer interests, not the bar. Responding to these calls for reform with the band-aid of legal aid plus the heavy hand of unauthorized practice litigation only throws gasoline on a growing fire demanding fundamental change.

Larry Ribstein

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Professor of Law, University of Illinois College of Law

39 responses to The disgrace of the legal services market

  1. 

    Author wrote, “development of a legal information market that can serve the millions of people who now have little recourse but self-help. Such a market would give the middle and lower-middle class ready access to paralegals trained to handle lower-level cases and expanded legal offerings of legal software and forms.”

    There are already two iniatives on this front. One is the nationwide legal information websites, http://www.lawhelp.org that provide lower income people with information about their rights, court forms, and information on free or probono legal assistance. Many of these lawhelp ny websites also live chat facilities, where someone that needs legal help can chat with a live person that can direct them to resources and information about their problem. These websites are run by Probono.net which uses technology to launch probono iniatives throughout the country.

    Where I live in NY, many people use http://www.LawHelp.org/NY to find information on their rights and many non for profits and offices of elected officials use this tool to help their clients.

  2. 

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  3. 

    The nation is finally coming to its senses. It can no more afford its bloated law school – law school loan – big law system than it can its high tax – high spend governmental system, and its other gross innefficiencies. Those popping sounds you hear are bubbles breaking throughout society. This economic crash is forcing long-overdue changes, and not the ones Obama has in mind.

  4. 

    Lawyers charge a lot because they work their asses off and have to spend a lot of money and time to do even a half-ass job.

    Gee, I think we’ve identified a structural problem in society. When you need an expensive service that doesn’t do anything but transfer wealth from everybody else toward lawyers, something fundamental is wrong.

  5. 

    So this lawyer and banker were going to lunch. A ravishing blonde lady in a mini skirt came strolling by. The banker says man I’d like to screw her. The lawyer looked at him with a look of incredulity, a man not believing his own ears. Really? He responded. Out of what?

  6. 

    I did my law degree in Australia straight out after finishing high school. I have worked with many US colleagues whom attended top US law schools and worked at top US law firms. Some were so bad that I actually checked their home bar websites to check whether they had really passed the bar exam. At least 50% of the US qualified lawyers that I have worked with don’t seem to really understand the fundamentals and basics. US law schools need an overhaul.

  7. 

    The cost of legal services and its consequences for the middle class is a huge issue. My husband and I were involved in a lengthy lawsuit over the building of our house. We eventually won, but in the course of 3 years lost a good portion of our life’s savings and incurred considerable debt – debt from which we will never be free and savings which can never be replaced as we are 66 and 73 years old and retired.

    As a law librarian I worked with many fine lawyers, so I was shocked by the level of incompetence and unethical behavior we encountered – on both sides. Luckily, my own skills (I did all of the research, formulated the legal arguments, and wrote the briefs, while managing the case – all the while paying someone who was supposed to be doing this) enabled us to prevail. If that had not been the case, we would probably have ended up out on the street.

    The notion that the Bar “protect(s) the public from incompetent or unethical representation” is a joke. We’ve been advised by local lawyers that the Bar and the judicial commission will not act unless felonies are involved. Incompetence or lack of ethics don’t matter. We were also advised that if we filed complaints and the various bodies didn’t act, we would be open to lawsuits. Since we can’t support more litigation, we did not file any complaints.

    Certainly no middle class (and our income is well, WELL below the $250,000 apparently now deemed the top of it)family can afford to pay $250.00 an hour for even competent legal assistance. Perhaps deregulation of some kind is the answer. Perhaps allowing non law school graduates to take the Bar exam would help. Lawyers we know just throw up their hands and say it will never change.

  8. 

    Malpractice insurance for lawyers increases each year that one practices law because the more clients one has, the greater the lawyers’ exposure to suit for malpractice. Offsite storage of files, access to legal search engines, all the latest computer equipment, bonds for real estate work, escrow accounts, etc. etc. It takes a bit of money just to operate a law firm, even as a solo practitioner. Oh, and $100,000 for law school. Lawyers charge a lot because they work their asses off and have to spend a lot of money and time to do even a half-ass job.

    There are too many laws and regulations in our society. Activist judges, lazy legislators, and over-empowered bureaucrats/technocrats are to blame.

  9. 
    Robert Arvanitis 30 September 2010 at 8:02 pm

    Clearly the answer is to nationalize this vital service. Of course that means compulsory legal insurance for everyone, as well as government mandated benefits and community (flat) pricing. We can call it “ObamaLaw…”

  10. 

    Mr Ribstein,

    Have you been in a lawsuit lately? How about an arbitration?

    What’s the difference? (1) a publicly funded court versus a private enterprise, (2) the rules, and (3) the likelihood of rapid enforcement of the rules.

    Every time the legislatures (or the courts in states like Indiana) try to make the courts more fair, they add more rules. This is hyperlexis (too many laws).

    Take the recent Obamacare law. I went to a Continuing Legal Education class all morning about two months ago. The class was so focused on just figuring out who was going to be required to pay penalties. All other questions were unclear. Law. Lawyers. Judges. More laws. More frustration. More fees. Rinse. Repeat.

    Law needs to be simpler. Judges need to enforce the rules and not decide who is more deserving. (That is the legislatures jobs.) Lincoln said, paraphrasing, “The best way to get rid of a bad law is to enforce it strictly.” Too many judges try to ignore the rules and come up with their own “new and improved” rules. The result is that I have to file more papers to have any chance of winning.

    Start firing judges who break the rules in ways that back appeals meaningless. Then public judges will be more accountable.

    Even better: make arbitration more available. Many states prohibit arbitration in consumer cases when imposed by the business. Fine. Sensible to prevent company-favored arbitration. But that should not leave the consumer without arbitration availability. Allow states to subsidize arbitration with some of the court fees.

    Legal fees will not necessarily be cheaper per hour but fewer hours will be necessary.

  11. 
    Ming the Merciless Siamese Cat 30 September 2010 at 5:50 pm

    How about states’ bar regulation agencies requiring a certain number of pro bono hours along with (or instead of) CLE’s?

    In which case, my pro bono contribution will be to sue the state bar to have the requirement struck down.

  12. 

    Speaking as one who’s been licensed and practicing civil trial law in Houston since for exactly 30 years come November:

    Prof. Ribstein, this sentence — “The bar’s protestations about “incompetent or unethical representation” are obviously designed to protect current lawyers’ jobs” — is the least well thought-through sentence I’ve ever read from you.

    One may speculate that in the minds of SOME of the lawyers and legislators who created, and others who support, the present licensing system was intended to restrict competition artificially so as to permit lawyers to charge more than they otherwise would. You might be partly right about some lawyers and legislators, in other words, if we infer a cynical motive.

    But it’s certainly not entirely true — many of those lawyers (me included among them) and legislators are indeed genuinely concerned about how many idiots are already being admitted to the bar, and how badly they serve their clients. Perhaps from your position in the academy, that’s not as obvious to you. But the problem of bad and incompetent lawyers is at least as big a problem from my point of view as the problem of people going without lawyers.

    If you think you can just make a statement like this and expect it to fly, to be accepted (without any attempt at proof) as entirely true merely because you’ve said it, then you aren’t a very good lawyer. I think you’re smarter than that, and that this was just a sloppy over-generalization on your part, as part of a not very impressive post which proposes a problematical “solution” to a problem that’s much more complicated and harder to solve than you’ve pretended here.

    • 

      Beldar:

      I’ve been a lawyer for 12 years. It is blatantly obvious to me that the juris “doctorate” is really just a bachelor’s degree program that they won’t let you get into until you finish a prior bachelor’s degree in ANY subject. (It doesn’t matter, as long as you waste 4 years doing it).
      Any bright high school senior, who can read and write in English, can walk into a 1L class and understand the material. How is making a JD a “graduate” program anything more than a naked barrier to entry.

      Through out history, guilds have protected their market exclusivity rights by claiming that they protect the intangible quality of their sevices and not competing on price.

    • 

      Beldar:

      I wrote a rather extensive critique of lawyer licensing which I’ve cited many times in my blogs (Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004)). After researching and writing that article, and thinking more about the topic over the last several years, I can say with some confidence that there’s no defense of lawyer licensing other than to protect lawyers’ jobs. (The article actually defends that rationale.) As you indicate, I generally don’t make arguments on the blog I haven’t thought through. This was no exception.

      • 

        I support bar examinations. If you insist that I do so solely because I want to impose barriers to entry to my profession, you’re wrong. I don’t care if some law review has published a longer argument about my motivations (or those of others like me). If the article’s conclusion is that the sole reason for requiring lawyers to pass a bar exam is to restrict competition, then it’s wrong too.

      • 

        I’ll also add this: Over-arguing one’s case, which I think you’re guilty of here, is not the kind of poor lawyering that bar exams are likely to weed out. I’m not saying, or suggesting, that bar exams are entirely successful in weeding out bad lawyers. But if you insist that bad (anti-competitive) motives are the only motives behind those who support bar examinations, you’re just factually wrong, and I don’t need to read a law review article to know that because it’s within my long, first-hand personal experience.

  13. 

    I’m a lawyer. There is nothing I learned in law school that could not have been taught in a rigorous undergraduate program. The best solution would be to do away with the law school racket and allow people to take the bar exam after completing a four year bachelor’s program in legal studies. Who knows, the undergraduate schools might actually teach students something about actually practicing law.

    The other thing we could do as a profession is to start taking cases representing the middle class for less than $100.00 per hour. As a solo practitioner with low overhead, I could see how a person could find a comfortable niche representing people under those terms.

    • 

      I agree completely. Law school IS a de facto undergraduate degree with a 4 year barrier to entry. If teachers or accountants had the political power of lawyers, they’d add a 4 year barrier to entry and declare the beginning accounting or teaching degree to be a graduate degree (or “doctorate” LOL).

      They should also actually teach how to practice law. A person with a BA in law could get a job doing divorce, criminal, PI etc. People could go back for a masters or PhD to do securities, IP, antitrust etc. This is more reasonable than having 1st year grades determine it.

      • 

        In health care, several programs, Physical Therapy, and Advanced Nursing, which have moved to the doctorate degree level. Not good news for those planning more health care for less money.

  14. 

    Loser pays winner’s legal fees, as in the UK, would help, especially with the BS suits that are filed in hopes of getting a settlement due to the cost of lawyers.

    • 

      Not a bad idea, Sparky, though under the US legal system if a claim is baseless the attorney can be sanctioned and liable for the defendant’s attorney fees under Fed Rule 11 (and state equivalents thereof). Strike suits aren’t the money-printing-machine that some would hope when there’s competent legal representation.

  15. 

    We have stricken a broad swath of human life in America from participation of the citizen. Over the past thirty years we have watched lawyers elected to Congress that has resulted in so many laws, laws for the sake of lawyers. This condition, where we need interlopers in so much of life that in reality does not need such intervention at increased cost that is nonproductive, demands rectification. Too many regulations, laws and just simple differences result in waste of productive energy.

  16. 

    Uh, this is like saying the answer to high cost healthcare is to let anyone be a doctor without a degree or a license. It’s a frightening thought.

    How about states’ bar regulation agencies requiring a certain number of pro bono hours along with (or instead of) CLE’s? I do close to 200 pro bono hours a year – it’s my privilege to do it and I’m glad I can. It’s a lot more enlightening than many of the rubber chicken lunch CLE’s I’ve been to.

  17. 

    Nonsense. Anybody can find a REAL lawyer that will work very reasonably, if they would take the time to find one. Most often they dally until they have a court date then complain to the judge. Too late then. It’s more of the entitlement mentality. But, not to worry, Obama will just print some more money.

  18. 

    Having graduated law school and passing the bar a little over a year ago, I have some thoughts regarding this situation from a personal perspective.

    Part of the problem with legal expenses is the expense of legal education. When you factor in 4 years of undergrad, 3 years of law school, and seven years of lost opportunity costs, the final tally for a legal education is upwards of a third of a million dollars. When you figure repayment of student loans, there is a minimum profit margin that must be maintained just to break even: about $1500/month. Taking cases at a reduced rate for poor clients (assume ~$25/hour) a lawyer would have to bill 60 hours per month just to be able to pay their student loans, much less make money for legal research services, office supplies, food, rent, clothes, etc.

    But, I still think there is something that can be done to help poor litigants.

    One of the largest frauds currently being perpetrated upon aspiring lawyers are the bar exams required by the states. Imagine being a law student: you go through three years of law school at great expense then are told by the law school, without any sense of irony, that they recommend taking a bar prep course so that you can pass the bar (and keep their numbers up). The bar class costs another $3,000 to $4,000. So after 3 years of legal education, incurring tens of thousands of dollars in school debt, I am told I need to take, at my own expense, another “class” to prepare for test to prove I am minimally competent to practice law. Is that not supposed to be the point of law school in the first place!? Back to point, I and most in my situation, spent about 750-1000 hours over the course of 4 months studying for the bar exam. In my state, there were nearly 600 bar takers for that particular test. Doing the math, that is ~$2 million and between 450,000 and 600,000 man hours wasted on test. Why not allow these law school grads to forgo the bar exam in order to “practice” under the tutelage of local practitioners, law firms, courts, etc. doing work for poor litigants or helping to clear court calendars? They then get reviewed by their tutor at the end of the four months and given a positive review, are allowed admittance to the bar subject to a one year probationary period where the license could be revoked for less cause than were they full members. Would this not expose them to the rigors of being an actual lawyer more than a standardized test that tests, for the most part, dead law? Would this not help alleviate the pro bono and poor litigant problems better than the current band-aid solutions?

    Just something to perhaps chew over

  19. 
    ldavis@ibiscom.com 30 September 2010 at 12:16 pm

    Quite honestly, I believe having a lawyer can be more of a detriment than not having one so the poor person who cann’t afford a lawyer stands in the same place that a middle class person does when he cannot afford to pay thousands of dollars for an incompetent lawyer.

    I know a man who had 3 lawyers for a divorce case that should have simply been a divide equally situation. The marriage was less than 5 years and no children. Yet he found lawyer after lawyer that was incapable of insuring that the judgment was fair to him, and did not call his wife when she lied in court, denied him access to his own home and essentially made it a case of revenge.

    I’ve never seen anything like it…lawyers that took money hand over fist, charged for answering e-mails regarding issues that they failed to address, and not filing with the courts in a timely mannner. Theh ultimate was the famale lawyer who signed off on the terrible divorce agreement, without allowing him to see it (even though he insisted on doing so before it was returned to court)

    Stay away from lawyers…… they are not trustworthy.

    • 

      LDavis says “Stay away from lawyers… they are not trustworthy.”

      That is an ignorant and baseless position. Like any other profession, you can find examples of unprofessionalism and abuse at the fringes. LDavis says himself “I’d never seen anything like it…” – that’s because it’s exceptional. Tragic but exceptional. Staying away from *that* lawyer is smart. Painting them all with the same brush is just stupid.

      Yes, there are doctors out there who treat unnecessarily. But they are not the mainstream, nor does that mean that all doctors are untrustworthy. There are mechanics out there that will replace yet-good parts with new ones and charge the owner. But most mechanics are honest and hardworking. Lawyers are no different. Do your homework, get references and check your state bar association for any reports of discipline (Avvo.com has this info too but I’ve found it’s not 100% timely).

      • 

        We all realize that 99% of the lawyers are giving the other 1% a bad name.. A law degree is a license to steal. I’ve had to defend myself from too many cases I should never even been part of.

      • 
        ldavis@ibiscom.com 1 October 2010 at 3:23 pm

        Homework was done, checked with the Bar Association, looked online for some kind of evaluation for lawyer…… and believe me it was pretty thorough. After 3 lawyers, and the same kind of behavior, even lawyers should ‘forgive’ my stereotyping. Lawyers, like many of the “professionas’ oversee themselves, and given the population of lawyers in State Legislature and in DC, they have much to do with the laws.

        Obamacare is one….. no objection from the Bar Association to the out of hand lawsuits causing much of our out of sight health care bills. No tort reform here…. regardless of the cost or the outrageous lawsuits that are brought.

        I do not hate lawyers, and I do believe everyone should have the right to a lawyer; but my recent experience in court and with the lawyers who take money and do nothing saddens me, I had more faith in our legal system.

        I think that in order to change the perception that many have about lawyers, the profession must step up and oversee their own profession.

  20. 

    The decline of the legal profession can be directly traced to George W. Bush and his 8 years of disparaging trial lawyers. Bush did so because his cronies in corporate America hate lawyers because, unlike Republican politicians, trial lawyers hold corporate America accountable for their misdeeds. I am sorry that obvious fact was ignored over in this article.

    • 

      Yes, Vinny, and who hold accountable the legal profession, for the unintended and overlooked consequences of the system? Neurosurgeons aren’t available for trauma care because of a very real risk of legal liability, and the esteemed civil court system isn’t publicly held accountable for the effect of their very presence. What do you suggest can be done to be CERTAIN that the legal profession also obeys “primum non nocere” (the first rule of medicine – do no harm)???

      Oh and the other thing, is that any bloke or damsel or immigrant can walk into a hospital Emergency Department (E..R for short, since E.D. means something Pfizer, et. al. can remedy) and by federal law (thanks to the force of the unfunded Congressional mandate) and have 24/7 care. Perhaps the Congress could mandate that the opportunity to practice law include pro bono service, just as my hospital privileges require ER call. We’re here for you and your family if your law practice isn’t successful and you run out of money. In the event of a youthful indiscretion, the victims of your teen son’s driving will have livesaving care at your local emergency room… and reduce charges from manslaughter to something lesser.

      Lets let that accountability thing play out – not bite off just one little self-serving piece. Cheers.

  21. 

    Loser pays. Fixes civil court system. Fixes criminal court system.

    I can’t wait until a prosecutor goes to jail for trying to railroad someone, as should have happened with the Duke Lacross team.

  22. 

    I’m a lawyer. I do quite a bit of probono work, though after a few hard lessons about a) the low value people seem to place on free services and b) the amazing sense of entitlement apparently caused by same (confused?- yeah, me too), I only take probono clients who meet the legal clinic criteria and are referred to me through the volunteer program. I believe that it gives me some backup and protection when I get a client that is unreasonable, and this does happen.

    Yes, there are abuses – by foreclosure mills, etc. There are also FDCPA lawyers who will go after collection mills on a contingent fee.

    But the thing is, practicing law is hard. Legal problems can be really knotty, and take a lot of time to resolve. A LOT of time. Why should I spend my life in my office away from the people I care about, late nights and weekends, for nothing? If I am going to make 30K a year to work 60 or 70 hours a week on difficult problems for other people, well – I’m not going to.

    People regularly cause their own problems, due to lack of judgment, pigheadedness, and ignorance. It’s at least as frequent as people victimized through no fault of their own, and pretty hard to distinguish much of the time. So no, lawyers probably won’t ever be all that cheap. Even aside from the cost of legal education, licensing, etc. etc., it is hard and emotionally exhausting work. If there’s no financial reward either, I’ll quit it and do something else that’s more pleasant, like clean cages and walk dogs at the animal shelter.

  23. 

    I don’t disagree that lawyer licensing is generally an industry-supported barrier to entry, but the idea that relaxing licensing will permit poor people to afford lawyers won’t in my view pan out. I am not sure it is a market that can be served by educated professionals in a meaningful way without government support. What services of educated professionals are poor people currently buying?

  24. 
    save_the_rustbelt 29 September 2010 at 8:02 am

    The legal profession has two huge evidence and discipline problems facing it:

    1. the filing of foreclosures with erroneous or falsified documentation

    2. law firm collection mills filing thousands of collection cases without any real evidence (mass signing of affidavits by clerks) hoping the defendants will not show and default judgments occur.

    #1 may well be a temporary phenom, #2 is a permanent mode of legal practice.

    I have both a professional and personal interest in #2, many years ago after a bank merger I was sued for a loan I had paid off, the collection mill lawyers attached documentation disproving their own case, then filed for summary judgment, then phonied up evidence after an ass chewing by the judge, and finally the case was dismissed. Cost me $1200 in legal fees.

  25. 

    A good reminder of the human cost of regulation. Too often those seeking to impose new regulation dominate the emotional narrative and the consumer costs are hidden.

    I’d also note that the current system does little to protect against incompetent and unethical lawyers. Judging by the sheer number of “my lawyer fell asleep during my criminal case” claims just go up for appellate review when the death penalty is involved (which is an unbearably tiny fraction of the total case volume in the courts), there’s some seriously incompetent lawyers out there. And it’s not exactly as if going to law school and taking the bar exam does anything to prevent you from stealing money from people or engaging in other unethical behavior. (Indeed, the several hundred thousand dollars of debt probably increase the temptation to do so.) State bars could still do character and fitness evaluations without imposing exams, although I would struggle to identify anything they do beyond subjecting you to a minimally intrusive background check and taking away a much larger check.

  26. 

    Wholeheartedly agree.

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