Peacemaker lawyering to expand legal access
By Luz Herrera
Lawyers
play many roles. We are peacemakers, counselors, translators and advocates. As
the primary individuals in our society who facilitate an understanding of how
law and legal institutions work, we play a role in expanding access to justice.
For most attorneys, the responsibility of being an intermediary is coupled with
a need to make a living.
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Herrera |
The majority of lawyers in California work
in private practice settings. More than half of them work as solo practitioners.
Another substantial segment of lawyers work in law practices of two to five
lawyers. Although some of those lawyers represent corporate or wealthy clients,
most represent low- to moderate-income clients.
The
2012 median per capita personal income in California was $44,980. This means
that half of the 38 million Californians make less than $22.50 an hour. As a
result, most legal services consumers cannot pay for full legal representation
at the rate of $250 to $300 an hour. Lawyers who represent small businesses and
individuals on personal legal services have responded to the financial reality
of their clients by unbundling their services, lowering their rate and entering
into contingency fee arrangements.
For
years, lawyers have limited the scope of representation to meet the economic
constraints of their clients. However, as the role of lawyers changes from a
full service representation model to a la carte services, the practice of unbundling
legal services has become more common. California has codified and sanctioned unbundled
legal services in civil and family law matters under its court rules. Bar
leaders have led national efforts to educate courts about attorney’s ethical
obligations under such rules. By limiting the scope of representation, legal
services consumers can hire lawyers to provide them the assistance they need
most to navigate their legal matter. The practice of unbundling promotes better
communication and collaboration between clients and lawyers. By reducing their
bill, not necessarily their hourly rate, and asking for full payment, lawyers
can reduce or eliminate the timely practice of chasing unpaid bills.
Lawyers,
particularly those who work with low-income clients or are starting law
practices, also reduce their hourly rate to accommodate need. Providing legal
services for lower than market rates permits lawyers to tap into a market of
consumers that would otherwise opt to hire legal document preparers such as
LegalZoom. Representing clients through reduced fee arrangements—known as “low
bono”—requires lawyers to reduce their personal and business overhead. For this
reason, lawyers, depending on their financial need, may not be able to offer
low bono fees for everyone or forever. Still, low bono plays a role in the
development of many private law practices and in addressing the gap in legal
service delivery by lawyers.
The
plaintiff’s bar has also effectively used fee-shifting statutes and contingency
fee arrangements to facilitate access to legal services. Particular areas of
law, such as consumer law, employment law and special education law, offers
legal services consumers the opportunity to pursue their legal rights with the
understanding that if their claim prevails, their attorney’s fees will be
covered by the losing party. Fee-shifting statutes are used to facilitate
contingency fee arrangements between attorneys and their clients that somewhat
mimic personal injury contingency arrangements. Although these two fee
structures are slightly different, their commonality is that they reduce
consumers’ risk of accumulating large legal bills.
There
are several models of limited-scope services that increase the peacemaking role
of lawyers. For example, in coaching self-represented litigants, unbundled
lawyers can teach clients what to ask for in negotation and how to ask for it.
As a limited-scope consulting lawyer in mediation, clients can get support,
advice and negotiation assistance that may motivate them to try mediation – and
to maximize success while in that process. And finally, Collaborative Law is a
limited-scope service to reduce conflict since, by contract, lawyers agree to
be disqualified from handling litigation if the respectful and non-adversarial
approach of this process does not result in a settlement.
Lawyers
are the gatekeepers of our justice system. As members of this profession, we
must balance the need to make a living with our self-appointed role as
“guardians of democracy.” As technology, globalization and new economic
realities influence the way we practice law, lawyers may have to reinvent their
law practice. Innovations such as virtual law practices, online case management
software and legal document automation are all tools that lawyers can use build
sound economic models that lower the cost of legal services to consumers. Lawyering
to increase access to justice is not only the right thing to do, it is also the
path to a fulfilling profession.
Luz Herrera is a professor at Thomas Jefferson School of
Law in San Diego. She is also the co-founder and board president of Community Lawyers
Inc., a nonprofit that provides low- and moderate-income people access to
affordable legal services and develops innovative opportunities for attorneys
and law students in underserved communities.