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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.

Luz 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.