Elizabeth Chambliss, University of South Carolina Rice School of Law
In 2005, 36.4% of all U.S. lawyers were in solo practice and 51.3% practiced in firms of one to ten lawyers. Studies from the 1990s and early 2000s portray solo practitioners as entrepreneurial generalists, and some data suggest that solo practitioners are more likely than other lawyers to perform pro bono and discounted work for low-income clients. Yet recent data suggest that the percentage of solo and small firm practitioners is declining and that economic pressures have made solo and small firm practice less viable—especially general civil practice serving low- and middle-income people (versus businesses). Currently, less than 1% of U.S. law graduates enter solo practice and the percentage entering firms of one to ten lawyers (28.5%) is at its lowest level since 1989. Solo practitioners also appear more likely than other lawyers to work virtually and, in rural locations, to work from offices outside the communities that they serve. What are the implications of the apparent decline of local, general practice on service to low- and middle-income people? This paper builds on national surveys of solo and small firm practitioners and original data on rural law practice to consider the future of solo and small firm practice in the people law sector, and the implications for individuals’ access to affordable legal services.
Ellie Frazier, University of California, Santa Cruz
Recognition and regulation of alternative legal service providers remains a challenge across an array of state and institutional settings. Their sustainability increasingly hinges on their relationship to the state. Many civil society groups, academics, lawyers, and donors are firmly committed to increasing access to justice by diversifying the legal profession. They seek to either deregulate the legal profession so that non-lawyers can give advice and assistance under certain circumstances (the fight against UPL in the U.S.) or to extend state recognition to non-lawyers and give them a limited degree of legal authority (South Africa). Both require systematic data on alternative legal service providers’ impact on state access to justice goals as part of this political battle. However, many alternative models, especially in the Global South, were built on the idea that these programs should provide access to justice services that are more holistic and culturally responsive, expanding beyond state-focused legal assistance. In other words, the idea was to use these organizations to expand the scope of the legal system and profession rather than to create new legal actors with a limited set of practices within the current state system. And yet this multi-disciplinary nature of their work is not systematically evaluated or leveraged in the fight for state recognition.
This project uses in-depth interviews and archival data from 18 community advice offices in South Africa to illuminate how policy debates on recognizing advice office workers as legal actors do not include the extent of their access to justice activities and outcomes. These offices must be innovative to survive. They participate in a range of state and non-state networks across different sectors and scales (local, regional, and national) to provide a variety of services. These networks rarely collaborate or collate their data on access to justice, for both logistical and political reasons. These fragmented efforts mean that policy debates about state recognition do not consider the cumulative effect of advice offices across these different spaces. The regulatory focus remains on a narrow set of considerations around professional legal training, liability, and representing clients in court under limited circumstances.
Presenting a more comprehensive picture of advice office activities and impact may not be an effective (or even prudent) political strategy for securing state recognition on its own. But a bottom-up mapping of these relationships and activities could still be useful in two ways. First, it can reveal political opportunities and sticking points around state regulatory reform. Second, it can demonstrate the ways alternative legal service providers are indirectly supporting state institutions and goals. Both are important for creating a deeper understanding of how alternative justice providers interpret, create, and shape access to justice initiatives.
Milan Markovic, Texas A&M University School of Law
American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization—the dismantling of lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that lifting restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to legal services.
Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led critics to understate the risks of legal market deregulation. The American legal market is highly localized, with significant variations within and across states. Nevertheless, in all states, consumers are at a disadvantage vis à vis lawyers and other legal services providers because of asymmetric information. Legal market decartelization does not address asymmetric information and could exacerbate it, enabling well-capitalized entities such as private equity firms to gain dominance without offering better or lower-cost legal services. Increasing the number of providers and separating labor from capital is also likely to create more moral hazard and negative externalities, especially in litigation where contingent fees arrangements are common and fee-shifting is not. Lastly, lawyers play an integral, yet underappreciated, role in the development of law both ex-ante and ex-post that would diminish in a deregulated market. Legal market cartelization is not without its advantages, and policymakers should look beyond just decartelization to address the maldistribution of legal services.
Tanina Rostain, Georgetown Law Center
As scholars have documented, during the last twenty years pro bono work has become institutionalized in American corporate firms, in the form of pro bono partners and counsel, firm pro bono programs, and ongoing relationships with bar pro bono centers and non-profit legal service providers to provide legal services for people with limited means. These activities reflect an enormous investment in the provision of legal services. According to one analysis, pro bono contributions from the private bar are the single biggest source of support for direct legal services, eclipsing the amount that Congress allocates to fund legal services through the Legal Services Corporation. While scholars have critiqued pro bono efforts for their failure to show that they meaningfully alleviate the justice gap, bar organizations, private firms, and access to justice advocates continue to tout the need for increasing pro bono work by the private bar as one important solution in the access to justice crisis.
This paper argues that the persistent focus on pro bono, and its specific emphasis on the provision of direct legal services as a way of addressing the failures of the civil justice system, not only does not improve access to justice, it also functions to obscure the fundamental failures of the civil justice system and normalize the status quo. In particular, the professional ideology that underlies pro bono activity prevents the American legal profession from grasping that the failures of the formal institutions of civil justice are systemic and take the form of woefully under-resourced courts that have been captured by powerful economic interests. This ideology also prevents the American bar from seeing that the majority of justice problems experienced by people never make it to lawyers or courts.
The pro bono model, with its emphasis on representing people in individual cases, reflects lawyers’ understanding of legal needs as those problems people bring to lawyers. The framing of the access to justice problem as one of unmet legal needs draws on two core aspects of the professional ideology that informed the rise of the organized bar in the 20th century.
The first, which is shared by all traditional professions, is that people’s problems are appropriately addressed through attention on a case-by-case basis to the specific circumstances that gave rise to those problems and their unique characteristics. As Eliot Friedson has argued, professionalism is a “third logic” – distinct from the logics of the market and bureaucratic state – that organizes work, professional education, and careers around addressing people’s particular problems. As a form of ideology, professionalism not only provides a cognitive framing, it also provides individual satisfaction and validation from assisting people with their problems.
The law specific ideology that underlies the provision of pro bono services is the ideology of adversarial justice, which holds that the justice system functions properly and produces fair outcomes if all parties are represented competently. The widespread organized practices underlying the institutionalization of pro bono validate this conception of legal problems and their appropriate resolution. A justice problem is, in this framework, a legal problem, which needs to be addressed through the application of legal expertise. Moreover, in this view, if enough lawyers are provided to enough people to solve their legal problems the system will be just. In addition to providing an epistemic account of legal problems, pro bono work, in the form of direct legal services to people with limited means, offers profound professional satisfactions and validation. Through these mechanisms pro bono reinforces traditional account of legal problems and their solutions. This framing of solutions afforded by pro bono prevents lawyers from recognizing that access to justice is very different from access to lawyers. If lawyers begin to recognize the failures of the formal justice system and people’s experience of justice, their efforts to improve justice will allow for much broader engagement with systemic approaches to fixing failing courts and addressing people’s justice. This includes activities to promote court and redesign and to support people-centered approaches to addressing justice problems.