Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 484. The opinion outlines a lawyer’s duties to clients who use finance companies to finance the lawyer’s legal fees.
The ABA Journal blogged on the opinion. The post includes the following quote:
- “By some estimates, more than 75 percent of low-income and middle-income individuals have legal needs that go unmet for financial reasons,” said Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 484 is important because it addresses a way to increase access to legal services for those persons who may wish to or need to finance legal fees in order to retain counsel.”
I’ll summarize the opinion in a separate post. And, I find it a bit incongrous to discuss access to legal services in the context of the ethics of referring low-income people to loan companies. For now, however, I want to make clear my view that increasing access to legal services is a professional responsibility.
The fact that such a staggering number of people can’t afford lawyers should not surprise anyone. We’ve known about it for years.
In September 2015, the Vermont Commission on the Future of Legal Services issued a report and recommendations. I chaired the Commission’s subcommittee on the Future of Legal Education. Our section of the report included a recommendation to license paralegals as part of the effort to increase access. We noted:
“Vermont has an access to justice problem. The issue is better described as Vermont has an ‘access to legal services problem.’ The problem is not new.
In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering.Defendants in small claims cases represented themselves 94% of the time. In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally “better,” respectively left to represent themselves 84% and 74% of the time. This “improvement” was offset, if not rendered irrelevant, by the fact that 99% of foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.
These numbers reflect a court system that would be unrecognizable to lawyers who practiced a generation or two ago. In 2012, small claims, collections, landlord-tenant, divorce, and parentage cases accounted for 72% of Vermont’s civil docket. The vast majority of ordinary Vermonters navigating a civil dispute are doing so without any help from a lawyer.”
(I included the excerpt, but deleted the footnotes. To review them, see page 19 of the report.)
I’ve often written & spoken on issues related to access to legal services. Two common questions:
- Mike, what’s this got to do with ethics?
- Mike, I’m all for increasing access, but the rules seem to make it difficult.
- I disagree.
- “As a public citizen, lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.” Preamble, .
The same paragraph continues:
- “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.
The paragraph concludes:
- “Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”
So, to me, the Preamble makes clear that working to increase access to legal services is a professional responsibility. I think the Preamble also establishes that there is no legitimate argument that the rules deter, or should be intepreted in such a way that would deter, lawyers from providing legal services to those who cannot afford them.
The rules are intended to deter unethical conduct. It simply cannot be unethical to help those in need.
I could go on at length with my thoughts on using the Rules of Professional Conduct to increase access to legal services. I won’t. Suffice to say, I believe that increasing access to legal services is a professional responsiblity.
And, as we work to meet that responsibility, it’s important not to act like lawyers. As I blogged here and here in posts on access, too often, we let perfect be the enemy of the good. Those without access are too many to strive for the perfect solution. Indeed, as Jason Tashea notes in an ABA Journal post on Formal Opinion 484, the problem is likely far bigger than the profession itself.
Whether you agree with his argument is one thing. But, to me, it crystallizes the notion that our predilection to search for the perfect solution keeps us from making progress. There’s no magic arrow that will slay the dragon that is unmet legal needs. But there might be progress in every pinprick.
We don’t have to be perfect. Even being a little bit better would be good.
And it’s our professional responsibility to be better.