21st Century Law—A Dysfunctional Legal Marketplace
Although lawyers are ethically committed to access to justice for all and support legal aid programs for the poor, quality legal services have never been available to all those who need them. Today, legal services delivered in traditional ways are becoming more unaffordable for large segments of the population. Even people who can afford legal services are often afraid of the cost and confused about whether they need legal help, what kind of legal help they might need, and how to find it. Despite a significant percentage of lawyers who are unemployed or underemployed, we are falling further behind in our goal of access to justice for all.
Transparent, accessible, and user-friendly Internet access to reliable legal information that encourages confidence in the value of legal services and provides connection to high quality, affordable legal services, plus on-the-ground resources that help those in need, extending a continuum of legal help to all who need it.
Basic Elements of the Plan
- Build a user-friendly online legal platform with multiple access points and a legal "triage" module to direct users to the kind of legal services or information they need when they need it. Build the platform through collaboration among the State Bar of Michigan (SBM) and its sections, the Michigan Supreme Court (MSC), the State Court Administrative Office (SCAO), the Michigan State Bar Foundation (MSBF), Michigan Legal Help (MLH), the legal aid community, local bar associations, businesses, and faith-based and civic organizations. Anchor the platform to the pioneering platforms already underway—MLH, SBM's enhanced online directory, and the Michigan judicial branch's upcoming e-filing portal. Present basic information about the court system, legal problems, and possible solutions in clear, easily readable form in English and other major languages spoken in Michigan.
- Operate a legal self help center (LSHC) in every judicial circuit, working in collaboration with the legal aid community, MLH, and with social service entities offering resources, such as housing, family counseling, government assistance, and other programs for qualifying individuals. Explore supplementing this resource in collaboration with law schools and bar-based programs for new lawyers.
- Develop an engaging, user-friendly "legal health check-up" tool to educate the public about legal problems, and link to assistance including online pro bono resources and remote legal advice from Michigan lawyers.
- Standardize and simplify all court forms and practices, while preserving the ability for lawyers to provide supplemental information as needed to address particular clients' needs.
- Use lay navigators trained in finding and providing appropriate legal resources, but not legal advice. In both the online platform and judicial circuit-based legal LSHC, lay navigators can connect the public to appropriate professional assistance, including other professions and the government.
- Design pilot projects to test the need and capacity for expanding the availability of counsel for indigent litigants in certain civil cases, especially those involving basic human needs, such as housing and safety.
- Assure consistent treatment of requests for fee waivers for indigency under Michigan Court Rule (MCR) 2.002.
- Explore the feasibility and possible benefit of reporting pro bono activities on the dues statements of active members.
- Work with and support the Michigan Indigent Criminal Defense Commission on innovations in the delivery of indigent criminal defense services.
- Develop specialty certification guiding principles that will advance ethical, quality legal representation in specialty areas of practice and help consumers choose a lawyer.
- Disclose to the public whether a Michigan lawyer in private practice carries malpractice insurance as reported on the dues statement of active members.
- Establish a technical development team and work plan for a comprehensive online legal platform.
- Develop lay explanations of court systems and legal services in collaboration with SCAO. Establish consensus on common explanations of legal problems and solutions through SBM and its sections, MSBF, and MLH. Use on all entry points to the platform.
- Create SBM special committee to develop lay navigator standards and training.
- Convene SBM sections and the Institute for Continuing Legal Education (ICLE) to develop proposed specialty certification guiding principles, and utilize specialty certification to help consumers choose a lawyer.
- Develop and test pilot programs to evaluate the features and standards for innovative approaches to specialty certification.
- Prepare a draft rule on public disclosure of malpractice insurance coverage for consideration by the Representative Assembly.
Unified online legal platform with triage module
Legal Self Help Centers in all judicial circuits
Lay navigator standards and training
Thinking Through the Problem
There is a glaring anomaly in the legal services market. Recent research confirms a widening "justice gap" in the United States, with studies consistently estimating that 80% or more of the legal needs of the poor go unmet. Some of this gap is attributable to the cost of legal services, a false perception about the unaffordability of legal services, and consumers not realizing that their problems have a legal solution. While the need for legal services is enormous, surveys show that since 2008, at least 20% of new law school graduates are unable to find full-time gainful work as lawyers. [See Figure 1.]
Meanwhile, a different supply and demand dynamic is developing. Since 2013, there has been a sharp drop in the number of students entering law school. At the same time, the baby boomer generation of lawyers, who have swelled the ranks of the profession for four decades, are beginning to exit the full-time practice of law.
Michigan's justice gap reality is consistent with these national trends. Every county in Michigan is struggling to meet the legal needs of the poor. Many people whose income is above the federal government's poverty threshold cannot (or do not believe that they can) afford legal representation. The number of litigants going to court without a lawyer has exploded, creating logjams in court dockets.
The graduates of all five law schools in Michigan face a dramatically different job market than their counterparts a decade ago. Whether the projected downturn in the lawyer population will increase the availability of gainful employment for lawyers, but worsen access to justice, is an open question.
This Task Force did not attempt to take sides in the ongoing debate about whether the flattening of legal services as a percentage of GDP and the decline in lawyer income is a cyclical or structural phenomenon. It looked for solutions that will simultaneously help to close the justice gap and engage the skills and talents of our struggling, underemployed lawyers today.
The large percentage of people with legal problems who do not seek legal assistance from a lawyer tells us that there are two things the legal profession must do urgently:
- Provide trusted, easy-to-find and easy-to-use online resources.
- Build trust about the profession's ethical standards and value.
Closing the justice gap requires a variety of strategies, including the following: make legal practice training less costly, apply smarter business processes to law practice, ensure nonlawyers delivering legal services adhere to ethical standards of the profession, and adapt creative technology in the delivery of legal services. However, the answers do not lie simply in connecting people with more lawyers in a more cost-effective manner to help them with their legal problems and navigate court processes. Closing the justice gap also requires educating and helping people avoid legal problems.
Michigan has a head start in closing the justice gap. The Internet offers a powerful new tool to connect wary and cost-conscious consumers with appropriate, quality legal services. Michigan already has three dynamic and innovative points of entry from which to build a credible, and resource-rich platform: courts.mi.gov, MLH, and SBM's searchable, enhanced profile directory.
Listening to Voices of Change
Lynn P. Chard. Dysfunction explained. (0:3:12)
Lynn P. Chard. Underemployed lawyers. (0:0:10)
Angela Tripp. Triage. (0:1:59)
Angela Tripp. Self-help centers. (0:1:11)
Hon. Cynthia D. Stephens. Unbundling. (0:2:21)
Christopher G. Hastings. LLLTs. (0:1:23)
Lynn P. Chard. Specialty certification. (0:4:16)
Angela Tripp. Legal health check-up tool. (0:0:35)
Josh Blackman. Assisted decision making big data & the law (Nov 2012). (1:03:53)
What 21st Century Task Force & Committee Members Had to Say
"We have a very significant underserved legal marketplace—people who want legal services and can't afford them, and others who are willing to pay for legal services but not at the rate or in the style that traditional lawyers and the hourly fee are providing to them. When that happens you have disruptive innovation. That's what's happening in the legal marketplace now."
Lynn P. Chard, Practice Committee
"The reality is that hourly fee billing encourages long work and not necessarily diligent work, which is clearly not in the best interest of the client and ripe for abuse for some. I see that as the problem that needs to be reconciled, addressed and remedied."
Matthew R. Newburg, Regulatory Committee
"The Task Force is recommending we create a triage portal available online and accessed by individuals or advocates and using expert systems and logic trees to guide them through questions and direct them to a point along a continuum where they can best be served. One of the ways we are trying to achieve 100% access is to consider legal needs on that continuum, where on one end a person gets nothing, on the other end they have full representation for all aspects of their case. There are many resources between like Michigan Legal Help, legal advice from an attorney, help from a lay navigator or a legal assistance center, and representation by a legal aid or pro bono lawyer to get everyone to the right place along the continuum, given their needs and their available resources."
Angela Tripp, Access & Affordability Committee
"The Task Force's recommendation to create a more open and objective standard for achieving specialty certification is important to maintaining a high quality of legal services. Its design will also serve another critical role as it is more likely to lead to greater diversity in the lawyers obtaining specialty certification in practice areas. This diversity in turn will lead to greater access for the underserved."
Hon. Cynthia D. Stephens, Regulatory Committee
"The legal profession is going through a cultural shock similar to that of the medical profession. The practice of both medicine and law is directly impacted by the internet. Lawyers who do not want to adapt to this ubiquitous reality need to be challenged and assisted to adapt."
Carl E. Ver Beek, Regulatory Committee