We must not squander the future of legal services

Access to justice is a fundamental tenet of the rule of law. Without it, people cannot fully protect their rights, liberty and property; and the public’s confidence in our justice system is put at risk.

U.S. Supreme Court Justice Lewis Powell, a former president of the American Bar Association, robustly distilled the concept in 1976. “Equal justice under law is not merely a caption on the facade of the Supreme Court building,” he said. “It is perhaps the most inspiring ideal of our society. … it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

Yet the World Justice Project ranks the United States tied for 99th out of 126 countries when it comes to access to and affordability of civil justice. Legal Services Corp. research found that low-income Americans received inadequate or no professional legal help for 86% of their civil legal problems—such as child custody, debt collection, eviction and foreclosure. And in many states, overwhelming caseloads and inadequate resources for public defenders severely hamper the Sixth Amendment right to counsel for indigent criminal defendants.

Though lawyers donate countless hours to help, pro bono cannot fully address the unmet legal needs in our country. Similarly, efforts to secure adequate funding for civil legal aid and establish a right to counsel in civil cases have proven to be a bridge too far.

We need new ideas. We are one-fifth into the 21st century, yet we continue to rely on 20th-century processes, procedures and regulations. We need to retain 20th-century values but advance them using 21st-century approaches that can increase access to justice.

For example, regulators in some states are exploring whether educated technicians without a law degree should be authorized and regulated under rules of professional conduct to offer limited legal services.

Others are looking at whether efficiencies can be gained by enabling professionals who are not lawyers to share fees or hold a financial interest in law firms without compromising lawyer independence. Courthouse kiosks, courthouse navigators, online legal forms, document-preparers and online dispute resolution are all gaining traction around the country.

Lawyers have the privilege of regulating their own profession. With that privilege comes a responsibility to ensure that the rules and regulations of the legal profession serve the public good. The ultimate purpose of regulation is not to protect the livelihoods of lawyers but to advance the administration of justice. Some would suggest that if we don’t have justice or public protection as our goal, we potentially put our self-regulation at risk.

Lawyers are seeing how they can make a difference by viewing what they do through the consumer’s lens. The aim of current reform discussions is not to eliminate lawyers. Quite the contrary, the aim is to help lawyers lead changes that are sweeping all economic sectors of society. Part of that leadership can be at the state level, where lawyers can help their jurisdictions serve, as Justice Louis Brandeis described, as “the laboratories of democracy.” Together, building on that leadership, we can drive efficiency in the delivery of legal services and spark greater access to justice while embracing the best principles of the legal profession.

The ABA is actively monitoring developments, primarily through its Center for Innovation and Center for Professional Responsibility. We are bringing together leaders from within and outside the legal industry, including technologists, design experts and computer scientists to think about—and where appropriate, provide guidance—on changes to the way legal services are delivered and accessed. It is important for discussions to continue not only with lawyers and judges at the table but also with consumers of justice.

Change is difficult. It should not be undertaken without serious consideration of the potential benefits and costs. But given the dire circumstances that the public faces when trying to protect their basic rights, doing nothing poses an even greater risk to our system of justice and the rule of law.

This article ran in the February-March 2020 issue of the ABA Journal under the headline:“Innovation and Access to Justice: We must not squander the future of legal services”

Follow President Martinez on Twitter @ABAPresident or email abapresident@americanbar.org.