Limited Licensed Lawyers, Technology, and Access to Justice

September 28th, 2013

Everyone agrees that there is an access to justice problem in the United States. Not everyone agrees on how to fix it. There are several different proposals.

The ABA’s new Report and Recommendation on the Future of Legal Education suggests the creation of so-called “legal technicians.” These limited-licensed non-lawyers would be permitted to perform certain basic legal tasks, and would not have to go for the full three years of law school, and not have to sit for the bar exam. One of the rationales behind this move is to create a new breed of quasi-lawyers who are better suited to handle some of the more basic tasks. Presumably, because the costs of entering the profession are less, they will be more content to accept the low-paying jobs that those without means require. This would improve the access to justice problem.

Of course, what happens to solo practitioners who previously performed many of these tasks (and  I should add, an increasingly large number of solos, graduating from more law schools, who have to hang their own shingles because they can’t find employment elsewhere). Richard Granat highlights a number of concerns about how this would impact solos. If a client was forced to pick between a quasi-lawyer and a real lawyer, for roughly the same price, the client would probably pick the latter.

Another approach to improving access to justice focuses on technology. New data-based tools can allow people to access legal services without a lawyer, or perhaps with less of a need for legal services. I address elsewhere when, and how legal services will reach the point where people can be fully served without a lawyer. We are not there yet (and we won’t be for a while), but we will get there during my career. So at the present moment, technology by itself can be a tool lawyers use to make legal services more available and affordable.

But, let’s consider the segmentation of the legal market. The overwhelming majority of tech legal startups and LPOs are not focusing on the low-cost segment. Most of the investments in these companies focus on high-end discovery disputes, intellectual property litigation, and other matters that only corporate lawyers can avail themselves of.

Plus, these tech LPOs almost always work for lawyers. A lawyer is always involved in the chain (this obviates most, but not all UPL issues). Companies like LegalZoom, which target those at the bottom of the segment, do not have lawyers in the chain.

Here, the access to justice problem improves in a very specific way. The wealthy people before who could afford lawyers before, can now avail themselves of much cooler tools, but with lawyers, at lower costs. The people at the bottom of the ladder who could not afford a lawyer before, still can’t afford a lawyer, but can use LegalZoom forms. I agree with those who say that LegalZoom forms are better than nothing. Dying with a bad will is probably better than dying intestate.

Technology can play a role. To the extent that technology can be focused on the bottom of the commercial market, and can improve the process by which these documents are generated, or by finding a way limited license non-lawyers to help them, then the access to justice problem would be improved. This is a point often lost in discussion. It’s not just about providing technology. It’s about providing quality legal services. But technology by itself will not be enough to effect a meaningful change in our needs for access to justice.