A common refrain I hear among alternate-legal service supporters, is that it is better for a person to have less-than-perfect legal services (that is, not provided by a lawyer) than to have no legal services at all. Is this the case?
A friend who works in the area told me that in most cases, it is better for poor people to die intestate, and let the state’s intestacy statute take care of the estate, than to have a will that does not accurately describe all of a person’s property, or messes up who gets what. He noted that a will with errors would lead to much litigation, that could dissipate smaller estates. Distributing according to the intestacy statute would be cheaper.
I pose this question to readers out of curiosity. How often will it be the case that a person, who could not afford a licensed lawyer, will be better off having no access to legal services, rather than obtaining legal services from a non-lawyer (this could be LegalZoom, a form book, or maybe a “limited-licensed technician“)? I’m not talking about criminal matters. Rather, I am focusing on the sets of smaller, civil matters that people often try to obtain through self-help (or think could be performed by non-lawyers). Wills are usually the most common example. What other examples are there?
Somewhat related, is the study that showed that people who relied on legal aid from Harvard Law School were actually worse off in certain circumstances:
Specifically, the offers of representation came from a law school clinic, which provided high-quality and well-respected assistance in administrative “appeals” to state ALJs of initial rulings regarding eligibility for unemployment benefits (these “appeals” were actually de novo mini-trials). Our randomized evaluation found that the offers of representation from the clinic had no statistically significant effect on the probability that an unemployment claimant would prevail in the “appeal,” but that the offers did delay proceedings by (on average) about two weeks. Actual use of representation (from any source) also delayed the proceeding; we could come to no firm conclusions regarding the effect of actual use of representation (from any source) on the probability that claimants would prevail. Keeping in mind the high-quality and well-respected nature of the representation the law school clinic offered and provided, we explore three possible explanations for our results, each of which has implications for delivery of legal services.
I should caveat this post with an obvious point–there are plenty of bad lawyers. Plenty of lawyers draft wills that are defective. What the impact of driving down the cost of legal services has on the quality of legal services is an important question. And whether limited-licensed lawyers would provide systematically worse services, compared to full-lawyers, is an even more important question.
Update: This article by I. Glenn Cohen on rationing legal services is also on point.