I have referred in this blog to recurring statements of New York Chief Judge Jonathan Lippman to various law school graduates that 80% of litigants in New York courts cannot afford a lawyer, and that we can just as well close our courthouses if we cannot ensure "access to justice for all" (A2J4A).
Yet, it is obvious mathematically that when 4/5 of the market is not served, A2J4A is not possible unless the legal services industry is deregulated.
New York did the opposite, in 2013 it upped the ante for unauthorized practice of law (UPL) by making it an E felony, up from a misdemeanor it was before.
When will the American and the New York legal profession get it that it is working against the global trends toward deregulation of the market of legal services? Legal services have been deregulated in Great Britain; deregulation started in Arizona, deregulation, at least through such cheaper alternatives as LegalZoom, has started in South Carolina.
Yet, let me ask you a question, why state bar associations are up in arms against LegalZoom, trying to prevent people to get cheaper alternatives to services they cannot afford anyway? Is it moral for the legal profession to block opportunities for people to receive any help as opposed to no help at all because they cannot afford it? The legal profession is not going to cover the now un-served sector of the market (4/5 in New York, according to Judge Lippman!) by pro bono services. Yet, it acts as a dog in the manger preventing non-lawyers from serving people would not serve for lower fees anyway.
Everybody knows that real estate transactions are done by attorneys' assistants, clerks and even secretaries. That's not unauthorized practice of law? And isn't it true that those assistants and secretaries may have a better understanding as to how to do real estate transactions than their lawyer bosses do?
The same can be said for any other part of the law, possibly save for litigation, but even then. Law schools do not teach litigation so much as they teach how to pass the bar exam, and thus stuff students on those courses. Litigation skills comes later, with experience. Any intelligent person with or without a college degree can self-teach evidence, procedure and litigation skills. It is not rocket science and lawyers should not pretend to have it appear like rocket science.
Where the overwhelming majority of the market is un-served because prices are too high and people cannot afford them, and where the service providers are not in any hurry to drop prices in any foreseeable future, and where legal services are vital to ensure people's constitutional right to access to courts, the solution should be a no-brainer: deregulate, at least on an experimental basis, in one county, one judicial district, and take the statistics.
The public can be protected through information, the public can also do its own homework verifying whether non-lawyers possess the necessary knowledge to provide legal services in court.
Adult and even child volunteers are allowed to participate in clinical trials of medicines with unknown safety, which can potentially kill those volunteers.
The U.S. Food and Drug Administration even encourages parents to enroll their children into clinical trials, which may be both potential beneficial and potentially fatal to the children.
All that it takes is the signature of informed consent and assumption of risk, and for chikdren vokunteers who are legally incompetent to give such a consent for themselves, it is allowed for their parents to do that on their behalf. In case of a severe side effect, it can lead to the volunteer's physical injury or death, and yet it is legal.
Why is it different in the field of provision of legal services? Who can state with a straight face that a risk of losing one's life is lower than the risk of losing one's civil case, or even a criminal case in a no-death-penalty state? Why cannot well-informed adult volunteers participate in an experimental pilot project allowing anyone who the volunteer gave a power of attorney to represent their interests in court?
Doesn't New York have judges in local town and village court, who are not attorneys, who may have no formal education at all, but who handle jury trials, and New York allows it? So, why it is a felony for a non-lawyer to represent a criminal defendant in a trial where a non-lawyer presides over the case, rules on admissibility of evidence, on motions, gives instructions on the law to the jury and sentences the defendant?
Why not allow representation in court by lay individuals? How much more dangerous can it be than a non-lawyer judge sending a person to jail for up to a year, or more if terms are consecutive?
What volunteers in an experimental pilot program can do is, check out on themselves a new model of provision of legal services which may close the "justice gap" and solve the civil rights crisis that now exists in the U.S. because much needed legal services are not affordable?
Those volunteers may chose their own representative in court, let's say, an individual they actually trust to act within their best interests, within the bounds of the law. Why cannot people be allowed to do that, at their own risk, on an experimental basis, when the alternative is having no representation in court at all?
The experimental program should run for a time allowing for adjustment of all parties to the new setup. Statistics should be professionally gathered and analyzed for customer satisfaction and comparative outcome, as compared to pro se representation.
If experimental model proves successful, it can be gradually expanded and finally result in complete deregulation of legal services, which may benefit the public tremendously.
Deregulation will cover the un-served 4/5 of the market of legal services, will lead prices for such services down to their true market value, create jobs and raise tax revenues.
And as to horror stories, the proof of the pudding is in the eating. Arizona does not have horror stories about non-lawyers providing legal services, any more than statistics of attorney malpractice, and the same is true for the U.K.
The government should get out of the business of regulating legal services. It is unacceptable to have 4/5 of demand un-served in an important government-regulated sector of economy.
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