Occupational Licensing

Neil Gorsuch on Expanding Access to Legal Services

In an op ed coauthored with former Colorado state supreme court justice Rebecca Love Kourlis, he outlines some ways to make legal services more affordable for the poor and lower middle class.

|The Volokh Conspiracy |

Justice Neil Gorsuch.

 

In a recent USA Today op ed coauthored with former Colorado Supreme Court justice Rebecca Love Kourlis, conservative Supreme Court Justice Neil Gorsuch takes up a cause traditionally associated with the political left: expanding access to legal services. As they explain, we can do much to make legal services more affordable for the poor and lower middle class by breaking down barriers to entry into the market:

Sooner or later, almost all of us face a need for legal advice. Maybe we want a will drafted, find ourselves in a divorce, or disagree with our landlord about a lease.  Property disputes, tax questions, automobile accidents: The list goes on. And it's no secret that, even to accomplish the simplest task, hiring a lawyer is expensive — too expensive.

As a result, more and more people today find themselves forced to go it alone in court.  A national study in 2015 found that in 76% of civil cases, at least one party was self-represented…..

As lawyers and judges, we cannot ignore that the problem is partly of our own making. Consider two examples. First, lawyers have historically enjoyed the unusual privilege of regulating themselves, under the authority of state supreme courts. In most states, the profession has used this privilege to erect rules allowing only lawyers to provide "legal services"— no matter how basic the job may be….

Second, the profession has generally insulated the legal industry from market competition. Only lawyers may own or invest in law firms. This restriction on capital investment reduces the number of market participants, which in turn prevents competition from reducing costs.  At your local superstore you may be able to find tax-preparation services or an eye doctor, but you will find no help there for even the simplest legal chore. Both of these longstanding practices protect the entrenched interests of the legal profession at the expense of the clients we are meant to serve..

Fortunately, some states are now trying to address these problems. Just last month, the supreme courts of both Utah and Arizona took bold steps to increase access to justice.  Beginning in 2021, Arizona will recognize a new category of trained, non-lawyer legal professionals who will now be permitted to represent clients in various areas of the law…. Utah took similar steps as part of a two-year pilot program.

Gorsuch and Kourlis are right: Protectionist measures established at the behest of the organized legal profession have too often insulated lawyers from competition. As a result, they have made even basic legal services so expensive that many Americans often cannot afford them.

The reforms they propose are not new. Economists and legal scholars have long advocated reducing barriers to entry into the legal services market and deregulating the legal profession in ways that would increase competition. We can also reduce the cost of legal services by allowing corporate entities to provide legal services, as advocated by legal scholar Gillian Hadfield. This would be an extension of the Arizona-Utah reforms mentioned by Gorsuch and Kourlis, which would allow non-lawyers to have ownership stakes in law firms. The idea that we must bar non-lawyers and corporations from controlling providers of legal services because otherwise the ethics of lawyers might be "corrupted" is silly.  For my part, I have argued for reducing barriers to entry by abolishing the requirement of taking a bar exam, and reducing the number of years would-be lawyers must spend in law school. Many of the reform proposals advanced by scholars actually go much further than the more modest measures Gorsuch and Kourlis endorse.

While Gorsuch and Kourlis' op ed doesn't break much new ground, they have provided a valuable service by giving these ideas such a high-profile endorsement. Hopefully, the support of a prominent Supreme Court justice will help break down the resistance to reform of many in the organized legal profession. Gorsuch's endorsement might also lead more people on the political right to take this important issue seriously.

The sorts of measures Gorsuch and Kourlis advocate are not fool-proof. In some cases, there will be devils lurking in the details. For example, allowing non-lawyers to provide some types of legal services won't help much if the licensing process they have to go through is so onerous, that very few people will actually qualify. Nonetheless, these ideas are worth pursuing. Gorsuch and Kourlis rightly point out that similar reforms have worked well in the UK and elsewhere.

Gorsuch is not the first current Supreme Court Justice to call attention to the need to expand access to legal services. In 2016, Justice Sonia Sotomayor addressed the same issue, and advocated imposing "forced labor" (her term, not mine) on lawyers to require them to provide free services to the poor. While Sotomayor was right to focus on this important problem, her proposed solution has very serious moral and practical flaws, which I summarized here. Gorsuch and Kourlis' approach is more promising. We should not impose forced labor on lawyers—or anyone else. But we should expose them to greater competition.

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  1. I’ve been involved in some projects with some local community legal aid organizations. One of them was building a self service kiosk to handle some simple filings, something with child support IIRC. The user would be pushed through an online wizard to fill the state forms, then they would be produced and e-filed for them. (IIRC) I wonder how many other services could be handled in a similar manner.

    We did another where we did a needs based matchmaker between user and lawyer. Apparently just finding the right lawyer who is providing the services you need for their service requirement is a hurdle.

    And one more where we built a nag bot to remind users about their upcoming appointments. Apparently compliance with these was another big problem serving the needy.

    It was interesting work and exposed me to problems I had never considered before.

    1. You think you provided pro bono services to help on child support? Practicing outside your area of competence. Child support program is of federal construct, where the states are paid to run the system as designed by the feds. Any parent needing help in c/s matters simply asks for assistance under Title IV-D of the Social Security Act, the state then does all the work, executes all the forms, does all the income investigation, etc. Then the state agents, acting under authority of the state AG appear before the Support Magistrate. No one needs a ‘lawyer’ to deal with child support….but most lawyers don’t tell people this, because they are CLUELESS.

      Why would you provide pro bono service to do what the state is paid by the feds to do? Just curious.

      1. My cousin once found that the state had placed a lien on his truck — not for the support of his daughter (which he was paying) but a different child that the state even admitted wasn’t his.

        That he’d never even heard of.

        Enough said?

        1. Reason has reported on things like this happening. But the odds that it once happened to Dr. Ed’s cousin are the same as the odds I vote for Donald Trump.

  2. There is a third issue here — between student loans, malpractice insurance, Lexis/Nexis and related expenses, appropriate courtroom attire, not to mention necessities such as food & housing, it is virtually impossible for a young lawyer to hang out his own shingle.

    There are a lot of professionals, e.g. pharmacists, who prefer to be working for someone else, e.g. WalMart. As one told me, all of the “headaches” are dealt with by corporate, to the point where he may be told when his lunch will be, but at least he will get one.

    Hence the ownership/investment rule keeps licensed lawyers from practicing, many go into something else.

    allowing non-lawyers to provide some types of legal services won’t help much if the licensing process they have to go through is so onerous, that very few people will actually qualify

    Many who can’t afford the time and expense of law school may “read law” as lawyers used to do.

  3. So long as he doesn’t make up stuff like in Gideon v. Wainwright, its harmless I guess.

    Maybe we ought to consider alternatives to open up the Supreme Court to non-lawyers.

    1. The Supreme Court is entirely open to non-lawyers. You just need a President willing to nominate such a person and a Senate willing to confirm.

      1. And a person willing to do it. Not many lawyers would be interested in all of the Court’s much less glamorous work.

    2. “So long as he doesn’t make rights actually meaningful, it’s harmless to me personally” is what I think you meant to say.

      1. Where’s my government funded rifle and pistol?

        Where’s my government funded bull horn and printing press and computer?

        1. That’s a very weak analogy and you know it. You don’t have a choice in whether the state decides to charge you. But this discussion is probably pointless because knowing you, you probably think Powell v. Alabama was decided wrongly too.

          1. 6th, 1st and 2nd all talk about rights. None is valued over the other textually. If the poor need government money to exercise 6th rights, then they should get money to exercise the others.

            Powell v. Alabama:

            “capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like,”

            Death penalty case, poor and unable to defend. Its the combination that triggers the obligation. Its not supported by text but I could live with it.

            Gideon said being poor was enough. Betts v. Brady was correct, the Constitution didn’t change in the next two decades did it?

            1. Is it your position that neither the due process clause nor the Sixth Amendment require trials to be fair?

              1. 6th has nothing to do with fairness at all. It just prevents the state from preventing you from having a lawyer of your choice.

                “Fairness” in criminal cases means an impartial judge and jury and you can bring a lawyer if you want.

                1. Except the right to counsel has everything to do with fairness. That’s the whole point. From Gideon, quoting Powell:

                  “Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

                  “‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be
                  heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'”

                  Believing otherwise is to say the Constitution only guarantees fair trials for those who can afford it.

                  1. Lots of table pounding I’d say.

                    1942, no right. 1962, right. The Constiution didn’t change, only the men on the court.

                    A government of men, not of laws.

                  2. Access to trained counsel is clearly necessary for fair trials, but just as clearly not sufficient: As the legal team of one side has access to increasingly more money than the legal team of the other, the outcome gets ever less dependent on the merits of the case, and ever more dependent on the resources/constitution of the respective legal teams.

                    But in what sense can a trial system be considered fair if outcomes aren’t based on the merits (or perhaps on the merits plus unbiased random elements), but instead are systematically and significantly biased by what *should* be an extraneous factor, namely the question of who pays more for their legal team?

                    1. That question, which is an extremely good one, seems also to be related to whether the adversarial model is any good at all.

                  3. Massachusetts Constitution:
                    “Article XI.
                    Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
                    [emphasis added]

                    I shouldn’t have to hire a licensed lawyer as my counsel when my friend will do it for free.

                2. “6th has nothing to do with fairness at all. It just prevents the state from preventing you from having a lawyer of your choice.”

                  Which is exactly what the state is doing here — “my choice” means whomever I damn well please, not just a selection from a state-approved list of people.

                  “Right to counsel” ought to mean what it meant in 1787 when almost anyone could become a member of the bar. John Adams lost his first case to such a person.

                  The problem is the ABA and it’s monopoly powers.

                  An interesting aside on the ABA — in 1979, half of all lawyers were members of the ABA — now it’s down to 14.4%.
                  e members of the ABA

                  1. “The problem is the ABA and it’s monopoly powers.”

                    The ABA is a voluntary association that has no actual power regulating the profession.

                  2. The problem is the ABA and it’s monopoly powers.

                    The ABA has no powers, monopoly or otherwise. Do you ever know what you’re talking about?

  4. “Just last month, the supreme courts of both Utah and Arizona took bold steps to increase access to justice.”

    *That* is a breath of fresh air. I may have to dial back a bit my cynicism level concerning protectionism in the legal profession (“may” because I realize that sometimes initiatives such as this can be PR moves rather than substantive ones). Does anyone have insight into what made these states the first to take this step?

  5. Lawyers are a sleazy racket in USSA. Well known racket. Why does USSA have more lawyers per capita than any other country? How do these other countries exist without so many lawyers?

    Interesting to note the skewed over representation of a certain religion in the ranks of lawyers and judges … very pronounced to say the least.

    1. Episcopalians?

      1. It’s politically incorrect to say, but at least in my area, a lot of the lawyers are followers of R’hllor, Lord of Light.

    2. Why does USSA have more lawyers per capita than any other country?

      It doesn’t.
      Israel and Uruguay, at minimum, have more.

      1. Also, the US economy is very geared around knowledge work so I suspect there’s some combination of the legal work being “exported” and the work that others in the US do naturally having more complex legal analysis than, e.g., agrarian or manufacturing economies.

    3. What percentage of them actually practice law?

  6. Gorsuch? Must be illegitimate. People always tell me so.

  7. I’ve been out of full-time practice, as well as feedback from fellow counsel on such an issue, for a number of decades; therefore my reaction may well be antiquated. Nevertheless, I perceive difficulties with many of these suggestions.

    There is no question that, from what I understand, the prevailing per diem rates are atrocious – and, frequently, immoral. I speak not of those in the quadruple digits but even those in the mid-triple digits. To this extent then, Yes, some type of reform is necessary.

    Some of these services can be performed by those without the standard 3-year legal education. But it is important they be performed under the supervision of and approval by members of the Bar with such an education. I am unaware whether these proposals require or don’t include such a requirement.

    As an example back in the early 70’s the firm with which I started employed a practice that might not have been “strictly kosher” – but it was equitable without “cutting corners”. We employed a number of persons who now would be termed Para-Legals and for whom we charged a modest per diem rate; IIRC it was in the neighborhood of $15.00 – $20.00/hour. Since the attorneys then weren’t required to perform minor work but yet reap a profit on those amounts, they then could charge fees that (at one point at least) were only $35.00 – $50.00/hour. The work performed by the Para-Legals was reviewed and approved prior to submission, thus insuring that it was competent and professional. This then worked greatly to the benefit of the clients as well as all the firm members, both professional and semi-professional. Yet genuine supervision is a necessity.

    The suggestion of allowing non-professional ownership is highly questionable and problematic. The perspective of those owners presumably would be both limited and “bottom-line based”. The requirement of only allowing practice by attorneys with the prescribed standard education certainly does not insure conduct conforming to the ideal ethical standards. However, considering how much non-ethical conduct already occurs even within the “old system”, this type of “reform” could well but exacerbate it.

    For similar reasons allowing practice by those with an abridged education might well reduce the quality of the Bar and Bench. (Since the Bar Exam for which I sat was _way back_ in August, 1969, and I thus am unfamiliar with how it has evolved since, some revision to the current format may be justified – though still should be a requirement for admission.) As all of the Conspirators well realize, the proper practice of law is more than just knowing or finding the applicable precedents and statutes and relying on stare decisis; it consists of a genuine appreciation of the reasons and parameters for these rules, and a creative application of them to current controversies to attain justice and equity. While a Renaissance Person is not absolutely required, ones with broad an deep knowledge are.

    Finally, though I disagree with Justice Sotomayor on most things, I tend here to side with her. Modest pro bono publico are certainly morally required, and I perceive little difficulty with them being legally required – if applied judiciously and logically. I recall one time back about 40 to 45 years ago when a judge of Detroit’s criminal court who had previously been a radical civil rights attorney “conscripted” a member of one of the leading “silk stocking firms”, an attorney who had no experience in criminal law, to represent an indigent criminal defendant; this was neither judicious nor logical. But as long as potential abuses are minimized and the attorney has the experience to provide competent representation, he or she ought to periodically be required to do so. Now I may be a weird cat, but I have always reaped satisfaction from those sufficiently-numerous pro bono matters for which I provided service – even though the indigent were not my normal clientele – as long as the matter was sufficiently related to the fields in which I did have experience and sufficient expertise.

    1. Excellent commentary, thank you for that.

      There are private equity firms out there that would like to bundle some law firms to make a buck, and who think lawyers should be delighted to invest in such a thing.

      There is no reason to think that magic capitalist dollars seeking to maximize ROE will improve access to legal services for the underclass. Hard pass.

      (You know what might help? Redistributive policies.)

  8. As a licensed Architect, I would be skeptical of eliminating the bar exam. I am too familiar with the unevenness of education in my own profession to suggest that just anyone graduating from any old law school would be minimally qualified.

    In fact having a bar exam as the only qualification would release the strangle hold law schools and law professors have and open the opportunity for people who “read the law” to pass a bar exam. A large law fir could, instead of hiring Associates, could hire bright young people to work in the firm, earn a living and learn the law eventually being admitted to the bar.

    As for ownership of law firms. I have seen that in my own industry and it is a horrible restraint, preventing innovation and access to capital. It can prevent cross discipline associations between lawyers and non lawyers. In my own industry I find few lawyers understand the way the industry functions. I’ve been lucky to have one that do represent me but often other lawyers in the same case are clearly lost. IN the end many lawyers end up working for corporations as in house council but are unable to offer services to outside customers.

    Who can say that Walmart hiring lawyers and offering simple legal services as they do pharmacists and opticians would not allow automating common legal processes to allow the less affluent access to necessary legal services.

    My Primary Care physician recently sold his practice and is now an employee of the insurance company that bought it. He seems much happier to be a W-2 employee not having to worry about cash flow and other business issues.

    OF course the major other change would be an effective discipline of lawyers who fail to meet their legal and ethical obligations. As far as I can tell lawyers can do almost anything with impunity, except seal their clients money (if they get caught).

    1. All a professional licensing exam does is to certify that you are, in fact, minimally qualified.

      It’s like the certificate the Wizard of Oz gave up the Strawman.

      1. Yet many law school graduates don’t pass.

    2. “A large law fir could, instead of hiring Associates, could hire bright young people to work in the firm, earn a living and learn the law eventually being admitted to the bar.”

      That’s how most lawyers used to become lawyers.

      1. I believe that how A Lincoln became a lawyer, but that was a long time ago and my memory may be foggy.

      2. No, it isn’t. At least not for any normal definition of “used to.”

    3. In my own industry I find few lawyers understand the way the industry functions. I’ve been lucky to have one that do represent me but often other lawyers in the same case are clearly lost.

      Lawyers who represent design professionals and contractors aren’t that hard to find.

    4. I would once have been open to doing away with the bar exam, but I’ve since had second thoughts. The bar exam, if it serves no other purpose, is a serious check on law schools going whole hog social justice to the detriment of the actual law. A Texas law school took that route and went from having a high bar passage rate to the lowest. I think their students’ difficulties with the bar exam were a big part of what dragged them back to reality.

    5. As a licensed Architect, I would be skeptical of eliminating the bar exam. I am too familiar with the unevenness of education in my own profession to suggest that just anyone graduating from any old law school would be minimally qualified.

      In fact having a bar exam as the only qualification would release the strangle hold law schools and law professors have and open the opportunity for people who “read the law” to pass a bar exam. A large law fir could, instead of hiring Associates, could hire bright young people to work in the firm, earn a living and learn the law eventually being admitted to the bar.

      My knowledge of the practice of architecture is limited to The Fountainhead and The Brady Bunch, but I do know something about the legal profession, and the bar exam doesn’t screen for competence in law.

  9. Not sure about other states but in Tallahassee, Florida there are “Legal Services” places that provide free representation as long as you qualify economically; think you just have to be at, or slightly above, the poverty level. In general they deal with what I call lots of civil matters; stuff like bankruptcy, landlord/tenant, and misdemeanors. Clients basically are screened by a lawyer who has passed the bar. Most of the leg work is then done by FSU/FAM law students; and frequently everything else as well. Only the tough cases get the top tier lawyers.

    It may seem elitist but not a lot of the best law students shun this type of internship. I was in a program that offered a dual Urban Planning and JD degree and wound up interning with FDOT doing Environmental Impact Statement reviews. I got great experience learning how to write an EIS that would be acceptable to the state and fed reviewers. The really smart guys wound up with internships with private firms that paid more.

    As one other poster mentioned some SJW judge in Detroit kinda forced a white stocking lawyer to defend some guy in criminal court. Since the guy had no experience in criminal law it was not the best decision. I look at what I call the four figure an hour guys and most of them are better known for their contacts and very narrow expertise that often does not translate well in what I call general law.

    Not saying there are not folks who care less about making money; just that there are a lot more top tier lawyers who’s interest is in making the big bucks and maybe more to the point would not do a really good job in pro bono work because they have never gotten any experience in the type of case pro bono work involves.

  10. None of these proposals will do all that much to reduce costs because the dominating factor is that it costs lots of money to get smart people to do work that isn’t intrinsically rewarding (and that describes the vast majority of legal work).

    1. That was my experience.

  11. There is another solution coming in a few decades; the AI lawyer.

    I think much of what lawyers and judges do could be done better with an AI.
    http://legalservices.google.com

    Of course, the prediction is that AI will eventually take over almost all jobs, both white and blue collar. But legal services is clearly one area where it will come more quickly.

  12. Pro se criminal defendants outperformed worthless public defenders in complicated criminal trials. No one needs a lawyer. Judges should protect parties from rent seeking, fake, legal rules, and assert their rights for them.

  13. “Gorsuch and Kourlis rightly point out that similar reforms have worked well in the UK and elsewhere.”

    In the UK (and most other democracies) the have loser pays. So a poor litigator with a strong case needn’t to worry so much about legal costs.

    1. (Would be nice to be able to correct my typos)

  14. Thanks for this summary Ilya. FYI, the Utah reforms DO go as far as at least I have suggested–and well beyond Arizona. Utah now allows all business formats for legal business–corporations with lawyers on staff who provide services to customers, profit and revenue sharing between lawyers and corporations/other professionals etc. The regulatory framework is specifically being developed to be evidence-based and focused on consumer protection. Utah did introduce a limited license program, but this is not the big news about what they did in the past few months. Much further down the road than Arizona, and not replicating the approach to education and training requirements as for lawyers.

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