why changing legal professional rules needed to increase access to justice
DESCRIPTION
The vast majority of people in the US cannot afford legal help with a complex legal world. The main reason is the cost of legal services. And the principal reason that cost is so high is because the legal profession prohibits the use of ordinary economic tools--corporate entities, profit-sharing--to reduce costs and increase quality.TRANSCRIPT
Obstacles to AccessObstacles to Access
Gillian K. HadfieldGillian K. HadfieldKirtland Professor of Law and Professor of EconomicsKirtland Professor of Law and Professor of Economics
University of Southern CaliforniaUniversity of Southern California
State Bar of California State Bar of California Civil Justice Strategies Task ForceCivil Justice Strategies Task ForceMarch 26, 2014March 26, 2014
We all know there’s a crisis in access to justiceWe all know there’s a crisis in access to justice
State Average: 62%, 3 problemsState Average: 62%, 3 problems
ABA 1995: 51%, 2 problemsABA 1995: 51%, 2 problems
CA? CA?
80-90%+ unrepresented family, housing, ?80-90%+ unrepresented family, housing, ?
The “95%” can’t afford legal adviceThe “95%” can’t afford legal advice
Middle-incomeMiddle-income
Small businessSmall business
We all know there’s a crisis in access to justiceWe all know there’s a crisis in access to justice
Why haven’t we been able to fix it?Why haven’t we been able to fix it?
PROBLEM IS PROBLEM IS COSTCOST
12.5 million households12.5 million households12.5 million legal problems (12.5 million legal problems (minimumminimum))
1 1 hourhour of help per household per problemof help per household per problem
$3.1 billion$3.1 billion70 pro bono hours per active lawyer70 pro bono hours per active lawyer
$60$6000
$20$2000
$4$400
Big Big bizbiz
Everyone Everyone elseelse
Some wealthSome wealthNo choiceNo choice
$45$4500
Other Other bizbiz
Can we lower the lowest hourly rate for existing Can we lower the lowest hourly rate for existing practitioners?practitioners?
NoNo
Highly competitiveHighly competitive
Bottom 40% of law firms average Bottom 40% of law firms average
$140,000 revenues$140,000 revenues
$25,000 payroll$25,000 payroll
Overhead, insuranceOverhead, insurance
$60,000? 75,000?$60,000? 75,000?
Most Most of the hourly rate is of the hourly rate is not not return to legal return to legal expertiseexpertise
Full-time at $200 = $400,000Full-time at $200 = $400,000
What’s in the $200 rate?What’s in the $200 rate?
Unbilled hoursUnbilled hours
Uncollected hoursUncollected hours
Finding/keeping clientsFinding/keeping clients
Managing client complaintsManaging client complaints
Investments in legal knowledge, technology, Investments in legal knowledge, technology, processprocess
Running a businessRunning a business
$60$6000
$20$2000
$4$400
Big Big bizbiz
Everyone Everyone elseelse
Some wealthSome wealthNo choiceNo choice
$45$4500
Other Other bizbiz
How do we move down the How do we move down the demand curve?demand curve?
Not Law
Let lawyers do lawLet lawyers do law
Reduce the cost of the non-law elements of legal Reduce the cost of the non-law elements of legal servicesservices
In the same way every other market doesIn the same way every other market does
ScaleScale
Branding/reputationBranding/reputation
Customer serviceCustomer service
TechnologyTechnology
Market researchMarket research
Process/protocol designProcess/protocol design
InnovationInnovation
What cuts law off from efficiencies achieved in other What cuts law off from efficiencies achieved in other markets?markets?
State bar rulesState bar rules
All law businesses must be100% lawyer owned & All law businesses must be100% lawyer owned & managedmanaged
Lawyers cannot enter contracts that give non-law Lawyers cannot enter contracts that give non-law experts incentives to reduce cost, increase quality of experts incentives to reduce cost, increase quality of
non-law elements of legal servicesnon-law elements of legal services
Lawyers cannot access capital markets or share risk Lawyers cannot access capital markets or share risk through contract (including employment) through contract (including employment)
Legal innovators have no access to venture capitalLegal innovators have no access to venture capital
Corporate practice of lawCorporate practice of law
Fee-splittingFee-splitting
Basic tools in all other markets to promote cost Basic tools in all other markets to promote cost reduction, quality improvements and innovationreduction, quality improvements and innovation
Corporate formCorporate form
Reduces cost of riskReduces cost of risk
Diversified investorsDiversified investors
Flat feesFlat fees
InnovationInnovation
Employment contractsEmployment contracts
Corporate formCorporate form
Reaps economies of scaleReaps economies of scale
Standardized protocolsStandardized protocols
SpecializationSpecialization
Investments in knowledge, data analysis, Investments in knowledge, data analysis, researchresearch
Reputation—brand integrity and protectionReputation—brand integrity and protection
Corporate formCorporate form
Diversifies knowledge base and idea poolDiversifies knowledge base and idea pool
Fee-sharingFee-sharing
Allocates incentives & risks without corporate Allocates incentives & risks without corporate formform
What might this look like?What might this look like?
Lawyers employed by profit/non-profit Lawyers employed by profit/non-profit corporationscorporations
Provider contracts between profit/non-profit Provider contracts between profit/non-profit corps and lawyers/law firmscorps and lawyers/law firms
Joint venturesJoint ventures
Shared branding and business-in-a-box services Shared branding and business-in-a-box services for small firmsfor small firms
What might this look like?What might this look like?
United Kingdom United Kingdom (2007)(2007)
Alternative Business Structures (ABS)Alternative Business Structures (ABS)
[+ narrower UPL + entity licensing/regulation] [+ narrower UPL + entity licensing/regulation]
AustraliaAustralia
NetherlandsNetherlands
CanadaCanada, soon?, soon?
1.1. NorwayNorway2.2. NetherlandsNetherlands
3.3. GermanyGermany4.4. DenmarkDenmark5.5. SwedenSweden
6.6. SingaporeSingapore7.7. AustriaAustria8.8. FinlandFinland
9.9. New ZealandNew Zealand10.10. JapanJapan
11.11. AustraliaAustralia12.12. CanadaCanada
13.13. United KingdomUnited Kingdom14.14. EstoniaEstonia
15.15. Hong KongHong Kong16.16. UruguayUruguay17.17. FranceFrance
18.18. BelgiumBelgium19.19. Czech RepublicCzech Republic
20.20. JordanJordan21.21. PolandPoland
22.22. PortugalPortugal23.23. SpainSpain
24.24. GreeceGreece25.25. ChileChile
26.26. United StatesUnited States27.27. BotswanaBotswana28.28. SloveniaSlovenia29.29. Belarus Belarus
World Justice Project (Bill Neukom,Founder) World Justice Project (Bill Neukom,Founder) Civil Justice index Civil Justice index
Accessible; affordable; free of discrimination, corruption Accessible; affordable; free of discrimination, corruption
What might this look like?What might this look like?
Online divorce, paralegal owned companyOnline divorce, paralegal owned company
Grocery stores offering legal servicesGrocery stores offering legal services
Document provider with lawyer adviceDocument provider with lawyer advice
Shared branding and customer service protocols for small law Shared branding and customer service protocols for small law firmsfirms
Business-in-a-box for small law firmsBusiness-in-a-box for small law firms
Small business trade association with comprehensive legal Small business trade association with comprehensive legal servicesservices
Non-profit consumer association offering unlimited Non-profit consumer association offering unlimited phone/email advice for flat annual fee phone/email advice for flat annual fee
What about client protection?What about client protection?
Protecting qualityProtecting quality
Licensed lawyersLicensed lawyers
Licensing of corporate entityLicensing of corporate entity
Systematic complaints systemSystematic complaints system
Corporate malpractice insuranceCorporate malpractice insurance
Standardization and protocolsStandardization and protocols
ReputationReputation
Consumer protection law (fraud, advertising, tort, Consumer protection law (fraud, advertising, tort, contract, etc.)contract, etc.)
Protecting qualityProtecting quality
Risk/outcome based regulation Risk/outcome based regulation
instead of dictating business structure and instead of dictating business structure and practicespractices
tailored to tailored to actualactual risk risk
““Existing evidence does not indicate that permitting Existing evidence does not indicate that permitting ABSs creates risk to the public. Indeed, the risk ABSs creates risk to the public. Indeed, the risk appears to be less than currently exists when appears to be less than currently exists when
introduction of ABSs is combined with entity-based introduction of ABSs is combined with entity-based regulation”regulation”
Report of the Working Group on Alternative Business Report of the Working Group on Alternative Business Structures, Law Society of Upper Canada (Ontario)Structures, Law Society of Upper Canada (Ontario)
February 2014February 2014
OTHER BENEFITSOTHER BENEFITS
• Court budgetsCourt budgets
• Legal aidLegal aid
• Pro bonoPro bono
• Small-firm profitabilitySmall-firm profitability
• Employment Employment
Remember the VCR?Remember the VCR?
““The VCR is stripping those things clean, those markets clean of our The VCR is stripping those things clean, those markets clean of our profit potential, you are going to have devastation in this profit potential, you are going to have devastation in this
marketplace…We are going to bleed and bleed and hemorrhage, marketplace…We are going to bleed and bleed and hemorrhage, unless this Congress …protects [an] industry whose total future unless this Congress …protects [an] industry whose total future
depends on its protection from the savagery and the ravages of this depends on its protection from the savagery and the ravages of this machine…The VCR is to the American film producer and the American machine…The VCR is to the American film producer and the American
public as the Boston strangler is to the woman home alone.”public as the Boston strangler is to the woman home alone.”
Jack Valenti, 1982Jack Valenti, 1982
Remember the VCR?Remember the VCR?
““Did content suffer as a result? Not exactly. In fact, it turns out that Did content suffer as a result? Not exactly. In fact, it turns out that through the 1980’s and 1990’s it was the very VCR and its successor through the 1980’s and 1990’s it was the very VCR and its successor the DVD player which were going to destroy the broadcast and movie the DVD player which were going to destroy the broadcast and movie industries that kept them alive, generating $30 billion in revenues by industries that kept them alive, generating $30 billion in revenues by
2002 for the industries.”2002 for the industries.”
Mark Lemley, Stanford Law SchoolMark Lemley, Stanford Law School““Is the Sky Falling?” 2010 Is the Sky Falling?” 2010
California LeadershipCalifornia Leadership
• Technology CentralTechnology Central
• Established legal businesses already lowering Established legal businesses already lowering costs, increasing accesscosts, increasing access
• Vibrant legal tech communityVibrant legal tech community
• Risk capital searching for legal startupsRisk capital searching for legal startups
BOTTOM LINEBOTTOM LINE
To fix the access problem, To fix the access problem,
change the ruleschange the rules
Big, real changes in access can Big, real changes in access can happen happen soonsoon