Why legal aid and pro bono can never solve the access to justice problem

This week I sat through the umpteenth meeting with mostly lawyers and legal activists talking about legal empowerment: how to get more people access to reasonable legal help so they can understand and navigate our complex legal world. This one was at the Open Society Foundations in New York, George Soros’ foundation dedicated to many things but especially the cause of legal empowerment for the marginalized and disenfranchised around the world. OSF has decided to bring some of this agenda home to the U.S. and is exploring ways to do that. There were lots of super smart and dedicated people around the table–all with a shared commitment to making legal help more available to those with little access. But again I found myself frustrated by the fact that even the people who are most focused on this problem continue to believe that it can be fixed through some combination of more legal aid, greater public funding for courts, and volunteer/pro bono efforts.

I’ve been coming to meetings like this for several years with a few back-of-the-envelope calculations to try to convey just how unrealistic it is for lawyers to focus only on legal aid/public funding and pro bono as a solution to the access to justice crisis. I first presented these numbers at a conference at Harvard Law School in 2012 and then again at a hearing of the New York access to justice task force; I took some comfort in learning that then-Chief Judge Jonathan Lippman of New York got the picture and took steps to allow (unpaid) non-lawyer navigators to help the 98% of tenants facing eviction without a lawyer in New York courts.  I’ve presented them in multiple hearings for the California State Bar and at the ABA.  And lots of other places.  They usually shock people. But they’re still not widely appreciated.  So here are the numbers again, along with the hope that at some point they sink in and those who really care about access to justice will focus on how to make the markets for legal help work better and not just how to get more funding for courts and legal aid and how to get more volunteers and pro bono lawyers in touch with those in need.  We need all those things of course and those solutions are essential for the truly indigent.  But the scale of the access problem is huge–it affects 80-90% of the population.  Legal aid and pro bono are only a drop in that big bucket.

62%

That’s the straight-line average of the percentage of households with at least one legal problem identified by legal needs surveys conducted at the state level.  (See here for a summary of these surveys.)

3

That’s the average number of problems that a household with at least one problem identifies in those surveys.

125 million

That’s the number of households in the U.S.

232.5 million

That’s what you get when you multiply the first three numbers together:  the total number of legal problems in the U.S. at any point in time.

$46.5 billion

That’s what it would cost to provide one hour of legal help at $200 an hour on each legal problem to all the households struggling with something.  The $200 an hour figure is a conservative estimate of the rate charged by solo and small firm practitioners in the U.S. — there are few systematic surveys nationally and state-based surveys are somewhat unreliable and spotty.  The average rate charged by consumer lawyers nationally is $361.  A Florida state survey found a median of $255 in a sample 75% of which consisted of lawyers in firms of 10 or less.  A Michigan survey shows a median of about $225 in firms of less than 10.  As I tell audiences, if you think the rate at which you could get 232.5 million hours of legal work is $150 or even $100 feel free to cut that $46.5 billion number in half.  That still leaves you with about $25 billion–which is 20 times the total current expenditure on civil legal aid in the U.S.  The entire budget for the U.S. Legal Services Corporation is about $500 million–and that is clearly under threat in the current political climate.

180 hours

That’s how many pro bono hours every single one of the 1.3 million of licensed lawyers in the U.S. would have to supply in order to give just one hour of help to every household in need on each legal problem they face.  Average pro bono hours by U.S. attorneys is currently about 55 hours, with a median of 30.

There are other services available to people needing legal help–court-based online and in person self-help centers,  services provided by non-profit organizations authorized to help in immigration cases, etc.–but the bottom line is:  the size of the demand for legal help is massive.  And it can never, ever, be met with public funding or pro bono alone.

What do we need to do?  Change the rules of professional behavior to allow lawyers to work for (well-regulated) corporations and organizations that supply legal services to this market and to enter into profit- and revenue-sharing arrangements with non-lawyers to generate investment, innovation and incentives to figure out how to deliver more help at higher quality and lower cost.

 

 

 

2 comments

  1. Gillian – First, I completely agree with your starting position: legal aid/public funding and pro bono will not solve the problem. In addition to your points, we can look at 100 years of history (measured from Reginald Heber Smith’s book, “Justice and the Poor,” to see that it hasn’t worked. While I like using the numbers exercise to demonstrate why, I think we need to be a bit careful. Entrepreneurs often want to use the same approach to define the size of the market for their product or service. Here, we could ask “what is the size of the market if we had a viable legal services delivery model”? The problem with this approach is that it overestimates the size of the market. Rather than point to the academic articles, I’ll cite to a short blog post the captures the main points, “How Big Is Your Market, Really?” http://www.forbes.com/sites/kateharrison/2012/06/27/how-big-is-your-market-really/#4285930d1c30. For example, I’m sure there is some double-counting (one person’s problem is also another person’s problem). But, your fundamental point is dead on–we can’t get to where we need to go using the current model. There are other supporting reasons. We have learned at the NGO and government level that aid is much less efficient and effective than building an economic model that addresses the problem. In this case, if we could (and I argue that we can) build an economic model for delivering legal services to middle income and much of the low income population, we would have more success than relying on the kindness of others. Nice post and thanks for sharing your analysis.

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    1. Thanks Ken! I agree this isn’t a reliable method for estimating the size of the market for an entrepreneur but my main goal with this calculation as you note is to emphasize how massive the nature of the demand for reasonable legal help is and in particular that it is orders of magnitude bigger than what we can find with legal aid. Thanks for the link to the Harrison blog. And great to meet you yesterday.

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