I think I have finally done it. I have figured out a solution to the justice gap that exists in the United States. If you are weary of letting others perform the duties and functions of people who hold professional licenses, read no further. But then again, why do lawyers need a license to practice anyway? Some critics have speculated that licensing requirements are simply a way to keep the number of lawyers down and, as a result, give attorneys the freedom to overcharge for their services. Just some food for thought…and I’m about to feed you another course.
Instead of only licensed attorneys being able to practice law, what if we wiped out the licensing requirement completely? What if we said that essentially anyone could practice law and charge for their services provided they inform the client of their educational and criminal background? Assuming people care about competency and training, the educational background check requirement would weed out people with no training at all, who might be unfit to practice law. But then, who decides whether is someone is fit for the practice of law? I digress, and we move forward.
Although a chunk of the population could still not practice due to underlying circumstances, there would be many more opportunities for people to practice. Legal counsel would be more affordable and accessible for people of modest means. If I have a neighbor who went to Harvard for undergrad and then on to receive their doctorate from Stanford, why shouldn’t they be able to represent me in court? They are seemingly more than intelligent enough to do so and if I believe they would represent me well, why not? Since this person is my neighbor who I have known for a long time, forming a working attorney-client relationship will be a piece of cake!
Well, hold your horses there, bud. Although the fictional person described above does (likely) exist somewhere out in society, many would argue that such a person would not be as competent to provide legal services. Although that person may very well be competent enough to conduct research and draft documents, there are so many more things that lawyers do. Although they may be able to establish a working attorney client-relationship, will they be able to maintain it? And what about the rules of professional responsibility? Everyone who would provide legal services under my proposal would very well be breaking the rules that every lawyer swears to uphold when they become licensed to practice.
As you can see, the questions I pose in this post are not something of a new phenomenon. The debate regarding closing the justice gap has existed for a long time. There is (seemingly) no one magical solution that will suddenly close the justice gap. Even so, lawyers have posed the exact same solution to the one I have put forth. Lawyerist’s Sam Glover wrote an article entitled “We can Close the Access-to-Justice Gap, but You’re Not Going to Like It,” which can be found here. The MSBA’s Alternative Legal Models Task Force recommended that Minnesota consider a Limited License Legal Technician program similar to that in place in Washington state; but in the end, the MSBA Assembly did not go forward with the proposal. In the meantime, programs like the MSBA’s Northstar Program are attempting to cure the ever-growing pains felt by those affected by the justice gap. In 2016 alone, the program recognized 1,010 lawyers, who provided an estimated 113,000 hours of free legal services valued at $22,600,000. You can view the list here.
Even with all of the proposals by lawyers themselves and programs aimed at minimizing the justice gap, are these things enough? Seemingly not, as the debate continues to move forward as to how to best make legal services accessible for everyone, regardless of income level and social status.
I guess the paramount question is, what does a law license signify? If it signifies that you are competent enough to practice law, what does that mean? Who decides what qualities and/or characteristics one must possess to be able to practice law?
Again, the more I ponder the further the answers seem to flee from me.
Dakota Erickson is a rising 2L at Mitchell Hamline School of Law; he’s spending his summer assisting CCLI’s advocates with their law practices.