Say you are terminated from your employment where you earned $100,000 annually. You believe that the termination was wrongful, and you want to fight. You call a few attorneys. Most tell you that they only represent employers in employment matters. You forge ahead and finally find one who represents workers. He asks for a consultation fee of $400 an hour to evaluate your case. You reluctantly agree. (Your reluctance is because you have no idea how long it will take you to become re-employed, and you have a mortgage, private school tuition, and other bills that leave you with virtually no disposable income despite your 6-figure salary.)

After the consultation, the lawyer says you have a case but that a $20,000 retainer is required to proceed and if you win, he may be able to get the court to force your employer to reimburse your legal fees. You have about $30,000 in your 6-month emergency fund, which is a lot more than most Americans, but your sudden unemployment is an emergency! You need that money to keep your lights on. So, you prioritize your monthly expenses over this extraordinary legal expense, equaling 20% of your usual annual income, and decide not to pursue your legal rights.

That’s an access to justice problem. A lack of availability of affordable legal services is, as far as you’re concerned, the same as if no legal services were available at all.

What is Access to Justice?

Access to justice means the ability of any person, regardless of income, to use the legal system or legal services to advocate for themselves or their civil legal interests. The World Justice Project estimates that there are 5 billion people who have unmet justice needs globally.

Of course, your situation is not one that the legal system is trying to address as we grapple with the access to justice crisis in the United States. In the U.S., the legal profession considers access to justice issues as a problem that is limited to low-income people. While there is some unmet need in this income bracket, there are resources available to accommodate low-income people.  They can receive free civil legal services through legal aid societies and other not-for-profit legal service providers. Thus, the individuals who have the greatest difficulty procuring legal services are those who are too well-off to qualify for pro bono legal services yet not well-off enough to have disposable income that can be allocated to addressing their legal issues.

Are Lawyers to Blame?

The temptation is to blame the greedy lawyer who requires a $20,000 retainer. But is he really a bad guy? Practicing law is his job. He incurred 6-figures in student loan debt to become a lawyer. He has office rent, payroll and benefits for his staff, marketing and sales expenses to try to find paying clients, plus overhead expenses on top of all of the same personal expenses that the prospective client has. The newly unemployed worker’s case will take months or years to resolve, and the former employer knows that the terminated worker is likely desperate and can’t possibly hold on as long as the well-funded employer can. Besides, the employer likely has an insurance company that is paying its lawyer and therefore has little incentive to reach a speedy resolution. So, is it fair to ask the worker’s lawyer to engage in protracted litigation without a fee adequate for him to keep his lights on? Stated differently, while its beneficial to society if wrongful terminations do not occur, should an individual attorney or law firm be asked to foot the bill to ensure fairness in the workplace?

Who Should Pay?

            This issue of who should pay to correct consumer and societal injustices is at the core of the access to justice problem. Should the government pay? There are state and federal governmental agencies that address civil legal issues but even the government has limited resources and prioritizes systemic violations impacting many people rather than seemingly individual injustices.

            Should charities pay? Charities get their money from wealthy people whose generosity is not unlimited. Legal charities are in competition with many other important causes: climate change, animal rights, veterans’ issues, higher education, and so on. Therefore, legal charities are under pressure to deliver results on a large scale. So, they prioritize cases in much the same way that the government does, favoring provable systemic harm over cases that harm only a few.

            So, if the government isn’t going to pay, and legal charities aren’t going to pay, and lawyers and legal firms cannot afford to pay, that leaves the private sector. We must find a way to make the delivery of civil legal services to the middle class profitable.

Filling the Gap

            In the past two decades, non-lawyer providers of legal services have emerged to provide legal forms and other information to assist individuals in representing themselves in legal matters. And judges have begun to provide some guidance to unrepresented individuals appearing before them in court even though judges are supposed to be neutral deciders of legal disputes.

But are these real solutions? Even though laypersons believe that lawyering is easy and that they are familiar with the legal system, it is not, and they are not. There are so many nuances that even attorneys spend significant time researching and preparing their arguments for consideration by the court or thinking through transactions then documenting them to minimize legal consequences that are unintended by the parties to the deal. Laypersons cannot reasonably be expected to learn legal procedure and substantive law in order to represent themselves in court. They cannot be expected to identify potential legal issues and draft enforceable legal language to address them. They have jobs of their own, after all.

Working Together to Find a Solution

If the legal profession is going to improve access to justice, we must first acknowledge that access to justice is not only a poor people’s problem. It is a middle-class problem and a societal problem. For the most part, lawyers are not greedy, and clients are not cheap. We are simply struggling as a society to find an affordable and profitable solution to the access to justice crisis.

But the solution cannot be driven solely by lawyers and then foisted upon the public. We need both lawyers and the public we serve to have a voice in crafting a solution. So, what are your ideas or thoughts on this issue?

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