When delegates and panelists at the January 22 All Bar Conference sat down to discuss provision of affordable legal services to middle class clients, there were many problems identified, but few answers -- except maybe the 90 minutes set aside for the discussion wasn't enough.
Even after running 10 minutes over the allotted time, participants were still debating how lawyers can provide economical services to the 85 percent of the population with household incomes of $60,000 or less.
"Obviously this issue is much more complicated than an hour and a half discussion allows," said Miami attorney and former Bar Board of Governors member Raquel Matas, who moderated the fourth and last session of the conference.
All Bar Conference Committee Chair Edith Osman noted that the question of affordable services, or variations of it, were the most requested topics for the conference.
PRO SE PROBLEMS
Supreme Court Chief Justice Gerald Kogan led off the topic, saying, "The worst nightmare that any judge faces is the pro se litigant....Judges can't be referees between the sides when one or both have no idea of what the rules are."
He noted that half of all family law cases now involve pro se litigants, and in some counties it's as much as 60 percent. While the rich can afford lawyers and poor can apply to legal aid, the middle class, except for contingency fee cases, are being priced out of legal services, the chief justice said.
Lawyers, Kogan continued, need to change their expectations of what they will earn and find more economical ways to practice. "You're going to have to cut down on those fees to allow those folks to have the representation they need," he said. "Instead of a Mercedes, you might try a chevrolet. Instead of a million dollar mansion, you might try a tract home."
He also said Supreme Court approved simplified forms available through The Florida Bar need to be made more simple.
University of Miami law professor Martha Mahoney teaches a course on trying to get students to think about the kind of practice they want, including how to provide affordable services. She noted one lawyer who had sliding rates depending on what clients could afford, with much of the income coming from a relatively few high profile cases.
Vernetta Walker, director of administration of justice and Law Student Grants for the Florida Bar Foundation, said she's looked at different programs around the country.
Those range from prepaid legal services to centers that provide forms and information to pro se litigants. "The lawyers who serve on this panel provide unbundled services," Walker said. "They will take on just certain parts of the case,"
Maricopia County (Phoenix) Arizona, also has a self service, computerized kiosk that will answer basic questions and even deliver simple, printed forms, she said. It also regularly advises those with more than simple problems to seek an attorney's help.
THE BILLABLE MINUTE
Walker said one law firm allows people to call in and pay by the minute to talk with an attorney. The average call lasts 15 minutes, and those with complex problems are advised to come in for a consultation.
Cynthia R. White, executive director of the Broward County Bar Association, noted the association has a "modest means" panel. While there are plenty of clients using the service, she reported the main problem is attorney's can't make a living if they handle a large number of those cases.
"I don't know if that is a function of how the fees are structured in the system or we haven't helped them to realize economies of practice that would allow them to make these cases cost-efficient," she said.
Fort Lauderdale attorney Ronald P. Glantz said his firm, with 15 lawyers and 16 support staff, specializes in seeking out such clients. He said his firm looks for clients who can't afford the $150 to $250 an hour many attorneys charge, but can afford fees in the $75 to $120 per hour range. The firm also discounts its contingency fees by 25 percent for such clients.
"We can do very nicely with that sort of arrangement," he said. "We find there's a plethora of clients out there who appreciate what we are doing. To our firm, we are adding 200 clients per week. We get a phone call on a new legal matter once every five minutes."
He also said that prepaid legal services will continue to grow, becoming a sort of HMO for legal work.
Seventeenth Circuit Chief Judge Dale Ross said unsupervised paralegal work is mushrooming in Broward County, and most of it is poor quality. And he said such legal technicians frequently charge the same or higher rates than lawyers to their unsuspecting clients, and evade filing fees that their clients can afford to pay. In some cases, he said, the paralegals charged their clients for the filing fees but then kept them and filed affidavits with the court saying the clients couldn't afford to pay.
Ross, and some members of the audience, said it's not only supposedly cheaper rates that lead some clients to paralegals, but also a distrust of lawyers.
Bar Board of Governors member Michele Cummings, chair of the Access to the Legal System Committee, said surveys by the ABA and the State Bar of New York showed that only eight percent of middle income people gave price as the reason they didn't seek lawyers for help with legal problems. She also said the surveys showed many people overestimated the costs of legal services.
"We need to point out to young lawyers that there are clients they can tap into in order to make a living," she said. "I don't think every lawyer out there is looking to drive a Mercedes."
The Bar, Cummings added, needs a campaign to publicize that "there are lawyers out there for these people, these lawyers are willing to work for reasonable fees. When people need lawyers, they would do better to seek a lawyer who is regulated rather than a paralegal who is not regulated."
There was agreement that a solution needs to be found. When co-moderator Kent Spuhler, executive director of Florida Legal Services, Inc. asked what the consequences would be if the profession did not come up with a solution, Kogan said the issue was of such importance that lawyers must meet the challenge.
"I think we can solve it. We have to solve it," the chief justice said. "We cannot afford not to meet this need, because our job is to provide a service to the public. That's our obligation, to find a solution to this".
Almost nothing has been done to resolve this most critical problem since the Temple University study referred to in the article was published almost two years previously in the 3/15/95 Florida Bar News. The lack of attention to the subject by the Bar is reflected in the fact that it took two years to have the conference; and then when they had it, only 90 minutes was allocated to the discussion and then virtually nothing was accomplished.
This is a problem in the marketing of a service-- market penetration-- which many respected businesses and business schools make a business of analyzing and which I am sure would give them a very good idea of what their options are for a solution.
Although the apparent refusal to take this route reflects in part their anti-science bias, I think it also reflects that they know essentially what such a study would find. For I suspect it would find that in order to raise the market penetration from less than 50 percent of the public that exists now to anything reasonably acceptable, the legal profession would have to come down in its fees substantially as well as simplify procedures substantially; and even then some of the legal system's fundamental problems would not have been addressed.
This is not to say that there are not people in the profession such as Justice Kogan who wish to address the problem nor is it to say that some things aren't being done about it. But they are probably a long way from accomplishing anything like what needs to be accomplished.
For, the root of the matter is that the large majority of the 55,000 members of the Florida Bar would not be willing to come down in fees or simplify procedures; otherwise it would have been done. In essence it is the machinations of the practitioners of a legal system that is self serving, over priced, and dysfunctional; which the public knows and which, except for a small but insignificant number of well motivated lawyers and judges, the profession is unwilling to deal with.
For these reasons, I suspect this issue will continue to be be played with for a long time with little concrete accomplished.
See the following references:
My analysis of the problem.
The Florida Bar News article about the Temple study.
This is a page in the Web site entitled Legal Reform Through Transforming the Discipline of Law into a Science.