Skip to main content

Lawyers, make room for nonlawyers

By Gillian Hadfield, Special to CNN
November 25, 2012 -- Updated 1725 GMT (0125 HKT)
STORY HIGHLIGHTS
  • Gillian Hadfield: Getting legal help is enormously expensive in the U.S.
  • Hadfield: Lawyers, judges must change the way they regulate practice of law
  • She says we need less expensive nonlawyers who can provide legal assistance
  • Hadfield: Lower-cost alternative to full-fledged attorneys is the solution

Editor's note: Gillian Hadfield is the Richard L. and Antoinette Kirtland professor of law and economics at the University of Southern California.

(CNN) -- In our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.

Increasingly, the only "persons" with access to legal help are "artificial persons" -- corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.

These numbers are just the tip of the iceberg. For every person who is unrepresented in court there are probably tens of thousands who didn't have any legal advice when they did the things that landed them in hot water in the first place. Who can afford $200 to $300 an hour to get advice on local small business regulations, the fine print in a mortgage document, or how not to make mistakes that will cost you in court when fighting over kids and money with your soon-to-be ex-spouse?

Gillian Hadfield
Gillian Hadfield

Some legal professionals have called for more public money for legal aid clinics and courts to provide free legal help and for lawyers to do more pro bono work. But the demand for ordinary legal help is simply too massive to meet with increased court funding, legal aid or pro bono work.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



I believe there is no way to help ordinary people with their legal problems without fundamentally changing the way lawyers and judges regulate the practice of law.

What we need are more efficient ways of delivering legal help and less expensive nonlawyers who can provide legal assistance. Supreme court judges in every state have the authority to accomplish this with the stroke of a pen.

The root of the crisis of access to justice is the scale of the problem. Here's a little back-of-the-envelope arithmetic. Using data from surveys conducted by the ABA and state bar associations, I estimate that, at any given time, roughly half of all American households are dealing with about two legal problems each-- evictions, divorces, bankruptcies, denials of health care benefits, and so on.

Giving these American households just one hour of help from a lawyer to manage a maze of legal documents and court procedures would cost close to $20 billion.

This doesn't even consider the cost of what clients want most from lawyers -- advice about how to avoid legal problems. Including this service would add additional tens if not hundreds of billions of dollars.

That's why the only way to increase access to justice is to expand the group of people and organizations that can provide legal help beyond JD-trained and licensed lawyers.

Authorized nonlawyers and organizations could help ease our overburdened courts in many ways. Each year, 2.3 million New Yorkers, for example, represent themselves in state courts. These litigants do not want to be in court or to manage their problems alone, but have no other practical choice. They frequently labor under huge misunderstandings about legal procedures, requirements and forms. Oodles of judges and lawyers have complained about the delays and complications these misunderstandings create.

Imagine how much more efficient the court would be if the unrepresented could obtain low-cost legal assistance from people expert enough to help them navigate the process. Especially if those people were using the systems and protocols developed by a large-scale company, maybe even online.

It doesn't take high-level legal expertise to advise a person facing eviction for unpaid rent that if she wants to contend that her apartment has no heating and the ceiling is falling down, she should bring some photographs or other evidence to court to back up her claim. The same applies to people who need to understand what the arcane legal language in a court order or rule means.

There are many basic issues that could be handled by nonlawyers. Allowing nonlawyers to work for businesses that invest and specialize in giving this kind of help would supercharge the potential for reducing the cost of legal help.

The use of non-JD legal assistants and nonlawyer dominated businesses is not a venture into uncharted waters. The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations provide legal assistance, and studies show that the practice works very well. In many cases, people are better served by a nonlawyer organization that specializes in a particular type of legal help—navigating housing or bankruptcy matters, for example—than they are by a solo practitioner with a general practice.

Furthermore, when people have access to lower-cost alternatives to full-fledged attorneys, they use these resources. In practical terms, that means that only 5% to 10% ignore their legal issues in the United Kingdom. Compare that to New York, where significant majorities of low-income households with legal problems—65% with housing problems, 59% with financial issues, 50% with health insurance problems—do nothing in response to their problems. But as often is the case, untreated problems lead to worse problems—and bigger headaches for our courts.

For too long, the legal profession has focused on legal aid, pro bono and charitable assistance as the solution to the crisis in access to justice. The approach is admirable, but futile.

Solving the problem requires lawyers—especially those on the bench who bear the ultimate responsibility for regulating the profession—to share the field with other, less-expensive, non-JD professionals and nonlawyer dominated organizations who can provide perfectly adequate legal help in many cases. America's legal profession is in dire need of reform; it's time for those in leadership positions to step up.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Gillian Hadfield.

ADVERTISEMENT
Part of complete coverage on
August 28, 2014 -- Updated 1516 GMT (2316 HKT)
Whitney Barkley says many for-profit colleges deceive students, charge exorbitant tuitions and make false promises
August 28, 2014 -- Updated 2048 GMT (0448 HKT)
Mark O'Mara says the time has come to decide whether we really want police empowered to shoot those they believe are 'fleeing felons'
August 28, 2014 -- Updated 1432 GMT (2232 HKT)
Bill Frelick says a tool of rights workers is 'naming and shaming,' ensuring accountability for human rights crimes in conflicts. But what if wrongdoers know no shame?
August 29, 2014 -- Updated 0243 GMT (1043 HKT)
Jay Parini says, no, a little girl shouldn't fire an Uzi, but none of should have easy access to guns: The Second Amendment was not written to give us such a 'right,' no matter what the NRA says
August 28, 2014 -- Updated 1340 GMT (2140 HKT)
Terra Ziporyn Snider says many adolescents suffer chronic sleep deprivation, which can indeed lead to safety problems. Would starting school an hour later be so wrong?
August 28, 2014 -- Updated 2153 GMT (0553 HKT)
Peggy Drexler says after all the celebrity divorces, it's tempting to ask the question. But there are still considerable benefits to getting hitched
August 28, 2014 -- Updated 2305 GMT (0705 HKT)
The death of Douglas McAuthur McCain, the first American killed fighting for ISIS, highlights the pull of Syria's war for Western jihadists, writes Peter Bergen.
August 26, 2014 -- Updated 2242 GMT (0642 HKT)
Former ambassador to Syria Robert Ford says the West should be helping moderates in the Syrian armed opposition end the al-Assad regime and form a government to focus on driving ISIS out
August 27, 2014 -- Updated 1321 GMT (2121 HKT)
Ruben Navarrette says a great country does not deport thousands of vulnerable, unaccompanied minors who fled in fear for their lives
August 27, 2014 -- Updated 1319 GMT (2119 HKT)
Robert McIntyre says Congress is the culprit for letting Burger King pay lower taxes after merging with Tim Hortons.
August 26, 2014 -- Updated 2335 GMT (0735 HKT)
Wesley Clark says the U.S. can offer support to its Islamic friends in the region most threatened by ISIS, but it can't fight their war
August 27, 2014 -- Updated 1126 GMT (1926 HKT)
Jeff Yang says the tech sector's diversity numbers are embarrassing and the big players need to do more.
August 26, 2014 -- Updated 2053 GMT (0453 HKT)
America's painful struggle with racism has often brought great satisfaction to the country's rivals, critics, and foes. The killing of Michael Brown and its tumultuous aftermath has been a bonanza.
August 26, 2014 -- Updated 2019 GMT (0419 HKT)
Ed Bark says in this Emmy year, broadcasters CBS, ABC and PBS can all say they matched or exceeded HBO. These days that's no small feat
August 26, 2014 -- Updated 1919 GMT (0319 HKT)
Rick Martin says the death of Robin Williams brought back memories of his own battle facing down depression as a young man
August 26, 2014 -- Updated 1558 GMT (2358 HKT)
David Perry asks: What's the best way for police officers to handle people with psychiatric disabilities?
August 25, 2014 -- Updated 1950 GMT (0350 HKT)
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016
August 25, 2014 -- Updated 2052 GMT (0452 HKT)
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
August 25, 2014 -- Updated 1629 GMT (0029 HKT)
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
August 25, 2014 -- Updated 2104 GMT (0504 HKT)
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
August 22, 2014 -- Updated 2145 GMT (0545 HKT)
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
August 26, 2014 -- Updated 1727 GMT (0127 HKT)
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
August 22, 2014 -- Updated 1231 GMT (2031 HKT)
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
August 24, 2014 -- Updated 0105 GMT (0905 HKT)
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
August 22, 2014 -- Updated 2247 GMT (0647 HKT)
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
August 21, 2014 -- Updated 1450 GMT (2250 HKT)
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
August 22, 2014 -- Updated 1103 GMT (1903 HKT)
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
August 22, 2014 -- Updated 1223 GMT (2023 HKT)
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
August 20, 2014 -- Updated 1951 GMT (0351 HKT)
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
August 21, 2014 -- Updated 1742 GMT (0142 HKT)
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
August 21, 2014 -- Updated 1538 GMT (2338 HKT)
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
August 21, 2014 -- Updated 1200 GMT (2000 HKT)
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
August 19, 2014 -- Updated 2203 GMT (0603 HKT)
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
August 20, 2014 -- Updated 1727 GMT (0127 HKT)
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
ADVERTISEMENT