BIG IDEAS
PROVIDE A LA CARTE LEGAL SERVICES BY AMY JOHNSON
T
he right to legal representation in criminal matters has been recognized since a 1963 U.S. Supreme Court decision. There is not, however, a categorical right to an attorney in civil matters — even those affecting such basic needs as access to safe and habitable housing, protection from domestic violence and economic security. Most Americans of modest means cannot afford the cost of attorney’s fees needed for representation in civil matters. The result is an enormous gap between the general expectation that everyone has access to the courts to resolve their civil disputes and the actual reality — that justice in most civil matters is available only to the well-to-do. Poor and middle class Americans are for the most part unable to obtain counsel to seek justice in the courts, or to defend themselves against legal actions brought against them — for instance, in eviction, debt collection, and foreclosure actions. Dissolution of marriage and allocation of parenting rights and responsibilities for children of unmarried couples can only be accomplished through a court order; persons unable to afford a lawyer often have to go without necessary court orders in dividing jointly owned property and in obtaining services for their children. A generation of efforts to provide adequate legal representation to those who need it, either through legal aid or through pro bono representation, has failed to make substantial progress because there is no way that legal aid and pro bono can possibly scale to the tremendous unmet need. More than half a million Arkansans (nearly 20 percent) are income-eligible for free civil legal aid. Many more have incomes that exceed the eligibility threshold, but still aren’t enough to pay for an attorney without sacrificing some other basic need.
Legal services for routine matters are therefore increasingly beyond what average Arkansans can afford or are willing to pay for. Meanwhile, legal publication and the mainstream press have made much of a number of negative trends for lawyers in the United States. As many as 45 percent of law school graduates are not able to find jobs requiring their new law degree. Lawyer income is falling in many parts of the country. Although most Americans cannot afford prevailing attorneys’ retainers to commence or defend civil matters, they are regularly paying hundreds of dollars to online legal services providers such as LegalZoom and Rocket Lawyer. There is a way for persons to get assistance in representing themselves for reasonable hourly rates. Arkansas Rule of Professional Conduct 1.2(c) authorizes Arkansas attorneys to provide this form of representation. Often referred to as “limited scope representation,”
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“unbundling” or “a la carte legal services,” this model of delivering legal services has been implemented in other states — including Alabama, Mississippi, and Montana, to name a few — but few Arkansas attorneys have actively utilized this business model. Unbundling allows clients (who would not otherwise go to a lawyer at all) to seek out and pay for the legal advice they want and need for aspects of the case that require legal expertise, and otherwise handle the more simple, routine aspects themselves. Unbundling also opens up to lawyers a market that has previously been nonexistent or unprofitable. Many clients who are unable or unwilling to pay $1,000 for a guardianship can afford $150 for an hour of an attorney’s time and, as a result, be adequately equipped to effectively represent themselves. The attorney will be able to provide a valuable service and be paid his hourly rate, without ending up with an account receivable. Unbundling is not and cannot be a substitute for full representation in cases where the legal issue is simply too complex or the client is incapable of understanding or participating in the representation. Rule 1.2 explicitly requires the attorney who accepts a limited scope engagement to do so only if “it is reasonable under the circumstances and the client gives informed consent.” These are the cases where pro bono representation or legal aid will be a necessity. By fully implementing and promoting unbundling in Arkansas, we can substantially increase meaningful and efficient access to our civil justice system while opening a potentially profitable new market for attorneys. Amy Johnson is executive director of the Arkansas Access to Justice Commission.
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www.arktimes.com
DECEMBER 19, 2013
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