By Gary Lesser, President of The Florida Bar & Managing Partner of Lesser, Lesser, Landy & Smith, PLLC
It is no surprise or shocking revelation that the legal profession has been evolving in big and small ways over the last few decades. Countless law review and news articles have looked at the changes that are happening.
But the biggest determiner of the future of the independent legal profession will not be compensation, hourly fees or the degree of remote working, but rather how the profession finally and directly deals with the issue of increasing the public’s access to legal services.
The challenge of greater access to legal services has become more severe over the last few decades — and the disconnect between the legal profession and the public at large has widened considerably. A generation or two ago, members of the public would hire lawyers on a regular basis, especially for important life moments such as preparing a properly executed will or trust, buying or selling a residence, or to answer questions about business agreements.
But that is no longer the case. Studies show that 80% of low-income individuals don’t know if they can afford a lawyer, and up to 60% of middle-class respondents don’t have their legal needs met, depending on the issue.
This massive disconnect has two significant adverse effects. First, members of the public end up going it alone, often causing significant legal and financial harm to themselves and their families. Second, while lawyers, judges and law professors talk about the rule of law quite often, the nonlawyers of the world make their entire determination of the legal system based on their interactions with lawyers helping them — and this great civics lesson is not happening that often these days.
Many studies and commissions — often from the 30,000-foot perspective — have spent countless hours examining the underlying causes and data. Now is the time to address these challenges from the perspective of the trenches.
There are serious economic consequences of these outcomes, as well as impacts to the critical attorney-client relationship that forms the core of attorney’s ethical and professional responsibilities for their clients.
I am confident that while we have really hit a nadir in terms of the disconnect between the public and the legal profession, there is real opportunity to significantly improve the situation going forward.
In that regard, I’d like to point to the work done by the Florida Bar’s Special Committee on Greater Access to Legal Services, which just submitted its final report to the Florida Supreme Court for their evaluation. Notably, the key recommendations focused on realistic, pragmatic solutions that could greatly increase access to legal services in three areas: pro se, legal aid and pro bono, and making legal services more affordable and accessible.
The committee spent eight months studying previous studies and initiatives, while trying to get meaningful data to support recommendations where real progress could be made to advance more affordable, accessible legal services.
The Florida Bar looks forward to further discussing, evaluating and implementing the committee’s key recommendations with the state’s high court. Recommendations for pro se litigants focused on standardized electronic pro se litigation forms, which will eliminate much confusion for pro se litigants, and make things easier for clerks of courts — who have historically borne the brunt of repeated filings and dismissals.
A simple, uniform process for pro se litigants will result in a more efficient and predictable legal system. We are grateful to the leadership of the Florida Court Clerks and Comptrollers for providing us with useful data and look forward to continued collaboration. Another good recommendation from the committee was to advocate for an online court system for lower value cases.
This system was proposed and studied when Michael Tanner was president of the Florida Bar last year. It would be a more efficient, less expensive and much easier process for pro se litigants. The committee made further recommendations concerning civil legal aid organizations, whose work focuses on meeting the legal challenges of people facing wrongful evictions, victims of elder abuse, veterans and other vulnerable populations.
Almost all states provide some financial assistance to civil legal aid organizations, recognizing that civil legal aid programs produce $7 in economic impact for every dollar of funding, which directly benefits those needing legal help and saves money for state governments. While a number of private attorneys volunteer to represent clients pro bono, there is not enough manpower or funding to meet these needs.
Programs funded by the Legal Services Corporation help people who live in households with annual incomes at or below 125% of the federal poverty guidelines — in 2021, that is $16,100 for an individual, $33,125 for a family of four.
Another key recommendation of the committee was to facilitate the increased use of certified legal interns. Imagine if every legal aid organization suddenly had two or three CLIs to assist their overworked staff. The impact would be substantial.
The bottom line is that greater support of civil legal aid and pro bono efforts has direct benefit to the clients served and the communities where they reside.
The biggest challenge facing the legal profession may be that members of the public that should hire a lawyer for legal assistance are not doing so. The core problem is that many people don’t see their problems as legal problems, but merely as life problems. So they call friends and family members when deciding what to do about a bad boss, a bad landlord or some other challenge where a lawyer’s advice could be especially helpful.
Increasingly, there are people who don’t see lawyers as professionals who could help them, like a doctor, an accountant or a mechanic. There are many who think you only need an attorney if you are rich or injured. That can be very risky for the people who go it alone — and for their families.
The Florida Bar has realized that too much of the discussion around greater access to legal services has been between lawyers, and there is a need for greatly amplifying the message to the public.
One of my priorities as president has been to develop a public education campaign called Life’s Legal Moments, which was just recently launched. The campaign includes a website, at FloridaLawyersCanHelp.com, which includes helpful information on how to determine if you may need a lawyer, and how to research and hire a lawyer. These resources are invaluable for someone trying to take that first step to hire legal representation to protect themselves and their family.
Additionally, the campaign includes a robust communication plan to try to reach consumers where they are. We are grateful for the cooperation provided by many local Chambers of Commerce in sharing this information with their members. Small business owners in particular face challenges like reviewing contracts and leases where a lawyer could help them protect their businesses.
The committee recommended that the Florida Bar continue this public outreach and communication campaign, and that other state bars consider adopting similar ongoing public education plans.
Yet another key recommendation of the committee concerns prepaid legal service plans, which have been permitted in Florida since 1970. They were created with the specific purpose of providing for more affordable legal services. But this approach has not seen widespread use.
This is a tremendous lost opportunity for lawyers and the public that needs affordable legal representation. Typically, these plans start at only $12 per month for an individual basis plan, and $75 per month for a business plan, and they provide a number of legal services for free — such as a free consultation, phone conference or initial letters on a matter. Some plans also include a free will, with supplemental services being offered at a much lower affordable hourly rate.
This is a tremendous economic opportunity, as key law firm prepaid legal service providers estimate that only 2.5% of the people who may be eligible to have a prepaid plan actually do have one. This is partially due to the fact that many Florida lawyers have not taken the opportunity to expand their practices to become providers. And the lack of plan providers plays a role in the general public being unaware of the availability of the plans.
Simply put, there is a huge potential market that is not being served. There is massive opportunity for expansion of law firm providers here, which will greatly benefit people who sign up for this low-cost legal services system.
There are many lawyers who can become prepaid legal service providers. Law schools should be focused on this as well, especially in terms of curriculum and internship opportunities. For a long time, law schools have had the same basic courseload in the first year of law school, and then varying formulas and schedules of required courses to graduate. Law schools can make some simple changes now that can prepare their graduates for the rapidly changing legal profession, and create a larger cadre of newer lawyers available to help fill the need for more affordable, accessible legal services.
Importantly, there needs to be a significantly greater emphasis on experiential education, and law schools should provide their students with greater opportunities for internships and clinics. Some law schools are doing this to a degree, but should look to schools like Washington & Lee School of Law, which is a national leader on these issues. Too many law students graduate with no little or no experience, then throw up their own shingle.
Law schools need to do a better job to prepare them for the real-life practice of law. Specifically, there should be a required class or clinic on how to be a lawyer, deal with clients and face challenging situations. This has to be practical, and not theoretical. If so, it will benefit all law school students.
New lawyers face massive challenges starting their own law firms because of a lack of education about the business of law. While the Florida Bar offers significant resources, such as LegalFuel.com and a mentoring program for newer lawyers, law schools across the country also must do their part. Long-standing problems facing the legal profession — like the need for more affordable and accessible legal services — present unique challenges, because there are those who want to fix these problems with a magic wand.
But our life experience tells us that no large problems can be handled in an instant. As the old joke goes: “How do you eat an elephant? One bite at a time.” In the few states where there are legal laboratories and regulatory sandboxes, there is no real increase in more affordable legal services. Nonlawyer legal service providers have included software companies and settlement finance companies — but commercial entities may be more focused on where they can make a profit than on benefits to the public or the legal system.
The independent legal profession and the independent judiciary ensure ethical and legal protections for clients and the public. These protections are of paramount importance to the judicial branch and to legal practitioners, and are not for sale. While there may be no “Hail Mary” action that can immediately solve the challenges outlined above, a combination of realistic, pragmatic strategies can move the ball forward 10 yards for a first down. And that’s what we have to keep doing.
Implementation of the recommendations of the Florida Bar’s Special Committee on Greater Access to Legal Services represents a realistic path toward increasing the accessibility and affordability of legal services for members of the public.