Jennifer S. Bard is professor of law and medicine and the former dean of the law school at the University of Cincinnati. Larry Cunningham is vice dean and professor of legal writing at St. John’s University School of Law.
After President Trump issued his executive order in January banning travel from seven countries, lawyers dashed to the aid of immigrants and refugees trapped in legal limbo while in transit to the United States. The event was the most positive thing that has happened to our profession’s image since the civil rights era.
But that experience should not mask the fact that 80 percent of low-income individuals in the United States cannot afford the legal assistance they need to avoid the loss of their homes, children, jobs, liberty and even lives. The middle class doesn’t fare much better: Forty to 60 percent of their legal needs go unmet.
In case after case, people caught up in our court system must represent themselves in matters of landlord-tenant lawsuits, foreclosures and family disputes — often failing to navigate the complexities of substantive and procedural law. Less visible are people who do not seek legal representation because they do not realize they have a claim. No system of pro bono lawyers or government-funded legal-services organizations can meet these needs.
We do not expect charities and generous doctors to provide 80 percent of the medical needs for low-income patients, so why do we think this is possible for our legal needs? As law schools become increasingly unaffordable — resulting in plummeting enrollment and debt levels that make it impossible for graduates to offer legal services at affordable prices — the legal profession needs some major changes.
Professionals must first acknowledge that not every legal task must be performed by a licensed lawyer. Instead, we need to adopt a tiered system of legal-services delivery that allows for lower barriers to entry. Just as a pharmacist can administer vaccines and a nurse practitioner can be on the front line of diagnosing and treating ailments, we should have legal practitioners who can also exercise independent judgment within the scope of their training. Such a change would expand the preparation and independence of the existing network of paralegals, secretaries and investigators already assisting lawyers.
New kinds of legal practitioners will require a new kind of legal education. Law schools today offer nearly identical curriculums taught by professors with nearly identical qualifications because students face nearly identical bar exams. Our proposal calls for differentiation, but not for throwing the baby out with the bathwater.
Professors trained as scholars and researchers are as critical to the education of legal-services providers as they are to health-care providers. But that does not mean that every health-care or legal practitioner needs to follow a program qualifying him or her to be an active researcher. Legal education could create PhD tracks for those who want to research and design shorter and more direct programs of study for professionals who can provide access to justice in discrete areas at a lower price.
Finally, the qualifying exams for these new legal professionals would have to be different, too. As currently formulated, the bar exam assumes three years of classroom-based training and is focused on very small doctrinal distinctions in areas in which most lawyers will never see a single client. It’s not a bad thing for every law school graduate to be equally prepared to represent a criminal on death row, draft a will or negotiate a public offering of securities, but is it necessary or cost-effective?
Lawyers might see such a solution as lowering the barrier to entry. But the result could be an expanded market, not a fragmentation of the existing profession. Practicing law is a challenging intellectual task, but developing a tiered system of training similar to that in the health-care industry would not diminish the status of anyone involved; rather, it would promote the kind of equal access to justice that still makes our country a beacon for those willing to risk their lives to come here. And we can ensure the quality of all legal-services providers through oversight, just as we are able to regulate nurse practitioners, pharmacists and physical therapists.
This kind of limited license to practice has already started to take hold in particular practice areas, such as tax, unemployment-insurance and special-education appeals. Notably, Washington state has recently begun experimenting with “limited license legal technicians” to assist with family law matters.
We should encourage an acceleration of this kind of innovation by the bar, the bench and the academy so that legal training and services can be more widely available.