|Oregon State Bar Bulletin JUNE 2009|
Are We Missing Something:
A Case for Public Legal Health
By Ritchie Eppink
One of the world’s power tool manufacturers, according to British lawyer and legal technology expert Richard Susskind, leads off its executive trainings by showing the newest recruits a photo of a power drill. The trainers ask if that drill is what the company sells. The new hires admit that it is. But then they’re shown the next slide — a picture of a small, tidy hole in the wall. “That is what we sell,” their trainers tell them. “Very few of our customers are passionately committed to the deployment of electric power tools in their homes. They want holes.”1
Like those power tool executives, lawyers have often missed the point, too. For centuries, the legal profession has been fixated on the deployment of legal power tools: retained counsel, litigation, courts, legislative lobbying and, more generally, a case-by-case and client-by-client approach to solving legal problems. Since the late 1930s, when bar association studies began to reveal huge unmet legal needs across all economic classes, our profession has had good reason to know that a case-by-case approach is not enough. Indeed, recent numbers from the American Bar Association suggest that moderate-income American households with a civil legal problem often — over 25 percent of the time — do nothing about the problem at all.2
Putting every attorney in the country to case-by-case work on these unmet needs would needlessly clog our courts and have only a meager impact. And even the most able counsel could not help those who never realize they have a legal problem. As one lawyer put it, before the law can help a group of people, they “must know their situation is a problem (assumption number one), that their problem is a grievance (assumption number two), that their grievance has a remedy (assumption number three) and that they have a remedy they want (assumption number four).”3 These often faulty assumptions prop up our justice system’s even more dangerous premise: that laypeople are prepared to recognize, avoid and address their legal problems.
We Don’t Even Have A Word For It
When it comes to dangerous assumptions like those, maybe doctors have been wiser than lawyers. After all, the medical profession actually has a word for laypeople who are well-prepared to recognize and avoid their medical problems: “healthy.” We’ve never had a word like that in the legal profession, much less branches within our profession analogous to long-developed medical specialties like preventive medicine, health education and public health.
Part of the problem might have been the bar itself. The ABA’s first rules of professional conduct, the 1908 Canons of Professional Ethics, made preventive law and community legal education dangerous waters for lawyers. The canons admonished attorneys against solicitation and advertising,4 prohibited them from “stirring up litigation”5 and cautioned them about writing legal information articles for newspapers.6 Non-lawyers, too, have been scared away from this work because of prohibitions on the unauthorized practice of law and uncertainty about when giving out legal “information” becomes giving legal “advice.”
In this way, prevention and public education in the law fell into a gap that no one was clearly authorized to fill. By the middle of the last century, however, the organized bar began to realize that community legal education was a missing piece that the canons kept lawyers away from. The ABA itself, through its Joint Conference on Professional Responsibility, plainly acknowledged a fault in the case-by-case approach to justice as early as 1958, exhorting:
The obligation to provide legal services for those actually caught up in litigation carries with it the obligation to make preventive legal advice accessible to all. It is among those unaccustomed to business affairs and fearful of the ways of the law that such advice is often most needed. If it is not received in time, the most valiant and skillful representation in court may come too late.7
Then, as attorneys during the 1960s — especially the throngs of new civil legal aid lawyers deployed during our nation’s War on Poverty — discovered neighborhood legal education as an essential method for bringing justice to the poor and oppressed, those lawyers also discovered that the ABA’s canons had put roadblocks in their way.8 In 1965, Marvin Frankel, writing just before his appointment to the federal bench, acknowledged that “(t)here is unquestionable occasion as such experiments proceed for concern and scrutiny by the bar in the interests of legitimately cherished professional standards.” But Professor Frankel urged:
Traditional notions about solicitation do not fit comfortably the plight of the poor and the alienated. Programs of consumer and slum tenant education may generate “legal business,” to be sure, but this is a world away from the evils against which the relevant canons were drawn. And it is no mere coincidence, but a pertinent and hopeful sign, that the American Bar Association is embarked on a re-examination of the canons along with its current studies of legal services for the indigent.9
Indeed, before the end of that decade the ABA had left the canons behind and produced a new set of rules, the 1969 Model Code of Professional Responsibility.
Today, legal ethics codes are not only much more permissive of community legal education by lawyers, they even encourage it. Both the ABA’s latest model rules and states’ Rules of Professional Conduct now make clear that all lawyers have a responsibility to “further the public’s understanding of and confidence in the rule of law and the justice system.”10
However, as a profession we still do not have adequate infrastructure — or even a comprehensive strategy — for educating the public about law and justice. We have never tackled “preventive law” the way that the health professions have tackled preventive medicine. And although as lawyers we are all public citizens with a special responsibility for the quality of justice,11 when it comes to the public’s interaction with law and the legal system, we still don’t even have a native concept of “healthy.”
Education For Legal Health
Despite that we have no term for talking about public legal health, we know that public legal education is a fundamental way to improve it. Over and over, research on meeting the public’s legal needs has identified community legal education as a key strategy and a giant missing piece. The United Kingdom’s Legal Services Commission, in a book-length analysis of legal needs assessment data it had collected, pondered startling phenomena similar to those the ABA has found in the United States: that “people sometimes take no action at all to resolve apparently serious (legal) problems” and that “the most common reason for this was a belief that nothing could be done.”12 In formulating a solution, the U.K. report identified community legal education as a central piece, noting that “it is clear that the continuing development of education and information strategies regarding rights, obligations, the basic principles
of civil law, sources of advice, and methods for resolving justiciable problems has an important role to play in promoting social justice.”13
In my own state, the Idaho Delivery of Legal Services Advisory Council has pointed to Oregon’s bench- and bar-sponsored study stressing the “lack of legal information” and “ignorance of resources and remedies” in low- and moderate-income households and identifying “significant unmet need” for community legal education.14
Implementing programs to meet these needs has begun in earnest. Throughout the United States, work within the legal profession on “alternative delivery systems,” which look beyond the usual “power tools,” has been gaining intensity over the decades. Programs here in Idaho — such as the Idaho Law Foundation’s Citizen’s Law Academy and other community legal education projects like Idaho Legal Aid’s workshops and self-help materials and the legislatively established Court Assistance Offices — all evidence a substantial commitment to community legal education and “preventive law.” Lawyers in this country might finally be ready to talk seriously about innovative strategies for addressing a legally illiterate, justice-starved population.
We can learn from comprehensive, professional and institutional strategies that are already in place elsewhere. In Canada, a whole class of lawyers, educators and librarians has devoted itself to educating the public about the law. The aggregate of their efforts is a nationwide network of government-funded non-profit organizations devoted exclusively to preventive, public legal education. These sole-purpose public legal education organizations produce millions of dollars’ worth of not-for-profit programming each year, from offices in every one of Canada’s provinces and territories. From workshops to television shows, from phone hotlines to street theater, these groups employ an imaginative range of formats tuned to differing levels of sophistication. The diverse programming helps ensure that the Canadian public can effectively resolve many legal questions without a lawyer and, more importantly, use common legal sense to prevent legal problems the way most of us already use common health sense to prevent colds and flu.
Interestingly, the Canadian model grew partly from American seeds. The neighborhood law offices and community lawyering projects that emerged in America during the War on Poverty attracted the attention of law students and innovative attorneys in Canada, who put together similar efforts north of the border.15 By the mid-1980s, new federal legal aid funding restrictions were putting a brake on U.S. community legal education efforts.16 During the same era in Canada, however, the standalone public legal education organization model was thriving, helped by substantial provincial law foundation support and a federal “Access to Legal Information Fund.” The Canadian system continues strong today, with some 16 sole-purpose community legal education organizations staffed with full-time attorneys and a national professional association, the Public Legal Education Association of Canada, facilitating collaboration and professional development.17
Idaho lawyers cannot yet point to as durable an investment in community legal education and preventive law as our Canadian counterparts can. Indeed, here in the United States, for-profit legal forms and instruction outfits like LegalZoom, Nolo Press and We the People have sprung up to fill voids in the supply side of the market — but perhaps at the expense of the credibility of a profession that claims a responsibility for accessible justice, quality legal service and public understanding of and confidence in the rule of law.
The messages from the development of legal ethics codes, from the health professions and from Canada are messages for all lawyers: whether the general practitioner helping the average citizen with a will or after a police encounter, the legal aid attorney serving rural and minority low-income clients or the transactional lawyer retained by a multinational enterprise. They are messages about what Richard Susskind calls the latent legal market: the many situations where our profession does not help anyone “because conventional legal service is too expensive or too impractical in the circumstances.”18 These messages, to which we have begun to respond with increasing investment in extensive community legal education, are about thinking more of “health” and “prevention” — in terms of holes, not drills — and they are worth listening to at home.
1. Richard Susskind, The Future of Law: Facing the Challenges of Information Technology1 (1996) (emphasis added).
2. Consortium on Legal Services & the Public, American Bar Association, Legal Needs And Civil Justice: A Survey of Americans 17–18 (1994).
3. Robert Cooper, “The Role of the Media,” inLaw and the Citizen: Looking to the 80s, at 69, 70 (Frederick B. Sussmann & Bradford W. Morse, eds., 1981).
4. ABA Canons of Professional Ethics Canon 27 (1908).
5. Id. Canon 28.
6. Id. Canon 40.
7. “Professional Responsibility: Report of the Joint Conference,” 44ABA Journal 1159, 1216 (1958).
8. See Note, “Ethical Problems Raised by the Neighborhood Law Office,” 41 Notre Dame Law. 961, 971 (1965–66).
9. Marvin E. Frankel, “Experiments in Serving the Indigent,: 51 ABA Journal 460, 462-463 (1965).
10. Idaho Rules of Professional Conduct preamble 6 (2004); Model Rules of Professional Conduct preamble 6 (2008).
11. Idaho Rules of Professional Conduct preamble 1.
12. Pascoe Pleasence et al.,Causes Of Action: Civil Law and Social Justice 107 (2004).
14. D. Michael Dale, The State of Access To Justice in Oregon: Part I: Assessment of Legal Needs ii, iii (2000); see Idaho Delivery of Legal Services Advisory Council, State Plan and Self-Evaluation 10 (2002).
15. Lois Elaine Gander, The Radical Promise of Public Legal Education in Canada, at Ch. 2 (1999) (unpublished LL.M. thesis, University of Alberta Faculty of Law).
16. See Ingrid V. Eagly, “Community Education: Creating a New Vision of Legal Services Practice,” 4 Clinical L. Rev. 433, 434 (1998) (discussing Legal Services Corporation regulations’ effect on community legal education efforts by federally-funded civil legal aid programs).
17. The Public Legal Education Association of Canada has a website: http://www.pleac.ca/.
18. Susskind, note 1 at 27.
ABOUT THE AUTHOR
Ritchie Eppink is a staff attorney for Idaho Legal Aid Services Inc. in Boise. He specializes in affordable housing law and helping domestic violence victims reclaim their lives. He was a Fulbright fellow at the University of Alberta Faculty of Law and earned a J.D. in 2006 from the University of Idaho College of Law. He can be reached at (208) 345-0106, ext. 103, or by e-mail at email@example.com.
This article originally appeared in the March/April 2009 issue of The Advocate, the official publication of the Idaho State Bar and is reprinted with permission. © 2009 Idaho State Bar.
© 2009 Ritchie Eppink