The Justice Gap:
Addressing the Needs of
Underemployed Lawyers
By Rich Spier
I have been engaged in bar circles long enough to know that one of our profession’s most pressing problems is helping unemployed and underemployed lawyers. Another is the ever-widening “justice gap” — there are more people who need affordable legal help and fewer resources available to them. In January’s edition of the Bulletin I offered a list of my goals as OSB president this year. My top two are: 1) continuing support of programs that facilitate the transition of recent law graduates to law practice, including assistance in locating and developing practice opportunities; and 2) expanding provision of legal services to middle-income and other underserved Oregonians.
I am pleased to offer an update. I believe the greatest opportunities lie at the intersection of those goals, and that we should focus our efforts on that intersection — developing mechanisms to help new lawyers find opportunities to build their careers by serving the unmet legal needs of many Oregonians. That said, I am not interested in creating any new programs without a thorough review of the costs and benefits and without considering how we might modify or otherwise improve what we currently offer to make sure we are making the best use of member fees. So along with vetting new ideas, we will also carefully review our current efforts with a view to maximum impact. It’s a daunting task, but we are fortunate to have identified a uniquely qualified local expert to help us tackle the job.
OSB Executive Director Sylvia Stevens recently decided, with my concurrence, to engage Professor Theresa Wright as a consultant and coordinator for this review. As a clinical law professor at the recently closed Lewis & Clark Legal Clinic in downtown Portland, Wright has a wealth of experience in what law students need to learn in order to actually practice law. As a former member of the OSB Board of Governors, she also understands how the bar balances its multiple priorities and programs. She is a member of the OSB House of Delegates and a past member of several bar committees, including: Judicial Administration, Client Security Fund, Unlawful Practice of Law, Pro Bono and Lawyer Referral Service. She has served on the Professionalism Commission and chaired the Litigation Section. In short, she has done it all for the bar, and until now always as a volunteer. I could not be more delighted to have her on board.
Bar Program Review
The task will proceed in stages, as we ask and find answers to the following questions: What are we and others in the legal community doing now in this area? What are our stakeholders’ most pressing needs? What would be our most effective and efficient means of addressing those needs?
Of course the OSB already provides a number of services to assist lawyers in their practices. Since the beginning of the Great Recession especially we have focused on the lack of employment and practice opportunities for new lawyers. We have sponsored numerous CLEs and published feature articles on rural practice opportunities, sales of law practices and other nontraditional options. Our CLE Seminars Department has sponsored a variety of introductory, “nuts and bolts” programs, and our Oregon New Lawyers Division has also stepped up its efforts to offer practical, affordable CLE, networking and internship opportunities. In 2011 we created the New Lawyer Mentoring Program to offer needed one-on-one guidance to new lawyers transitioning into practice. The Professional Liability Fund has increased its outreach and training options on a wide range of practice management and development topics and recently increased staffing for its invaluable practice management advisor program.
Next, we need to know more about what others are doing, and what new ideas are being tested. We are in ongoing discussions with local bars and other groups to hear their ideas and plans. Wherever I go — local bar meetings, law firm gatherings, section meetings and national conferences — I hear good ideas. Before we can decide which ideas are the best for Oregon, we need a clear and updated picture of what our stakeholders need.
For our members and future members, we know that although enrollment in Oregon and other law schools has recently declined, we still admit many members each year who struggle to find meaningful paid work in the legal field. From discussions with law firms, we know that no one expects the “old days” of continuing growth and expansion are coming back. We know that recent graduates (and future ones) will likely practice in sole or small firms, possibly in a non-traditional practice setting. From recent new lawyers, we know they want jobs or practice development opportunities in the form of practical skills training, mentoring and networking.
Law Schools and Demographics
Last year, OSB President Tom Kranovich invited the deans of Oregon’s three law schools to meet with the Board of Governors in April. We had a frank discussion about the changes taking place in the profession and the impact the changes have had and will continue to have on the career prospects for Oregon’s law school graduates. We discussed the pressure for law schools to modify their curriculums to produce “practice ready” graduates, declining enrollment and other budget challenges, and the reality that solutions to the current employment drought are not so simple. Similarly, it’s been suggested we may need to make more radical changes to legal education, such as less-expensive night school, two-year law schools, and a broader range of legal education. It is important for us to remain in regular communication with the law schools and the court to monitor these issues and ideas.
We are also working to gather more quantifiable and objective data through participation in the Educating Tomorrow’s Lawyers Initiative of the Institute for the Advancement of the American Legal System at the University of Denver, in a study on the skills, characteristics and competencies that the profession requires of new lawyers. We will also involve the Oregon New Lawyers Division in this stakeholder review.
Of course, another very important stakeholder is the public. We have an ever growing “justice gap,” in which not only low-income people but also moderate-income people are unable to afford — or believe they are unable to afford — professional legal counsel. Legal aid, due to a lack of funding, meets only 15 percent of the civil legal needs of the poor. At least one party is unrepresented in approximately 75 percent of family court cases. Even potential clients who presumably could afford some level of professional legal assistance are increasingly turning to online and other do-it-yourself solutions.
Multi-pronged Approach
I understand that it will require a multi-pronged approach to close the justice gap. I am encouraged at recent progress from the Oregon Judicial Department, especially in the family law arena. Thanks to the restoration of funding lost when the recession began, important resources such as family law facilitators and specialists have been restored. Just recently the chief justice announced the expansion of an outstanding resource for Oregonians seeking restraining orders in domestic violence situations. Electronic interview-based forms are now available on all Oregon circuit court websites, which will make it easier for parties to fill out and file Family Abuse Prevention Act (FAPA) documents with the courts. Deschutes County is conducting a pilot project for informal domestic relations trials, designed to simplify the process for pro se litigants.
We will continue to seek increased funding for legal aid, promote pro bono opportunities and consider the upcoming recommendations of our Legal Technicians Task Force. This group, created by former bar president Mike Haglund, has studied recent developments in Washington and is charged with presenting a report with recommendations for how a similar scheme might work in Oregon. My personal opinion is that the public may be better served by our facilitating access to justice through lawyers at affordable rates but I am aware that others view legal technicians as addressing different market demands.
Haglund, along with Chief U.S. District Judge Ann Aiken, have been working with many others in an Innovations Work Group, exploring ways to use technology to create new platforms for law practice. The objective is to afford meaningful practice opportunities for underutilized lawyers while increasing access to justice for underserved Oregonians.
I have yet to hear of a software program that I would choose to handle a serious legal problem over a competent lawyer. At the same, I recognize that many people (and particularly many who choose not to use lawyers) have simple legal matters. They can still benefit from a lawyer’s review of their own efforts or from a consultation about the issue and potential solutions. I think we can do more to address the justice gap by directing work to our underemployed lawyers, and I commit to keeping that goal at the forefront of our review. I know it is possible because I have met young lawyers who have found new ways to build a practice and are making it work. Some are tech-savvy entrepreneurs whose flexible and low-overhead approaches allow them to charge below-market rates and still earn a decent living. Others have done it by moving away from the lawyer-heavy cities of the Willamette Valley, finding a welcoming and supportive work environment in more rural areas. Others are buying practices or working with retirement-age solos on transitioning a client base. We need to encourage what’s working.
My goal is to expand outreach to the public concerning the availability of legal services at reasonable cost from licensed, regulated and insured legal service providers, versus pro se and Internet options. The good news here is we have already started; not everything needs a comprehensive study. In December we launched new Google Ad Words and Craig’s List campaigns, both of which succeeded in increasing traffic to our public-oriented web pages. These campaigns, which allow us to reach people actively searching for legal information, have the potential for great results at a very low cost.
I look forward to hearing from individual lawyers and bar groups as we move forward. We appreciate the support and encouragement in this effort from Chief Justice Tom Balmer and the hands-on help and enthusiasm of Supreme Court Justice Martha Walters and Chief U.S. District Judge Ann Aiken. Stay tuned for updates about OSB efforts to study and move toward solving the justice gap by providing more opportunities for lawyers.
ABOUT THE AUTHOR
OSB President Rich Spier is a mediator in Portland. Reach him at president@osbar.org.