Mark Dubois: The Democratization Of The Third Branch Of Government
I was at a meeting of something called the Council of Bar Presidents the other day. It is part of my duties as president-in-waiting of the Connecticut Bar Association. I thoroughly enjoyed sharing ideas with the leaders of different bar groups about what is working, what needs to be fixed and how we can all remain relevant to the professional lives of our members.
Then, as seems to inevitably happen lately when I talk with lawyers lately, the discussion turned to self-reps, the courts, and the seemingly overnight transformation of our profession from a solid and respectable enterprise into one where we are all scrambling for smaller pieces of a shrinking client pie while the burgeoning DIY market is growing, fueled by free information and a judicial leadership which has embraced the notion that if folks refuse to bring lawyers with them to court then the courts will find a way to serve them without lawyers.
Because I foolishly sat at the end of the table, all of this somehow became my fault. One lawyer predicted the end of the solo and small firm world caused by those of us who encourage more and more people to attend law schools who were flooding the market with unemployed and unemployable graduates. (He did have a point. One statistic I recently saw was that there will at about 75,000 new law jobs in the next decade while the law schools are graduating something like 45-50,000 new lawyers every year. But he was wrong that I have been encouraging anyone to go to law school lately.) Another lawyer, the second generation running his firm since 1941, seemed to feel that bar associations had become too cozy with court leadership who favor self-reps over full-pay clients. Another point well taken. It is hard to explain to a paying client how much of the time they are paying for is wasted waiting for a judge to walk a self-rep through the complexities of proof involved in the motion or petition they have brought while the full-pay clients and lawyers cool their heels.
Norm Janes, both a former CBA president and former executive director of Statewide Legal Services tried to put a different face on it, suggesting that we were not watching our profession die, but rather were watching the "democratization of the third branch of government." In Norm's view, too many have been shut out of the courts for too long due to the inefficiencies built into our present system. What we are now watching is a market being transformed by the buyer instead of the seller.
The untold secret is that, at their best, legal service agencies are able to handle only a tiny fraction of those who qualify for and need their help. Legal needs are not optional or avoidable. They exist as a result of the increasing complexity of society. While we provide guaranteed representation in some fields (criminal law after Gideon) in other areas (landlord/tenant, benefits, family), folks with real need are left to fend for themselves.
At the recent Reinvent Law symposium in New York I heard one speaker describe "the donut of justice." John Mayer works for CALI (Computer Assisted Legal Instruction) which provides thousands of on-line courses that law professors use to augment their teaching. (I have used some in courses I have taught and they are very good.) CALI has now created a platform that allows anyone with a little training to build programs that walk folks through simple legal processes such as seeking legal assistance, applying for benefits, filing or answering a lawsuit, creating a contract or asserting a claim or applying for immigration status. It is called "a2j (access to justice) author."
Mayer's vision is that using tools such as these, we can surround citizens with tools which open the justice system to them much as donuts surround their center. I have seen some of the ways these systems work, and they are amazing. Unlike those of us who can also do this work, these systems are available for free, 24/7, in any language the user is conversant with. They never tire and they deliver consistently high-quality results. Powerful stuff.
The issue for us as a profession is whether lawyers, as we understood them to be, are going to become irrelevant. Hardly. There will always be a role for a guide and advisor. The machine may be able to create a document, but which document to use is a matter of strategy perhaps best left to a wise practitioner.
Oh, in case anyone wonders if we can make any money doing this, one speaker at the Reinvent Law event estimated the market for such "tiny law" services to be $3 billion annually. Even if it is only half of that, that's a big pie. •
Mark Dubois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Gerraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views here are his own and not those of the CBA.