Back to the Future … of Legal Services

So, yesterday was Back to the Future day.  And that was fun.  But today I want to go back to the future of legal services… as a topic for discussion.

I’m on record as being a fan of The Law for Lawyers Today blog, but the way they close out a recent piece exploring whether self-help legal services are a solution for members of the public who currently cannot afford to pay for legal counsel or only make the problem worse leaves me with a bad taste in my mouth.  The piece, as a whole, is a well-done op-ed of sorts inspired by, and involving a recap of, an in-person talk in Cleveland by the GC of LegalZoom.

But I couldn’t disagree more with the way in which it is wrapped up, a way which feeds into a few myths and continues to encourage what I think is a wrongheaded view of the situation that faces our profession:

[The GC] closed with a rallying cry, urging lawyers and bar regulators to be more open to the LegalZoom business model, as part of increasing access to justice for legal consumers.

But many are far from being sold on the notion.  Frank DeSantis, a co-editor of this blog, for instance, is the former chair of the Ohio Supreme Court Board of Commissioners on the Unauthorized Practice of Law.  He noted that “UPL regulations exist to protect the public, not lawyers.  LegalZoom is very dangerous because it gives its users the false impression that they have received sound legal advice,” when actually they have just selected from some drop-down menus.  Legal consumers are often not in a position to know what they need to protect their interests.  That’s where legal advice comes in.  Creating and using the wrong document from a website can be more harmful than not having a document.

Reflecting on [the GC’s] described visit to the emergency room, DeSantis commented, “Legal self-help is as pernicious as medical self-help.”

A few of my issues here are that, while it is true that some aspects of UPL regulation exist to protect consumers, the reality is that a significant amount of UPL regulation really only serves to protect lawyers.  I have problems with the GC’s rhetoric as well for conflating businesses like LegalZoom and the services they deliver with what people normally think of when we talk about “access to justice.”  Products like the services that LegalZoom offers do not really exist as an alternative to legal services that the profession should be providing pro bono but aren’t.  These kind of services are marketed toward consumers who can afford to pay for the delivery of legal services but either cannot afford to do so at the rates that a lawyer would charge them or are not willing to pay that higher cost because they do not see the value in doing so.

But, the real problem I have with the treatment of this topic is the argument about the “danger” posed by such service providers to the public, bolstered in part by quotes from Frank DeSantis, who is an excellent lawyer.  While rhetorically well-constructed, closing out the blogpost by painting the existence of such services as endangering the public more than helping them misses the mark on the reality of the kinds of services that self-help legal providers are seeking to make available.  When we’re talking about consumers who live paycheck-to-paycheck, the reality is, that in most situations, access to low-cost, self-help platforms for relatively routine legal services works a lot like (and if our profession could more proactively attempt to embrace rather than vilify could work nearly exactly like) TurboTax does for the completion of income tax returns by members of the public who can’t afford to pay for the services of a CPA.  If you changed the subject matter from Legal Zoom to Turbo Tax and tried to imagine a CPA making the allegation that someone who uses TurboTax to do their taxes is going to end up worse off than someone who goes it alone (or letting the analogy more strictly parallel the actual quote in the article, someone who doesn’t file their taxes at all (i.e. has no document), a reader would have a hard time taking the claim seriously.

My view is significantly different.  To me, the reality of the situation for our profession is that we’ve priced ourselves into a position where consumers cannot afford the services we deliver, and those consumers have turned to a wide array of entities, like Legal Zoom and others, to deliver those services.  Self-help services are not going away.  Nor for that matter are a lot of other platforms competing with lawyers in the legal marketplace that don’t involve self-help but offer what are marketed as more efficient solutions to legal problems than retaining lawyers.  If we want to help ourselves, we have to find a way to help consumers get better help.  If you really do not want to believe me when I say that, look no further than the fact that the American Bar Association is teaming up with an entity to provide answers to a discrete legal question (and a follow up!) for a nickel less per instance than what we use to pay for foot-long sandwiches during promo months from a particular sub sandwich franchise that has lately been in the news for all the wrong reasons.

I tend to believe that our profession really only has three viable choices moving forward: (1) be more willing to better tailor the expense of our services to the needs of consumers so that people, who aren’t impoverished, but who consider hiring an attorney to be beyond their financial reach can better afford to hire a lawyer; (2) embrace and co-opt these other avenues for consumers to receive services that we are not willing to make affordable otherwise; or (3) at the very least, stop trying to argue that these providers should not be permitted to exist and work instead toward solutions that involve advocating for these providers to be regulated in some coherent and cohesive fashion.

And, who knows, if the general arena is better regulated so that a consumer who has used such a service and really has made their situation worse has a viable remedy to pursue, then they might hire a lawyer to help them pursue that remedy.  Plus, the providers subjected to the regulatory framework absolutely will be retaining lawyers to defend them and help them navigate the applicable regulations.