Remarks for the March 23, 2017 Australia Presentation

REMARKS FOR THE MARCH 23, 2017 AUSTRALIA PRESENTATION

Thanks for that kind introduction, Nic. It has been my very good fortune to have worked closely with you and to see the remarkable successyou have had in giving shape to DLA Piper’s pro bono program internationally.
I appreciate the opportunity to be back in your remarkable country.And it is pleasant relief to be able to escape the insanity of our current administration in Washington, at least for a few days.
With the able assistance of DLA Piper pro bono staff, I have been able to learn about the impressive initiatives underway here to address the access to justice gap.
You will not be surprised to hear that there is an attitude in the United States that we havea lock onsocial justice concerns and on the measures and creativity needed to address it. You in this room prove otherwise.
And frankly the only thing that Washington has a lock on at the momentis the utter insanity existing in our current administration.
We should be paying close attention to what you are now doing and striving to do.
Like many of you, I was drawn to the legal profession because I believed that lawyers had unique abilities to help those in crisis and to ensure that equal justice and fairness were more than abstract principles.
But are they more than abstract principles today?
There are more than 1 million lawyers in America, but most people with civil legal problems, predominantly minorities, don’t have the means to hire one.
It is ironic that at the same time when so many lawyers in our country are feeling something is missing in their lives and when the job market for recent law school graduates is so meagre, there is an access to justice crisis of monumental scope that they could and should be helping to address.
According to one survey, at any one time, there are more than 64 million Americans with civil legal problems with nowhere to turn for help.
In a recent American Bar Foundation survey of a middle-sized city, 66% of the adults—many without the means to hire lawyers—were confronted with at least one and often more civil justice problems during the previous 18 months.
And the need for help goes well beyond the impoverished. Those with modest incomes— retirees on pensions; blue collar workers; small business owners; among others, do not have access to counsel either.
We have often prided ourselves on having the premier legal system in the world. But a recent study by the World Justice Project debunks this notion. Utilizing a statistically based Index, it has determined that the US fares poorly compared to other democratic countries including Australia—you were 14th, we were 28th—primarily because our legal system remains largely inaccessible to disadvantaged groups.
And the sad truth is that the legal profession in the United States has been largely missing in action in addressing these concerns.
Let me give you a specific example of the extent of the problem in my hometown of Washington, DC. Although there are varying estimates, it is likely that there are as many as 80,000 lawyers in Washington, 14,000 more than the estimated number in all of Australia.
Even with this being so, there are overwhelming numbers of people in the District who do not have access to lawyers. Let’s look at the demographics. Based upon 2014 Census figures, approximately 35% of the District’s, or over 200,000 of the city’s slightly over 600,000 residents,have such low incomes that they qualify for free legal aid.
Another 21%, or around 125,000, fell within the category of being within 200%-400% above poverty level. As an example, this category would include individuals with income of $24,000. It would be difficult for someone with thisincome level, particularly with the high cost of living in Washington, to pay averageDC billable rates. Even for small law firms or solo practitioners, they tend to be well over $200 an hour.
A high percent of these two population—the poor and those with modest incomes—are confronted with serious civil justice problems, including the threat of eviction and foreclosure, loss of child custody, domestic violence, and the potential of deportation.
And yet staggering percentages face these matters on their own. Studies have shown that over 95% appear in the District’s Landlord/Tenant Court, in paternity and child support cases in Family Court, and in small estate matters in the Superior Court Probate Division without counsel!Andthe percentage is 98% of both petitioners and respondents in the Domestic Violence Unit of the Superior Court.
There is an irony here. As reflected in the unauthorized practice of law rules in most jurisdictions, including the one in the District of Columbia, the legal profession retains a virtual monopoly over providing advice and counsel on legal matters and has resisted allowing others to step in and help even when lawyers are not making themselves available. And apparently, this is also the case here in Australia.
We have reached a point in our history in the United States where we have to refocus and strive to become a helping profession instead of one that concentrates primarily on serving business clients who can afford to pay the high billing rates lawyers typically charge.
It is easy to define problems, but what are the solutions?
I made a number of recommendations for addressing the access to justice crisis in the book I published in 2013 entitled The Legal Profession: What is Wrong and How to Fix It. I first pointed out that there is not one solution that will fix the problem. A comprehensive strategyis needed. Here are examples of what I concluded the strategy needed to include:
One, we must in the U.S. takea far more aggressive role in pushing for substantially increased public and private support for legal services programs and for fellowships, student loan repayment programs, and other programs to allow more lawyers to pursue public interest careers.
We havebeen far too silent about the drastic cuts being made in funding forlegal services programs in recent years. Nearly $80 million has been cut from the Legal Services Corporation $420 million in recent years during a time when the percentages of those in poverty were increasing and we let that happen. We are in even greater danger now with the Trump administration and the Republican party in control of Congress. I understand that you have been dealing with similar cuts for legal services and that the Productivity Commission recommended a major infusion of funding for legal aid. I was very impressed, by the way, with the innovative approach the Salvation Army here has taken in creating Salvos as a means for providing financial support to its “sister” legal aid firm. This is a model worth emulating.
Two, we must in our country offer greatly reduced fee and limited scope arrangements to those who are not impoverished but have limited means.
Recently, Georgetown and DLA Piper and Arent Fox created one such initiative, a non-profit, the DC Affordable Law Firm, to provide consultation, unbundled and full representation family law, housing and immigration-related legal services to low income DC residents who do not qualify for free legal aid. We restricted fees to $75 an hour and a variety of payment plans. Each year, the firm will be hiring six lawyers out of Georgetown’s graduating class for 15 months of service, which include three months of intensive training followed by one year of legal services.
I had the honor of serving as the executive director of the law on a pro bono basis for its first year and am now serving as the Chair of the Board. Each of the three sponsoring partners has made major contributions to the firm and we are testing ways to make it sustainable and replicable. Early results are very promising, demonstrate that firms such as this one can provide public interest career opportunities for law graduates at a time when jobs are hard to find, and have also established the value of offering limited scope services.
Three, our legal profession must greatly expand its pro bono commitment. I am in favor of establishing mandatory pro bono requirements but recognize that, like here, this is a very controversial measure that is unlikely to happen.
I have reached this conclusion reluctantly because the need for pro bono service is so great and the aspirational goal of 50 hours of pro bono service is nowhere close to being achieved. While major law firms like DLA Piper provide substantial pro bono, the national average is substantially below the aspirational figure. If each of our 1.2 million lawyers actually gave 50 pro bono hours, it would add over 66 million hours of service. If the same approach were used here, that could add more than 3 million hours of pro bono each year.
Recognizing a mandatory pro bono requirement is unlikely and that there are logistical realities that would need to be addressed as well, there are some other initiatives underway in the U.S., including mandatory pro bono reporting requirements now in existence in seven states; a state tax credit for pro bono service in Arizona, and allowing pro bono service to meet continuing CLE requirements. From what I have read, the commitment to pro bono service may be stronger here than it is in the U.S.
Four, we need to eliminateunauthorized practice of law restrictions that preclude non-lawyers from helping to address the justice gap.
There are a number of ways to do that consistent with protecting consumers. Under the leadership of Jonathan Lippman, the former creative Chief Judge, New York has created Navigator Programs under which trained college and law students and social workers provide information and assist the elderly and low income residents in “navigating their way through consumer debt and landlord-tenant court.
And it is not only students who can be helpful. Professional from disciplines such as medicine and business can be trained as well to provide meaningful assistance in addressing access to justice gaps. We could find ways to use their skills beyond the collaborative medical-legal partnerships we have in both of countries.
And if we do not take the initiative in areas such as eliminating undue restrictions on non-lawyers, others may do it for us. Here is an example of how this might happen..
To overcome the lack of doctors in rural areas in Nebraska, the state legislature enacted a law which allows nurse practitioners with masters degrees to order and interpret diagnostic tests, prescribe medications and administer treatments without specific authorizations from doctors. Both U.S. and Australian surveys indicate that few lawyers are available to provide legal services in rural areas in either of our countries. Why not follow the medical model just described and let specially trained non-lawyers meet at least part of the need in places where few, if any, lawyers are available.
Five, the legal profession must lend its major support to the self-help movement.
While we cannot ignore the need for more support for legal services, we must also recognize that vast numbers of people with civil legal problems hardly ever take these problems to lawyers and deal with them on their own. We need to find better ways to reach out to them and offer on-line and other forms of assistance.
Six, we need to continue to simplify court rules and procedures to create a fairer environment for pro se litigants. Our court procedures in the United States were created with the assumption that lawyers would be available to understand and comply with them. Because that is not the case in our family law, housing, consumer debt and immigration courts, we deal with that reality.

Seven, with this background, it is now fair to ask what role of the nation’s law schools should be playing in addressing the civil access to justice crisis.
In my view, it is essential that they provide leadership—which, for the most part, they are not doing now. Unlike most professional schools, law schools, as a general matter, do not engage in systematic research and development on how the legal profession can improve its services to clients and the public. Law professors focus mostly on law reform—and not on legal profession reform. While it is important for legal scholars to raise questions about and propose changes to the laws and procedures that govern our society that is not enough.
We also need bright and creative legal scholars, and law students working under their tutelage, to assess ways overcome the largely unmet civil justice needs of most of this country’s population.
Of equal importance, Law schools should also be devoting more time to educating the public about their legal rights. When I look at medical school websites, for example, I see that they do seek to educate the public about basic information about health care. We should be doing the same.
Unfortunately, most law schools are largely isolated from the legal profession and the public at a critical time when they are desperately needed to, among other needs, to:

Conduct research and development on the access to civil justice and other critical issues;
Expand curriculum focus in these areas;
Serve as laboratories and incubators to test new approaches for meeting needs of clients and the public;
Convene conferences with practitioners to review and promote needed changes in the legal profession—particularly with respect to addressing the access to justice crises; and
As noted above, provide useful information to the public about law and our legal system

I am pleased that Georgetown has taken some initiative in this area. Professor TaninaRostain and I are serving as Co-Directors of the newly-created Justice Lab. Among its goals, the Justice Lab seeks to promote the growing role of digital and other technologies to support legal aid agencies and promote self-help resources to unrepresented people. Professor Rostain is currently teaching a seminar, similar to one that Gary Cazalet teaches at the University of Melbourne, in which her students design access to justice apps. An illustration of one is an app that a student designed for social workers who serve the homebound elderly. The app allows the social workers to do a “legal health check” focused on potential landlor/tenant, consumer debt and financial exploitation problems.
I am also now co-teaching another seminar in which students have fieldwork placements with legal aid agencies and access to justice commissions to, among other projects, help assess the need for apps and other technologies to address access to justice concerns.
There is no doubt in our minds that law schools must expand the work they do in this area.

In sum, if the legal profession and law schoolsin America takes a broader approach in focusing on the needs of 80% of our population that it now largely ignores, I have no doubt that we can find solutions for many of the problems we have.
As Patricia Wald, the retired Chief Judge of the DC Circuit, and Esther Lardent, the former President of the Pro Bono Institute, who sadly recently died, said in the Foreword to my book, “Make no mistake. Change [is coming] for the profession . . .; it is urgent that change be in the right direction and that its course be guided toward realization of the aspirations of a noble profession.
Over 80 years ago, United States Supreme Court Justice Harlan Stone commented that “Steadily the best skill and capacity of the [legal] profession has been drawn into . . . service of business and finance . . . . He thought that its energies should be better spent if they were more consciously directed toward the advancement of the public interest.”
I think we all agree with that observation.
In sum, there is much to be done and much we can accomplish in spite of the daunting obstacles we face. Because the needs in our two countries are so similar, we should find ways to join forces, share ideas, and work together to find ways to address them.Thank you.

EAST\140152519.1