Commentary: Ways to Make Legal Fees More Affordable for the Public Massachusetts Lawyers

Commentary: Ways to make legal fees more affordable for the public Massachusetts Lawyers Weekly March 9, 2009

March 9, 2009

SECTION: COMMENTARY
LENGTH: 1119 words
HEADLINE: Commentary: Ways to make legal fees more affordable for the public
BYLINE: Edward M. Ginsburg
BODY:
This column offers readers an opportunity to ask questions of a former judge with 25 years of experience on the bench. To contact the judge with a question, e-mail
Q. How can legal fees be brought more in line with what the public can afford to pay?
A. The current economic crisis has brought into clear focus the gap between the cost of legal services and what an increasingly large segment of the population can afford to pay.
Even before this crisis, there was widespread recognition that the cost of legal services for many people was beyond what they could afford.
Lawyers used to say, only partially in jest, that they could not afford to hire themselves at their own hourly rates. Without publicly funded legal services and pro bono contributions by private lawyers, those at the lower end of the economic ladder have no chance to receive adequate legal services.
Both the American Bar Association, in its Rules of Professional Conduct, and the Supreme Judicial Court have recognized the professional responsibility of lawyers to those unable to pay and have called on attorneys to aspire to render at least 50 hours of pro bono legal services every year.
Even before the current crisis, according to an article in the Dec. 20, 2008, ABA Journal, it was estimated that 80 percent of the low-income population does not receive adequate legal services. A casual observer in the busy urban counties will note that well over 60 percent of the litigants in the Probate & Family Court appear pro se.
The Dec. 27 issue of The Boston Globe urged legislative support for legal service funding, noting that phone calls for people seeking legal services have increased by 35 percent at a time in which legal service programs have lost a large percentage of their funding due to the precipitous drop in Interest on Lawyers Trust Accounts (IOLTA), which is used to provide legal aid to the poor.
Lawyers have not been immune from the effects of the economic crisis, and attorneys from all segments of the legal community are finding their talents underutilized.
What a paradox. As more people need legal services, there is a growing disconnect between lawyers and the public. Lawyers are starting to realize that a major restructuring in the delivery of legal services is required in order to bring costs more in line with what the public can afford and/or is willing to pay.
For many years, lawyers have been accustomed to providing comprehensive advice on all aspects of the matter for which they have been retained and billing on an hourly rate basis. However, clients may wish to consult with a lawyer on a limited aspect of a legal problem and pay a flat fee for the consultation or a single court appearance.
Historically, lawyers and judges frowned upon and forcefully spoke out against the novel concept of Limited Assistance Representation (LAR). As more and more litigants require the services of lawyers and appear in courtrooms pro se, both attorneys and judges have recently expressed a willingness to explore the concept.
A committee chaired by Appeals Court Judge Cynthia Cohen studied other states that have adopted the concept and put together a pilot project that has been in effect in the Hamden, Norfolk and Suffolk Probate & Family courts for many months. Because of the success of the pilot projects, it is anticipated that LAR will be approved for all Probate & Family Courts in the near future.
LAR is good business for everyone. The public will have access to lawyers for a discrete service such as preparing pleadings or appearing at a temporary order hearing. Lawyers will have a paying client instead of no client, and the court will receive help in processing a case.
Questions with respect to potential malpractice and insurance coverage have been thoroughly vetted. So long as the lawyer and client make clear, in writing, the scope of the service to be rendered, and the lawyer withdraws after performing the services, there are no liability problems.
Although judges historically have been reluctant to let lawyers withdraw from a case, all those who participated in the LAR pilot projects cooperated fully and were grateful for the limited help. Even those who are eligible for pro bono services profited, as lawyers knew that they could come to court to help a client for one day and not be tied to the case forever.
LAR may represent the largest potential restructuring of the delivery of legal services, but other initiatives in determining fees may make legal services more attractive to a larger segment of the community.
Although fees based solely on an hourly rate are easy to apply and protect lawyers from absorbing the loss due to unforeseen circumstances, from the public perspective, hourly rates do not encourage efficiency and sometimes lead to unnecessary duplication of effort.
For some clients, fees based solely on an hourly rate are intimidating and hard to budget for. Flat fees shift some of the uncertainty to the lawyer but also provide a potential additional benefit if the matter is resolved expeditiously. Flat fees are currently out of vogue, but they were not uncommon in dealing with individuals with personal legal problems prior to the adoption of hourly rates in the 1970s.
Contingent fees have worked well for lawyers in the tort area in that the losses in one case can usually be made up by the gains in another case, and for individuals by providing access to justice for those who would not otherwise be able to take on a large adversary.
Contingent fees have been prohibited in divorce cases presumably out of fear that they would discourage lawyers from promoting reconciliation. Just as the law finally recognized that prenuptial agreements did not encourage divorce, contingent fees probably are not a significant factor in whether parties decide to reconcile. Although seldom used, contingent fees are sanctioned in post-divorce enforcement actions.
The real damage to most litigants is not from being taken advantage of by a lawyer trying to protect a fee, but by not being able to afford an attorney to protect their interests.
In conclusion, the economic crisis has provided lawyers the opportunity to think outside the box on how to provide legal services so as to better meet the needs of the profession and, at the same time, serve the public by providing increased access to justice.
When an increasingly large segment of the population is forced or elects to go without lawyers, business as usual just won't work.
Judge Edward M. Ginsburg retired from the Probate & Family Court in 2002. He heads Senior Partners for Justice, a program that provides the indigent in Probate Court with lawyers. He can be contacted at
LOAD-DATE: March 9, 2009