could “for-profit charities” fund self-help lawyering?

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MyShingle weblogger Carolyn Elefant is rightly skeptical [as was ethicalEsq] about the ability of traditional pro bono efforts to make a dent in the access to justice deficit in our society — even when sponsored by large corporate law firms (see Law.com article, Sept. 18, 2006).  After thinking about Google’s efforts to use for-profit entities to achieve public interest results (see NYT article, Sept. 13, 2006), and checking out Prof. Eric Posner’s recent thoughts on for-profit charities, Carolyn used her forum at Law.com‘s Legal Blog Watch yesterday to ask “What About a For-profit Pro Bono Corporation?” (Sept. 18, 2006).  She wondered:

“Could large law firms and corporations mimic Google’s plan? Perhaps they could set up for-profit charities that could develop sophisticated but user-friendly tools to allow clients who can’t pay for lawyers to handle cases pro se. Or these firms could develop these tools and provide them at low cost to small firms to allow them to  represent small clients more efficiently and at less cost. Perhaps there’s even some way that these firms could set up a huge legal clinic, where clients could go for cheap advice but would pay midlevel rates. I realize that as a service, law is different from designing a product like a fuel-efficient car. But maybe if lawyers have a profit motive to go after the population of clients who can’t pay for lawyers and find a way to serve them and make money, we’ll reach the goal of access to justice more quickly.”

I’m hoping that shlep‘s readers will help answer Carolyn’s questions, or — more practically — help her and all of us figure out the right questions to be asking. Can we find a way to tap into mankind’s profit-motive gene to solve the access to justice problem?  I suggested in a prior post that the clear interest of the American middle class in self-help lawyering tools should be a signal to the legal profession that there may be money to be made by using technology to further our access goals.

OilCan Chicago-Kent law Professor Ronald W. Staudt wrote a law review article last year entitled Technology for Justice Customers: Bridging the Digital Divide Facing Self-Represented Litigants, 5 U. Md. L.J. Race, Religion, Gender & Class 71 (abstract, 2005).    In the article, he surveys nationwide efforts that use internet platforms to improve statewide access to justice, including the funding mechanisms that support such efforts.  Prof. Staudt focuses closely on the internet prototype that was built at the Chicago-Kent College of Law, in its remarkable A2J: Access to Justice project (a joint effort of the law school with Illinois Insitute of Technology’s Institute of Design and the National Center for State Courts, “to bring together the most advanced process design technologies and the power of the Internet to fundamentally reengineer civil court processes from a customer prospective.”).  Prof. Staudt concludes (as summarized in the abstract) that “the potential for these emerging technologies to satisfy the large, unmet demand of low-income justice customers, is substantial. However, because state courts often lack the funding and technology infrastructure to undertake the development of these platforms, its implementation is more likely to be successful through private efforts, in close cooperation with law schools.” In addition to showcasing the resultant simplified divorce interactive prototype, the A2J: Access to Justice website includes much information on what it took to plan, design, implement and evaluate that prototype, during the 18-month project.    According to the Executive Summary, “The total budget for this project is $686,368 and is funded by the State Justice Institute ($150,000), the Open Society Institute ($150,000), the Center for Access to the Courts Through Technology ($189,879), and matching funds from the Illinois Institute of Technology ($196,489).” Could private, profit-seeking funding alone have accomplished the A2J project?  Would a for-profit form of organization offer advantages beyond those that come from traditional non-profit sources of funding, and implementation through not-for-profit entities?  In its Report  Civil Legal Assistance for All Americans, the Harvard Law School Bellow-Sacks Project on the Future of Access to Civil Legal Services, notes:

“The expanded legal services infrastructure will depend on state-of-the-art technology to efficiently deliver high-quality services. Technology has steep initial costs, both to build the infrastructure and to educate the user, but once a good system is functioning marginal costs are low and benefits—speed and efficiency in managing case flow, freeing time for client contact, etc.—accrue exponentially.”

The Bellows-Sachs Report envisions the need for major participation and investment by the private bar: “In the long run, a full-access system will benefit by recognizing the important contributions of the private bar and by making investments to enhance the capacity of private providers to offer quality service to low and moderate-income consumers. Policymakers and bar leaders should evaluate the extent to which investments in the efficiency and capacity of the private bar will improve its ability to provide good-quality, affordable legal assistance to low- and moderate-income people. Private sector innovations such as unbundled legal services and collaborative lawyering should be encouraged and objectively evaluated for cost and quality effectiveness.”  

And, Bellow-Sachs sees the need for a larger role for law schools (beyond running student clinics and sponsoring loan forgiveness programs), as they are “ideally situated to undertake a meaningful and sustained empirical research program to study legal services delivery and management and to produce data and analysis useful to legal services policy makers and providers.” As for funding for self-help initiatives, the Report concludes: “The Congress, state legislatures, foundations, and corporate and private donors will be asked to provide substantially more resources. In return they will get better accountability, strong quality controls, assurance of value for dollar spent, cost controls, better distribution of services and contributions from clients to costs of service. Less tangibly though equally significant, by assuring broad and equitable access to law’s benefits, funders will strengthen the legitimacy of the legal system and bolster the public’s respect for and confidence in the law.”Are these goals compatible with the for-profit model?  Can we expect for-profit “charities” to have a long enough time horizon, or to accept intangible social returns on their investments?  Carolyn asks important and tough questions.  I’m sure many in the access-to-justice and pro se practitioner community have already given these issues a lot of thought.  Your insights and perspectives are invited.  Please click the Comment icon next to the headline for this posting and share your thoughts.

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