Filling the Civil Justice Gap With a New Business Model
Maxing out credit cards to get professional advice on child custody arrangements during a divorce.
Standing before the judge without counsel in 80 percent of divorces in Florida.
Fighting to keep their homes from foreclosure, while struggling to understand confusing court rules and procedures and feeling overpowered by professional lenders’ lawyers.
The list of Floridians with legal problems who can’t foot the bill for lawyers goes on and on: veterans, the elderly, the working middle-class, college students.
The system is broken if only 14 percent of persons with civil legal problems attain legal help. Low-income citizens reach out to dedicated legal services attorneys who are stretched to the limit, and only about 20 percent of the needs of indigent civil litigants are being met. When confronted with a civil legal problem, 30 percent of low-income Americans give up and seek no legal redress. Many working-class Floridians earn too much to qualify for legal aid, but not enough to hire an attorney.
We are failing our citizens, and that is what we euphemistically call the “civil justice gap.”
Our Florida Constitution states: “The court shall be open to every person for redress of any injury, and justice shall be administered without sale, denial, or delay.”
We have a justice crisis in Florida that makes the fundamental principle that justice should be accessible to everyone — regardless of economic status or disadvantage — nothing more than a theory. We must work with all deliberate speed to address this crisis.
The Florida Commission on Access to Civil Justice, created by Chief Justice Jorge Labarga less than a year ago, is working at a fevered pitch to fill the civil justice gap and to make access to civil justice a reality.
The commission’s work so far makes it clear that in order to solve the civil access problem, we will have to consider altering the way we define the practice of law. We will have to consider altering the way we regulate the practice of law. We will have to consider altering the way we partner with nonlawyers. We will have to consider altering the way we think.
Our profession alone cannot resolve the access to civil justice gap. It is a societal issue, and we as a profession should get businesses to take proactive initiatives, along with lawyers, so all Floridians can have 100 percent access to civil justice.
We need to look at technology and artificial intelligence platforms for solutions. We need to examine every obstacle that has allowed this festering civil justice gap to grow.
The commission’s October 1 Interim Report outlines recommendations to the Florida Supreme Court. Some of those recommendations are:
• Continue the development of the nation’s first statewide “Triage Gateway” and approval of a pilot project. The gateway will serve as an online connector to existing information and resources. Anyone with a smartphone (two-thirds of Americans, according to the Pew Research Center) or computers in libraries can access the Internet, and the gateway that will lead users to legal aid organizations, court self-help centers, Florida’s Elder Law Hotline, law school clinics, and lawyer referral services. If it’s an emergency, such as a domestic violence victim, help would arrive quickly to make sure he or she is safe.
As William Van Nortwick explained at the last commission meeting, “That’s our goal — to deliver clients to someone who can assist them — not necessarily a lawyer.”
• Revise Rule 12 of the Rules Regulating The Florida Bar to eliminate barriers to pro bono representation. The proposed changes would permit retired judges, retired lawyers who are living in Florida but may not be members of The Florida Bar, law professors, both retired and active, to serve as emeritus attorneys and volunteer their services in expanded roles. It would allow emeritus attorneys to provide advice and assistance to clients who are not subject to litigation.
The Interim Report also outlines key strategies that will be explored by the commission. Some of these key strategies are:
• Reexamine our current UPL rules. The unlicensed practice of law is a prevalent issue when clerks of courts try to help consumers standing at their counter asking for help filling out and filing the proper legal forms. Clerks want to help, but they don’t want to engage in UPL.
• Explore the creation of nonlawyer “civil legal assistants,” such as those in California, Illinois, and New York — akin to how physician’s assistants help doctors.
• Explore the creation of a “Navigator” system where trained experts can work with the public to help direct them to resources, either through the Gateway portal or outside of it.
Another proposed change to the rules comes from the Bar’s Vision 2016 Commission’s Access to Legal Services Committee and will come before the Board of Governors: Broaden unbundled legal services rules, beyond the 2003 Supreme Court authorization for family law and certain probate matters.
It’s a great start. We must continue to look forward — not backward, and examine new ways of doing business to fill the civil legal justice gap.
With all of the good ideas flowing from both the Bar’s Vision 2016 Commission and Chief Justice Labarga’s Access Commission, the focus must be affordable, meaningful access to civil justice. Not for a few, not for most — but for 100 percent of Floridians who want it and need it.
If we don’t do it, someone else will!
Share your thoughts and follow me on Facebook and Twitter or email me at [email protected]