The Access to Justice “Tripod”
Across the country, including here in Florida, access to justice continues to be a focus of state bars, legal academics, and the courts. But it’s often difficult to follow the discussions, in part because of the wide variety of current and proposed solutions to addressing the challenge of making legal services more available to our citizens.
If you’re like me, you appreciate a good metaphor as a useful tool for conceptualizing ideas. So, think about the access to justice challenge as a tripod. A tripod has three legs, each of which carries a part of the load.
One “leg” of the access to justice tripod is the technology leg. This includes efforts to enable lawyers to better use technology, arguably enabling lawyers to lower the cost of their services to clients. The many online practice management platforms and tools to assist with remote depositions and virtual court proceedings now available are examples of this. Another aspect of the technology leg are the efforts to provide greater automation to our court operating systems, enabling pro se litigants to more easily and effectively represent themselves. One example of this is the DIY (Do It Yourself) Florida online platform, which was developed by the Judicial Management Council and is now operated by the Office of State Courts Administrator. DIY Florida assists self-represented litigants in completing and filing pleadings for landlord/tenant matters, small civil monetary claims, and interpersonal violence matters. Other subject areas are expected to be included soon. There are also online dispute resolution platforms now in use in two Florida circuits. In the 11th Circuit, a civil traffic defendant may now resolve a citation through online negotiation with a state hearing officer. A Ninth Circuit platform allows parties to civil monetary claims of $8,000 or less to resolve their dispute through online negotiation. Yet another initiative within this technology leg is the Board of Governors COVID-19 Pandemic Recovery Task Force’s exploration of an online platform for the complete management and resolution of civil claims of $1,000 or less. And the most recent example within this technology leg is the Supreme Court’s administrative order on September 20, 2021, establishing a Workgroup on Access to Justice and tasking the workgroup with identifying strategies to increase pro se litigants’ use of electronic filing and remote technology in court proceedings.
The second leg of the access tripod is pro bono and legal aid. Efforts here seek to increase pro bono services by Florida lawyers and to increase funding for legal aid organizations. The Florida Supreme Court’s recommendation of 20 hours of pro bono service each year, or a $350 contribution to a legal aid organization, is an example. Another example is the Bar’s legislative support for “funding for civil legal assistance to indigent persons through the Florida Access to Civil Legal Assistance Act.” A recent development in regard to legal aid funding was the Supreme Court’s July 1, 2021, order addressing how IOTA trust funds must be spent by The Florida Bar Foundation and legal aid organizations.
The third leg of the tripod is regulation. The focus here is whether legal services can — or should — be made more available through changes to our ethics and other Bar rules. An early example is Bar Rule 4-1.2(c) that allows lawyers and clients to agree to limit the scope of the lawyer’s representation. Another example is the 2019 proposal by the Bar to the Supreme Court for a new Chapter 23 to the Rules Regulating The Florida Bar. This new Chapter 23 would allow “online legal service providers” to register with The Florida Bar if they agree to meet certain standards in their communications, disclosures, and financial charges to the public; this proposal is still under consideration by the Supreme Court. Finally, and perhaps most notably within the regulatory leg, is the June 2021 final report of the Special Committee for the Improvement of the Delivery of Legal Services that recommends further study of significant changes to our rules governing advertising, fee sharing, law firm ownership, and legal services by paralegals.
These are just some of the initiatives within each of these “legs” and, of course, it’s an understatement to say there are strongly held opinions for and against some of the initiatives mentioned here. But hopefully this tripod metaphor will give you a framework to review and evaluate individual initiatives toward access to justice within their broader context. It’s likely that the mix of solutions among these three legs will evolve over time. But whatever that mix may become, it cannot be overstated that providing our citizens with adequate access to services to meet their legal needs is vitally important to our system of justice and to the long-term viability of our society.