State Bar of California report: Ethic rules limit access to legal services

A report (pdf) commissioned by the State Bar of California found what most of us recognize already. Bar associatons are impeding access to legal services.

As a sizable portion of the public struggles to afford a lawyer and a sizable portion of the bar struggles to find sufficient fee-paying client work, legal regulators need to seriously evaluate whether the consumer protection benefits of these ethics rules are worth the cost.

The study and report perfomed by William Henderson, a professor at the University of Indiana Maurer School of Law and well known for the study and execution of legal innovation, was done as part of California Bar task force’s consideration of changes to ethics rules that limit the use of legal technology and forbid nonlawyers from owning legal service companies.

Reviewing the report for the ABA Journal, Jason Tashea makes clear the decline in legal services market.

• National Center for State Courts report, cited by Henderson, that looked at nearly 1 million civil cases from 10 urban counties found that 76 percent of cases involved at least one party who was self-represented, about double the rate from a comparable study 20 years earlier.
• Unlike other personnel-heavy industries that have grown more expensive, like higher education and medicine, people are forgoing legal services.
• In 1987, legal services made up 0.435 percent of spending allocation in the Consumer Price Index for urban consumers. In 2016, that number had dropped by more than 40 percent to 0.245 percent. In contrast, college tuition and medicine saw increases in spending of 120.3 percent and 77.6 percent, respectively.
• Fewer people seeking legal services led to a decrease of this market sector by more than 10 percent between 2007 and 2011, at a loss of $7 billion.
• Cost pressure on corporate clients has led to more legal work going in-house and a rise of well-financed alternative legal service providers, which cut into the traditional corporate legal market.

Henderson informed the Bar that:

[M]odifying the ethics rules to facilitate greater collaboration across law and other disciplines will (1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.

The sad part of this all is that the task force’s final report isn’t due until December 31, 2019. Presumably they’ll make a recommendation to the State Bar, who will prsumably assign action on ethics rules to a committee of theirs.

Though Henderson concluded some U.S. jurisdiction needs to go first and based on historical precedent the most likely jurisdiction is California, bar action taken to bring greater access to legal services while helping the average lawyer is unlikely to come anytime soon.