Equality Under the Law

WASHINGTON–This August at the annual meeting of the American Bar Association, (ABA), the nation’s establishment lawyers will witness an extraordinary three hour program on injustices in the delivery of legal services and what can be done about them. Prominent on this program will be case studies of people who have been victimized by the ills of the legal system.

Plainly, this country’s hoary lawyer class is worried enough to bring such grim material to their meetings in Hawaii and face up to some realities. Let’s hope they are defined to include the following:

Reality number one is that the millions of poor people receive very little legal representation to defend or advocate their rights, notwithstanding all the pompous touting given to the neighborhood legal services program and the older legal aid offices. These services are quantitatively two drops in the bucket. Also, political pressures have kept such advocacy, with few exceptions, from going after root causes and structures that breed violations and abuses. As a result, even court victories do little to affect or deter recurrent rounds of similar abuses to other similar victims.

Instead of finding itself at a stage of expanding the federally supported poverty lawyer program, which now numbers a little over 2,000 attorneys nationwide, the Bar has been weakly striving to save the program from being scuttled by Richard Nixon. His animosity to the poverty lawyers program, especially when they challenge unjust agencies of government, is only exceeded by the generous quantityof legal aid which the taxpayer is providing him for his personal Watergate and related troubles. After three years of hassling the White House, members of Congress have completed a compromise bill which removes the legal services program from the Office of Economic Opportunity and establishes it in a new but restricted, federally funded corporation controlled by the White House. Even though the White House literally wore down Senator Nelson, Javits and Representative Perkins to accept its terms. Mr. Nixon may still veto the bill. None of this could have happened if the Bar really used its muscle and backed up the firm statements of former ABA President, Robert Meserve.

Reality number two is that most Americans are shut out of the legal system because of the expense and time needed to use it. Small claims courts were supposed to help solve this problem but they need simplification, decentralization into neighborhoods, and after work-hours service to begin to fill their promise. The ABA knows what has to be done here — it’s not that difficult — yet it fails to make this a priority for real action.

Prepaid legal services by lay groups, such as labor union, could help hurdle this cost barrier. After unrelenting opposition to this idea by the organized Bar, a Supreme Court decision opened the way in 1967. So now the ABA is trying to control directly or indirectly the nature of these prepaid legal service plans to favor the most expensive and least efficient system. It is one thing to have the ABA express an opinion; it is quite another matter to say, through its disciplinary rules, that an alternative, the so-called closed panel of staff lawyers servicing a group’s members, would involve these lawyers in unethical conduct.

Reality number three is that state bar associations should scrap their minimum fee schedules because they are anticompetitive and provide collusive rationales for lawyers telling clients that they have to charge such and such an amount or they would be acting unethically. This absurdity, which often takes the form of different county bar association minimum fee schedules in a single state, such as Connecticut, has helped spawn massive sales of “do-it-yourself” kits for divorce actions or books like How to Form Your Own Corporation Without a Lawyer for Under $50.

Andrew Hourigan, Jr., a member of the ABA’s Board of Governors, recently warned about this rampant “unauthorized practice of law” in the divorce area. He urged “more and better service” by lawyers. What, he should have emphasized are ways to bring down the cost of these services for routine problems dramatically like competition, prepaid group practice, and the use of more paralegal professional services and systems to help people avoid lawyers altogether yet protect their interests or resolve their complaints.

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