But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need. Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?Side of the discussion? What side is that, exactly, the irrelevant one? The let's-make-stuff-up one?
Unmet legal needs do exist, but it's quickly reached mythological proportions in trying to defend the output of attorneys or conjuring up schemes to employ the new lawyer underclass and mint more new ones. I call bullshit fueled by ivory tower bias and fantastical ideas about the poor.
The biggest tip-off that this argument is mostly bullshit is that the professors who spout it out usually speak in ambiguities. Note Long's verbiage: "legal advice they need."
Well, what legal advice do poor people need? Since most professors don't speak to poor people, let me spell this out:
They have no need for criminal defense, personal injury, social security/disability, most workman's compensation claims, and certain other fee-shifting/contingency claims as a result of the public defender system (which needs more funding, but that's another matter) and plaintiffs' attorneys willing to take flyers on plausible claims (hint: if the SSI mill isn't taking a disability claim, it's not an "unmet legal need"). They also have very limited needs for estate planning, transactional law, high-powered corporate/commercial law, etc. And poor people rarely actually need attorneys in tort defense because they're either insured or not worth suing.
Next, we can rule out things that are better off being pursued through the executive branch or other political action, like many school/health issues or consumer fraud. And finally, let's dump anything that would be better served on a platter for Judge Joe Brown and his daytime friends.
And, loyal readers, that's a lot of claims, but many of those people still call in to legal aids and are declined. You really think some dispute over a hair salon bill is an unmet legal need?
Do you want to give all those people access to a "civil Gideon" that would surely be desperately underfunded?
What are we left with?
Here's some idea: crap small claims defense, foreclosure/eviction defense, handling run-of-the-mill employment disputes with less-than-ideal clients, some miscellaneous (taxes, municipal violations, immigration, etc.), and of course poor people fucking, a/k/a the hellish depths of family law.
And the thing about these claims is that they fall into one of two camps: First, they're so mundane or routine that the new lawyer offers little in service over the individual handling the claim pro se. Poor people don't stay married just because they can't find a lawyer. Tenants aren't evicted because the judge wanted to hear a Penney-suit lawyer argue instead of the screwed-over tenant. Courts normally bend over backwards with forms and judicial leniency to make sure justice is served. I'm seen judges blatantly side with poor people out of pity. Ultimately, "justice gap" arguments, in many ways, are veiled criticisms of the judiciary, which isn't perfect, but it's sure as shit not letting a whole bunch of evil villains prevail over unrepresented people that would win but-for the lack of a new lawyer to fight for them.
The second group of claims is those raised by poor people that go beyond the routine and mundane to where they could not effectively represent themselves. Say, a dicey child custody case or a collections issue that leads to an FDCPA suit. Do you want a new lawyer handling those? It's a testament to the special uselessness of law schools that a new graduate adds little value to most cases and wouldn't know how to handle others barring hands-on training in law school.
Ultimately, arguments like Long's showcase several disconnects between the Ivory Tower and reality. First, there's this fantasy cloaked in vagueness that that there's urgent "needs" being unmet, and that these "needs" are not being adequately handled without a lawyer. Well, that's bogus in that it ignores the above, and that it ignores the fact that legal aids that do exist triage and take the most urgent/necessary cases, where justice may be at a serious risk.
Second, there's the disconnect between what the average person can do, what the new lawyer can do, and what services people actually need. If two childless people can divorce without lawyers, why on Earth does your system want to inject them?
And speaking of needlessly injecting professional help where it doesn't belong, do you really want to give lawyers to every Tom, Dick, and Harry who's got a collections claim or a pending foreclosure/eviction? Again, the perverse optimists in the Ivory Towers likely think all these people are victims of consumer scams or some such nonsense. Truth be told, most of those claims lack a good-faith defense and the lawyer isn't going to be able to get a cent better settlement than a non-lawyer debt counselor or the person calling in on his own. You want new lawyers feeling like they have to find ways to file motions, counterclaim, stall, or otherwise zealously represent clients? The best thing a lawyer can do in a collections case is invoke post-judgment exceptions, which can be done by most types of paper in most fonts.
Fundamentally, the pontificating professorate believes there to be a wealth of great legal work lying around out there that isn't being done, and that's simply not supported by reality; you'll notice even in the literature that tries to make these claims that they never try to break it down into billables or try to refine what "necessity" is.
Even if you were to enact a "civil Gideon" and give everyone who's been sued a free attorney, you know what would happen? You'll get an attorney in each courtroom with a giant stack of files that's been prepped by a secretary. Oh, is it a will? You'll get a stack of forms at the office that are filled in by a secretary and rubber-stamped by Louie the Esquire after a three-step review and a brief meeting with the house witnesses/notary. It's not like such a system would ever be better funded than the public defender's office.
"Salaries commensurate with their skill, education, and indebtedness?" On what planet is this?
For 99% of low-income needs, we're talking about relatively few billable hours per file, so the legal force necessary to address such claims - even if it's desirable as a matter of policy, which it isn't - is fairly low. There's about 15,000 public defenders in the United States. You really think a "civil Gideon" is going to be a game-changer for unemployment? You all created a thirty-year drought and you're trying to cure it with one afternoon rain shower.
Professors like to believe that legal services would help the poor; much of this argument is back-door undergraduate-level protesting about the plight of the downtrodden. While the poor undoubtedly and unquestionably need services and they need investment, I have a very hard time believing that that money is best spent in legal services. An example would be in child support enforcement. It's a serious problem that people create babies and then the man bails and doesn't pay for it. That doesn't mean the best solution is to pay a lawyer to pursue the deadbeat. Why not simply set up a program to assist single mothers directly? Instead of paying a lawyer to fight your employment dispute, why not pay for training programs to learn new skills? Why not beef up funding for food pantries and programs that help at-risk youth?
Why pay lawyers to get in the middle of bullshit civil disputes?
Don't get me wrong, I'd love it if every lawyer in America had a job he or she loved that was "commensurate with their skill, education, and indebtedness." That would be wonderful. And it'd be wonderful if we could solve poverty and its associated problems.
But fantasies about unmet legal needs and legal aids aren't going to solve lawyer unemployment, sure as hell aren't going to pay massive law school debts, and definitely aren't going to make a serious difference to the poor in this country.
The next time you hear a dean mouthing off about serving unmet legal needs, ask some questions, like "how are you defining 'need'?" or "have you ever actually witnessed a poor person in court?" or "did you take your medicine today?"
It's simply a sideshow to redirect conversations towards pet professorial interests (wealth inequality, social injustice) and away from the real issues (employment that's incurable with fantasy social programs, tuition that's unpayable with fantasy salaries).
There ain't golden salvation among the poor. Res ipsa loquitor.