BY HON. NEIL M. GORSUCH1
At some point just about every American will interact with our civil justice system. Whether it happens because of an eviction, a custody battle, a tort suit, or a contract claim, one thing is clear: Legal disputes are just as much a part of life as death and taxes. Yet today, legal services are increasingly difficult to obtain. A 2017 study found that low-income Americans fail to obtain adequate professional assistance with their legal problems 86% of the time.2 The vast majority don’t even try to obtain professional help3, and those who do are often turned away.4 According to another study, at least one party lacks legal representation in nearly 80% of civil cases in this country.5 The root cause for this state of affairs is not hard to discern: Legal services are expensive. Lawyers charge hundreds of dollars per hour for even the simplest of legal services.6 Even a single legal bill can prove financially devastating to many Americans. Doubtless, a variety of factors contribute to the high cost of legal services today—but let me focus on one. It’s one I have written and talked about for some years and in greater depth elsewhere.7
We lawyers enjoy a rare privilege. We are largely left to regulate our own market. But self-regulation carries with it the risk of self-protection. Charles Dickens once famously lodged this very complaint against English lawyers, claiming: “The one great principle of the English law is, to make business for itself.”8 And it’s hard not to ask whether certain of our self-imposed professional rules may not always do as much to serve our clients as ourselves. Consider three examples. First, under current rules an aspiring lawyer generally must spend seven years in higher education: four expensive years in college and three even pricier years in law school. College costs have been skyrocketing for decades, rising 169% between 1980 and 2019.9 Law students have it even worse, with costs having tripled between 1985 and 2019.10 Today, it seems that the average student walks out of law school burdened with over $145,000 in student loans.11
Is it any wonder that members of the bar now sometimes hesitate to serve low-income clients and often charge high prices that many Americans can’t afford? It’s unclear, too, whether this expensive, one-size-fits-all approach to legal training best serves our clients’ needs. Once law students graduate, they take very different paths. And a lawyer helping clients navigate family or small-claims court may have different educational needs than a future intellectual property litigator. Yet our professional rules today force students to train “in areas in which [they] will never see a single client.”12 It may not be a “bad thing for every law school graduate to be equally prepared to represent a criminal on death row, draft a will or negotiate a public offering of securities.”13 But is it sensible? Our friends in the United Kingdom don’t think so. There, students may study law as undergraduates and receive a basic law degree in just three years, with optional graduate programs focusing on specialty areas. 14 The nub is that it is substantially less expensive to become a lawyer in England than in the United States15. By making legal education more diverse and affordable, we might enable lawyers to serve more diverse clients more affordably.
Second, our professional rules permit only fully accredited lawyers to engage in “the practice of law.”16 At some level, this rule makes sense. A client facing a complex trial in state or federal court probably should retain a qualified trial lawyer. But is that rule necessary when it comes to simpler tasks? The case of LegalZoom is instructive. The company sells standard legal forms at cheap prices many people find attractive.17 Yet protectionist efforts have been made in several states to prohibit LegalZoom from offering services.18 Contrast this with how other professions operate. We do not require surgeons or those with medical degrees to answer patients’ most basic health questions; just consider the vital role that nurse practitioners and physician assistants play. Some states are beginning to reconsider our profession’s strict rules requiring a lawyer for every legal task.
Starting in 2021, Arizona began licensing a new category must meet certain educational and training standards short of bar membership. 19 These individuals may assist with relatively straightforward legal matters like “finalizing an uncontested divorce, obtaining a temporary restraining order, drafting a will, contesting traffic tickets, handling landlord-tenant disputes, and other similar legal tasks.”20 Utah is experimenting with a similar program with licensed paralegal practitioners.21 Early reports suggest that these professionals are able to provide legal services at a fraction of the cost of a lawyer.22 Third, we generally prohibit non-lawyers from financing legal services or partnering with lawyers. Without question, this restriction is well-intentioned—designed to ensure lawyers are not influenced by the demands of investors when representing their clients.23 But there is little question that the rule also “contributes to the low innovation and high cost of services that characterize the U.S. legal market today.”24 Other industries—medical, financial advising, and tax preparation— lower consumer costs by accepting outside investors. They do so while managing the risk of undue investor influence through regulations short of a total ban on outside investors. It is not altogether clear why we could not do the same. Our profession already guards against other kinds of potential conflicts without insisting on total bans. For example, third parties are allowed to pay for a client’s legal representation subject to certain rules.25
Once more, too, the United Kingdom may supply an example. Since 2007, it has permitted non-lawyers to invest in law firms—called Alternative Business Structures (ABSs)—subject to carefully drawn rules.26 In this country, Arizona has likewise experimented with ABSs.27 Although these models are relatively new, early evidence seems to suggest that ABSs can offer legal services at substantially lower prices than traditional law firms.28 Justice Brandeis observed that it “is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory” for “novel social and economic experiments.”29
I congratulate states like Wyoming, Arizona, and Utah, and innovators like Justice Lynne Boomgaarden, for taking up that challenge and exploring new avenues to enhance access to justice. Self-regulation comes with special responsibilities. One of them must be an openness to experiment with new ways to better serve our clients and communities. Innovation is essential if our profession is to make the benefits of the rule of law real in the lives of the American people we are privileged to serve.
Neil M. Gorsuch, Associate Justice, was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017.
1 This article was originally published in the April 2022 Wyoming Lawyer and is reprinted here with permission from the Wyoming State Bar and Justice Gorsuch.
2 See Legal Services Corporation, The Justice Gap, at 6 (2017).
3 See id., at 7 (noting 80% of low-income Americans fail to secure legal help when they seek it)
4 See id., at 6 (citing struggles by legal aid organizations to offer support for those seeking it).
5 See Jason Solomon, Deborah Rhode, & Annie Wanless, How Reforming Rule 5.4 Will Benefit Lawyers, Promote Innovation, and Increase Access to Justice, Stanford Center on the Legal Profession, at 1 (2020).
6 See ibid.
7 See, e.g., Neil M. Gorsuch, A Republic If You Can Keep It (2019).
8 2 Charles Dickens, Bleak House 118 (1853).
9 See Abigail Hess, College Costs Have Increased By 169% Since 1980—But Pay For Young Workers Is Up By Just 19%: Georgetown Report, CNBC (2021).
10 See Andrea Fuller, Josh Mitchell & Sara Randazzo, Law School Loses Luster as Debts Mount and Salaries Stagnate, The Wall Street Journal (2021).
11 See Anna Helhoski & Ryan Lane, Student Loan Debt Statistics, NerdWallet (2022).
12 See Jennifer S. Bard & Larry Cunningham, The Legal Profession is Failing Low-Income and Middle-Class People. Let’s Fix That, Washington Post (2017).
14 See generally Gorsuch, supra, at 265–266; The Lawyer Portal, Difference Between Solicitor and Barrister (last visited Feb. 15, 2022).
15 See Gorsuch, supra, at 265–267.
16 See Model Rule of Professional Conduct 5.5.
17 See Comment, Caroline Shipman, Unauthorized Practice of Law Claims Against Legal- Zoom— Who Do These Lawsuits Protect, and Is the Rule Outdated?, 32 Geo. J. of Legal Ethics 939, 942, 955 (2019).
18 See id., at 940–941.
19 See Kyra Haas, New Legal Profession Starting in Arizona, Associated Press (2021).
20 See Maya Steinitz & Victoria Sahani, New Arizona Law Practice Rules May Jump-Start National Reform, Law 360 (2021).
21 See Licensed Paralegal Practitioner, Utah Courts (last visited Feb. 12, 2022).
22 See Annie Knox, How a New Program Connects Utahns to Lower-cost Legal Advice, Deseret News (Feb. 17, 2020).
23 See ABA, Model Rule of Professional Conduct 5.4 cmt 1 (“These limitations are to protect the lawyer’s professional independence of judgment.”).
24 See Solomon, Rhode, & Wanless, supra, at 2.
25 See, e.g., American Bar Association, Best Practices for Third-Party Litigation Funding, at 10–18 (2020).
26 See, e.g., James Peters, Pandora’s Box or Panacea? Lessons from the U.K.’s Liberalization of Law-Firm Ownership, Forbes (2014).
27 See In re: Arizona Code of Judicial Administration 7-209: Alternative Business Structures, Admin. Order No. 2020–173 (Az. 2020).
28 See, e.g., Peters, supra.
29 New State Ice Co. v. Liebmann, 285 U.S. 262, 386–387 (1932) (Brandeis, J., dissenting).