Speakers at an Institute for the Advancement of the American Legal System panel discussion on Aug. 20 opined on the many faceted challenges of the future of legal services and the hardships faced by minority groups in their legal knowledge, ability to access help and costs — both of representation and law school.
All three panelists as part of IAALS’ Future of Legal Services Speaker Series discussed the need for reexamining pieces of the legal system which are accepted simply because they have been long established — whether that be the costs and difficulties of law school admittance, who and what types of individuals can offer legal help and the difficulties of laypeople understanding their legal system.
“The lack of diversity in the legal industry is well-known and has taken on a new sense of urgency in light of current events and the widespread demands that society finally dismantle systemic racism,” an IAALS article states. “But the fact that the legal regulatory system also perpetuates racial inequity—both within and outside of the legal system—is rarely addressed.”
Andrew Arruda, a Canadian entrepreneur and attorney and CEO of ROSS Intelligence, provided “by the numbers” information on the importance of reform in legal education.
Financial aid for law school is usually merit based and determined by the LSAT performance, Arruda said. The reason for this is that in the mind of the law schools they attract the best students and must be to their merit.
In the 2016 Law School Survey of Student Engagement it was cited that 79% of all law students used merit-based scholarships to attend school, with only 21% looking to other kinds of scholarship.
Law school merit, in terms of aid and by race, show that Latinx and Black people are trailing behind white people in all areas of score on the LSAT from the top to the lowest scores, according to Arruda. In 2016 LSAT score ranges, Latino and black individuals do not do as well as whites — 24% of whites score between 150-159, while only 3% of blacks, 3% of Asians and 4% of Hispanics attain the same score.
These stats are for students who come with approximately the same cumulative GPA as their white counterparts, Arruda said. In the discussions about these numbers, Arruda pointed to work hours in addition to studying, prep courses and additional costs are several reasons brought forth.
Black law students carry twice the debt of white students, according to Arruda. Minority groups graduate in larger amounts of debt, which only compounds and exacerbates problems in equality — if those people graduate from school.
Rohan Pavuluri, co-founder and CEO of Upsolve, a nonprofit helping low-income families file bankruptcy for free via an online app, discussed how in regard to legal regulation it is talked about as a “niche” professional issue, but he considers it “one of the fundamental problems of the American democracy” in how the supply of justice has been restricted by making it so difficult for individuals to become legal helpers.
He considers access to justice a civil rights issue and that the current state of legal regulation is incapable with legal rights under the law. He believes that to make justice available to everyone there must be simple language, such as the elimination of Latin phrases, in court documents and to have simpler courts.
Many Americans cannot access the rights they are guaranteed under the Constitution because of the lack of ability to afford lawyers, he said. And when they try to remedy legal issues on their own, they’re forced to understand complex websites and court forms.
“What I’ve came to really believe is that there’s a strong analogy and comparison to literacy tests and poll taxes that used to stop people who were’ Black and Brown in the South … from being able to vote,” Pavuluri said.
He said there is not much difference from a court form that is so complicated that if you cannot understand it, you cannot access your basic rights, and a literacy test someone had to take to access their right to vote. And unaffordable legal fees are a barrier to legal rights.
Simply adding more lawyers to the profession as the only solution to access to justice in America doesn’t understand the scope of the problem, Pavuluri said.
When looking at how to be innovative with legal services it’s necessary to look at regulation of the legal profession and how changes can be made to allow those historically kept from the process, said Andrea Jarmon, a Washington attorney focusing in indigent clients and assistant attorney general.
In Washington state, there was a start. She pointed to the Limited Licensed Legal Technician program, recently sunsetted, which the state had created. The Washington Practice of Law Board had a primary focus of considering and recommending avenues for non-lawyers to provide legal services.
The LLLT program was meant to meet the needs of those unable to afford a lawyer, according to the Washington LLLT website. Known as a legal technician, the person is licensed by the state Supreme Court to advise people going through instances such as divorces, child custody and other family law matters. Requirements for the LLLT program include three exams, an associate degree or higher and 45 credits of legal study courses at approved institutions, she said.
Jarmon added that there had been discussion to expand the program to other areas. She added she encourages clients at time not to hire her as an attorney, but to let her guide them through paperwork.
Not every situation requires an attorney, Jarmon said. She pointed to examples in the medical profession, not everyone must see a doctor to obtain medical care; in some cases a nurse practitioner can perform medical needs.
Pavuluri pointed to accountants and attorneys in tax laws. He said that the knowledge of a new attorney being asked to help with tax issues as opposed to a long-term accountant were drastically different and would be better suited to certain situations. These accountants give professional legal advice about those situations.
Arruda added that the system needed rethinking. Many innocuous structural constraints are put on and are accepted at first — and are accepted as fact.
In return, those who are part of these structures look back and say that the system worked fine for them and their peers, and it makes sense to that person, he said.
In terms of the bar exam, Jarmon believes that everyone recognizes the challenges and impediments of any standardized tests in historical context of creating barriers. However, she is mindful of how discussion on changing something to allow more participants can become an area of criticism about value being diminished.
“I do think that we should begin to think about what the bar exam really tests us on,” Jarmon said, and considering how legal education is taught. Perhaps something like an apprenticeship, and then tested on skillset rather than a memorization of legal concepts that will be researched online again in the future.
Arruda feels that the value of the bar and the LSAT as they are now should be reevaluated in how they lead to performance as an attorney. The arguments for logic challenges and reading comprehension are strong, but it is “an artificial barrier” put in place.
“I don’t think you have to live it to understand it,” Arruda said. “But that’s where you get that racial literacy that is so important, and without the right people with the right lenses, we don’t ask these questions.”