Journal of the Institute for the Study of Legal Ethics

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Access to What

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What do we mean when we say "access to justice?" Most immediately we tend to mean access to the "system of justice." This in turn is meant to refer to our formal methods of dispute resolution: civil and criminal litigation. Because only lawyers are allowed to represent parties in litigated matters, "access to justice" in this sense often refers to the distribution of lawyer services in regard to litigation, and in the attendant negotiations of disputes prior to litigation. Our concerns in this area tend to focus on the shortage of such services, a shortage primarily rationed by a private market for lawyer services. Members of the middle and lower socio-economic classes have less access to our formal processes for dispute resolution as a result of the function of the market, and this is troubling in regard to what would appear to be a basic function of government.

Consideration of possible remedies for the problem tends to focus on four areas of concern. First, pro bono representation by lawyers is often considered a substantial answer, and how this might be increased, either voluntarily or by legal obligation, is a major concern. (This answer is frequently articulated by bar leaders as a primary element of professionalism, and more pro bono representation often cited as a way to maintain professional independence from outside interference by nonlawyers.) Second, various mechanisms to lower the cost of lawyer services are considered: advertising, clinical forms of practice, fewer years of legal education, more use of systems technology and mechanization, greater use of paralegals, and so on. Third, and blending somewhat into the second category, various ways of loosening the monopoly on legal services are considered: allowing the independent practice of paralegals, for example. Fourth, and quite different from the other three, public funding of legal services for the poor through the federal government has been significant, controversial, and diminishing.

A second meaning of access to justice is broader, focusing not just on litigation and dispute resolution, but on access to legal advice more generally. Information and assistance about how to form a corporation or draft a binding contract, about one's legal rights on the street ("street law"), one's rights under wage and hour laws or a union contract, how to sell or buy a house or condominium, and so on. Concerns about class inequality in regard to such access are prominent here as well, but somewhat less pointed than in regard to the central governmental function of court adjudication of disputes. The same three general remedies tend to be the most prominent, with more emphasis here on the third possibility.

Issues of access to legal services are of utmost importance. Over the past thirty years advertising for legal services, the development of "clinic" and "storefront" systems for marketing legal services, and greater competition among lawyers have all ameliorated the problem somewhat. Moving in the other direction, the problem has been exacerbated by substantial reductions in funding for the federal Legal Services Corporation. The problems of access for the middle and lower classes have been recognized for a long time, but neither remedies nor the will to construct solutions have been forthcoming. I will address neither the problem, nor possible solutions, however. My topic here will be different. I wish to address a secondary and perhaps less important problem: assuming a person is fortunate enough to have competent legal assistance or service, what is it that is being provided?