(POST?) COVID TIMES

Tuesday, November 23, 2021

I must confess that I am slow to come out of Covid isolation. The world has changed and perhaps not for the better. I thought one way to grapple with what has happened and what is happening was to go back and read Washington Irving's "Rip Van Winkle."

To remind you, ol' Rip was wandering through the woods one day when he came upon some forest creatures (otherwise known as Washington politicians) who offered him a potent drink to quench his thirst. He imbibed and awakened some 20 years later to a new and changed world. His only familiarity was his neighborhood pub. Rip relied on his granddaughter, whom he did not recognize, to explain the changes that occurred over the preceding 20 years.

Awakening from my Covid stupefaction, but without the benefit of a "hip" granddaughter like Van Winkle had, I was left to my own devices. I was overwhelmed by the intense confrontational discussions in the media and on social platforms referencing "anti," "isms," and "ists," and other bumper sticker slogans and memes.

I began to think about the legal profession and how it has changed as a result of Covid and other social phenomena. As Winston Churchill reminded me, "There is nothing wrong with change, if it is in the right direction."

Covid forced the legal profession to change more rapidly than perhaps it was prepared to do. On one hand, social distancing, technology, and social media have accelerated much needed change. Legal offerings are now ever present on the internet, lawyers no longer hide out in their fancy office towers and legal advice is a Google search away. However, these changes present certain challenges.

As Sir Winston asked, "Are we going in the right direction?"

For years access to justice had been a clarion call for the legal profession. But now, has it somehow turned into justice inequality? The legal profession has not been immune to criticisms of justice inequality, and over the years there have been systemic and procedural changes.

Have these changes actually increased access to justice or have they simply reduced justice inequality?

One of the systemic changes that did occur and proposed to increase access to justice was the federal funding of legal-aid societies and public defender systems. The second, which will resonate only with lawyers, was the "modernization" of judicial pleadings, morphing from code pleadings to notice pleadings and thus "simplifying" the discovery process to make the litigation process more streamlined. The funding of public lawyering through legal aid societies and public defenders has certainly made legal counsel more available to the public. However, I question whether is has done anything to impact justice inequality. The procedural steps have yet to show they have simplified the litigation process.

Three recent events caught my attention that made progress toward greater access to justice and correcting justice inequality. The first is re-energized Bar Associations (at least in Colorado). Daily, I am bombarded by emails from the Bar Office informing me of new committees to remedy justice inequality or articles on the subject. If I spent less time reading Bar stuff, I might be able to help more people. The second is my receipt by mail of a 84-page magazine called "The Superlawyers." The third is the decision by the states of Utah and Arizona to allow non-lawyers to own firms providing legal services.

There are those folks who equate access to lawyers as access to justice and therefore a solution to justice inequality. The "Superlawyer" magazine does serve as a vehicle for getting the names of lawyers out to the public. The magazine's mailing list is not made clear, so I cannot say that those most in need of a lawyer receive the magazine, but I am thankful for receiving it. Parading around in tights and a cape with the letters SL (Superlawyer) emblazoned on one's chest does seem a bit over-the-top even in today's mass marketing atmosphere. For decades now the profession has allowed lawyers to advertise. The justification for advertising was always that allowing lawyers to get their names out to the public would somehow increase access to justice. But does this really work?

In the state of Colorado there are over 22,000 practicing lawyers. Surprisingly, there are 1880 "Superlawyers." There are 131 super family law (divorce) lawyers, 190 personal injury lawyers, 118 super lawyers (mostly representing insurance companies.) However, there are only 18 super lawyers focused on civil rights. There are no super lawyers focused on elder care, landlord/ tenant, labor and employment, privacy or security or healthcare areas which are the areas most in need of greater justice equality.

One might ask if this cadre of "Superlawyers" are really facilitating access to justice or overcoming justice inequality. Other than paying the fee to be listed in the magazine, the criteria for be included as a "Superlawyer" is not clear. "Superlawyers" do not seem to be particularly concerned with inclusivity; there were only 105 Spanish speaking "Superlawyers" and no indication of how many female or minority "Superlawyers" there are. Finally, there are no sole practitioners, like myself, who represent individuals with everyday legal needs.

The last post-Covid phenomenon that caught my attention was an article on the first non-lawyer owned law firm being sanctioned (a 2-year pilot project) by the state of Utah — the purpose of which is to increase access to justice if not justice inequality. The name of the service is "Law on Call." Law on Call is based on a subscription model where, for a monthly fee, people can get unlimited phone access to "legal professionals" and then if a lawyer is needed, rates are discounted by an unspecified amount. Does phone access to unnamed "legal professionals" really facilitate access to justice especially if further lawyer-discounted work is required?

I have been concerned about the national pass rate for those taking the bar exam. For the last several years the pass rate has dropped and only about 65% of those taking the bar pass. If lawyers enhance access to justice, this phenomenon cannot be a good sign for remedying justice inequality.

The cry for legal reform to correct justice inequality must start within the legal profession. First, we need to ensure that licensed lawyers are representative of the population and, above all else, are qualified. We need to make sure higher education and law schools are supporting the best, brightest and most ethical candidates for the bar. We need to make sure that law schools are admitting qualified candidates. We need to develop a system which promotes lawyers who are interested in creating legal products, which are designed to avoid conflict, as well as lawyers dedicated to non-judicial dispute resolution. We need fewer lawyers hell bent on self-promotion at the expense of the judicial system.

Covid did have the effect of putting me into a mild trance, only to awaken to a changed world. Rip was comforted by placing his great grandchildren on his knee and telling them stories about the good old days in the Catskill mountains. Irving does not offer commentary on whether the changes Rip confronted were good, bad or in the right direction, so I ask, are we going in the right direction? Without great grandchildren to regale of stories of the good old days of practicing law, I struggle to remain optimistic.