Three separate yet interwoven developments illustrate a dangerous trend: a focus on the cost of legal service at the expense of the value of justice. How does each of them strike you?
- Two members of the Brookings Institute wrote in The Wall Street Journal to espouse their philosophy for deregulating the legal profession: Let anyone practice law, whether they've gone through law school or not, and allow anyone to own a law firm.
The assertion was that this will lower the costs of delivering legal services and make them more available to everyone. Lost in this emphasis on cost is that licensing of lawyers protects the public.
Licensing assures a minimum standard of quality. Licensing requirements in specific areas of human endeavor are society's way of self-protection. When lives and futures are at stake, as they sometimes are in legal matters, cost should not be the driving factor.
- Also in The Wall Street Journal, it was reported that the Department of Justice, through the U.S. Trustee Program, is attempting to control the fees that bankruptcy lawyers seek.
Although the lawyer applicant currently must disclose his hourly rate, the department wants the lawyer to disclose the lowest, highest and average hourly rates the law firm charges in all its matters.
It also wants the lawyer applicant to create and disclose to the Bankruptcy Court a budget for legal expenses. This budget would, necessarily, disclose to all involved — including the creditors who are adversaries of the bankrupt — the legal strategy to be engaged in by the client.
The quality of representation that the debtor receives in bankruptcy thus is irrelevant compared to a desire to "get" lawyers whose fees are thought to be too high.
- California has cut the budget of its court system by more than $500 million, which will result in even slower and more inefficient courtroom proceedings. Some observers suggest that the appropriate response to this dire situation, which stands to deprive many people of the justice they seek, is greater use of private judges to circumvent the delays and increased costs of the public judicial system.
Private judges are those who have retired and hire themselves out to those who can afford them. The judge is hired and scheduled for one proceeding, and from the moment it starts, the lawyers, experts and judge are working to resolve the dispute.
The orders from the private judge have the same effect as orders obtained from the judge in the public courthouse, with the caveat that only those who can afford a private judge can reap the benefits.
All three of these developments center on one thing: money. Are legal expenses high? Yes, but compared to what? How low should the price/cost of legal services be before they are acceptable?
The real issue is not cost, it is access to justice. The Constitution says everyone has the right to legal counsel when accused of a crime and a fair trial; should that be dependent on the ability to pay?
One might likewise ask if doctors can refuse to see or treat a patient who could not demonstrate the required level of net worth to make a doctor's services worthwhile. Some contend that this is the trend of health care in our country.
Abraham Lincoln famously observed that a house divided against itself cannot stand. Ultimately, the same can be said about a society divided against itself, between those who can pay and those who can't.