The Philadelphia Bar Association’s annual Bench-Bar conference is always interesting and, true to legal conference form, usually held some distance away from the actual location they’re discussing, and so a bunch of Philadelphia lawyers and judges went to Atlantic City to discuss Philadelphia. For the long version, see the Philadelphia Bar Association’s collection of the speeches turned into podcasts. For the short version, see The Legal Intelligencer:

The biggest inequities in the Philadelphia court system are not caused by corrupt judges, but by a collision involving the lawyers’ monopoly in providing legal services, harsh economic realities facing young lawyers and litigants who can’t afford attorney fees, a panel at the Philadelphia Bar Association’s annual bench-bar conference said.

Philadelphia Common Pleas Court President Judge Pamela Pryor Dembe said that “in this do-it-yourself world, there are going to be more and more people pushing for ways to access justice without lawyers.”

The problem, of course, is money:

Course planners Superior Court Judge Anne E. Lazarus and Eric H. Weitz, a plaintiffs attorney with Messa & Associates, posed hypotheticals of how finite resources in the court system and the volume of court cases can collide and perhaps produce injustice.

Lazarus noted that in the court’s civil division, judges have to resolve 121 cases a day just to keep pace with the number of cases filed a year. “But we as a society are not willing to discontinue a program to house the homeless so we can hire 20 more judges in Philadelphia,” Lazarus said.

Weitz suggested that in custody matters that the more “resource-rich” parent wins, often by wearing down the other parent, and judges are reluctant to upset the apple cart by overturning already-existing custody arrangements.

There is nothing new about that. Google “access to justice” and limit to results in the past 24 hours and you’ll still get thousands of results. I did that and immediately saw an article from Minnesota Public Radio arguing that “Access to justice differs depending on one’s bank account.” There was also a press release from the White House trumpeting the U.S. Department of Justice Access to Justice Initiative, formed to deal with that exact issue.

The numbers are staggering. In the criminal arena, public defenders routinely have thousands of cases to defend. Know any plumbers that can fix two thousand toilets in a year? I don’t, and fixing a toilet is usually quicker than ensuring someone’s search and seizure rights are protected and that they’re zealously defended at a trial. In the civil arena, more than 50 million Americans qualify for federally funded legal assistance, but funding for direct legal service non-profits is so low that only a tiny fraction of those get any help at all.

The great irony is that, while we have a huge unmet demand for legal services, we also have a huge oversupply of lawyers, but there’s apparently no way to bridge the two. As Judge Dembe said at the conference, there are many young lawyers with an “enormous amount of debt attached to their ankles.” For many, it’s so much debt that they don’t think it’s worth it for them to try their hands at being low-cost, friendly neighborhood lawyers. They’re better off escaping the law entirely and begging their parents to help them pay the student loan bills while they look for greener pastures.

Even young lawyers who have the means and the motivation to build their own practices have problems building a book of business because they need experience to get experience and clients rarely know how to begin looking for lawyers, much less how to find inexpensive, qualified lawyers. The panelists made some negative remarks about ads on the side of a bus; in reality, even lawyers like me who went to law school in Philadelphia and have worked in the legal community here for years only really know a handful of lawyers in each of the various practice areas. I can count on my fingers the number of criminal defense lawyers who I would think to call if I was arrested — how would someone who has spent no time at all interacting with lawyers know who to call? Googling “best lawyer in Philadelphia” isn’t going to help.

Smart people have proposed clever solutions. Lawyers and law professors have rightly raised a variety of concerns about services like Avvo and the dreadfully-named Shpoonkle, but, as someone who has received flowers and chocolate from people for doing nothing more than giving them the name of a competent lawyer who charges a reasonable fee, I can attest that there is tremendous demand out there for a service that connects clients with minimal financial resources to cost-efficient lawyers.

Some people and companies, notably including legal form providers, have proposed “unbundling” legal services to allow non-lawyers with some legal training to provide a discrete set of services, like preparing certain pleadings or arguing routine motions. Lawyers have a lot of differing opinions on that. Unbundling creates various client-service and professional-responsibility dangers, but it would likely make legal assistance, if not quite representation, much more affordable in certain circumstances.

Others, most commonly non-practicing lawyers who don’t have to square expenses versus revenue at the end of the month, have devoted their time to moralizing we do about the importance of pro bono service. Sure, Clarence Darrow worked tirelessly for clients of all economic backgrounds, and wasn’t paid at all for a third or more of these cases, but that phase of his life didn’t start until after he had made plenty of money representing the most evil and hated companies of the era, the railroads. Even then, he was in the unique position of having so many paying clients that he could afford to pursue his passions. Moralizing to lawyers today looking for just enough business to make rent doesn’t do anyone any good.

I have my own clever ideas, like ditching 3L year of law school to leave recent law graduates in a better position to effectively represent clients with modest resources.

Truth is, though, no matter how many clever ideas we come up with, or how much moralizing we do, the primary solution is, and can only be, throwing money at the problem. A “Civil Gideon,” for example, would be a great idea but for the absence of any way to pay for it. Yet, we don’t even pay enough now to make the original Gideon a reality for all criminal defendants (see, e.g., Ordinary Injustice), and we treat the Legal Services Corporation like a deflated political football: inadequately funded in good times, insultingly unfunded in bad times.

But where’s this money supposed to come from? Philadelphia? Two-thirds of the budget goes to police, fire, prisons, and streets, and I don’t see anyone clamoring for fewer cops or more potholes, much less higher taxes. Pennsylvania? It’s tough enough getting SEPTA funded, despite obvious benefits well outside Philadelphia, so I doubt the General Assembly is in the mood to help out the good citizens of Philadelphia with their legal needs.

Federal government? They threaten shutdowns over funding FEMA. FEMA! If they’re not keen on helping out after a hurricane, they’re not going to help out when you’re arrested or fired for discriminatory reasons.

Which brings us full circle. The lack of access to justice isn’t going to be solved the right way. We need band-aid solutions. We need to pull out the duck tape (or duct tape, there’s a dispute).

That means at a minimum unbundled legal services. Funding isn’t coming any time soon, 3L year isn’t going anywhere, and the silly-named lawyer directory services aren’t getting the job done. If someone contacts me looking for a lawyer, and I can’t help them but believe some other lawyer can, I do my best to place them with a lawyer, and I bet most other lawyers do, too, and still that isn’t bridging the gap between needy clients and underemployed lawyers.

I’m not thrilled about the prospect. There will be challenges. There will be problems. But we’re past the point of theoretically debating the merits: there is a huge unmet need for legal services, a need we might be able to alleviate.

Consider what Shira Goodman of Pennsylvanians for Modern Courts said:

The biggest problem with access to justice is not about getting in the courthouse door, Goodman said, but the “tremendous education gap between what people expect what is going to happen and what actually happens.”

People, when they feel they have been injured, think the courts will fix it, but they don’t know what is required under the law, Goodman said.

That can be fixed. Many questions and many issues require hours of a lawyer’s time and attention to resolve them, but not all. The time to quibble about the potential downside of unbundled legal services has passed; we need to start experimenting with ways to bridge the gap between laymen’s expectations of the law and the reality of our courts system.