Lawyering for the Middle Class

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Fordham Law Review




In 1994, Roger Cramton published a seminal article entitled Delivery of Legal Services to Ordinary Americans.' In that article Cramton began with the premise that -[t]he [legal] profession is organized in two hemispheres: lawyers who serve individuals and those who serve corporate clients." 2 Conceding that lawyers and clients in both hemispheres share common problems, he focused specifically on deficiencies in the provision of legal services to individuals.3 The article was wide-ranging, covering such diverse topics as incompetence and lack of diligence,4 cost and availability,' and trust, loyalty, and integrity.' Cramton examined existing reform proposals, including mandatory pro bono.7 improving publicly funded legal services for the poor,8 and relaxing present unauthorized practice and form-of-practice restrictions. Ultimately, his personal recommendations for reform similarly covered the gamut, from tightening regulations on client trust accounts"' to mandatory reporting of malpractice awards," and from compulsory arbitration of fee disputes 2 to enhanced competition in legal services markets. 3 The articles in this symposium issue on "Lawyering for the Middle Class" build on the foundation established by Cramton, as well as by others, such as Deborah Rhode, who have written extensively about the problems ordinary Americans face in navigating the legal system. 4 The symposium articles provide us with more detailed information concerning the nature and scope of the underlying problems, particularly addressing the question of whether there are indeed vast, unmet legal needs on the part of middle-class persons. In addition, the articles in this symposium help us to evaluate both existing and newly proposed solutions, through a combination of historical examination of current barriers to competition and comparative analysis of analogous developments in the medical profession. The articles are particularly helpful in assessing where we as a profession stand at the beginning of the twenty-first century given a variety of new influences on professional responsibility,1 5 including changes in the organization and structure of the legal profession and dramatic developments in the technologies available to both lawyers and clients.'6 The articles can be categorized in two groups. The first (and largest) group addresses the difficulties middle-class Americans face in obtaining access to legal services." Providing a more detailed examination of Cramton's premise that middle-class persons do not have adequate access to representation, these articles then discuss a variety of proposed solutions, including creating lawyer profiles to help prospective clients choose competent counsel, expanding prepaid legal services, creating an alternative hierarchy to encourage more and better qualified lawyers to serve the middle class, and relaxing restrictions on the roles played by non-lawyers in the provision of legal services, particularly in taking advantage of the possibilities inherent in the use of the Internet. The second group of articles takes an entirely different approach by examining ethical issues in practice areas that have a unique impact on middle-class Americans."5 The practice areas include elder law, arbitration, and mediation. The ethical issues include the limitations on loyalty and confidentiality when a lawyer represents a client who is a fiduciary to an elderly person with severely diminished capacity, the application of the advocate-witness rule in labor arbitrations and in-court proceedings involving middle-class parties, and the duty of candor and allocation of decision-making authority in different forms of mediation.

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