Can the refugee ban help us mitigate the access to justice problem?

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Obviously the above picture is not mine. Kamala Khan is Ms. Marvel and belongs to, you guessed it, Marvel. I thought it looked cool and was appropriately in tone and representation.

Spend enough time in law school or at the bar (the boring bar) and you’ll hear about the “access to justice” problem. The access to justice problem, at its most simplest, is that te legal profession cannot sufficiently meet the needs of those who require legal services, and that this disproportionately impacts the poor and indigent. More and more, it is also affecting the working class or lower middle class, who both cannot afford even more middling legal services but also make too much money to qualify for legal aid services.

The salient point is that supply cannot meet demand. There are a lot of reasons for this and we can dive down that rabbit hole another day but, suffice to say, it’s a problem.

Solving problems, in my experience, and I would say in most folks’ experiences, happens incrementally. You make something 3/5/10% better and the eventual outcome is a larger accrued benefit over time.

Likewise, working for a metrics-centric company that values scalable, “machine learning” solutions has changed the way I approach a problem. I’m a lot less interested in the romantic sweeping proposal and a lot more interested in finding gaps that are overlooked when we focus on the main problem. Often, smaller increases in the process can better the quality of life for those part of it and bolster our ability to isolate what the “real” problem is. Instead of getting lost in a sea of possible problems and, consequently, possible solution, we focus on the immediate hurdles we can overcome and then dramatically increase our ability to solve the problem at large by process of isolation and/or elimination.

This isn’t how I’ve seen the legal community solve its problems. For one, it’s averse to change overall. It’s traditional and, by its nature, quite married to precedent, and not just in case law. Moreover, which I’ll touch on later, every solution to a problem must must be at peace with the overarching ethical rules to which lawyers are beholden. Another hurdle to this is that such guidelines are set by state bars, meaning what is ethical in one state might not be in another. Creative solutions to non-substantive problems are thus not only tacitly discouraged by culture but also, as a trade-off to for ethical lawyering, genuine rules.

The Refugee Ban as a Pilot for Better Legal Services

This past weekend, President Trump signed an executive order (“EO”) that “suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.”

Lawyers quickly camped out at airports. I was not among them. Regretfully, I am licensed in NY and currently unsure of my ability to practice law – even at a federal level – under these circumstances. I’m attempting to clarify it, but nevertheless my participation was limited to Facebook posts and a local rally.

I do have friends who participated. Many have signed up for an Airport Triage. This and similar initiatives seek to compile a list of attorneys who are willing to represent anyone detained or otherwise affected by the EO. It also lists the times they are able to do so, how they can be contacted, and additional information such as whether you can file a habeas corpus petition and what areas of law you typically practice.

Essentially, it’s an intake form. A small, rather thankless but necessary description of who your potential client is, what they need, and how you two can communicate and get together.

It got me wondering about what sort of phone applications one could create. As I mentioned above, this is a very small thing — the sort of thing we really don’t think about when it comes to access to justice. But one hurdle of access to justice is that the people who need lawyers often won’t ask or don’t know where to go. Another is that there are a lot of attorneys who simply cannot afford to do pro bono.

But what about those people who want to do pro bono work and mean to do pro bono work but it gets lost in the sea of other obligations? What if we could lower the barrier to entry for requesting legal aid while providing the sort of information that comes as a push notification and a very short list of facts that, like the refugee ban, galvanizes an attorney

This issue is sexy to us this weekend, but even after the stay and as this is litigated, people will be affected by policies the Trump administration settles on. They are unlikely to change in intent even if they change in process. Programs that keep this and other issues in the minds of attorneys, as well as continue aligning those needs with attorney skills, are worth exploring.

Obviously “I need help with my Earned Income Tax Credit and my husband/wife is a crazy bitch” is not as enticing as protecting the due process rights of a suffering class of people. But the basic thrust is that (1) there are people out there who need lawyers and have engaging/sympathetic/whatever cases, and; (2) there are also a lot of lawyers who do, in fact, want to donate their skills but, like all of us, put it on the backburner until something provides an obvious motivator.

Basically, legal aid societies typically function as the broker for volunteer services. My proposal here, not having considered ethics yet, is to remove the middle man by creating a functional intake app that allows lawyers to screen possible volunteer cases. It’s also a format that is easily accessible to potential clients and is, perhaps, not as daunting as walking into a law firm.

I’m still hashing this out in my head, and I don’t want this post to be too long, so here is a quick list of other off-shoots to this:

  • I’m focusing on a sort of brokerage because apps that focus on being a substantive resource tread too closely to providing legal advice. Providing legal advice can create client relationships one doesn’t want, and depending on who makes the app and populates its information, could run afoul of lawful-practice-of-law, well, laws.
  • Another potential is to use it as a means for attorneys to seek clients who want to operate outside the bounds of a traditional firm. These are probably clients who occupy that working poor/lower middle class range. I’m not sure what the ethical implications are since there are rules about billable hours, but it could function as a means to broker a billable hour they can afford. I’m sure that such a thing would have to be blessed by a state’s ethics bar before this could be done. We don’t want non-lawyers to overshoot how much they should pay only to have a more savvy lawyer take advantage, for example.
  • The unspoken hurdle, particularly in my last point, is cost. Not just cost in development, but cost of offering services. A major pain point in the legal community is that (1) it’s expensive to become an attorney, such that; (2) it’s often cost-prohibitive to work for less than the kind of billable hour that precludes representing kinda-poor people.
  • In general, I’m interested in seeing what other organic solutions to client/attorney hurdles come out of this event. If there’s a silver lining, it might be that necessity begets inventions or otherwise jerry rigged systems that reveal small solutions to larger problems.
  • Of course, my bias is that of a lawyer. We can also consider that refugees and immigrants, as two distinct classes, have some overlapping needs that must be met. Such an app could be used to find people – attorneys or otherwise – who speak their language or are some other kind of advocate.

As someone who is not a developer, that is a major gap in my thinking, but I’m certainly very interested in what other lessons we can learn here – hopefully something more positive, long-term and scalable – to improve access to justice and client experiences. I say this as someone who is, as another disclaimer, no longer has to work with clients so that is yet another blind spot of mine.