Can you do your bit for access to justice and still pay the bills?
Noel Semple thinks so. The University of Windsor assistant professor believes small and solo personal plight lawyers don’t have to lose their social justice cred to make ends meet. He believes there is a “sweet spot” of quality, professionalism and accessibility that allows lawyers to serve both purposes.
Semple’s book, Accessibility, Quality and Profitability for Personal Plight Law Firms: Hitting the Sweet Spot, published this summer by the CBA and available to members and non-members on the CBA website, describes the professional challenges facing personal plight lawyers. The book is based on interviews he conducted with more than 30 personal plight lawyers and identifies sustainable innovations they’ve employed to make their services more accessible while maintaining quality and profitability.
The book grew out of his thoughts about how the “altruistic response” to the access to justice problem – lawyers working pro bono or at reduced fees – hasn’t taken the justice system as far as it needs to go, as well as his observations of his wife’s experience setting up her own private practice in estate litigation.
He started to believe that “there was a niche that should be explored as to how private sector profit-seeking law firms can expand access to justice without compromising the other things you have to think about if you’re running a firm, like economics, sustainability, and of course the high quality and professionalism of the work itself.”
He notes that no one expects the people who created the iPhone to give away their work for free.
“When it comes to law, I think the ethos of professionalism has maybe led us to see client service and access to justice as something that is inherently in tension with profitability and I don’t think that has to be the case.”
He’s quick to point out that he’s not denigrating altruism or suggesting that pro bono work isn’t necessary – on the contrary, he says, there’s a world of legal needs out there that will never fit inside the profit-seeking model of legal work.
“But then there’s whole other group of people with middle-income legal needs, and these people have some ability to pay, and we assume that the free market economy will be able to meet most needs of middle-income people without relying on people giving away their services or the government paying for it and I think that can and should also be true with legal services.”
He decided to focus on personal plight law because it’s “the site of our worst access to justice problems” and at the same time the least adaptable to the kinds of innovations being touted in the legal futures discourse. Firms like Axess Law are revolutionizing the personal business sector by relying on things like commoditized services, flat fees and online services. “It’s cheaper than it’s ever been to get a personal will drafted, it’s easier than it’s ever been to convey a residential property,” says Semple. Dispute-related personal plight services, however, are by definition more bespoke because they need to be more tailored to the individual client.
Innovation in the personal plight sector, like everywhere else, is partly about reducing costs, and in that sense everyone’s doing it – people who’ve been in practice for years have worked out their systems for offering fixed fees or delegating work to lower-paid staff, for example. “It would be foolhardy to deny that innovation that can bring down your cost of doing business can be sweet-spot innovation,” he says.
But innovation isn’t just about enhancing the bottom line, it’s about improving quality, Semple argues. And that’s of particular interest to personal plight lawyers. Look at the difference between a residential house conveyance and a divorce. For the former, “you want it to be done without errors and you don’t want to have any risk as a homeowner, but other than that you just want the cheapest service you can get,” says Semple. In a divorce, on the other hand, quite often more is demanded of the lawyer than technical ability.
“In economic terms they say that personal plight legal services are variegated, they’re not commodities. You might say drafting a will is a commodity and when you have a commodity-based market, it’s highly price-competitive and innovation drives down costs. When the services are not identical to each other, which is the case in personal plight, then consumers tend to be less price-sensitive and more sensitive to quality differences between the alternatives in the market, which in turn increases the returns to those who can innovate beyond cost as an innovating quality.”
There does tend to be an innovation gap, says Semple, between established lawyers in successful practices and those just starting out, who are hungry for work and innovating in order to get it – although the conundrum there is that those best placed to innovate often have the least capacity to act on their ideas, and once their practices become more established there’s less need or motivation to innovate.
“The most durable and transformative innovation will foster service quality and profitability while it enhances accessibility,” Semple writes in the book. “The key innovations pertain to price structure, to service variety, and to division of labour. Enormous opportunity exists for firms, and for the profession collectively, to move personal plight legal practice into the sweet spot.”
Kim Covert is the CBA’s Editor, Publications.