President's Corner

by Patricia C. Hannigan, Esquire

Irecently attended a meeting of the Mid-Atlantic Bar Conference in Princeton, N.J., accompanied by the Delaware State Bar Association's Immediate Past President Bill Johnston, President-Elect Charlie McDowell, and Rina Marks, our Executive Director. Also in attendance were our counterparts from New York, Pennsylvania, New Jersey, Maryland and the District of Columbia. Each state's delegation made a presentation on a topic of that state's choice. Topics included IOLTA (and other dwindling funding sources for legal services to low income people), Bar-Legislative Relations, Insurance Benefits for Members, and File Retention and Disposal Guidelines, the latter masterfully presented on Delaware's behalf by our own Charlie McDowell. It was intriguing to find how similar our concerns are in many respects to those of our much larger neighbors. (I was breath-taken to learn that the New York State Bar Association has 170,000 members, give or take, and a staff of 120.)

One of the most interesting presentations was by George Jones, President of the D.C. Bar Association, on "Access to Justice," a now-common phrase recently admitted to our lexicon. His thesis was that if lawyers don't find cheaper ways to represent people who need representation but can't afford it, most of us will become marginalized and ultimately irrelevant. George pointed out that there is very little lawyers do that only lawyers do. Accountants provide advice on how to comply with tax laws; environmental engineers advise clients how to comply with legislation regulating environmental impacts; in short, experts of all types advise clients how to comply with the law. The need for legal services will be met, whether by self-help, do-it-yourself manuals or forms provided on the Internet, in the absence of adequate legal representation by attorneys. This cannot be in the public interest, especially for the proverbial, unsophisticated "little guy."

It seems to me that the whole business of unmet legal needs is related to the poor public image of lawyers. Public perception of lawyers seems to be at a nadir. I have received a few infuriated calls from members of our Bar following campaign speeches during this election season, in which a candidate for office proudly declared that the best reason to vote for him was because he was not a lawyer. I understand that assertion was met with friendly laughter and some applause. In the same vein, I heard complaints that a candidate had impugned the criminal defense bar, the personal injury plaintiff's bar and the insurance defense bar as a political strategy. Nor is the issue only a local one; far from it. A nationally representative poll conducted recently by the American Bar Association of 750 American households reported that fewer than one in five individuals said s/he was "extremely confident" or "very confident" in the legal profession or lawyers. Seventy-four percent of respondents agreed with the statement, "Lawyers are more interested in winning than in seeing that justice is served." Seems to me these attitudes may be an outgrowth of resentment that mere mortals are left out of our system, that we have built a monopoly on lawyering, deliberately restricting access to justice. In fact, one of the explanations for the popular sport of lawyer-bashing is that we all make too much money, and always at the expense of other people's pain. If access (or more to the point, lack thereof) to justice is part of the lawyer image problem, then improved access to justice should go hand-in-hand with improved public perception of lawyers.

Addressing the "access to justice" part of the equation, Mr. Jones proposed that the legal profession must find new, creative ways of getting more legal advice to more clients at prices the clients can afford. He suggests that our high ethical standards and professional rules have been used to price us out of the market. The great, and apparently growing, unmet need for legal services must be addressed. We may need to re-think how we handle such basic issues as waiving conflicts and privileges. For instance, in the future, will an attorney be able to make a form available on a web site, advising "clients" who might download and use it for a fee that conflicts with other "clients" are waived, and that traditional privileges do not attach? See a discussion of the intriguing possibilities by Professor Catherine Lanctot in "Attorney-Client Relationships in Cyberspace: The Peril and The Promise", at 49 Duke L.J. 147 (October, 1999). Lawyers a hundred years from now will not practice the way we do. We need to be thinking how to move forward in this new century.

I had the opportunity to mull all this over on a quick trip back from Princeton to speak briefly at the opening ceremony of our new courthouse in New Castle County. Several user-friendly features there, including enhanced assistance for pro se litigants, are certainly a step in the direction of improved access to the legal process. Time will tell if the users of the building feel that "justice" has also become more accessible to them. Time will also inform us whether increased access to our "elite" monopoly will improve the public perception of lawyers.

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