Abstract
Many people lack the resources to get legal assistance with their civil legal problems. These problems include serious issues such as those impacting housing, safety, access to healthcare, families. The current systems that seek to provide legal services to those who need but cannot afford them fall far short of the need. Because of this lack of legal services, most people are forced to represent themselves or they give up their rights without even going to court. Legal technology, especially artificial intelligence (AI), has revolutionized the practice of law. Technology typically is developed and used by those who can afford it. Embracing AI can help reduce the justice gap by driving down costs and increasing access to legal services. Failure to act preemptively will only serve to continue the gap in access to justice.
TopIntroduction
Can you afford an attorney? For most people, the answer is no. The United States provides for the right to a jury trial, though most people could never afford one due to the high cost of legal services. There is a saying that to get married, all that is needed is two people, an optional bottle of wine, and some quick paperwork. In some jurisdictions, this can be accomplished from a car with a drive-through service and fifty dollars. Unwinding that decision, however, requires courts and, often, attorneys for both parties. Other common situations benefiting from legal assistance include custody disputes, drafting a will, defending a lawsuit, landlord/tenant disputes, disputes over debts, and buying and selling property.
The unfortunate truth is that legal representation is for the few who can afford it. This gap in justice is a significant problem for many. To address this gap in justice, there are a variety of efforts systems to help people access low or no cost legal services. Bar associations encourage attorneys to provide their services pro bono, indigent defendants are entitled to a court appointed attorneys in criminal cases, and plaintiffs in tort cases can get representation through attorneys who often charge a contingent fee. Despite these efforts, “…studies estimate that approximately 85 to 97 percent of civil legal issues go unaddressed by LSC-funded organizations due to insufficient resources” (Reyes & Ward, 2020, p. 337). The situation is more dire for low-income households. There are more than 90 million people in the US living below the federal poverty line, and only two in ten below the poverty line get legal assistance in civil legal problems (Legal Services Corporation, 2022, p. 7).
People without the means to hire an attorney are welcome to represent themselves pro se, or on their own without any professional assistance. This, unfortunately, is like going into a boxing ring against a professional fighter. For example, “according to the Connecticut Fair Housing Center, tenants are 89 percent more likely to be evicted if they don’t have legal representation” (Glesby, 2022). Because of this, jurisdictions are adopting right to counsel laws for tenants facing eviction (Connecticut Public Act No. 21-34, 2021).
There are documented ways to address this gap, such as allowing non-attorney legal professionals like licensed paralegals to provide legal services. This is common in the medical field, yet bar associations have been reluctant to ease their monopoly on providing legal services. Additional funding for organizations providing legal services to low-income clients is an “easy” solution, in principle, though having the political will to increase the funding is far from easy. In short, these solutions fall far short of meeting the need.
Artificial intelligence (AI) has recently exploded in both its capabilities and its availability to the public, with programs such as OpenAI’s ChatGPT, Google’s Bard, and Microsoft’s Bing becoming increasingly available. AI refers to programs that can organically learn from very large datasets, such as information available on the Internet. When given sufficient data, AI can synthesize that data and draw conclusions. AI is on the way to becoming a tool that many rely on for assistance in a variety of areas such as writing school papers, researching medical and legal questions, and providing search responses in the form of unscripted chats. AI is changing how people get information.
Increasing the use of technology, especially AI, is an untapped way to help address the justice gap. Disruptive technologies often provide services to low-margin or areas of unmet needs (Christensen et al., 2015). Legal services are ripe for disruption to help address the justice gap. Companies already provide DIY legal forms such as wills and basic contracts and this field is just getting started. AI is set to greatly enhance these low-cost legal services. AI will replace and augment services provided by lawyers, which will drive down the costs for parties. This should, if properly regulated, improve the gap in access to justice.
Key Terms in this Chapter
Justice Gap or Gap in Justice: The difference between low-income households’ need for legal representation and the amount they receive. Low-income is not restricted to federal poverty guidelines but can include anyone who cannot afford legal representation. As such, it includes a large portion of people in the US.
Rules of Professional Conduct: Each state has its own set of binding rules that govern the conduct of attorneys. These rules cover areas such as client confidentiality, attorney competence, client funds, and who is authorized to practice law.
Legal Services Corporation: Congress established this non-profit organization in 1974, and it serves to fund independent legal aid programs across the United States. They also conduct research on the state of the legal needs of low-income households in the US.
Pro Bono or Pro Bono Publico: This Latin phrase means “for the public good.” In the practice of law, this means providing legal services for no charge to those in need who cannot afford to pay. This is incorporated into the rules of professional conduct and encourages all attorneys to provide 50 hours of free legal services each year. This aspirational “rule” is not achieved by most attorneys.
Artificial Intelligence (AI): Software can organically “learn” when given enough data. AI refers to computer programs that have the capability to learn on their own either in ways like humans or in entirely different ways, primarily by analyzing vast amounts of data such as is available on the Internet.
Guided Legal Forms: There are many forms in the practice of law. There are software packages that guide users through completing these forms. This work is also provided by attorneys as part of their representation of clients. Courts have ruled that merely helping someone complete a form as a “scrivener” does not rise to the level of practicing law and therefore does not violate the rule against unauthorized practice of law.
Unauthorized Practice of Law: The rules of professional conduct governing attorneys in each state prohibit unlicensed people from dispensing legal advice and from representing clients. This means that only attorneys who have passed the bar exam and met the other requirements in a particular state may practice law. This rule prohibits legal professionals such as paralegals from practicing law. It also creates a barrier to AI practicing law.