Do Our Ethics Rules Impair Access to Justice?

, The National Law Journal


A broad look at the interplay of ethics rules and the ever-worsening crisis in access to justice reveals that the current framework of ethics guidance for lawyers and judges often impinges upon important and innovative approaches to access to justice.

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What's being said

  • nicholas d. thomas

    As the creator of the Lawyer Independence Project (LIP), I would like to thank Ester Lardent of the Pro Bono Institute for her thoughts on the interplay between our profession’s ethical rules and our broader professional duty to provide access to justice for the public at large.
    While Lardent focuses primarily on pro bono representation, we all recognize that it is not only the indigent that lack access to competent legal representation. In fact, based on a 2006 ABA survey, fully 80% of lawyers asked believe that the cost of litigation has become prohibitively high for all but the most affluent.
    The LIP stands for the proposition that the access-to-justice crisis, along with the majority of other problems faced by the American legal system (e.g., excessive litigation, the negative public perception of lawyers, and the satisfaction and mental health of lawyers themselves) is attributable to two fundamental and interrelated problems:
    1. The lack of financial, moral and structural independence on the part of each lawyer, and
    2. The misperception on the part of lawyers that, outside of the context of ongoing litigation, they are permitted or even required to engage in zealous advocacy.
    For the purpose of this comment, I will focus on the first element – that of actual professional independence. As Lardent points out, concepts such as “imputed disqualification” can and do stand in the way of lawyers accepting cases they are otherwise qualified to handle. I suggest that these rules, along with a number of others, exist only as a reaction by the Bar to the conflicts created by collective practice (law firms). If each lawyer practiced independently, as our professional traditions hold ideal, not only would each lawyer be free to provide access to justice as he or she chooses, there would other benefits.
    1. Lawyers, freed of the economic constraints of collective practice (high-dollar office space, costly public relations and advertising costs, and expensive technological and staff support), would be free to compete with each other on the costs of their services, which would exert a free-market downward pressure on prices, and therefore increase accessibility.
    2. Lawyers with a high degree of technical expertise would be free to associate with and mentor a wider array of other lawyers, not just the chosen few associates at their firms, which would democratize that expertise and make it more widely available to the public.
    3. Lawyers, mainly women, who have been marginalized from the highest levels of practice by the everything-or-nothing time commitment model of collective practice, would be free to enter and exit the practice of law as their circumstances allow, all the while remaining on an equal footing with their peers.
    4. Lawyers themselves, freed of the mental health issues closely associated with the collective practice of law, would be more able to practice their profession in a manner that hews to their higher ideals.
    In sum, I believe Lardent is on the right track. Our ethical rules do in fact hinder the public’s access to justice, and these rules are, in large part, more about “economic protectionism rather than public service.” But in the view of the LIP, Lardent does not go far enough. The path forward for our profession is to turn back to our ethical roots. Actual financial, moral and structural independence on the part of every lawyer is the path forward.
    If we as a profession cannot find our way to that conclusion, then we, as Lardent suggests, may well find ourselves being regulated from without by a governmental entity “at the cost of our profession’s independence and autonomy.”
    Nicholas D. Thomas is a lawyer, mediator, and the creator of the Lawyer Independence Project, an advocacy and education venture. Contact him at

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