CBA Record November-December 2022

in income from $51,000 to $150,000 for a family of three, with a median income of $90,000. While they may not have it in their regular budget, people in this group generally find ways to pay for things they need or value, such as vacations, cars, and necessary services. The key words are “need or value.” Other professions have innovated and adapted to similar economic realities in marketing and affordably delivering their products or services in a way that our legal profession generally has not. That said, this factor gets more points on our scale than the cost of law school, but as shown below, still falls well short of the many factors that are in our control as a pro fession. And that leads to our next, and biggest, factor: the ways that lawyers price and deliver their services. The affordability problem began in the 1970s when the billable hour started to become the prevalent form of pricing in the consumer and small business mar kets. Before that time, fixed fee pricing was the norm in the market. To this day, the areas of the legal market where fixed fees are still the custom are functioning much better (along with the contingent fee market). The billable hour is a self-inflicted scourge on affordability in the consumer market for many reasons (I previously made a top 10 list of the problems it cre ates in this context). When people seek legal services, they typically are looking to solve a problem, manage a risk, make a deal, right a wrong, or find peace of mind on an issue that is important to them. In their minds, a good lawyer is a means to achieve one or more of those ends as effectively and efficiently as possible. The billable hour, on the other hand, focuses on the lawyer’s inputs rather than on the value the lawyer is delivering for the client. Put bluntly, it rewards ineffi ciency rather than reaching solutions as quickly as possible. It also creates a per ception of unaffordability when the client does not know the cost and the value they 3. Billable Hours Rating: $$$

will receive; people generally won’t buy things of uncertain cost or value unless they feel they have no other choice. It is no coincidence that the unafford ability problem took flight when the bill able hour became more prevalent. Yes, the price still matters, but when set fees (which come in many forms) are offered with flexible service options such as lim ited scope representation, they give clients the transparency and certainty to make a value-based judgment about affordability that the billable hour never can. As much as pricing and the ways lawyers deliver their services matter, the amount of work necessary to achieve a good solu tion for a client is often driven by the rela tive efficiency of and accessibility to the court process. Courts can make a big difference in affordability of legal services by simpli fying and improving court processes; modernizing the system to allow remote access for most court hearings and rou tine court business; and using active case management to keep cases moving and encouraging early resolution whenever possible. Each of these steps enables law yers to serve their clients more efficiently and cost-effectively. Conversely, clinging to old ways of operating adds unnecessary time and expense that makes it that much more difficult for lawyers to price their services affordably. Fortunately, with the jolt of the pan demic and inspired court leadership, this area has seen a lot of recent progress in Illinois and is a real cause for optimism. 4. Often Overcomplicated and Antiquated Court Systems Rating: $$$

have little way of knowing if technology based solutions are right for them even as they seek them out, and too often do not even realize they have a problem that may have a legal solution. The UK is showing how modern regulation can improve the market. For example, for several years they have been mandating transparency in pricing for many legal services, and a recently released study shows it is making a real difference. Of note, more than half of the people and businesses surveyed in the study assumed legal services would be unaffordable as they began their search. However, after they reviewed pricing information on lawyer sites, only 10% still believed legal services were unafford able. And even though price is rarely the deciding factor in why someone chooses a particular lawyer, increased transparency in the UK market is encouraging people to shop around and is improving client satisfaction. That is just one example of how mod ernizing regulation can improve afford ability and improve the overall market for lawyers and clients alike. The CBA/CBF Task Force on the Sustainable Practice of Law & Innovation has offered a compre hensive roadmap and series of recommen dations on this issue, as it is an essential piece of the larger affordability puzzle. What Does it Mean? While the first two of these five overarch ing factors in the cost and accessibility of legal services are largely beyond the direct control of the legal community, the other three factors are right in our backyard. And the solutions are largely in our con trol as the trustees of the justice system. In other words, we have no excuses for inaction and need to lead the way to real solutions.

5. Broken Market for Regulating Legal Services Rating: $$$

B o b G l a v e s i s t h e Executive Director of The Chicago Bar Foundation. This article is adapted from the “Bobservations” b l o g o n t h e CB F website. You can r ead m o r e f r o m B o b a t chicagobarfoundation.org/ bobservations.

The last big piece of the affordability problem is the opaque and fractured market for legal services that has not seen the kind of innovation seen in other pro fessions. We are not regulating for today’s fast-changing world. As a result, people have a difficult time judging price and quality when they seek out legal services,

CBA RECORD 15