Experiment on K Street
The apartment was almost uninhabitable. A sewage backup that had caused one tenant to vacate the building was making life miserable for the family that lived upstairs. Water had flooded a common stairwell and a foul odor wafted through the air. The noxious aroma was so pervasive in the family’s second bathroom that it had to be closed off completely. For nearly two months the landlord did no maintenance or repair work to remedy the problem.
But this family was lucky. They found a legal services lawyer who helped them learn about their rights under the District of Columbia’s housing law and wrote a letter demanding immediate action from the landlord. Within 24 hours, the situation was under control.
Most people aren’t so fortunate. According to a report prepared by the D.C. Access to Justice Commission, approximately 100,000 people in the District lack access to legal representation in civil matters. Approximately 97 percent of defendants in landlord-tenant court represent themselves, and more than 98 percent of plaintiffs in both child support and domestic violence cases have no lawyer. Nationwide, the numbers are much the same. Millions of Americans cannot pay for legal services when they need them.
“Just walk into any court in any major city in this country, and what you’ll see — particularly in high-volume courts like landlord-tenant court — is that almost no one has a lawyer,” says Professor Peter Edelman, who has devoted his career to poverty and access-to-justice issues. “It’s a quiet crisis,” he says, not only for clients who are eligible for free services but can’t find them but also for the “millions more who don’t qualify for free services but can’t afford a lawyer. It’s a huge problem.”
But it’s a huge problem with a tantalizing new solution. The D.C. Affordable Law Firm, which opened September 1, is a unique partnership between Georgetown Law and two major law firms, DLA Piper and Arent Fox. The new firm consists of six freshly minted Georgetown J.D.s who will receive an LL.M. in advocacy at the end of their 15-month fellowship. Georgetown is paying fellowship stipends to the firm, Arent Fox is donating office space, the DLA Piper Foundation is providing a $50,000 grant and all three organizations are offering supervision and training.
The firm serves people whose incomes fall between 200 and 400 percent above the poverty line, which translates to between $23,500 to $47,000 for an individual and $48,500 to $97,000 for a family of four. Clients pay a fraction of what they would at most D.C. firms, where hourly rates average between $200 and $300.
The D.C. Affordable Law Firm is a bold and original approach to what has come to be known as “low bono” legal services. Before the firm even opened, it was attracting media attention. The American Lawyer calls it a “novel effort to address the civil legal needs of lower-income people.” It’s a departure from the most common method of providing counsel to those of modest means — an “incubator” practice sponsored by a law school or local bar association.
“To our knowledge this is the first time in the country that there’s been this kind of a partnership between a law school and major law firms,” Edelman says. “There are many incubators around the country that simultaneously serve people who can’t pay the full freight of the market prices and young lawyers who are interested in being solo practitioners ... but there isn’t any place that combines what we have combined.”
The idea of low bono representation has long been important to Edelman. “Peter came to me early in my deanship and said this is something that we should be doing,” says Dean William M. Treanor. The idea crystallized when Edelman was at a party with Judith Sandalow, a former Prettyman Fellow in Georgetown’s Juvenile Justice Clinic and the executive director of the Children’s Law Center. “You know, you ought to sponsor a law firm for people who can’t get free services but can’t afford to pay a lawyer,” Edelman recounts Sandalow as saying. As it turned out, Treanor was also at that gathering, so Edelman pulled him into the conversation, too. Treanor asked Edelman to look into the idea further, and Edelman did, soliciting the help of attorney Mark Herzog, with whom he had worked at the D.C. Bar.
Edelman is the chair of the D.C. Access to Justice Commission and a national expert on the justice gap. But even Edelman came to realize that Georgetown Law couldn’t do it alone, that the school would need one or more partners.
Enter Marc Fleischaker, former chairman of Arent Fox. Fleischaker had worked with Edelman on legal aid and other pro bono activities, and he was much in favor of the low bono firm idea. So were others in Arent Fox, and the firm pledged crucial early support. “One of the main things we could provide that would ease the budget of the new law firm would be to give it space,” says Fleischaker. And the 1,200 square-foot office right off the main lobby of Arent Fox’s new K Street building is now the headquarters of the new firm.
The project got another boost when Treanor offered to create six fellowships through a fund for graduates who work at public interest firms and government jobs. The new firm would have six attorneys who would also be earning an LL.M. in advocacy from Georgetown. It would be “a great way for our graduates, already so well prepared for practice, to prepare even better, to take it to the next level,” Treanor says. “They’re getting incredible experience in negotiation, incredible experience in court, the kind of experience nobody can match.”
When Sheldon Krantz joined Georgetown Law’s Center for the Study of the Legal Profession in August of 2014, the project was not quite ready for prime time. Krantz, too, had thought long and deeply about the legal community’s responsibility to those in need. The former dean of the University of San Diego Law School and a retired partner at DLA Piper, Krantz co-teaches (with Adjunct Professor Lisa Dewey) a Law Center practicum on civil access to justice. Treanor asked Krantz if he would work on the new law firm, too. “I learned very quickly that the project would be more likely to succeed if we had another law firm,” says Krantz, and he knew just the one — DLA Piper.
It was after these pillars were in place that Treanor asked Professor and Vice Dean Jane Aiken to shepherd the project through its final, crucial stages — drafting memos of understanding and bylaws and smoothing DCALF’s way through Georgetown University’s legal counsel’s office.
Aiken admits that she was skeptical when she first heard about the project a couple of years earlier. As the associate dean of clinical education and director of the Community Justice Project at the Law Center, she was quite aware of the need for low-cost representation — but she wasn’t sure if this partnership could be pulled off. By the time she became involved, however, she realized that not only was it possible but it was going to happen.
“This is a huge thing. It’s the biggest thing I’ve ever been involved in,” Aiken says. “We know there are so many people in this country who need lawyers … and we have lawyers who need jobs,” she continues. “We just need an economic model that will make it possible for [lawyers] to provide these kinds of services. … And I think we have found it.”
The economic model involves three entities sharing startup costs through direct outlays and donated office space and training. Georgetown is sharing its clinical expertise, and “we have a lot of pro bono support from both Arent Fox and DLA Piper lawyers providing training, supervision and mentoring,” says Krantz. Part of that pro bono support is Krantz himself, who is serving without salary as DCALF’s first managing partner. (Next year a member of Arent Fox will take the top spot.)
DCALF charges only what a client can pay, based on a sliding scale and at a fixed rather than an hourly rate. Because DCALF is a nonprofit and has tax-exempt status, fellows can opt for both the Law Center’s Loan Repayment Assistance Program (which provides assistance with monthly low payments in the form of interest-free loans from Georgetown) as well as federal loan forgiveness (which limits repayment on federally guaranteed loans to 7 to 10 percent of a borrower’s annual income and forgives the balance after 10 years for those in government or nonprofit work).
The new nonprofit firm has also obtained 501(c)(3) status so that it can accept tax-deductible charitable contributions, apply for grants and make use of interns and donations. More to the point, Aiken says, it clarifies DCALF’s commitment. “When you make a decision to be a charitable nonprofit you make certain principled commitments about who you’re serving and why you’re serving them.”
DCALF was carefully planned with stability in mind. Partners have signed on for three years, guaranteeing a significant outlay of time and services to get the firm up and running. And although the six fellows are earning a small salary they are receiving world-class training and a master of laws degree. “When Georgetown Law made the commitment to make an LL.M. fellowship program out of this, I thought, this is going to make this program unique,” Fleischaker says. “It’s going to attract the best students and give us a credibility we wouldn’t have otherwise. For me, it was an aha moment.” And indeed, graduating students were quick to recognize a good deal. Although the application request went out relatively late in the school year, competition was stiff and the six fellows faced a selective screening process to nab the positions.
For the first few months DCALF fellows are receiving intensive instruction in advocacy and practice area skills so they’ll be ready to represent clients once bar results are available in November. There will be the nuts and bolts of business training as well, so that the fellows can run their own firms some day if they so desire. “They’re going to get more training than virtually any law firm would provide,” Krantz says.
Clients will come from referrals — the kind legal aid organizations must turn away because the organizations don’t have adequate resources or because client incomes are over the poverty line. Judith Sandalow says that the Children’s Law Center “sees people every day we can’t serve” and is planning to refer them to DCALF. But the new firm’s principals are confident that once the word is out, the work will flow in. Just to be sure, they plan to speak in church basements and community centers, spreading the news that there’s a place for people of moderate means to find legal help.
As for practice areas, these were still being fine-tuned as of press time, but housing, family law, elder law, immigration and consumer matters will likely be represented — issues that touch on some of the deepest and most important aspects of human life: where you live, who you live with, the safety and security of your workplace.
“If you’re making $50,000 or $60,000 a year and you go into the hospital … that creates more bankruptcies in this country right now than anything,” Fleischaker says. “It’s an example of the kind of people who are going to be able to use a law firm like this.”
DCALF also plans to serve small businesses and nonprofits that serve distressed communities. “We want to encourage entrepreneurship that addresses critical needs in these communities. We want to encourage the growth of nonprofits in this city — and legal issues [incorporation and liability insur- ance, for example] are important for them,” says Fleischaker. “Our goal is to go beyond simply representing individuals and to represent all entrepreneurs and nonprofits that want to grow.”
A couple of years ago Sheldon Krantz wrote a book called The Legal Profession: What is Wrong and How to Fix It (LexisNexis, 2013). “One of the things I pointed out in the book is that there has been an assumption for a long time that the legal profession has had a history of providing service to the underclass or the disadvantaged of society.” In fact, Krantz says, Alexis de Toqueville in his visit to America in 1831 quickly learned that “the legal profession is part of the aristocracy in this country and has really aligned itself with business interests. And although there was a movement during the 1960s and 1970s to encourage lawyers to get more involved with matters other than representing businesses, the movement has not largely been successful. We are … trying to develop new ground here … to focus on a portion of the population that the legal profession has ignored almost since its inception.”
There’s been a steep price to pay for this orientation. As detailed in the District of Columbia’s Access to Justice Commission’s 2008 report, “The consequences of unaddressed civil legal problems can be devastating and spill over into other aspects of life.” A person who loses disability benefits may wind up homeless; a woman stuck in an abusive relationship puts both herself and her children at risk. The fact is, clients who lack civil representation simply don’t fare as well as those who do. Fifty-one percent of tenants without lawyers in eviction cases lose their homes, while only 21 percent of tenants with lawyers do.
Everyone involved with DCALF — and many others, too — believe that low bono is an idea whose time has come. “Conversations are flourishing across the country,” says Katie Dilks, assistant director of the Office of Public Interest and Community Service at Georgetown Law. “There are state bars that are starting low bono sections and modest-means referral panels cropping up in state and local bars across the country.”
Before DCALF there were several established methods of delivering legal services to people of modest means, Dilks explains. One is the incubator model, in which schools support recent graduates who are looking to launch their own solo practices. The young lawyers incorporate, pay their malpractice insurance and are very much their own entities, but they have access to a support network to help them get started. The other, a residency model, is to operate a low bono clinic directly from a law school, providing training and direct supervision. “This looks more like a postgraduate clinic than anything else,” Dilks explains. A third option is the referral panel, often staffed by law students, which puts clients in touch with attorneys who can help them.
Dilks has been part of “Looking Into Low Bono,” a year-long conversation series sponsored by the Washington Council of Lawyers. The series examined incubators, referral panels, technology and models of support. The Council is also considering an “incubator without walls” pilot program that would engage young lawyers with more experienced attorneys within practice areas and build a modest-means referral system, starting with family law. In addition, a consortium is in the works to provide resources and information for lawyers embarking upon low bono work.
“I definitely think that low bono’s time has come,” Krantz says, though he thinks it should be augmented with other changes, such as altering practice rules so that law students can be more actively involved with legal service providers, breaking down barriers to non-lawyers working on related issues or even the so-called “Civil Gideon,” a movement to require lawyers in civil justice cases where basic human needs are at stake.
Why the current interest in low bono? It’s hard to ignore the reordered priorities of law firms and law schools in the wake of the recession. “When law firms started to lay people off and there was a crisis in the law school world about how people are going to get jobs, there was some broader discussion in the community about … how we make sure that folks coming out of law school are employed,” says Sandalow, explaining the climate that made it more likely the low bono law firm idea she came up with would flourish. “Georgetown has always through their clinical program been a leader in serving low-income people so it seemed a natural fit to me.”
But DCALF must prove that it is financially feasible. “People seek to become lawyers with the expectation that they will have some level of financial success,” Dilks says, “and figuring out how to make these practices financially sustainable for the long haul, particularly with student debt as it now stands, is a huge burden.”
Nonprofit status and loan-forgiveness programs help, but Krantz is well aware that of all the questions the firm needs to answer, first and foremost is whether it can generate revenue. “We’re going to be looking at a number of different models of how to represent people. We’re going to look at ways to involve non-lawyers because a lot of the problems people have go beyond law, they go into areas like business, they go into social needs that could be fulfilled by social workers … so we want to work with other professions as well.”
Krantz has also been collaborating with Professor Tanina Rostain, using DCALF as a laboratory to study the economics of small-firm practice supported by sophisticated technological tools. “Legal technologies are making practice more efficient, and creating good self-help tools is part of access to justice,” says Rostain, who teaches the experiential class Technology, Innovation and Legal Practice. “I’ve been working with Sheldon to help him figure out what tools will be useful.” Rostain and Krantz are investigating what types of cases, fee arrangements, digital technologies and referral networks can yield a sustainable delivery model.
Another question — even a concern — is to make sure that DCALF’s low bono work doesn’t detract from what’s already being done by nonprofits and solo practitioners. “We don’t think this is going to be a problem,” Fleischaker says. “We’ve seen this need go unanswered for so long.” Adds Benjamin Boyd, co-managing partner of DLA Piper’s Washington, D.C., office and a DCALF board member, “In our complex legal system, a lawyer’s assistance can make an enormous difference, but a substantial percentage of the population neither qualifies for free representation nor can afford a lawyer. This gap in access to justice is wide and DCALF will work to fill that void.”
Low bono is a response to legal services priced above the reach of many. Will there be a time when firms like DCALF are no longer necessary because the cost of services is more in line with what most people can pay? “I’m sorry to say I don’t think the need for this is going to go away,” Edelman says. “In a way it goes along with the inequality in our country.”
Which makes this experiment on K Street all the more crucial. “We’re proud of the support this organization is providing, we’re proud of the work it’s doing, but we’re just as proud of an initiative that we think will be a model and will transform legal practice in this country,” says Treanor.
It’s no coincidence that Treanor and others talk about DCALF as if it’s serving the nation and not just the District. Though the firm’s first and most important goal is to help the moderate-income residents of D.C., it’s hoping to become a national model. “We want to be able to show — and we’re going to have social scientists’ research from the very beginning to demonstrate — that the kind of model we’ve created should be replicated throughout the country,” Krantz says.
Although the District is known for its thriving pro bono community — which other parts of the country may find harder to duplicate — what DCALF is after is no less than creating another culture, another set of expectations.
“If we’re successful and other firms like ours are successful we’re going to create a group of lawyers who will know how to make a good living, a successful living, charging $100 an hour rather than $800 an hour … representing people at mid-level incomes rather than just corporations or wealthy individuals,” says Fleischaker. “There’s a huge market out there … [and] we’re willing to talk to and share information with anyone who’s interested in moving into this space.”
It’s a space that’s bursting with innovation, energy — and need. It’s a space that desperately needs to be filled. And it’s a space into which DCALF is bravely venturing.
Visit the DCALF website for more information.
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