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Why ‘The Atlantic’ Is Only Half Right About the Legal Job Market

AND HOW IT SPREADS A FAULTY PERCEPTION ABOUT THE DEMAND FOR NEW ATTORNEYS

It’s hard to blame The Atlantic for reaching what would appear a perfectly logical conclusion: That an abundance of unemployed attorneys signals a diminished need for new lawyers. If only this were true.

In an article published earlier this week, business writer Jordan Weissmann points to plummeting law school admissions — down 24 percent over the last two years — as a solution to the glut of jobless lawyers flooding the market: “The last thing the economy needs is thousands of additional J.D.s sitting around with no work and $125,000 of grad-school debt hovering over them.” Weissmann goes on to suggest that a decline in new lawyers, which he describes as a “correction” will help restore “sanity” to the job market. Again, this is perfectly logical, but it’s also incorrect and it’s indicative of a widespread misperception of what’s really happening in the legal industry.

There is a faulty perception among misinformed observers the legal services market that suggests the sharp, large-firm hiring freeze correlates to a lack of demand for legal services. And while Weissmann does a commendable job explaining how large firms lost the need for new associates, he appears misguided about the true need for more lawyers. Contrary to what Weissmann is reporting here, the need for attorneys is actually quite significant, and the industry’s failure to meet this need has bloomed into a major problem threatening the integrity of the American justice system. The fact is, middle-class Americans need lawyers and the large-firm business model has made them nearly inaccessible. Meanwhile thousands of new graduates are unemployed, but lack the resources to serve the untapped middle-class market.

The most significant issue affecting the legal market is not an oversupply of service providers, but  rather an abandonment of the middle-class consumer. Most middle-class clients can’t afford $200-300 per hour for legal services, but also make too much money to qualify for pro bono assistance. This leaves many people who need legal services trapped in a position to represent themselves on a pro se basis. The problem is so bad that in 2011, the World Justice Project ranked the United States 11th out of 11 high-income countries in providing access to justice. In 2012, the Massachusetts Supreme Judicial Court took note of the problem in its state, reporting a growing trend of self-representation in the Commonwealth’s trial courts, with 75 percent of parties in both the Housing Court and the Family & Probate Court appearing on a pro se basis. Meanwhile, new attorneys have been cast off by large firms to cut costs, so there lies a resource of licensed legal service providers who don’t know how the first thing about running a legal practice or representing the people who need them.

Gillian K. Hadfield, professor of law and economics at the University of Southern California told the New York Times last month that the problem is not an abundance of lawyers. “We have a significant mismatch between demand and supply. It’s not a problem of producing too many lawyers. Actually, we have an exploding demand for both ordinary folk lawyers and big corporate ones.”

While Weissmann suggests the legal market is suffering from a simple supply and demand problem, the real issue at play is the absence of a mechanism that would connect attorneys with a market that desperately needs them. The solution to the so-called Justice Gap and the so-called Employment Gap is one in the same: Pair underemployed attorneys with underserved middle-class clients. Last year, former U.S. Attorney Kendall Coffey said it’s imperative that law schools train law students in practice management and that experienced attorneys volunteer as mentors to help a new generation of lawyers extend services to the middle class.

“Ironically, while thousands of new law graduates fret about the chronic joblessness that awaits them, tens of millions of Americans need attorneys but cannot afford them,” Coffey wrote. “And much of the unmet need rests in America’s middle class, which is neither rich enough to pay $250 an hour for lawyers nor poor enough to qualify for legal aid organizations.”

Weissmann’s incomplete analysis suggests that winnowing the supply of attorneys  will restore order. This ignores the reality that the economics of the legal industry have changed permanently. Even in a strong economy, it’s not likely that corporate clients will resume paying for junior associates now that they know they don’t have to. Meanwhile, the wait-and-see approach would continue to expand the Justice Gap and leave an unserved market in the lurch. The fact is that a reduction in law-school applicants, as Weissman suggests, is not the jolt of adrenaline that will shake the job market back to life. Instead, it will take an industry-wide commitment to change, encompassing law schools and large firms, to meet the need for legal services with people trained to provide them.

ABOUT THE AUTHOR: Dave Brown is a founding partner of Boston MicroLaw, LLP, a firm of small business attorneys in Boston, dedicated to meeting the small-business needs of middle-class clients. He also served as a Northeastern University School of Law Legal Fellow researching potential solutions to the Justice Gap and the Employment Gap, so reading J.H. Weissmann’s article made him just a little sad.

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