In re Arons: The Plight of the 'Unrich' in Obtaining Legal Services

Abstract

This essay uses the story of In re Arons to demonstrate the plight most Americans face when they need legal services, but can neither obtain nor afford them. In re Arons was an effort by the State of Delaware to enforce its prohibition against the unauthorized practice of law (UPL) to deny parents of children with disabilities the right to non-lawyer assistance in due process hearings held under the Individuals with Disabilities Education Act (IDEA). IDEA nominally guarantees all children with disabilities a free and appropriate public education. But educating disabled children can be expensive and financially strapped school boards frequently cut corners. IDEA sets up a process for resolving disputes between parents and school boards on matters affecting a child's education. But the statute's procedures are so complex that many parents are unable to navigate them without assistance. The school boards, of course, are aided by lawyers and in-house experts. Anticipating this disparity, IDEA authorizes parents to be accompanied and advised in IDEA proceedings by counsel and by individuals with special knowledge and training with respect to children with disabilities. Delaware took the position that this authorization did not entitle non-lawyer experts to provide the equivalent of legal assistance, and the Delaware Supreme Court upheld charges its Office of Disciplinary Counsel brought against experts who had successfully assisted a number of parents in their battles with Delaware school boards. The result is that parents of children with disabilities in Delaware, who can neither afford nor find lawyers willing to represent them, are faced with the Hobson's choice of fighting the school boards on their own or forgoing their right to challenge school board decisions that adversely affect their children. The essay uses In re Arons to raise questions about the wisdom of the lawyer monopoly on the provision of legal services, especially those that involve questions that are not intrinsically legal but instead turn on complex factual questions that are the province of other disciplines. The essay also examines more broadly the plight of most Americans who, for all practical purposes, have been priced out of the market for lawyer-only legal services. Except for high-value cases that attract contingency-fee lawyers, most Americans of average or modest means cannot afford anything more than the most basic legal service. The ABA and the Legal Services Corporation estimate that 80 to 90 percent of the legal needs of the poor go unmet, and that estimate does not change appreciably for the middle class. The essay lays much of the blame for this crisis in the delivery of legal services on the organized bar, which has not only sowed the seeds of the crisis, but has failed to take serious measures to resolve it.