Four:

The Legal Information Needs of Poor and Middle Income People and the Organizations that Advocate for Them

Richard Zorza, Esq.

Paper Four: Private Sector Models and Partnerships

Introduction

This paper focuses on the potential of private sector models and partnerships to meet the legal information needs of poor and middle income people.The Paper is one of a series prepared under the Chicago Kent Law School/Open Society Institute Consultancy on the Legal Information Needs of Poor and Middle Income People and the Organizations that Serve Them,.

Traditionally, Legal Information Providers, On and Off line, Have ignored the Needs of Poverty Organizations and Poor Clients.

Commercial publishers like West and Lexis-Nexis have “followed the money” and have tended, with minor exceptions, to focus on the private market, ignoring the special needs of legal services providers.[1]

In particular, they have made little effort to create the kinds of libraries particularly needed by advocates for the poor and low income people.Thus there are no libraries of TANF plans and caselaw, no eviction databases (other than the standard systems buried in the case reporting system), and certainly no special administrative law reporting systems for the kind of administrative decisions that are critical to advocates for the poor.[2]

The Mainstream Legal Information Providers Strategies Continue to aim for their Attorney Market and as Such they Largely Ignore the Direct Information Needs of Clients, or at Least Certainly Those of Poor Clients Themselves. Partnerships Should be Structured to Reflect Market Realities and are More Likely to be Realistic in the Advocate Information Area.

Mainstream legal publishers essentially ignore the direct information needs of poor clients.While they use the Internet as the delivery mechanism for their on-line attorney services, they currently see no potential for direct information for individual clients.[3]Since their business model is generally “fee for content” (regardless of where that is a monthly flat fee or a per access charge) they have no interest in a population unwilling to pay for access directly.

Moreover, the traditional legal content providers may be somewhat inhibited from targeting the direct information provision market by fear that they will be perceived by their own current primary clients (attorneys) as undercutting those clients primary market.While there is every reason to believe that in fact providing information will increase the market for legal services, it may be perception rather than analysis that is driving these decisions.In any event, the structure and business model of the traditional content providers is ill-suited for this market, and the vendors face no compelling reason to change.[4]

However, these conclusions do not exclude the possibility of highly productive partnerships with the traditional content providers in terms of technology, sponsorship, and the development and support of legal information data structures.Content relationships are more likely in the attorney area than in the client area.[5]

There is an Emerging Market of Private Sector Providers of Legal Information for Low and Middle Income Practice, Driven by three Models, the Hot-line for Fee model, the Free-online Information Service, and the Content Based Fee (Per item or Subscription) Model.

Notwithstanding the lack of lower income market interest of traditional legal information providers, private sector providers are exploring various ways of using the technology to provide services to those in legal need.The business models are still in the early stages of development and testing.

The Hot-Line Fee for Service model, essentially a commercialization of the AARP hotline model, which is itself now being widely deployed within legal services,[6] charges individuals who call a phone number a flat rate per call.The services employ contract attorneys who are paid a fixed rate for the call.Of particular interest for potential partnership with legal services, these groups have build (at substantial investment) and employ some form of electronic database that summarizes the law of the jurisdiction, making the advice giving process very easy for the attorney.[7]The systems also use technology for record keeping and supervisor review, representing that they thereby guarantee quality of the advice.[8]

The second model, the free on-line information model, is best exemplified by FindLaw.FindLaw, accessible through several gateways such as Excite, depends on advertising revenue for its business model.A Findlaw user can quickly find very simple general statements of law, not customized by jurisdiction, and links to other free legal nd related content and services.[9]Equivalent is USLaw.com.[10] and Thelaw.com.[11]

The third model, the content-based fee model, is perhaps the most stable economically for the private sector.However, this model does least to leverage the massive distributive power of the Internet.Under this model, a content provider, such as Nolo Press [12] offers substantive legal materials over the Internet for sale.The content can either be downloaded over the Internet, or delivered in hard copy like a traditional book.In either case the consumer pays for the content over the web using a credit card.This is classic “e-commerce”.Under this model, the content provider makes available “teaser” material free over the Internet.This teaser material brings the user to advertisements for the for-fee material.In a modification of this model, the user can purchase a subscription for long term access to the information.

There are Also Several Nonprofit Groups with Ambitions to Provide Gateways into Nonprofit Content.

Then there are the beginnings of the nonprofit portals to legal information.

These portals include general content aggregators, and specialized aggregators.These nonprofit portals see their mission as providing free content, possibly including legal content, to those in need.

The Center for Poverty Law, previously known as Clearinghouse, for example, already operates a web site that brings together a variety of sources of legal information and is described in more derail in Paper Three.Similarly, as described in that paper, most of the old support centers operate web sites.Moreover,many state courts [13] and bar associations [14] operate web sites that provide a wide variety of information about law and legal rights; some provide access to legal forms.

A number of organizations are talking about creating national gateways to legal content.For example, the ABA currently has pending before OSI a proposal for a simple legal content site aimed at providing initial legal information and then electronic referrals to counsel, when needed.[15]Similarly, the National Center for State Courts has obtained funding for a gateway to pro se sites.More specifically, the IMAG group of the Project for the Future of Equal Justice has developed a mock-ups of how such portals designed separately for the client and advocate populations might look.[16]Finally, by far the most work has been performed by the Legal Information Institute of Cornell Law School.[17]LII focuses most intensively on primary materials, but has been experimenting with cross jurisdictional content, including law student-written general law summaries, a national library of legal ethics, and materials for K-12 students and non-legal professionals.

More generally, the AOL Foundation has announced a “non-profit portal” with apparent ambitions to provide a gateway to any and all nonprofit content on the web.[18]There is substantial skepticism within the nonprofit community about the practicality and the politically monopolistic effect of this initiative.

The relationship of all these sites to each other, and to the constantly changing general gateway market remains to be seen.

The Fee Based Hotline Model, with its Substantial Investments in Relevant Content, Provides a Potential Partnership.

There are several potential sources of partnership in the fee-based hotline model.Perhaps most significantly, the groups that operate the fee based model programs have generated substantial sophisticated on-line legal summaries.[19]It would be eminently possible for this content to be leased and modified for use by low and middle income clients. (However, such an approach might not be palatable to the investors in these operations.)

Similarly, those who have access to low and middle income people in legal need might offer on or off-line referrals to potential clients in return for use of content.[20]

The Fee-based Hotline Partnership, However, Also Raises Many Potentially Difficult Problems for Potential Legal Service Provider Partners.

However, such collaborations raise significant problems.Firstly, there is a natural conflict of interest between the free service provision to which legal services is committed, and the fee for each service on the meter that this model assumes.This problem could be overcome if it was possible to draw a clear line between the populations, and the income eligible could receive services at no cost, while the middle income would pay a fee.Intuitively this is much easier to do when he user is on a phone line than merely on the Internet..(In fact, however, unless there is verification of reported income, neither phone assistance by hotline, or Internet content help by webpage can really have eligibility determined with any reliability.But somehow a phone interview feels more reliable).

Secondly, for the private fee for service organizations, maintaining ownership and control over content is likely to be a critical part of their business agenda.While an access to justice information initiative may want to respect this interest, it may be hard to actually structure access to Internet sites in ways that adequately protect this interest.

Notwithstanding These Issues, The Fee-Based Hotline Service Model Should be Explored as a Potential Partner.

Notwithstanding these problems, however, these partnerships bear exploration.In particular, the use of highly leverage investment in middle income content to meet low income information needs should not be ignored.[21]Of course, the marginal cost of additional use of content is almost zero.

Similarly, The Free-Online Model would Also produce Significant Opportunities But Also Potential Difficulties for Partnership Creation.

The essence of the “Free On-line” model is that large amount of content is made available for free, with the business model being revenue generated from other that direct charge for access to the content.Fees under this model might be generated by advertising, by referral charges to actual real attorneys, or by handoff fees paid by other electronic sites which collect revenue for concrete services or sales. (In theory, at least, one could operate such a site solely supported by revenue from commissions from books sales generated by Amazon.com.[22]

In some ways this is the model for revenue most likely to be pursued by the legal services community.By eliminated charge for service, it avoids the need for distinction in service delivery between “income eligible” and non-eligible.[23]

However, this very similarity of the model to the possible legal services model might create substantial barriers to cooperation.Since there would be natural competition between the private providers pursing this model, and a legal services entity providing such services, it is hard to imagine how mutually beneficial cooperation would work.

Illustrative of the problems is an analysis of how one possible such cooperation might be structured.In such a model, such a site would rely on the legal services system for its low income content, paying for that content.Such a site would provide its own content for higher income clients.However, the problem would be that the non-legal services partner would probably view such low income content as being of low economic value, since not providing high spending clients.Such a view might lead to endless revenue division disputes.

In Contrast, the Fee-for-Content Model, Might Create Less Partnership Problems and Should Certainly be Explored for Potential Partnerships, Particularly with Respect to Advocate Content.

The fee-for-content model, being pursued for example in the self-help context by Nolo Press,[24] may provide for more natural partnerships.

Under this model, the content provider charges on or off line for content.A free site usually attracts the user stream.It might be that the level of detailed information and tools provided by such a site or sites would be far greater than available on a free legal services system, and the free system could serve as a cost effective and fee generating feeder for the fee for content site.

There are Partnership Advantages and Disadvantages in this Fee-for-Content Model

The disadvantage of this model is that the free site might feel inhibited from adding additional free content when such free content would undercut the fee base of the commercial partner.In other words, such a partnership might work in the short term, but be unstable in the long term.

The advantage of such a model would be clear division of roles between the commercial and non-commercial partner.

However, Partnerships with Non-legal (or more appropriately Stated “General”) Content Finding Systems and Non-legal but Law-related Content Finding Systems May Provide the Best Long Term Partnership Opportunities.

As is well know, the Internet is now dominated by a number of general portals or entry points that direct users to the content they want.At their simplest, there are three ways that these portals get the user to the right place, by search engine, by branching “trees”, and by natural language algorithms by which a user types a simple English question.[25]

The search engine simply runs the users request against a massive index of web pages.The search engine software is constantly expanding itself by going out and following links to index additional pages.[26]

The branching tree model simply provides the user with a set of choices, each of which leads to another choice, until the user eventually gets to an appropriate sites.These structures are maintained by salaried or piece work staff who keep hunting the web and building more and more links.In this model, the content is reviewed, so that the recommended links are seen as higher quality and more appropriate.This model is becoming more popular.[27]

The third model allows users to type in a request in traditional English, and the software parses that into a search, which then runs against an index or a branching system.[28]

In practice, these models are not “pure”.Often the search engine is programmed to make use of branching lists, and branching lists call searches at various points in the assembly of their lists.

The way the market is developing, those portals that are most individualized, those that give the user tools that reflect that persons individual needs and interests, and remember inside the server that persons preferences and history, are the most successful.This is because they are more efficient to use, they produce user loyalty, and they “learn” from the users prior history.

As the structure of content becomes more and more important to success in these markets, and as users come to judge a search engine less by its look and feel and more by the quality and utility of the information that it returns, these groups will gain by partnering with the kinds of content that produces this result.

To the extent that legal services content should be the best, these portals will have a strong interest in such partnering.In return they will bring to the partnership the structuring technology that can be used to manage the information and keep it fully up to date.[29]

Thus this form of partnership is worth extensive exploration.[30]

It Should Be Noted that The ABA’s Initiatives in this Area Appear to be Potentially Generally Complimentary In That, With the Exception Discussed Above, They Are Aimed at Assisting Private Attorneys in Private Practice for the Middle Income Client, Rather Than Clients Directly.

The ABA’s strategy has several components.As a general matter it appears that the ABA’s views its role as assisting lawyers, and its strategy for dealing with the problems of the low income client pool is to find ways of making it easier and more cost effective to for attorney to provide services to this population.

However, the public information division, which has developed substantial self-help legal content, as discussed above, has expressed interest in creation of a portal to its and other organizations’ self-help content.While the ABA clearly would bring much in a partnership, it is not yet clear what the optimum role for the ABA should be in such a project.

To the Extent that Legal Services Content is Desirable to the Broader Attorney Market, There is No Reason That it can Not be Electronically Marketed in Partnership with Traditional Publishers.

The bet example comes from the National Consumer Law Center, which now generates $1.5 a year from its publications, mainly off-line.

Electronic distribution, and electronic capture of revenue of this content, might well be optimized in partnership with traditional providers.Moreover, given the obvious appeal of this content, it might be used to leverage free legal services advocate access to other content, or support for the distribution of other poverty advocate content.[31]

The Legal Services Community Would Bring, as a Partner or Competitor, Much to any Market.

In any event, the legal services community, with its high skill content provider base, its detailed knowledge of the needs of clients, its distribution throughout the entire 50 states, its preexisting content pool, its well known “brand” and its broad network of partnering community organizations, would be an attractive partner.

For the bargaining needed to establish such a partnership, however, legal services needs to have a clear bargaining and coordinating representative that can deliver content, users and brand name.Such a relationship can not realistically be set up with 50 different state entities.The web market is a national (and international) market.[32]

The legal services world also has to have created the credibility that it can actually deliver the content and the relationships that support the content.This credibility will only be established by a solid record.To establish this record, thought should be given to intensive focus on one or two states, and the development of experimental partnerships in those states.

Building These Partnerships will be Difficult, for Reasons of Culture, Goals, and Measurement.

However, in order to best lay the groundwork, we must understand that there are significant barriers to such private/legal services partnerships.

Legal services as a culture is deeply suspicious of the private sector.It fears both being exploited and being taken over.Worse, it fears a fundamental incompatibility of values between legal services and the commercial world.

Similarly, the commercial world regards the legal services world (indeed the nonprofit world in general) as an unreliable partner, unwilling to take the risks needed for innovation, and unable to provide the return on investment that would justify that risk.

The structures for measurement of success (beyond financial return) have not been developed.

If Such Partnerships are to be Attempted, they Must be Carefully Evaluated, and be Conducted Under Broad Principle-Driven Protective Umbrellas.

It may be that appropriate cooperation will only work if first there has been extensive attention on both sides to the principles that could guide such collaboration.Such principles would have to protect the interests of both sides, and would provide to each side the reassurance that their fundamental territory would not be invaded.[33]

Similarly, these partnerships must be conducted in the full light of day, with full reporting to the legal services community.They must be guided by highly respected advisory boards, and their impact on the whole community must be fully evaluated.[34]

There are important Lessons to be Learned from Parallel Initiatives in Medical Information online. Such lessons apply both to the building of partnerships, the Management of Content, and the Financial Models.

The provision of medial information of the web has moved far faster than the provision of legal information.[35]There is an apparent paradox here, in that while both legal and medical professions have monopolies, the legal profession does not prohibit going to court without a lawyer, while the laws governing the functioning of the medical profession do prevent lay people from getting a prescription or an operation without engaging the profession.This might lead to the conclusions that legal and paraprofessional advice and help would be heavily marketed and consumed on the web.This has not happened, at least in comparison to that which has occurred in the medical area.

Much of the explanation for this far faster spread of medical information systems on the Internet is the huge legal drug market, for both prescription and non prescription drugs.This market provides a huge pool of advertising money and a long history of such advertising.This money has largely driven the Internet medical information system.On the contrary, the consumer market in lawyers (as opposed to that for corporate law) is relatively small and the history of lawyer advertising is both short and limited in its professional penetration.

In any event, there is now a huge amount of branded and un-branded medical content on the web.It is widely used, and effectively organized.It is interesting that the British National Health Service has just announced an ambitions on-line project that will provide pre-diagnostic “do you need to see a doctor” services over the Internet.

As a caution, and as a research opportunity, it should be noted that even the most reputable sites have has already run into serious ethical problems, well worthy of study as highlighting the potential conflicts of interest that may arise with such partnerships.[36]

Conclusions

Private partnerships of the kind discussed here must be more fully explored.Such explorations might go beyond content to include joint software development, the providing of testing and market expanding opportunities for the private sector, and even commercial partnerships.While they may take very different forms in the self-help and advocacy contents, such partnerships may make the difference between the long term success and failure of these experiments.But the explorations must be made with full awareness of the implications for the whole legal services network and with a sensitivity to the underlying cultural differences.

[1]Exceptions include a short-term early 1980’s experiment in which legal services programs created a special library within the Lexis database.A legal services project, with staff in the several regions of LSC, input material into this database, and local programs then paid to access the material.The per minute rate for searching was highly reduced.This experiment did not last long, although specialized research centers within the legal services system lasted for a significant number of years.

[2]To the extent that there are such databases for issues such as unemployment and bankruptcy, that is because attorneys for those with higher incomes demand them.

[3]This is in contrast to their services to corporations and other legal and news consumers.

[4]Contrast the recent decision by Encyclopedia Britannica to go fully on-line and move to an advertising supported model.Since the paper market was disappearing, EB faced no real alternatives.

[5]Of course, Lexis-Nexis now offers discouted service to LSC grantees and NLADA members.

[6]There are about eighty hotlines in service.These take a wide variety of forms.One of the most advanced is the CLEAR (Coordinated Legal Education Advice and Referral) project in the State of Washington, generally described at www.nwjp.org.

[7]The leading commercial providersare Telelaw and Legal Advice line, www.legaladviceline.com.Legal Advice Line is how in operation in Maryland and Pennsylvania, and has ambitions to spread quickly to other jurisdictions.Telelaw operates under contract to AARP, and does so with substantial cost efficiencies.Telelaw is in the process of planning a comprehensive web-based portal into low and middle income legal support, carrying the unbundling concept beyond brief service and advice, to form fill in and remote filing.It plans to integrate the phone and web front ends to its services.There are significant potentials for collaboration and synergy here.

[8]An illustration of the potential transformative scope of the Internet on professional relationships is www.expertcentral.com, a site that allows a registered user to ask questions of experts online.The expert may give a free answer, or negotiate a rate.Some answers are then publicly posted (presumably to generate more traffic to the expert).As of December 1999, this site listed 12 immigration lawyers and sixteen employment lawyers as experts.The site asserts numerous denials of warranty or liability, and makes the claim that it does not evaluate the experts in any way.The site charges experts 15% of fees processed through the site, and requires the expert to agree to require payment only if the customer is satisfied.Users can rate experts, and ratings of experts are displayed prominently.Compare www.XpertSite.com, which is more of a general publicly posted expert question and answer site.

Arguably more sophisticated is www.legal-bid.com/flash_splash.asp, a site that allows potential clients to “RFP” legal services, and for attorneys to bid to provide those services. Similarly,www.casematch.com recruits attorneys who sign up according to their experience in any of about thirty practice areas.However, clients merely enter a general description of the problem (with an exhortation not to include confidential information), and the system contacts potential attorneys.A client may view a list of attorneys and make a personal selection.

[9]The site is at www.findlaw.com.Typing “evict” into its search engine brought no results at all.“Eviction” brought up a number of sites, including a Utah courts page with detailed information on he eviction process, the Massachusetts Neighborhood Legal Services client information site, and the California Judicial Forms site.It also called its general “Legal Aid and Legal Services Resources” page that provided about fifty links to legal services type programs

[10]The site at www.Uslaw.com includes a free document generator, which, however, offers only a relatively few documents.

[11]www.thelaw.com.Now with comments by Ed Koch!

[12]www.nolo.com lists for sale a wide range of legal self-help publications.It includes free access to 500 frequently asked questions, accessible either by search orby topic area. The word “eviction” in the search returned many rather specialized responses.However, the landlord tenant FAQ listing returned a number of appropriate and helpful – albeit nationally general – materials.There is an “Ask Auntie Nolo” feature, that allows the user to ask a question, and review prior answers, on-line calculators (which, for example, compare the costs of owning versus renting), and on-line legal dictionary and encyclopedia.

[13]What are, according to the National Center for State Courts, the ten (eleven actually) best state court sites are collected at http://ctc6.ncsc.dni.us/sites/topten.html.

[14]Noteworthy examples include: Washington State Bar Association, www.wsba.org/genpub/default.htm, Association of the Bar of the City of New York City, www.abcny.org.

[15]The plan is leveraged on pre-existing ABA content.There is no intent to certify content.

[16]These mock-ups, with explanations, can be viewed at www.equaljustice.org/techno/twoportals.htm.Particularly noteworthy is the client portal’s design structured around the way clients rather than professionals view “legal” problems.

[17]The site is at www.law.cornell.edu/index.html.

[18]www.helping.org.

[19]As reported to this writer, these systems are fully indexed and hyper linked, allowing the user (currently an attorney on the phone) to find an initial area of legal information and then to move from hyperlink to hyperlink through the entire intertwined legal problem faced by the caller.

[20]By way of example, one such content provider offered to perform subsidized development of a pro-se site, in return for electronic referrals from the site.Similarly, there have been negotiations in for a system of access to content in return for possible referrals of those not income eligible.

[21]An existing example is the relationship between Legal Advice Line and the Legal Aid Bureau of Maryland.

“[22]However, many of Amazon’s “partners” report minimal income from the referral system.

[23]A supplemental variant of this model would permit free service for the income eligible, and charging for those who do not meet the test.Technological changes are likely to make on-line eligibility determinations easier in the future.In any event, it should be noted, hotlines already made unverified eligibility determinations and rely on the representations of the client as to underlying financial and other eligibility determining data.

[24]See descriptive note above.

[25]It should also be noted that there are many engines available that can direct searches to many places at the same time.

[26]Generally, the Google engine, called by Netscape and NetCenter, and accessed at http://home.netscape.com/escapes/search/netsearch_0.html, is regarded as one of the most comprehensive using this model.

[27]Probably the best example is the list of topics on the NetCenter page, shown for all search engines offered.

[28]The best known example of this technology applied to the whole web is Ask Jeeves, www.ask.com.During the Thanksgiving day parade, the Ask Jeeves float had a singer asking “Why Do Fools Fall in Love?”Ask.com, in response to that question, offers; “What is love?” “Am I in Love?” and,”Why do Leaves Fall in Autumn.”The technology is not yet final!

[29]Related might be potential private partners that have an interest in their on or off line clients knowing the law.Examples might be medical systems, which want to be thought of as responsible, or employers who recognize that they do better when their clients do better.

[30]It should be noted however, that these portals are so involved with myriad growth directions, that they may not realize the importance of legal information and the potential of legal information to enhance their overall marketability.In contrast, the on-line medical models have been very successful.

A critical part of the exploration will be understanding, and developing a strategy to deal with the way that placement on these general portals is bought and traded.Given that only the very strongest bargaining partners can obtain such placement without payment to the portals it would be necessary to make the site as strong as possible as quickly as possible.A fascinating library of such tech partnership agreements (culled from SEC filings) can be found at http://techdeals.findlaw.com/jointvent/index.html .

[31]It would be necessary to structure this so that the providers of the desirable content were also put in a better situation by participating in such a broader system.

[32]Important goals in negotiating any such agreement include non-exclusivity, flexibility, certainty of return, ownership of the relationships and ownership of information generated by the relationship.

[33]A model might be the Principles of the National Strategy for Nonprofit Technology.Its blueprint can be viewed at www.nten.org.

[34]For example, the evaluation must include not just the short term financial and programmatic success of the project itself, but also the effect on the legal services culture and on program generally.It is a legitimate (although not necessarily correct ) fear, that such partnerships will turn legal services into a fee for service entity, no longer driven by client service values.There are of course, plenty of cautions in the experience of governmental privatization, including the privatization of the welfare delivery system.

[35]See, e.g. www.webmd.com (searches on medical news, health encyclopedia, medical dictionary, diseases and conditions, drugs and medications, herbals and vitamins, tests and procedures, find a physician, health-E-meters and member to member), www.mediconsult.com, (medical dictionary, news, drug info, fitness and nutrition, journal articles, research digest, support group); www.pharminfo.com (drug information and disease information centers); www.koop.com (news, health resources, health and wellness, nutrition center, prevention center, drug checker, clinical trials, books, local resources, insurance center). In fairness, the legal information on the web might seem as comprehensive to a medical professional, as the medical information appears to a legal professional.

[36]The October 1999 issue of Managed Care discusses, in part, the asserted ethical issues raised by the Dr Koop Web enterprise.www.managedcaremag.com/archiveMC/9910/9910.ethics.html.Similarly, in late 1999, the Food and Drug Administration launched a web site analyzing the dangers of on-line drug purchases and how to minimize those risks. www.fda.gov/oc/buyonline.