Source: The Commons Law Center

Sliding scale “low bono” legal services powered by a legal operations toolbox.

When it comes to legal representation, many people are at risk of slipping through the gap. The modest means gap, that is.

The modest means gap is an often-overlooked subsection of the population whose income is too high to qualify them for some pro bono services but too low to generally afford legal representation at full price.

The Commons Law Center, or simply the Commons, is a 501(c)(3) nonprofit law firm that’s specifically designed to close this gap.  As discussed in greater detail below, what makes the Commons worthy of a case study is an innovative business model that generates earned revenue from paying clients while simultaneously minimizing costs and maximizing access and impact through a tightly controlled menu of unbundled legal services.  The result is a mission-driven law firm in the A2J PeopleLaw space that has the potential to fund its own future growth.

John Grant

One of the key people behind the Commons (and my point of contact for this case study) is John E. Grant, a lawyer and legal operations professional who serves as President of the Commons’ Board of Directors.

Although Grant has done his share of projects for corporate clients and Big Law, see, e.g., Post 040 (relating a humorous anecdote from one of his engagements), he acknowledges that he is increasingly drawn to the inefficiencies and bottlenecks in the PeopleLaw space, where his legal operations toolbox can directly impact the legal problems of actual people.  From October 2021 to May 2022, Grant jumped directly into the fray, serving as the Commons interim executive director while also running his legal ops consulting firm, Agile Attorney.

The breadth and depth of the A2J gap

Drawing upon his experience with the Commons and the Oregon State Bar’s Innovation Committee, Grant notes that “the [access to justice] gap is both deeper and broader than anyone had been paying attention to.”  In addition, Grant continues, “there’s been an assumption that pro bono and legal aid will take care of things.”

According to Grant, most people in the modest means gap (~50% of the population) begin by speaking to a private lawyer and either discovering that they cannot afford their services or paying the retainer and running out of funds before the matter is resolved. From there, they arrive at what Grant described as “the law firms of last resort.”

Unfortunately, for the majority of Oregonians, pro bono and legal aid services are not enough. According to a recent study by Oregon’s Access to Justice Coalition, 84.2% of low-income Oregonians with a legal problem did not receive legal help of any kind.  See Barriers to Justice (2019) at 11.  For the purposes of legal aid, low income is defined as 125% of federal poverty line (in 2018, $31,375 per year for a family of four).

[click on to enlarge]
The relatively low threshold for eligibility and the relatively large residual justice gap suggest that access and affordability impact a much larger swath of the population than most professionals realize. The Commons helps to alleviate that struggle by providing sliding-scale legal services to qualified clients who live at or below 400% of the federal poverty line (per the Common website, this covers over half of Oregon’s total population).  A person can determine if they qualify for Commons aid by using either the chart on their website (see graphic to left) or Commons’ pre-qualification quiz.

Grant said the original plan was to start at 126% of the Federal Poverty Level. This plan, however, was quickly modified when the Commons realized most people reaching out to them were legal aid qualified. They had been turned away because of limited legal aid capacity — not because of incomes above the 125% threshold. Hence, in addition to filling the modest means gap, the Commons is often the best option for many who technically are eligible for legal aid — what the firm calls Tier 1 clients. As shown in this post’s lead graphic, Tier 1 accounts for 64% of the firm’s clients; the other five tiers bring in more revenues.

The Commons takes on cases in family law, probate, tenant eviction services, and small business and non-profit formation.

Media: The Commons Law Center

The Commons staff currently consists of two family law attorneys, one estate planning attorney, one eviction defense attorney, one supervisory attorney for family law, a legal services director for estate planning, and a supervisory attorney for eviction defense. Grant said that family law quickly and surprisingly dominated the requests for help.

“Demand for family law services is effectively bottomless in Oregon,” Grant said.

Unbundled representation

The nature and complexity of family law cases led to another discovery and subsequent innovation: the end of full representation (end-to-end) legal services.

Grant said the Commons found that people would retain their services and run into issues paying for the entire legal process in which they were engaged. If a client ran out of funds, they faced the risk of being unable to afford the rest of their representation. Meanwhile, the Commons faced the risk of either being forced to withdraw or to continue representation without payment.

The Commons resolved this issue by shifting away from full representation and hourly legal services into unbundled pricing, something family law lawyers do not encourage, Grant said. Turning people away is difficult, though, especially when they have already been denied by legal aid organizations that cannot take on their cases.

Along with benefitting clients, the shift also worked to prevent burnout among attorneys facing high demands, high caseload counts, and high-stress situations. Unbundling services has allowed attorneys to provide quality targeted work without the promise of full end-to-end services.

Grant said they are upfront with clients about exactly what it is they will receive, essentially a “do it with you” approach. The client is responsible for keeping track of the matter and the lawyers offer legal advice and aid as needed to support them. This legal coaching is compared to a full-service representation where a client effectively leaves an issue exclusively in their attorney’s hands, interjecting only when the client must make a decision about how to proceed.

Grant said the model is based on the understanding that the Commons may be providing the only legal help a person can get. Their questions are answered, and then they are sent forth to manage things like showing up in court themselves. While legal aid provides end-to-end legal services that take the full load off a client’s back, the Commons offers to shoulder only some of the burden, allowing clients to retain some agency and stay engaged in the process.

Grant described what the Commons does as providing a field guide, helping clients to be oriented and apprised of what is happening. The Commons also shows clients what they can do on their own, saving them money, in comparison to what things they would need an attorney to do. This model allows clients to pay closer attention to their matters and engage with the legal process in a unique way.

The Commons intake process

The Commons’ process for a prospective client begins with a strategic legal assessment – essentially a paid consultation – that costs all clients a flat fee of $150. This fee secures a 40-minute call with an attorney who will receive case documents before the meeting through a Clio portal. Before the meeting, the attorney will review the client’s documents, and during the meeting, attorneys stick to a rigorously structured consult.

The first five minutes are dedicated to orienting the client as to where they stand in the legal process. Then, ten to fifteen minutes are spent letting the client explain what they want and need. After that, the attorney and client talk about the client’s goals before outlining the next steps they can take in the process. Clients are given options for how to do things either on their own or with the help of the attorneys, and any further legal work the clients accept is where the sliding scale payments kick in, Grant said.

At the end of the strategic legal assessment, clients are provided with an after-visit summary similar to what somebody might receive at the end of a doctor’s appointment. This tangible manifestation of value is easy to make and to send, even though private attorneys will often avoid ever creating that kind of record.

Ironically, the legal profession struggles with how to deliver legal work to clients who have the “luck or luxury” of having an attorney, Grant said. Commons clients, though, have responded positively to the agreement, due in no small part to the fact that it keeps them from being left high and dry without any representation at all.

Grant said this process is focused on framing people’s options in a way no other legal service does.

An abstract fear of “second-class legal services” can prevent people from seeing the benefit of the Commons. That fear also ignores the fact that there are already two classes of legal services (luxury and pro se) with nothing in between. Low bono legal service helps to fill that gap.

As Grant put it, there’s nothing wrong with “coach class.” You will get where you are going safely and successfully, albeit with fewer luxuries along the way.

Self-sustaining based on client legal fees, not charitable donations

The Commons is working to be self-sustaining exclusively on client legal fees. Though the company benefits from charitable donations and has successfully increased the amount of donations they receive, its goal is to not rely on them to stay up and running.  Per the website:

Our goal is for each of our legal services programs to be self-sustaining from earned fees, even at a vastly reduced rate. That way we can treat charitable donations like seed capital to stand-up new service offerings, build community partnerships, and create community education programs, which feed back into our legal service program. Using charitable gifts in this way protects the support our legal aid programs need to serve those most in need.

A 2021 annual report available on the Commons’ website shows that the Commons more than doubled the number of matters opened in 2020, an improvement they made despite the struggle to retain attorneys in a hot job market and without any growth in the number of attorneys on staff. This means, Grant said, that the Commons is benefitting from its new, more efficient model of services.

Source: The Commons Law Center 2021 Annual Report [click on to enlarge]
At the end of Q1 in 2022, 200 new matters had been opened – just under the total number of matters opened in 2020.  The graphic to the right shows the Commons progress on earned fees versus charitable donations.

Along with providing legal services to people who would otherwise fall into the modest means gap, the Commons works on training new lawyers, providing them with a proving ground. Grant said new attorney hires are asked to make a three-year commitment to the Commons, but it is not a requirement.

Similarly, the Commons business model relies heavily on clerks — law students, paralegal students, and undergrads — to run its operations, effectively blending education and mentoring with the cost constraints of running a high-volume, low bono law firm, resulting in a win-win-win for all stakeholders.

Below is a graphic from the 2021 Commons Annual Report that acknowledges the critical role being played by the next generation of legal professionals.

Source: The Commons Law Center 2021 Annual Report

Practice innovation in Oregon

The future of legal aid in Oregon is also confronting another interesting development presently: licensing paralegals to do certain types of legal work. A paralegal licensing implementation committee is now part of the Oregon Bar, empowering paralegals to do limited legal work and building processes to be done by those paralegals. It is hard to imagine a better testing ground for the value of limited licensing than a nonprofit law firm that is committed to finding the best possible mix of cost and quality for sliding-scale legal services.

All of these innovations in legal representation will lead to greater access to more varying amounts and types of legal aid, closing the modest means gap and providing more Oregonians with the legal aid they need to resolve issues in their lives.  As a recent law school graduate who is committed to public interest work and providing services to those who often feel forgotten, I am impressed by and enthusiastic about the potential of the Commons Law Center model.

Editor’s note:  This is the second of two special guest posts on the PeopleLaw market by Amanda Marino, a recent law school grad with a background in journalism. The first post was a case study on the A2J innovations occurring at Illinois Court help.  See Post 310.