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An Analysis of the Kenneth Kipnis’s Article ‘responsibility for the Distribution of Legal Services’

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As important and crucial it is to follow the law, it is not uncommon to come across those that fail to adhere to the body of rules governing our conduct. Incidences as such unfortunately arise, and when they do, many serious questions concerning it are raised. In the article “Responsibility for the Distribution of Legal Services”, Kenneth Kipnis considers the difficult questions surrounding such a topic. He aims to resolve who maintains the responsibility of providing services in regards to civil cases, the form of said responsibility and the basis of the obligation. He identifies the ethical issues surrounding such a topic, such that in order to be a just legal system the protection and support provided by the community must be equally available to all those with similar claims.

Before providing a means for solving this problem, Kipnis outlines four rights that each member of the community holds in having a public commitment to adjudication. Individuals hold the right to submit certain complaints to a judge or tribunal, they hold the right to have the other party of the dispute called to court in order to respond to the complaint, they hold the right to have the judge provide a decision regarding the complaint and lastly if that decision is favorable they hold the right to have the judges resolution enforced. Kipnis goes on further to outline two conditions that must be met in order for a community to provide services equally available to all. He holds that all of those with sound claims should have available to them the protection that is afforded by legal rights. To do so, it should firstly be possible for citizens to obtain some form of general information regarding what the law requires and permits and, secondly when a citizen has been denied something that they have a legal right to they should be able to exercise that right.

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After having set important conditions that must be met, Kipnis describes two separate types of legal systems to be considered in offering a solution. The first system discussed is that of convivial, which involves individuals being able to function independently within a legal system, provided that they have a general understanding of their legal positions concerning most matters. This system functions by providing educational programs to everyone, equipping them with the necessary knowledge and skill. It also follows a simplified legal system requiring only minimal instruction. This system fulfills the conditions set out earlier, being that of information and exercise, through its commitment to mass education and through its simplicity. However, this system is disadvantaged by its inability to approach complicated situations, as they require specialist to fully understand what is involved in the said situation, and without the expertise required to face the situations the problems may go unsolved.

The second legal system Kipnis reveals is a sophisticated system. This system does not attempt to teach the general public in a way that would allow them to function freely within a legal system. This in turn allows the legal system to become as complicated as necessary. In order for this system to fulfill the conditions of information and exercise, an intermediary must be provided between individuals and the complicated legal system they are approaching. Kipnis discusses three main approaches that can be used in order to provide such an intermediary, which include the free market, the liberal profession and lastly the public agency.

The free market approach involves specialized services given in exchange for a fee. Any individual within the community can make themselves available to others and at a cost can draft legal documents, give legal advice, and with a judge’s permission are able to represent clients before the court. There are no prerequisites required to participate in this approach, allowing anyone entry into this field. Kipnis offers the possibility of organizing this means through a trade organization. Doing so could address potential problems, such as having too many people entering the business, which could in turn drive down wages. Kipnis addresses the issue of sectors of the community being without legal services by insisting they will naturally generate their own specialists. However, for those sectors where poverty plays a large role or where for other reasons legal services are not made available, he offers the solution that services be provided ‘pro bono publico’ and if that fails the community can subsidize the purchase of legal services to satisfy the needs of those too poor to afford them.

The liberal profession approach involves making the trade into a profession, which requires the following three steps. Practitioners within the trade will begin by making a claim to maximum competence, they will support the commitment of properly using their distinct abilities, and they will uphold the community’s recognition of them as the sole providers of legal skill and knowledge. This approach allows for the profession and its respective members to uphold a monopoly on the legal services for community members. Although monopolies have been seen as typically detrimental to the community, Kipnis reveals that by having the community’s best interest in mind, this is not the case. Unlike the free-market approach, this one creates a commitment to address the legal needs of members and does not reduce its ability to get accomplished to gratuitous charity ‘pro bono publico’.

The public agency approach entails the community employing attorneys directly, similarly to how they employ firefighters and police officers. A problem that can arise with this model is that the professional autonomy can be comprised and that bar’s independence can be damaged. The concerns regarding autonomy problems within legal-services agencies are that by having the government as the employer, certain cases, especially those against the government and their officials, may fail to be brought up. Kipnis explains that this can be addressed by having a labor union acting as the intermediary between government and attorneys.

In conclusion, Kipnis favors the sophisticated approach by reason of its ability to solve complex issues via specialization. The intermediary for this approach that he selects is that of liberal profession as it ensures members of the community are provided with access to legal service while also maintaining a structure that allows for more demanding and challenging issues to be addressed.

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