Access to justice is at risk. If you’ve been paying attention, you know this isn’t a new issue. Nonprofits that provide legal services to underserved populations have been in jeopardy for years. Funding cuts have become the norm, and they just keep coming.
With the installation of the new administration, the threat of a full freeze to all federally funded access-to-justice programs looms large. If this happens, creative and unconventional approaches will be essential to bridge a gap that will quickly become a chasm.
In recent Above the Law columns, I’ve explored efforts to use emerging technology to solve this problem. Artificial intelligence (AI) tools, in particular, have the potential to offer some relief.
For example, in October, I asked whether generative AI could expand access to justice. I concluded that generative AI could enhance efficiency for public interest lawyers, enabling them to serve more clients effectively. But as I explained, in my experience, capitalism always trumps altruism. While technology has long been touted as a solution for improving legal access, financial incentives often shift innovation toward profit-driven models rather than public service. Without careful implementation and a commitment to accessibility, AI’s benefits will inevitably be unevenly distributed, limiting the ability to truly impact the lives of those who need it most.
In November, I once again wondered whether generative AI provided incremental solutions to access to justice or whether its proponents’ claims were simply overhyped promises. I took a closer look at whether AI is actually bridging the justice gap and found that some legal aid organizations and courts are putting AI to practical use. Tools like Legal Aid of North Carolina’s Legal Information Assistant and the Nevada Supreme Court’s AI chatbot are helping self-represented litigants navigate the system more easily. While AI isn’t a magic fix, it does show promise in small but meaningful ways.
The threat of large-scale federal funding cuts has since gained momentum, making the search for an out-of-the-box solution all the more pressing. As you can probably imagine, my interest was piqued when I stumbled upon a New York State Bar Ethics opinion released in December that addressed a unique technology-driven approach to solving the access-to-justice problem, one case at a time.
In Ethics Opinion 1277, the inquiring attorney asked: “May a non-profit legal defense organization set up and administer GoFundMe pages intended to help the organization’s indigent clients raise funds from the public to cover their living expenses upon release from incarceration?”
What a question! This tactic is not one I’d have envisioned, and it’s undoubtedly an unconventional approach to leveraging technology to support access to legal representation. As I suggested above, “creative and unconventional” ideas are exactly what we need right now, and this certainly fits the bill!
Of course, it doesn’t matter if it’s a great idea unless it passes ethical muster. So does it? According to the Committee on Professional Ethics, under certain circumstances, it can.
The committee explained that generally speaking, New York lawyers “shall not advance or guarantee financial assistance to the client.” However, the rule has four exceptions, one of which is the “humanitarian exception” set forth in Rule 1.8(e)(4).
This rule applies to not-for-profit legal services or public interest organizations that serve indigent clients and are providing legal services for free. It permits them to offer financial assistance to their clients. Any financial assistance provided under this exception must be in the form of gifts, not loans, and cannot come from “[f]unds raised for any legal services.”
The committee also addressed another caveat to this exception: the rule expressly prohibits the legal organization from promising or assuring financial assistance to the client before its services are retained, nor can it promise financial assistance to induce the client to continue the lawyer-client relationship once retained.
The committee applied this analysis to the question posed and concluded in the affirmative: “A non-profit criminal defense organization may set up and administer GoFundMe pages for the benefit of indigent current clients, provided that the financial assistance is rendered as gifts, not loans, and the financial assistance does not promise financial assistance prior to retention or as an inducement to continue the lawyer-client relationship.”
So once again, technology saves the day — or at least offers that potential. While it may not be a silver bullet, technology continues to offer new and unexpected ways to support access to justice — especially as traditional funding sources become increasingly unreliable. AI tools are slowly proving their value in legal aid settings, and now crowdfunding, under the right circumstances, has been deemed ethically viable for nonprofit legal organizations in New York.
These solutions won’t fix the system, but they can help fill the gaps in a world where the demand for legal help far exceeds the resources available. With the possibility of federal funding freezes becoming more imminent than ever, the legal community needs to continue to pursue creative, ethically sound innovations that ensure access to justice is available to everyone — not just the small minority who can afford it.
Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at [email protected].
