I. THERE IS A GROWING NEED FOR MANAGED LEGAL CARE IN THIS COUNTRY.

A.Rising legal costs. A recent article suggested that the "private legal industry generates revenues of approximately $100 billion each year." Thomas E. Baker, Tyrannous Lex, 82 Iowa L. Rev. 689, 693 (1997).

1.Spiraling legal costs deny this country's poorest citizens access to lawyers. "It is estimated that 60% of the poor and working class in this country do not have access to our legal system." Janet Reno, Essay: Law Day 1997; A Legacy of Public Service 26 Cap. U.L. Rev. 227, 229 (1997). For low and moderate income households, the most frequent response to dealing with a situation with legal implications is to try to deal with it on their own. See American Bar Association, Legal Needs and Civil Justice: A Survey of Americans; Major Findings From The Comprehensive Legal Needs Study" 17 (1994). For low income households, the next most frequent response to such a situation is doing nothing. Id.

2.For low income households, these legal issues include real property disputes (landlord-tenant) and other everyday issues that dramatically effect quality of life but are either left unresolved or resolved without the assistance of counsel due to high legal costs. See id. at 17-20 (discussing the types of legal issues not resolved with the assistance of counsel and the reasons for that omission).

B.One possible solution to this underutilization of legal services could be managed legal care.

1.It has served to control explosive legal costs in medicine. In the 1980s, group health care plan costs were increasing by more than 15% per year. See Bruce D. Platt and Lisa D. Stream, Dispelling the Negative Myths of Managed Care: An Analysis of Anti-Managed Care Legislation and the Quality of Care Provided by Health Maintenance Organizations, 23 Fla. St. U.L. Rev. 489, 491-92 (1995) (adding that studies have shown a slow in health care cost increases under HMOs).

2.Medical model can be examined and applied to law. However, this must be careful and disinterested analysis. One classmate astutely cautioned against an uncritical application of HMO principles to the practice of law. He said that many citizens hate both HMOs and lawyers for good reasons; due to that, he cautioned that any combination of these entities should be coupled with the utmost effort to remove the negative aspects of both so they do not combine to form a cure that is even worse than the disease. See Conversation with Evan Seamone, September 14, 2000.

C.LMOs have not been widely discussed in legal literature. Scholars seem to assume that they will become dominant in the future. See Russell G. Pearce, Law Day 2050: Post-Professionalism, Moral Leadership, and the Law-As-Business Paradigm, 27 Fla. St. U.L. Rev. 9, 12-13 (1999) (Pearce predicts that comprehensive legal insurance plans offered by LMOs will become part of most employee benefit plans and will remain options for individuals that can afford them. Id. He adds, however, that LMOs make services affordable by limiting "consumer control of the delivery of services". See id. at n.21.); Ted Schneyer, Professional Discipline in 2050: A Look Back, 60 Fordham L. Rev. 125, 126 (1991) (stating that in the future, individual clients are protected from attorney misconduct by the "internal security offices" of the LMOs, which can simply drop offending attorneys from their network).

A.HMOs use preventative care to identify and treat illness in its early stages, while promoting general physical health. This wellness function prevents the need for more expensive treatment later. http://www.aetnausch.com/help/faq_healthplan.html The potential problems associated with this practice are discussed infra Part III.

B.HMOs utilize a primary care physician, or gatekeeper, to eliminate the provision of unnecessary or duplicative procedures. http://www.hmogroup.com/values-principles/v-p-page2.html This practice, however, is not without its critics. See infra Part III(A) for discussion of this criticism.

C.HMOs contract with providers and medical facilities to provide medical care to a group of individuals. This volume allows HMOs to establish fixed medical costs for the providers at a discount. http://www.hmopage.org/hmohow.html , http://www.mcareol.com/factshts/factover.htm

A.HMOs have been accused of denying legitimate claims. These denials can have severe consequences for the ailing patients. http://www.hmopage.org (including pages like the "Managed Care Atrocity of the Month" and the "Managed Care Hall of Shame" that include real stories shared by readers). For a graphic example of these consequences, read Death By HMO by Dorothy Cancilla. http://www.deathbyhmo.com/ For legislative responses to this phenomenon, see the debate over the proposed Patient's Bill of Rights. http://www.cnn.com/HEALTH/9907/12/patients.rights/

B.HMOs have been accused of creating financial incentives for gatekeeper doctors to avoid referrals, even when they are necessary. http://www.usnews.com/usnews/issue/hmos.htm In addition, clauses in the physician contract can prevent the disclosure of these financial incentives. Id.

B.In addition, HMOs place limitations on the ability of an individual to see any doctor. If your doctor is not part of the network, the HMO will probably not reimburse for that visit. http://www.hmopage.org/hmohow.html If your doctor is in the network as a specialist, your access to that doctor may similarly be limited. Id. This practice is a common complaint of HMO participants. http://www.cnn.com/HEALTH/specials/HMOs/HMO.Debate.2/9811/right.wrong/index.html
 

A. LMOs would need to adopt a gatekeeper function similar to HMOs.

1.A website could help advise individuals whether they need to consult an attorney. This website could ask a series of questions, culminating with a suggestion whether or not the user should seek counsel. This website should not attempt to advise the individual about his or her rights in any other way, however. A link will be provided to a classmate's similar project as soon as one is available.

2.Plan members can also call attorneys cover the telephone for advice whether the participant needs legal assistance.

3.The LMOs should not be allowed to weed out cases due to their potential unprofitibility. This defeats the proposal of legal care for all. Besides, smaller cases that take relatively little time to solve could potentially have a great impact on the satisfaction of the participant.

B.LMOs would also need to adopt some sort of oversight function similar to what law firms already provide.

1.This oversight removes the possibility of frivolous, bad faith lawsuits that are already forbidden in the practice of law. See Model Rule 3.1.

2.The clients could pursue denied claims pro se or through another attorney without reimbursement from the HMO. Though the legal claims may be serious, a participant in a LMO has a greater opportunity for self-help than a HMO policy holder.

3. This method creates an obvious incentive to resolve issues quickly. This is better than the current incentive to drag conflicts out indefinitely in an attempt to accumulate billable hours. This technique is also forbidden in the practice of law. See Model Rule 3.2 (mandating "reasonable efforts to expedite litigation consistent with the interests of the client").

C.Wellness function.

1.Attorneys always wish their clients had come to them before involving themselves in legal problems. Now they will. The clients can visit an attorney before the legal problem develops into costly protracted litigation or criminal prosecution.

A.A LMO can function effectively.

1.Monthly payments from the participant can help keep the organization funded. Prepaid legal services firms already have adopted this idea. See www.prepaidlegal.com for one such example. In addition, co-payments can also be made necessary for certain procedures if additional funding is needed. Both methods are currently used in HMOs. See www.aetnausch.com/help/faq_healthplan.html for an example.

2.Settlements and verdicts can be kept for LMO administration or distributed through profit sharing. This practice can also help subsidize the firm. Because of the availability of contingent fee practices, an LMO may have to lower their percentage of the contingent fee award. If the organization fails to do so, it risks having its participants come to the LMO for small problems, while taking their more profitable claims elsewhere. A link to classmates' discussions of contingency fee practice will be provided when available.

3.This plan would not be suitable for businesses, who are accustomed to billing their underfunded advesaries into submission. This is an attractive, affordable alternative for individuals and families.

B. This is an attractive alternative for attorneys.

1.An attorney gets a steady monthly salary, though not one equal to top law firms.

2.The structure of the proposed LMO allows for the possibility of contingency fee profit sharing without as much individual contingency fee risk (which is spread throughout the LMO).

3.A lower demand for billable hours will provide some attorneys with an attractive, more humane working environment. For one associate's negative experiences with billable hour requirements, see Lisa G. Lerman, Scenes From a Law Firm, 50 Rutgers L. Rev. 2153 (1998).

4.Much of this work could be done at home, without the need to have an office or to go an office daily. Some pre-paid legal plans have already noted this option. Some pre-paid legal plans already offer this alternative to associates.  See www.prepaidlegal.com for one such opportunity.
 

A.Many pre-paid legal plans refer to themselves as LMOs. See www.yathlete.com/ppl/small.htm for one example.

1.Prepaid legal plans typically provide very basic coverage and add additional costs with the increasing complexity of the problem. See Mark Osiel, Professional Responsibility Suppliment (Fall 1999), 60-61 (This suppliment photocopied an old "Montgomery Ward pre-paid legal plan" advertisement that charged $6.75 monthly and allowed benefits like reviewing a legal document up to 6 pages. The plan does not discuss what happens when the client had a document longer than 6 pages, or faced other legal difficulties not provided in the plan.)

2. Prepaid legal plans do not appear to apply the cost-control procedures used in HMOs. These procedures, when properly applied, can reduce expenses and allow for more extensive benefit provision.