Posted on: March 4, 2019
This article, written by PILI Executive Director Michael Bergmann and PILI Program Manager Brent Page, originally appeared as a feature on www.americanbar.org.
Thousands of Americans step into courtrooms across the country each year—many of these individuals are facing serious legal issues, are scared, and are without the knowledge needed to represent themselves adequately. They take off work to file one-sentence petitions that are later thrown out on technicalities. Their voices are ignored by judges or silenced by opposing counsels with objections. Or they fear the system and give up before even stepping through the courthouse doors. Despite the widely held belief that every citizen deserves equal opportunity in our legal system, and the hard work of legal aid attorneys and efforts of advocates to reform the court system, there is still a large number of people who are unable to adequately engage with the legal system when they have a legal problem. In many instances, economic, institutional, and structural barriers limit the ir access to justice.
The Access to Justice Crisis
Access to justice is an essential ingredient to a fair legal system. People need to be have the ability to seek and obtain a legal resolution through the legal processes. Outside the legal community, people are sometimes shocked to hear there is no “right to counsel” for litigants, as is the practice in criminal law. The 2017 Justice Gap Report conducted by Legal Services Corporation reveals that 86 percent of the civil legal problems reported by low-income Americans received inadequate or no legal help. So many who face serious and complex matters such as consumer issues, evictions, domestic violence, child custody disputes, bankruptcy, and divorce are left to attempt to resolve these issues on their own.
There are many ways the court structure and legal process is complex and intimidating for someone without a lawyer trying to navigate the system. Many litigants may not speak English or may not be sufficiently proficient to understand everything the judge or court order says. Many courts have looked internally on how to make their system more accessible for self-represented litigants, including language translation services for litigants who do not speak English, using technology like Skype so petitioners do not have to take time off work for status hearings, and updating court forms to incorporate more plain language and less legal jargon.
One major obstacle for litigants to access the court system may be actual physical access to the courthouse—whether the problem is older court buildings that are not sufficiently accessible for people with disabilities or people located in more rural areas from whom a courthouse maybe several hours away or difficult to get to. Moreover, for those not in urban areas, there is often not a legal aid office in close proximity and often fewer pro bono attorneys able to provide assistance. The lack of funds for gas or bus fare to get to the courthouse can prohibit low-income individuals from being able to make their court appearance. Or they may not have childcare or the funds to set up childcare. These barriers have caused some legal service providers to offer grants to their clients to help fund their transportation or even create volunteer driving programs.
Legal Service Corporation
The concept of access to justice began in the 1960s when advocates began considering the barriers low-income individuals face when attempting to address a legal issue. To address these needs, Congress passed and President Richard Nixon signed the Legal Services Corporation Act. The Legal Services Corporation (LSC) is a publicly funded 501(c)(3) nonprofit corporation that seeks to ensure equal access to justice under the law for all Americans by providing funding for civil legal aid to those who otherwise would be unable to afford an attorney. LSC distributes funds to legal service programs across the country who work to provide legal services to low-income Americans. According to the most recent data reported for LSC programs, these funds provided services for 736,404 cases and served 1,790,667 people in need in 2016. LSC is the largest single funder of civil legal aid in the United States, but its funding has been significantly cut since its peak in 1980.
LSC distributes more than $300 million each year to more than 130 independent nonprofit legal aid programs, but when adjusted for inflation, current funding levels are $119.9 million less than when the program was established in 1976. If LSC funding would have kept up with inflation, we would be funding LSC at $936 million each year. There are also restrictions to the funding, including that LSC-funded programs cannot serve undocumented individuals or incarcerated persons.
Many times, those who cannot afford an attorney in civil legal matters look to the legal service providers to guide them through the process. Even with generous and critical support of LSC, state and local bar foundations, law firms, corporate legal departments, and individuals across the country, most legal aid programs still do not have sufficient resources to meet their community’s need. The number of those in need exceeds both the financial and human resources available to meet that need. These challenges are only exacerbated in tough times, when resources are even more limited or threatened entirely.
Based solely on numbers, there are nowhere near enough legal aid programs or staff to handle legal needs for every low-income person. According to the Justice Index, out of the more than 1.2 million attorneys in the United States, there are fewer than 7,000 legal aid attorneys. Put another way, there is only one legal aid attorney available for every 6,000 people living at or near the poverty line. Yet, there is one private attorney available for every 235 people in the general population who are above the poverty threshold.
The Role of Pro Bono
The private bar is one key to addressing the issue of access to justice. According to the American Bar Association’s 2017 report “Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers,” 81 percent of attorneys have provided pro bono services at some point in their lives, and in 2016, attorneys provided an average of 36.9 hours of pro bono. While this may seem impressive, it means one out of five attorneys has never taken a pro bono case, and according to the same report, in 2016 48 percent of attorneys did not undertake any pro bono matters that year.
Despite ABA Model Rule of Professional Conduct 6.1, which states that lawyers should aspire to render at least 50 hours of pro bono legal services per year, there is generally no mandatory requirement imposed by state bars for attorneys to provide pro bono services. Several states require attorneys to report on whether they have provided pro bono hours or financial contributions as a way to track and encourage such action, while other states ask attorneys to voluntarily report such actions. The majority of states do not require attorneys to even submit any sort of reporting on whether they have provided pro bono work or contributed to legal service agencies.
With government support for legal service providers stagnant, pro bono work may be the only way to adequately fill the gaps created by lack of resources for low income individuals with legal needs. Individual attorneys must service one case and one client at a time to provide for the millions of people who have serious legal needs and no way to access the legal system.
Limited-Scope and New, Innovative Projects
One newer area where pro bono can and has made an impact is limited-scope representation. Limited-scope representation is an approach where a lawyer provides legal assistance in a specific, discrete aspect of a matter, and the client represents him- or herself in the remainder. The hope of limited-scope representation is that attorneys can step in to help with a critical aspect of the legal problem completely, such as providing limited legal advice, drafting and reviewing documents, or even appearing in court for a segment of a case. Although limited-scope representation will probably not solve the access-to-justice problem, it is a helpful tool attorneys can use in many states to provide a greater amount of services to those in need. Many legal service providers and pro bono attorneys are utilizing this tool in order to serve a greater number of clients in key parts of their legal problem.
Many new, innovative projects use limited-scope representation and other creative means to harness the power of legal assistance. One of the most recent innovative projects is called ABA Free Legal Answers (abafreelegalanswers.org), which is being spearheaded by the ABA Standing Committee on Pro Bono and Public Service. Through this program, each state has established its own free virtual legal advice clinic. Qualifying individuals post their civil legal question to their state’s website. Attorney volunteers, who must be authorized to provide pro bono assistance in their state, log in to the website, select questions to answer, and provide legal information and advice. Users are then e-mailed when their question receives a response. Attorneys can volunteer through their state’s Free Legal Answers site at their convenience at any time, whether at the office or in their pajamas. Some law firms have even set up blocks of time where they grab snacks and gather their attorneys together to volunteer and provide legal advice to those in need.
How You Can Help
Thinking about the need for legal services among low-income individuals can be overwhelming, but as an attorney you have a huge role to play in helping someone who cannot find or afford a lawyer. Pro bono work can be helping someone who is the victim of domestic violence or trafficking, saving individuals from being evicted or losing their home, or assisting someone drafting a will. No matter what your experience or whether you have done pro bono work in the past, there is a program, case, or client suited for your interest and expertise. Whether transactional law or litigation, a long-term commitment or a limited-scope project, a matter requiring expertise in your particular field or a matter outside your area that you can take on with support of a legal aid program, there is a case for every willing pro bono lawyer.
No matter where you live, there are great pro bono opportunities that could use your help. Check with your local or state bar—they are great resources that often know the need and opportunities in your community. One national online resource dedicated to using technology and volunteer lawyers to increase access to justice is www.probono.net. They have a volunteer guide and wealth of resources divided by region, including volunteer opportunities and training calendars. Also, whether you are at work, at home, or your child’s baseball game, check out ABA Free Legal Answers at abafreelegalanswers.org.
If this is your first time looking into pro bono work, there are many ways to get connected. You may want to start by talking with attorneys and other colleagues to find out if they are already involved with any pro bono programs. You could also research programs in your local community and even contact your local bar associations or other legal nonprofit organizations. Some local bar associations even organize pro bono fairs where legal aid agencies in the area can promote their programs to potential volunteers. Also, be sure to look at www.probono.net/oppsguide which contains a list of pro bono volunteer opportunity from many states, while other states have developed their own resource pages. Whether you are a newly admitted attorney or have years of experience, many legal aid organizations have training programs or drafted materials to help you get prepared to take a pro bono matter.
One commonly cited barrier stopping attorneys from doing pro bono work is the claim that they personally do not have malpractice insurance. However many legal service agencies that use volunteer attorneys for pro bono matters have malpractice insurance that will cover their volunteer attorneys. In addition, the malpractice insurance policy at the firm or corporation where you work may cover pro bono work in addition to your regular paid work.
Although pro bono work is essential for the clients and communities impacted by the work, there also many benefits for the lawyers providing those services. Beyond the professional and skill development that pro bono cases can provide, some of the most impactful cases of your career may be linked to your pro bono work. As attorneys, we are the only ones who can make this impact on the lives of pro bono clients.
There is much work to be done to help fill the access-to-justice gap and provide legal services to clients who would otherwise go unassisted. Not only is pro bono work personally and professionally rewarding, as you are using your legal skills to help someone in need, but it also allows you to gain experience you might not get from billable work.
So often, access to justice is a challenge for the poor and underserved across the country. As a country with laws that can affect every aspect of people’s lives, every person should have some level of access to those laws, whether it is a defense in an eviction proceeding or representation in a trial that could lead to termination of parental rights. Although a lot has been done to address barriers, there is still a huge need, and every part of the legal profession needs to come together to craft a solution. The legal community depends on advocates from legal services agencies, government and court entities, and the private sector to work toward guaranteeing a fair and equal court system for all. Whether through giving of your own time through pro bono or financially donating to a worthy legal service agency, together we can do our part to ensure greater access to justice for all.