The Justice Chasm

June 17th, 2018 / By Deborah J. Merritt

The justice gap has become a chasm. Almost one-fifth (19%) of Americans now live in poverty or near poverty (p. 16). These low-income individuals collectively experience about 140 million civil legal problems a year (p. 14). Fifty-five percent of those problems affect the individuals “very much” or “severely” (p. 23): that’s 77 million serious problems a year. Yet these individuals receive legal assistance for only 30% of their serious legal problems (p. 35). Our legal system fails to address some 54 million weighty legal problems a year–and that doesn’t count the unaddressed legal problems of middle-income Americans or small businesses.

Pro bono services won’t bridge this gap. There are only 1.34 million active attorneys in the United States. Even if every one of us provided pro bono services to low-income clients, we would each have to handle about 40 pro bono civil matters a year. That’s in addition to the pro bono criminal, appellate, and law reform matters some attorneys already pursue. And each of these 40 matters would affect a client “very much” or “severely.”

Practicing lawyers will not–and probably cannot–serve 40 pro bono clients each year. Salaried lawyers cannot take that much time away from their assigned duties; struggling solos cannot afford to offer so many unpaid services. Equally important, many lawyers lack lack expertise in the practice areas that affect low-income clients.

Nor will taxpayers plug this gap. The Legal Services Corporation and other legal aid organizations suffer chronic under-funding. Indeed, they regularly combat political threats of extinction.

What’s the solution? Can the United States create a justice system that more fully meets the needs of its people? Or will we continue to maintain a system that, while delivering high-quality services to wealthy individuals and big businesses, offers little help to those who cannot afford the price tag of legal assistance?

Deregulation

The best solution is to carefully deregulate portions of law practice. That move, especially when accompanied by technological advances, could provide greater access to legal services. Technology alone is not the answer. Low-income clients, just like wealthier ones, need humans to encourage them, help them understand their options, and represent them in some negotiations and hearings.

Three years of legal education and a law license are not necessary to address every legal issue. Businesses already understand that: They have armies of contract managers, compliance officers, and HR agents who practice law daily. These corporate employees routinely apply complex legal rules to new fact patterns; that’s the practice of law. But their work does not constitute the “unauthorized practice of law” because they apply legal rules solely for their own employers.

Individuals do not have this option. They cannot hire well trained college graduates to advise them on contracts, consumer issues, or HR complaints; non-lawyers who do that work for an individual engage in the unauthorized practice of law. Nor can legal aid organizations employ non-lawyers for much of this work; unauthorized-practice laws require that lawyers carefully supervise non-lawyers, even when the non-lawyers know exactly what they’re doing.

Closing the justice gap does not require deregulating all of law practice: There are many legal problems that require a licensed lawyer. But there are also fields in which tens of millions of people lack legal services–and in which a well educated college graduate could offer needed help. We need to identify those areas, craft appropriate educational programs, and develop realistic licensing options.

Washington State’s recognition of Limited License Legal Technicians is one step in this direction, but it is a sadly flawed step. The license requires completion of educational requirements, satisfaction of three licensing exams, and 3,000 hours of supervised work experience. The first two requirements may be justified, but the work experience (amounting to almost 18 months of full-time work) is excessive–especially since few states require any practice experience for licensed attorneys. We need more realistic attempts at deregulation, ones that will serve clients more effectively.

What’s Law School Got to Do With It?

Legal educators, like other lawyers, bemoan the justice gap. We staff clinics that serve low-income clients, encourage our students to perform pro bono work, and praise graduates who devote their careers to serving the poor. These are important initiatives, but they are just small steps toward addressing the income-based imbalances of our legal system. We certainly don’t ask our graduates (much less faculty colleagues) to handle 40 pro bono cases a year. Nor, with the exception of a few schools, do we devote significant resources to researching systems that might improve access to justice.

Instead, like many practitioners, we use “access to justice” programs as feel-good window dressing. Prospective law students want to “do good while doing well,” so we tell them about our clinics and pro bono programs. Our faculty and alumni want to feel good about their contributions to justice, so our websites feature stories about the handful of graduates serving low-income clients.

At the same time, we maintain high tuition levels, award scholarships based on LSAT scores rather than financial need, and devote little curricular attention to the legal issues plaguing most low-income clients. Nor do we candidly discuss the magnitude of the justice problem with our students and graduates; we sustain the myth that commitments to pro bono and public interest work will somehow bridge a growing chasm.

Most important, law schools show little enthusiasm for expanding their educational reach. The decline in law school applicants could have persuaded schools to “unbottle” legal education, teaching undergraduates and others who might provide legal services without a full law license. In connection with those efforts, schools could have worked with courts and bar associations to create avenues for non-lawyers to use that education.

A handful of law schools pursued initiatives like this, but most stayed far away. Like practicing lawyers, legal educators benefit from the status quo. Practitioners like their hard-won licenses, which entitle them to exclude others from law practice. Legal educators like their expensive graduate programs, which students need to pursue those law licenses. The world works quite well for all of us so, although we deplore the legal services gap, we don’t do much about it.

Let’s change that: Let’s do something. Let’s work with practitioners and regulators to identify types of “law practice” that could be performed by professionals with less than a JD. Let’s figure out the type of education those professionals need–and let’s provide it. If we don’t, justice itself is in danger.