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There is a deep access-to-justice crisis in this country—but the legal profession gets a failing grade for its response to it. Consider this:
• More than 61 million people eligible to receive legal aid—for such fundamentally important matters as avoiding the foreclosure of their homes or losing parental rights—are not receiving it.
• Millions more with modest incomes cannot easily afford to pay lawyers the standard rates they usually charge so they often ignore their legal problems or handle them on their own.
And the problem, as I discuss in my book, The Legal Profession: What is Wrong and How to Fix It,” is getting worse.
There have been steep cutbacks in the Legal Services Corporation—$80 million between 2010 and 2013—and declining support from other sources such as private foundations. These cuts came at a time when the U.S. has a record 46.5 million people living in poverty and financial stability for the middle class is eroding.
What is the legal profession doing about this grim situation? Not nearly enough. It has long been assumed that access to justice in the United States is superior to anywhere else. Not true—see the World Justice Project Rule of Law Index (PDF), sponsored by the ABA and the International Bar Association, among others. Our legal system fares particularly badly when taking into account the accessibility in our legal system to disadvantaged groups and the availability or the cost of legal assistance.
I’m not suggesting everyone in the legal profession is ignoring the problem. There are many devoted legal service providers. Other attorneys—sole practitioners and many in small and BigLaw firms—such as those in DLA Piper, where I served as a partner for 20 years—are committed to providing pro bono service. But the profession’s annual levels of pro bono service fall woefully short of where they should be.
In its Model Rules, the ABA says lawyers "should aspire to render at least 50 hours of pro bono public legal services per year." Yet in its latest survey of pro bono service (PDF), 38 percent of respondents acknowledged doing fewer than 20 hours of service a year. Only 36 percent of lawyers surveyed reached the 50-hours goal.
That is hardly the response needed by our legal profession to resolve the access to justice crisis.
It’s time for the profession to candidly admit failure and develop comprehensive strategies to tackle the problem successfully. The failure to provide adequate legal protection to millions is just as serious a domestic problem as the failure to provide adequate health care.
Before there can be success, the legal profession and the states that regulate lawyers need to take a hard look at current ethics rules and make changes. Pro bono should be mandatory for all practicing lawyers. Aspirational goals simply aren’t enough. And bans keeping qualified, trained nonlawyers from providing some assistance need to be dropped.
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