Every year, the legal system fails to deliver equal justice to millions of low- and middle-income Americans who can’t afford a lawyer to help with their needs in the civil courts, where, unlike the criminal justice system, the right to counsel is not guaranteed.
A 2017 study commissioned by the Legal Services Corporation (LSC) found that low-income Americans received inadequate help—or none at all—with their civil legal needs 86% of the time. The situation has worsened during the coronavirus pandemic, which has cost millions of people their jobs.
Pro se litigants do not fare as well in court as those with legal representation. Among those who fare particularly badly are those with a mental illness or other disability, persons from unstable families or suffering from addiction, domestic violence victims, or people with limited English.
The eligibility restrictions for legal aid are stringent. For LSC grantees, the earning threshold is $16,100 for a single-person household and $33,125 for a four-person household. Millions of Americans whose earnings exceed these limits—sometimes barely—can’t afford to hire counsel to assist them.
Navigating the complex legal system, which was designed by lawyers for lawyers, and wading through reams of legal jargon are daunting tasks. Many people have no idea what their rights are, much less how to protect them. As a result, many individuals with valid claims may be unable to advance or even assert them without legal representation. For them, the promise of equal justice under law is illusory.
The American Bar Association has standards and rules governing the professional practice of law, most of which have been adopted by courts or state legislatures.
These rules and laws help protect the public from unqualified practitioners, but they also make it extremely difficult for non-licensed individuals to dispense legal advice or appear in court to advocate on behalf of someone other than themselves. These barriers to entry limit the supply of those wishing to dispense legal advice, decrease competition within the profession, and artificially inflate costs to parties in need of that advice.
Recently though, the Supreme Court of Arizona adopted new rules permitting non-lawyers to have an ownership interest in law firms and have also opened up the profession to allow trained paraprofessionals to provide limited legal services including negotiating with attorneys and representing clients in court.
These new business models should help address the legal needs of low- and middle-income individuals in a more efficient and cost-effective manner.
Not surprisingly, many lawyers who fear the competition resist these efforts, even though the ABA’s Model Rules of Professional Conduct explicitly provide that “the profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.”
But for most low- and middle-income individuals, though, the choice is between self-representation, no representation, or representation by a paraprofessional—not between representation by an attorney or a paraprofessional, the former being simply unaffordable.
The District of Columbia and states such as Utah, Minnesota and California have also taken tentative steps to loosen their rules about who can provide legal advice. It’s about time.
In 1976, Supreme Court Justice Lewis Powell stated, “Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
Other states should follow Arizona’s lead to begin to close the justice gap for those who desperately need civil legal assistance but can’t afford a lawyer. This would be a huge step forward in helping low- and middle-income Americans get the assistance they need and the equal justice they deserve.
This piece originally appeared in The Washington Times