The Legal Profession’s Reluctance to Change in Responding to the Justice Gap

Legal Services Corporation
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During the infancy of the legal services movement and a plea to establish the Legal Services Corporation (LSC), President Richard Nixon, in his special address to Congress in 1971 said, “Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check— each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.” Almost half a century later, the Justice Index – a project of the National Center for Access to Justice at the Cardozo Law School – reports, “In our states, as many as two-thirds of the litigants appear without lawyers in matters as important as evictions, mortgage foreclosures, child custody and child support proceedings, and debt collection cases. Making courts user-friendly for these selfrepresented litigants is imperative if we are to keep the promise of equal justice for all.”

The archetypal legal issues of everyday man persists to this day in higher numbers than ever before. While the size of the population eligible for LSC-funded services is at an all-time high, funding is near an all-time low, which puts the most vulnerable at risk. According to Legal Services Corporation data, in 2007, basic field funding of $383 million was $7.54 per eligible person in inflation-adjusted dollars as comparison to 2016 at only $5.85 in constant dollars. To return to 2007 funding levels, funding should be $467 million. In Florida, nearly one in four individuals, or 4.3 million residents, are eligible for legal aid services, yet according to the Justice Index 2016, only 340 out of 100,000-plus licensed attorneys are employed as full time legal aid attorneys.

The concept of “justice gaps” or an “access to justice crisis” is not new. Traditionally, private lawyers provide service to the most vulnerable through pro bono work and legal aid lawyers attempt to triage the hemorrhage of remaining need. According to the Florida Bar, in 2015, Florida lawyers provided more than 1.7 million hours of pro bono services to those in need and donated nearly $5.2 million to legal aid organizations. Yet, a vast majority of litigants attempt to access our civil justice system on their own and young attorneys cannot find employment. Business as usual will prove to be the end of our “business” if our profession does not – on a wide sweeping scale – solve the justice gap. The justice gap is well-defined, so why can’t our profession rise to deliver the solution? Change. Our profession, built on common law, precedent and tradition must change, innovate and evolve to compete on the open market of ideas. So long as our profession looks toward the past to interpret the present, the future needs of the working poor will go unmet.

With the realization that change must occur, the Florida Bar is indeed experiencing growing pains. On Sept. 15, 2015, at the Fall Florida Bar Meetings, an open forum allowed members to comment on the recommendation of reciprocity proposed by the Vision 2016 committee on bar admissions. Based on the vitriol both exchanged via electronic mail and in person at the open forum, one could conclude that the Four Horsemen of the Apocalypse would ride down Florida’s byways should reciprocity by motion be allowed. The board of governors rejected the concept of reciprocity by motion at their Oct. 16 meeting and the proposal was quickly put to rest. The reciprocity by motion proposal was meant, in part, to provide greater access to justice for those that can’t afford it, while opening Florida’s borders to out-of- state lawyers and driving down the high cost of representation.

As short-lived as the concept of reciprocity was, it began to rattle the cage and underscore the realization that change is needed and inevitable. If providing the market with more lawyers is not the solution to solving the justice gap, then what is? This question hasn’t been answered definitively. One suggestion is that the Rules of Professional Conduct that inhibit innovation need to be amended. Other suggestions include allowing access to more information through technology, such as a justice portal. Whether radical or incremental, the future is clear – lawyers must change the way they do business not just to meet market demands, but to serve the most vulnerable litigants. A marriage between the entrepreneur and the benefactor provides the greatest promise of addressing the justice gap. As a profession, we can conduct the train or be left behind at the station. Either way, change has come. Sarah R. Sullivan

KADO

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