December 03, 2017 Practice Points

Access to Justice: Mitigating the Justice Gap

By Leonard Wills

Access to justice remains one of the fundamental principles of the rule of law. Access to justice consists of the "ability of individuals to seek and obtain a remedy through formal or informal institutions of justice for grievances." This process usually requires individuals to obtain legal representation—or at a minimum legal advice. Without legal assistance, individuals can struggle to navigate through the complexity of court procedures. An individual's failure to understand court procedures, and the substantive law-related issues of their case can lead to the loss of a home, children, job, income, and liberty.

Here in the U.S.—and other parts of the world—legal representation continues to remain expensive for most. This lack of affordability limits an individual's access to justice, and contributes to what some refer to as the justice gap. A recent study shows that approximately 80 percent of low-income individuals cannot afford legal assistance. The middle class struggles, too: a study shows that "forty to sixty percent of their legal needs go unmet."

In response to this justice gap, some states, such as Washington, have created programs to provide legal representation to individuals who cannot afford it.

Washington is the first state to offer affordable legal support for individuals through its limited license legal technicians program (LLLTs). LLLTs are nonlawyers. They receive extensive training and a license before offering legal services to anyone. Currently, LLLTs assist people with family-law matters, such as divorce and child custody cases. They perform some of the following tasks: (1) obtain relevant facts for clients; (2) inform clients of the legal implications of the law as applied to their cases; (3) perform legal research on behalf of clients; and (4) draft legal documents to be filed with the court.

A study conducted by the American Bar Foundation and the National Center for State Courts found that despite some kinks in the program, LLLTs succeed in assisting clients who lack resources to afford legal representation. The study concluded that the program "should be replicated in other states to improve access to justice."

Some individuals may hesitate to support legal service programs like the one in Washington. These programs, they argue, perpetuate what some consider a two-tier system: the wealthy can afford great legal representation and others cannot. The legal advocates in these programs may lack the extensive training of attorneys. As a result, they may lack the competency to think through the complexity of the legal issues a client may bring. And it is possible, as some have noted, that in some instances, having incompetent legal assistance can be worse than having none.

 

Such programs, however, might not be a bad idea. First, these individuals receive adequate training, along with competent supervision—from attorneys of course—to mitigate the risk of poor legal services. For instance, in Washington, an individual must obtain a licensure before becoming an LLLT. To obtain this license a person must: (1) meet the minimum education requirements; (2) obtain 3,000 hours of substantive law-related experience under the supervision of a licensed attorney; and (3) pass three examinations.

Second, providing legal representation to those who cannot afford it has economic benefits. For instance, in New York and North Carolina, a study shows that "every dollar spent on civil legal aid creates $10 in economic benefits." Another study shows that Montana and Pennsylvania receive a return on investment of "$11 per dollar spent on legal aid."

Access to affordable legal representation will continue to remain difficult for low-income and even middle-class individuals. States and courts must continue to create more innovate programs to mitigate the negative impacts of individuals' inability to pay for legal representation. As these programs prove successful, other states may eventually implement similar programs of their own. Some states have already begun creating such programs; however, overall, states and the legal profession have a long way to go.

Leonard Wills is a presidential management fellow in Washington, D.C.