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The American Bar Association 2020 Profile of the Legal Profession dedicated a chapter to discuss “legal deserts,” a phenomenon that the report described as a county having fewer than one lawyer per 1,000 residents. The concept of legal deserts did not originate with the profile report; it has long been used to describe the underrepresentation of low-income people, especially in rural communities. In a 2022 report titled “The Justice Gap,” the Legal Services Corporation found that low-income Americans do not get any or enough legal help for 92% of their substantial civil legal problems protecting basic needs, such as housing, education, health care, income and safety. LSC was describing a legal desert.
The 2020 profile report brought something new to the table, which was the metric of one lawyer per 1,000 residents to identify counties with critical levels of unmet legal needs. Using the metric, the National Center for State Courts created a legal desert tracking tool by which each state could identify its own legal deserts and apply the tool’s “legal access risk indicators” as a guide to solutions. The most obvious solution is the most elusive. Rapid infusions of lawyers into the deserts is unlikely, as the NCSC tool indicates; lawyer populations in every state tend to cluster in the urban areas, where deserts are less common.
In March 2024, the National Center for State Courts published a statement called “The Things We Think and Do Not Always Say: NCSC Access to Justice Manifesto.” The manifesto notes that, “[I]n recent years, states have started revising court rules to expand the pool of professionals authorized to provide legal assistance.” Such regulatory initiatives are known as “sandboxes,” a term coined originally by the Computer Security Resource Center to describe a “system that allows an untrusted application to run in a highly controlled environment where the application’s permissions are restricted to an essential set of computer permissions.” As applied to legal deserts, a sandbox is a regulatory experiment in which paraprofessionals are temporarily authorized to provide certain legal services. The purpose of the legal sandbox is to test the feasibility of enlarging the pool of legal providers available to meet the needs of legal desert residents.
On April 4, 2024, the Indiana Supreme Court issued an order establishing the Commission on Indiana’s Legal Future. The commission’s charge is to “explore options for addressing Indiana’s attorney shortage and present findings and recommendations to the court for future actions.” On July 30, 2024, the commission issued Interim Recommendations; its final report is due July 1, 2025. The commission found that more than half of Indiana’s counties were legal deserts. In prioritizing its recommendations for meeting the lawyer shortage, the commission recommended funding a regulatory sandbox to facilitate innovations to ease the lawyer shortage. In an order filed on Oct. 3, 2024, the Indiana Supreme Court approved the creation of a legal sandbox and directed the court’s Innovation Committee to develop parameters for a legal regulatory sandbox and to provide those to the court for approval by March 1, 2025. In a remarkable feat of judicial action, the court is moving from problem identification to problem solution in less than a year.
The commission’s interim report recognizes the scope of work implicit in the commission’s recommended statutory and rule changes. The court’s ultimate victories in regulatory innovation will be hard won. With the commission’s energy behind it, the court will be ready.
Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She is licensed and active in Illinois, California and Oregon.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.