The Justice Gap: A Call to Action

Many thanks to David Neumeyer, Executive Director of Virginia Legal Aid Society, Inc., whose presentation “Professionalism: Providing Access to Legal Services” provided the basis for this article.

“We the People, of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Did you notice that the first thing our Founders placed in the document that formed this great country is that, in order to form a perfect union, we must establish justice? Before providing for a common defense, before promoting the general welfare, and before ensuring domestic tranquility comes establishing justice. Our Founders—including Alexander Hamilton, Thomas Jefferson, and James Madison—have described justice as the first duty of society, the most sacred of the duties of government, the first pillar of justice, and the goal of civil society.

Our civil justice system is failing to meet the standard our Founders set and is undermining our quest for a just civil society. Our adversarial system for arriving at the truth and applying the law works fairly when each side is zealously represented by counsel. When one side is unrepresented, the system breaks down. Unfortunately, the most vulnerable in our society, the low-income Virginians in our communities, bear the burden of this break down.

The Legal Services Corporation, the federal funder of civil legal aid programs, stated in its 2017 annual report that 86% of the legal problems reported by low-income Americans receive inadequate or no legal help. Similar studies in Virginia in 1991 and 2007 found that 80% of the legal problems of low income Virginians received no help from an attorney. In Virginia, according to a study of General District Court cases, only 1% of cases had an attorney on both sides. In 54% of cases, only the Plaintiff had an attorney and in 45% of cases, there was not an attorney on either side.

Multiple studies done around the country regarding the outcomes in eviction cases, social security appeals, landlord-tenant cases, and unemployment benefits hearings show that litigants represented by an attorney are about twice as likely to receive a positive outcome in their case. That number is based solely on their presence and not on the weighing of the facts and law. What does it say about our system that if you have an attorney, you are twice as likely to be successful? It says that our civil justice system is failing and for the majority of low-income Americans, it fails them.

But, you say, we have legal aid to assist all the people who cannot afford an attorney, right? Unfortunately, that is not even close to true. While there is a right to counsel in most criminal cases, there is no such right in civil cases. In cases where you can lose your home, your car, your children, or your hard-earned money, you are not entitled to an attorney. In my office, we have three attorneys covering seven cities and counties. In Virginia, there is 1 attorney for every 358 people but only 1 legal aid attorney for every 4,275 low-income people. While exponentially more funding for legal aid programs would significantly reduce the disparity, our federal and state governments are not likely to provide the funds necessary to close the justice gap. Private attorneys are an integral piece in closing the justice gap.

Our low-income communities need members of the private bar (non-legal aid attorneys) to help fill the gap. Rule 6.1 of the Virginia Rules of Professional Conduct sets an aspirational standard that lawyers should spend at least 2% of their time providing pro bono legal services. Virginia recently implemented voluntary pro bono reporting and of all attorneys eligible to report, only 16% reported having provided pro bono services or financial contributions. Those who did report spent an average of 74.3 hours on pro bono work the previous year. Even though those attorneys almost doubled the aspirational goal of 2% individually, it is less than half of the number of hours that we should be spending on pro bono work.

As young lawyers, we can set the standard for pro bono work. We can create and instill a culture of assisting those who need our services without regard to whether the client can pay. Virginia, along with its legal aid programs, has taken several steps recently to make assisting low-income individuals easier and more accessible for members of the private bar. The Virginia State Bar offers a website for attorneys to provide quick legal advice to low-income members of the public who have legal questions. The website is www.virginia.freelegalanswers.org.

Virginia legal aid programs recently implemented a “portal”—JusticeServer.org—that allows private attorneys to register and accept pre-screened cases from legal aid programs around the Commonwealth.

For those less interested in a technological solution, most legal aid programs can still provide local, hands-on case placement. In my program, we provide a simple process for becoming a pro bono attorney and allow you to choose how many and what types of cases you are willing to handle. We can provide training and assistance if you want to provide pro bono legal help in areas you don’t normally practice. Virginia CLE allows pro bono attorneys to access their inventory of trainings for free if you use them to assist with your pro bono casework. Many legal aid programs provide malpractice insurance covering the attorney while they provide the pro bono assistance. A case could be as simple as a will, power of attorney, or uncontested divorce, or as complicated as you would like to handle. There are almost 24,000 active attorneys in Virginia. What if, on average, each attorney handled one additional pro bono case per year? That is 24,000 more families assisted and another solid building block as we begin to rebuild the foundation of our civil justice system.

If we, as young lawyers, get involved in pro bono work and create a culture of service, we can fix the broken system of civil justice and get closer to the aspirations of our Founders. Beyond the aspirational goals of our Rules of Professional Responsibility and that of our Founders, we can have an impact on our communities and the justice system as a whole. We took an oath upon entering our profession in this great Commonwealth to uphold the Constitution of the United States; that oath places establishing Justice above all else.

About the Author

Edit2StultzSMALLMichael Stultz is the Managing Attorney of Virginia Legal Aid Society’s Suffolk Area Office, which provides free civil legal services to eligible low-income residents in the cities of Suffolk, Franklin, and Emporia and the counties of Sussex, Isle of Wight, Southampton, and Greensville. Virginia Legal Aid Society has offices in Suffolk, Danville, Lynchburg, and Farmville serving a total of 26 cities and counties. Michael graduated from Lynchburg College in 2009 and Florida Coastal School of Law in 2012. He also serves as the Chair of the Southeastern Virginia Homeless Coalition’s Governing Board. Michael can be reached at michaels@vlas.org.