The Missing Ingredient to Close the Justice Gap

Richard Uberto, Fall 2018 HeLP Legal Services Clinic Intern

In 1974, Congress created the Legal Services Corporation (LSC) in an effort to ensure equal justice for all Americans under the law. In the decades since, law schools and bar associations have continued to zealously promote “access to justice” initiatives aimed at our most underserved populations. Unfortunately, actual results have failed to keep pace with the lofty rhetoric.

Millions of low-income Americans still lack access to free or affordable legal counsel. The Great Recession further exacerbated the crisis, and even middle-class families simply lack the means to pay market rates that can start at $300 an hour for private law firms. Astonishingly, our legal system fails to meet roughly 80% of the civil needs of low-income Americans. This sobering figure rises even higher for the middle class, who neither qualify for legal aid nor possess the finances to secure representation. And even for those who do qualify for legal aid, representation is often limited. LSC-grantees, for instance, may not assist “undocumented aliens; aliens seeking asylum, refugee status, or conditional entrant status; or other categories of aliens who are legally in the U.S., such as students and tourists.”

In 1993, the ABA amended its Model Rules of Professional Conduct to urge every lawyer to “aspire to render at least fifty hours of pro bono public legal services per year.” But despite the ABA’s recommendation, the median lawyer provides only 30 hours of pro bono services annually. More strikingly, 20% of lawyers provide no pro bono services at all. These disheartening figures, however, likely do not reflect a callous indifference to the less fortunate. Rather, low pro bono participation may merely demonstrate attorney reticence to dabble in unfamiliar law. The legal issues lower-income Americans face are strikingly narrow: two-thirds of all cases closed by LSC-grantees in 2014 dealt with family or housing law. So how can educators and the ABA better prepare future practitioners of complex commercial litigation or patent prosecution to assist with the everyday legal needs of the underprivileged?

Law school clinics may provide the answer. By exposing students to the substantive law most relevant to the needs of low- and modest-income Americans, law school clinics foster an interest in public interest within students. Importantly, the value clinics provide is not limited to the future of pro bono practice: law school clinics provide tangible benefits for real clients today. One study, for instance, found that clinical students employed procedural tactics similarly to actual attorneys. Noting that law school clinic clients enjoyed outcomes similar to clients of practicing lawyers, the study’s authors remarked that “students offer a similar standard of care as attorneys.”

Although empirical data is still limited, these early results portend a bright future for experiential education.