Lawyers in rural America are an increasingly rare occurrence. Despite nearly 20% of Americans living in rural areas, only around 2% of small practices are located there.[1] Within these “legal deserts,” access to even basic civil legal services slows or halts. A 2017 study by the Legal Services Corporation found that “rural residents receive inadequate or no professional legal help for 86% of their civil legal problems.”[2] Legal deserts also impact the quality of criminal defense available – the one area of law where a lawyer is not only critical but necessary.[3] Twelve states have no central public defender system, and rely on their county and city governments to fund indigent defense.[4] Often, rural counties must issue contracts to local attorneys to fill the roles of the prosecutor and the public defender.[5] The dearth of services in rural areas are not a mere inconvenience but an injustice. This article explores one potential solution: placing federally employed, general practice attorneys in small towns across the country.

Legal deserts emerge when areas cannot support a market for general legal services. In rural America, salaries may be half what a new attorney could expect in a metropolitan area, and as a result rural attorneys are retiring faster than they can be replaced.[6] As numbers dwindle, it can become harder for rural attorneys to fulfill their ethical obligations. These ethical concerns are an additional hurdle to justice, as illustrated by a Louisiana county where all three public defenders had previously worked on matters connected with the prosecution’s key witness. They were forced to recuse themselves from the case, delaying the defendants’ trials for months.[7]

States are becoming increasingly creative in crafting solutions for this utter lack of criminal or civil legal services, attempting to correct the market failure that keeps lawyers out of rural communities. Washington state has experimented with “limited license legal technicians” (LLLT), non-barred advocates who can provide basic civil legal services, and New Mexico is exploring a similar initiative.[8] Realizing that student debt may encourage law school graduates to take higher paying offers in cities, numerous states and law schools have started to create incubator programs designed to foster small rural legal practices by paying stipends to attorneys.[9] Texas is experimenting with two initiatives; one to encourage city attorneys to establish satellite offices in small towns, and another to create “virtual legal clinics” where lawyers can connect with rural clients using tablets.[10] These solutions help but cannot solve the general legal services gap. Washington’s LLLT’s, for instance, only work in family law.[11] Drake University, which runs an incubator program, has seen mixed results, with their first two attorneys pulling out due to financial concerns.[12]

These states have correctly identified the source of the problem: there is no sustained market for general legal services in rural America. However, there is one solution that has not yet been used to address the issue, despite great success in other areas of the economy where there is no market alternative in fulfilling a service: federal funding. The analogs are everywhere. From subsidies to provide rural electricity[13] to the funding of the community health centers in the Affordable Care Act,[14] when the market fails to provide a necessary service, the federal government has the ability to step in and ensure it is provided to all Americans.

The federal government already has a working template for providing general legal services: every state has at least one federal public defender’s office and a federally funded nonprofit legal aid organization. These offices are dedicated to serving the indigent population of the state and if their funding was increased and mandates expanded, they could take on the role of a general practitioner in communities where the private legal system is unsustainable. Alternatively, if the legal aid societies were federalized, to become civil counterparts to the public defender offices, young attorneys would have both the federal salary and federal public service loan forgiveness which may calm their worries about paying off their student loans.

To truly shrink legal deserts, these new, federally funded general practitioners may also have to shift the locations of their offices. In many rural states, the federal public defender offices are often run entirely out of urban centers due to the location of the federal courthouses. For example, Nebraska’s federal public defender has two offices, but both are in metropolitan areas rather than rural counties.[15] While legal aid societies may be more spread out,[16] funding would have to ensure that new offices are opened in more isolated communities. However, these attorneys would be able to provide the full spectrum of legal services to rural communities, shrinking legal deserts across the country.

My home state of Nebraska’s motto is “Equality before the Law.” Assuming for the moment that this is true in criminal cases (and not delving into the numerous issues in Nebraska’s criminal justice system)[17] it is simply absurd to believe there is equality in civil cases. In 2017, Nebraska had twelve counties with no attorney present at all.[18] Twelve counties where residents had to drive sometimes hundreds of miles to obtain legal services. For many, this drive might not be the greatest hurdle; with 16.4% of rural residents in America living in poverty,[19] even if they had the ability to drive a county over, they might not have been able to afford the fees. [20]  It is possible if they had access to legal services they would indeed be treated equally, but without it, Nebraskans in rural areas are left behind. Federally employed, full-service attorneys may be the best way to turn Nebraska’s motto from an ideal into a reality and to ensure that as the United States moves forward, everyone moves with it.

 

 

[1]Mark Palmer, The Disappearing Rural Lawyer, 2civility.org (Aug. 27, 2019), https://www.2civility.org/the-disappearing-rural-lawyer/.

[2]Legal Services Corporation, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans (Jun. 2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf.

[3] See Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged has to face his accusers without a lawyer to assist him”).

[4] See David Carroll, Right to Counsel Services in the 50 States, in.gov (March 2017), https://www.in.gov/publicdefender/files/Right%20to%20Counsel%20Services%20in%20the%2050%20States.pdf.

[5] See April Simpson, Wanted: Lawyers for Rural America, Pew (June 26, 2019), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/06/26/wanted-lawyers-for-rural-america.

[6] Wendy Davis, No Country for Rural Lawyers: Small-town attorneys still find it hard to thrive, ABA J. (Feb. 1, 2020), http://www.abajournal.com/magazine/article/no-country-for-rural-lawyers.

[7] See Jessica Pishko, The Shocking Lack of Lawyers in Rural America, The Atlantic (July 18, 2019), https://www.theatlantic.com/politics/archive/2019/07/man-who-had-no-lawyer/593470/.

[8]  Vogt, Legal Deserts Push NM to Consider Nonlawyer Services, L.360 (June 2, 2019, 8:02 PM), https://www.law360.com/articles/1163712/legal-deserts-push-nm-to-consider-nonlawyer-services.

[9] See Davis, supra note 6.

[10] Legal Deserts: How Texas, New York are tackling the problem, Am. Bar Ass’n (February 15, 2020), https://www.americanbar.org/news/abanews/aba-news-archives/2020/02/legal-deserts–how-texas–new-york-are-tackling-the-problem/.

[11] See Vogt, supra note 3.

[12] See Davis, supra note 6.

[13] See Powering Sustainable Rural Communities, U.S. Dep’t of Agriculture, https://www.rd.usda.gov/programs-services/all-programs/electric-programs (last accessed Mar. 8, 2020).

[14] See Paradise et. al., Community Health Centers: Recent Growth and the Role of the ACA, Kaiser Family Found. (Jan. 18, 2017), https://www.kff.org/medicaid/issue-brief/community-health-centers-recent-growth-and-the-role-of-the-aca/.

[15] Office of Federal Public Defender – District of Nebraska, Off. Of Federal Pub. Defender – Dist. Of Neb., ne.fd.org (last accessed Mar. 8, 2020).

[16] Locations, Legal Aid of Neb., https://www.legalaidofnebraska.org/about-us/locations/ (last accessed Mar. 8, 2020) (Nebraska Legal Aid Society has eight offices).

[17] The author is acutely aware that the criminal justice system in Nebraska needs improvement. See Grant Schulte, Nebraska Prisons Head says Overcrowding Emergency is Likely, AP News, (Jan 18, 2019), https://apnews.com/article/bed6772a5abc4261a0c297c5be8afa8b; Sylvia Krohn, Death Penalty Law Remains Unsettled in Nebraska, Am. Bar Ass’n (May 10, 2019), https://www.americanbar.org/groups/committees/death_penalty_representation/project_press/2019/spring/death-penalty-law-remains-unsettled-in-nebraska/.

[18] See Simpson, supra note 5.

[19] See United States Department of Agriculture, Rural America at a Glance: 2018 Edition (2018) https://www.ers.usda.gov/webdocs/publications/90556/eib-200.pdf?v=9700.6.

[20] See Robin Runge, Addressing the Access to Justice Crisis in Rural America, Am. Bar Ass’n (July 1, 2014), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/2014_vol_40/vol_40_no_3_poverty/access_justice_rural_america/