Rebooting Justice. Benjamin H. Barton

services to the poor (whether or not they worked for LSC) with the number of private attorneys. Nationally there is one attorney for every 6,415 poor people and one private attorney providing personal legal services for every 429 people in the general population. The number of private attorneys per capita is somewhat misleading, however, since a good number of those lawyers work primarily for corporations and businesses.

      Other studies report similar findings. For example, a 2008 study in Washington, DC, found that: (1) 97% of tenants who go to court as defendants in a dispute with their landlords (typically in eviction proceedings) are not represented, (2) 98% of domestic violence victims and respondents are unrepresented, and (3) 98% of respondents were unrepresented in paternity and child-support cases. In Texas, only 20% to 25% of eligible poor litigants are represented in court. That rate actually sounds high given this ratio: There is roughly one legal aid lawyer for every 11,000 income-eligible Texans.⁷

      Professor Gillian Hadfield offers an alternative measure of legal services for the poor and middle class.⁸ She divided the total amount of money individuals (as opposed to corporations) spent on legal services by the average hourly rate for small firm and solo practitioners and then again by the U.S. population. In 1990, Americans bought an average of 1.6 hours of legal services per person for the year, or 4.15 hours per household. By 2012, the number had declined 30%, to 1.3 hours per person or 3.0 hours per household. Spread out by legal problems rather than households, the numbers are even starker: In 1990, American households were able to use roughly 4 hours of legal time, on average, to address a legal problem. By 2012, that amount had shrunk to 1 hour and 30 minutes. Even if you double these rough averages, they cannot cover most legal problems. Most Americans cannot afford to hire a lawyer, even for serious legal problems like divorce, criminal defense, or foreclosure.⁹

      Further evidence is the flood of pro se litigation in American courts, frequently over very important and complicated issues.¹⁰ The rate of self-representation has been growing and spreading into more serious legal disputes since at least 1998, and it has accelerated since 2008.¹¹ A great number of American courts have tipped over to having a majority of the cases feature at least one pro se party. Examples include courts that handle evictions, family law, debt collection, and child support.

      The Cost of Private Help

      So why do people with legal problems, especially middle-class people, forgo hiring private lawyers? Every town has firms that advertise $500 divorces. These teaser rates, however, are only for simple divorces. As a Knoxville private attorney’s website explains:

      Attorney’s fees will vary based on the individual attorney and the complexity of the divorce. An uncontested divorce with nothing left to work out, no real property, and no minor children will cost anywhere from $150-$1500 depending on the attorney. In a contested divorce, it is more difficult to estimate fees because of the uncertainty of how much work will need to be done on the case. Most attorneys bill by the hour on contested matters and will usually require a retainer up front.¹²

      A contested divorce is like a home in the Hamptons: If you have to ask how much it will cost, you probably cannot afford it.

      How about a pro bono lawyer, a private-firm lawyer volunteering for free as a public service? As noted below, pro bono work is fairly limited, especially in family law. Few lawyers have the expertise needed to handle a contested or complicated divorce, and the ones with the expertise are small-firm and solo practitioners struggling to make ends meet. Nor is divorce work particularly fun or sexy, making it a low priority for lawyers volunteering their time.

      So maybe file pro se? American judges and clerk’s offices are notoriously impatient with pro se litigants.¹³ Clerk’s offices are frequently told not to give any legal advice to pro se litigants. Many have been told that if they gave legal advice, they could be sued civilly or criminally for engaging in the unauthorized practice of law. Judges are similarly impatient. They much prefer to have lawyers file and process cases correctly than to have confused non-lawyers stumble about.

      Take a seemingly simple issue that came up in the Homeless Project. The potential client was a recovering drug addict who had moved down from Cleveland and left his wife behind. After a few years in Knoxville without any contact, he decided to seek a divorce. He started at the local court clerk’s office by asking how to divorce someone in Ohio. The clerks refused to say whether to file in Tennessee or Ohio. They refused to explain how to serve a party in Ohio. They certainly did not explain which state’s laws would apply in Tennessee or how the laws might work out in a contested divorce. Nor should the clerks have answered all of those questions—they likely had no idea how to answer.

      Online forms are not much help in these circumstances. The documents are for simple divorces. They do not apply to bumps in the road, even simple issues like a dispute in custody arrangements or different state locations.

      And don’t think that this problem is limited to the homeless or the poor. Though Americans often think of access to justice as a problem of poverty, it afflicts the middle class too. Middle-class people have it worse, since they cannot use legal aid and are likelier to have some assets over which they can fight. A typical retainer for a contested divorce is $10,000 up front. Not many Americans can afford justice at that price.

      Even in a market glutted with lawyers, it is still quite expensive to pay an individual lawyer to research a legal problem, let alone to pursue litigation or draft a legal document. Thus, both poor and middle-class Americans often must proceed without counsel or “lump it” by living with problems that courts could solve.

      Where Are All the Lawyers?

      In short, ordinary Americans cannot afford to hire a lawyer even for very serious and complicated problems, the problem is growing worse, and the system is poorly equipped to handle the resulting flood of pro se litigants. How can this be? The legal profession continues to grow faster than the population, adding more than 46,000 new law school graduates in 2013. It is puzzling that in the midst of the worst law recession since the Great Depression, access to justice remained deplorable. Where are all of these displaced lawyers and why are they not servicing this need?

      First, roughly a quarter of lawyers are not in private practice, working directly for corporations or in government or a law school. Of those in private practice, the most lucrative and sought-after work is in representing or suing corporations. From the 1950s until 2008, large corporate law firms grew steadily in terms of number of lawyers, percentage of the profession, revenues, and profits. Virtually all large-firm work is for corporations or very wealthy individuals.¹⁴