Sonny's Corner - Lawyers, low incomes and legal aid: The case for making sure people have access to our justice system
"Sonny's Corner" is a regular column in Prairie Fire, featuring commentary on civil rights and justice issues. Our friend and Omaha colleague, Joseph P. "Sonny" Foster, died suddenly at age 54 in August 2005. He left an uncompleted agenda, as did many of our civil rights and justice mentors and heroes. We shall attempt to move forward on that unfinished agenda through this column.
Legal aid is one of the best-kept secrets in town. It can go a long way toward solving some of the challenges confronting communities. It can save us some money and make us some money. (For example, for every dollar Nebraskans invest in Legal Aid of Nebraska returns $4 to the local economy.)
Most importantly, legal aid can help us keep a fundamental promise upon which our democracy is founded. But first we must change some things and make an investment with a return. Keep in mind that legal-aid firms are private organizations using innovation, entrepreneurship and the justice system to move people to self-sufficiency.
‘Promises to keep’
Let’s not lose sight of an important point. By the fact that we live in the United States, we have promised each other access to our justice system for civil and criminal matters. Long ago we agreed to lay down our six-shooters in exchange for access to a free judicial system to settle matters in a civilized way. But in most cases, it takes an attorney to have effective access.
The problem is this: All of us periodically have a legal problem just in day-to-day business; not a criminal matter, but a civil matter, like an issue with a landlord or a dispute over a bill. For criminal matters, we are provided an attorney if we cannot afford one, but in civil cases we are not. Legal aid handles only civil cases.
Because people do not know the law and cannot afford a lawyer, they ignore the problem and begin to live outside community norms. Married couples separate without resolving important issues through divorce so, for example, financial matters go unattended, the responsibility for children is not clarified and so the children languish, bankruptcy is not pursued so a new start is impossible, and on it goes. Hope is lost, the spiral down begins and the results fall into the lap of the community at large. The children do poorly in school, drug abuse and crime increase, performance at work falls off and bills go unpaid.
Friends, neighbors and family members
We are talking about a significant number of people that are affected; in Nebraska, one-sixth of the population to be exact. That means your friends and mine, neighbors and family members.
A study by the American Bar Association shows that a middle- or low-income family typically has at least one civil legal problem each year. In Nebraska that means there are 600,000 legal issues confronted by families each year. About 100,000 of those issues confront low-income families, families of four with annual incomes less than $26,500 and individuals with incomes less that $13,000, for example. By the way, how many attorneys could afford to hire themselves, and for how long?
The next time you are in a crowd, let’s say at your house of worship, at the local county fair or the high school football game, look around. One out of every six people you see can’t afford an attorney, thus does not have access to our justice system and qualifies for legal-aid assistance. This group is growing at a significant rate as more and more families fall out of the middle-class into economic poverty. In 2000 only one-eighth of Nebraskans were in this situation; now it is nearly one-fifth.
The lawyers aren’t going to do it
We need to fulfill that promise of access to the justice system. What we need are lawyers to assist these families. What we need is the early detection of the legal problems so they can be resolved before they fester into a disaster for the family and a drag on the community.
You may be under the impression that the legal profession is handling this situation. It isn’t. Many excellent attorneys handle cases for free or at discounted rates and contribute significant amounts of money toward solving the problem. Many attorneys help people, knowing full well they will never be paid. But these heroic efforts are falling far short of meeting the challenge. The demand is huge and growing. Currently, all efforts by legal-aid providers and other law firms are meeting only 15 percent of the demand.
The times, they are a-changin’’?
For centuries the legal profession has fostered an ethic of helping the poor. But times have changed. For better or worse, the law is now more a business than a profession. The bottom line has become more important and the loss of a sense of community has made professional commitments to help the poor less compelling. Within this new way of doing business, “outsourcing” the obligation to “help the poor” makes more sense. Legal-aid attorneys are specialists in the area of law involved and can do the work more efficiently, so paying a legal-aid provider to have the professional ethical obligation met makes good business sense.
The legal profession needs to acknowledge this new reality and the general public needs to make an investment. This situation couldn’t be solved solely by the legal profession even if it tried. The demand is simply too overwhelming. For the legal profession to continue to pretend that it will and can solve the problem lets the rest of society off the hook, is unfair to those in need and, ironically, undermines our justice system in its failure to do the job. For the general public to expect the legal profession to shoulder this task is no longer realistic.
The politics…
We worry about an approach that smacks of a handout, a lack of personal responsibility and a collective, instead of individual, response. The legal profession got over these concerns about 400 years ago when it committed to providing legal aid to neighbors in need. It realized that trust in the justice system is at stake; legal aid helps return people to self-sufficiency, and it is simply fair.
Interestingly enough, many conservative lawyers get it. They know that people need these basic legal services, and they also know that they are not in the best position to provide the types of services needed. Some liberal attorneys, on the other hand, often refuse to assist, thinking legal aid is not where the action is or that government will take care of the problem. They want, and rightfully so, some action that will cause systemic change. But they underestimate the impact of providing access to the justice system for immediate, daily matters for thousands of people each year. It is hard to overestimate the lasting effects of a desperate family provided shelter, a child protected from abuse, a homeless person with a new start, a home saved for an elderly person or a family farmer who continues to farm.
Better that we worry about a failure of our justice system, a loss of trust in how things work and a breakdown of our communities. The people who go to a legal-aid provider are people who work but are economically poor. Expensive lawyers, low salaries, high-cost health insurance and an unfair tax structure are beyond their control. Before the recent increase, minimum wage got you $12,168 per year. That is per year, not per month. Now it will get you $13,624.
Let’s act!
What is needed is a large dose of reality, the elimination of pretense, better incomes, and the practical solution of the larger community investing in ensuring access to justice for all citizens, as promised. It will pay off with more citizens being able to reach self-sufficiency, move out of economic poverty and pursue the American Dream. Our system of justice, which promises access to the courts, will remain credible.
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