The “Civil Justice Gap” and Middle-Income Folks

Don't Mess. (credit: Wikimedia Commons)
Don’t Mess. (credit: Wikimedia Commons)

In the Great Recession’s wake, as the entire legal industry has been compelled to re-evaluate how and how much it charges for lawyers, a great deal of attention has gone to potential clients who are “moderate” or “modest” (or sometimes the more familiar “middle”) income.  These folks live above the poverty line and don’t financially qualify for civil legal aid, but they still don’t have the kind of disposable income or savings to afford lawyers at their regular rates.

With the above as backdrop, I’m interested for two reasons in the Texas Supreme Court’s creation of the Texas Commission to Expand Legal Services, which is “charged to explore means to bring more affordable legal services to small businesses and people who cannot qualify for legal aid [because they are over income-eligibility guidelines].” That language comes from a Texas Supreme Court announcement entitled “Court Establishes ‘Justice Gap’ Commission To Find Ways to Expand Civil Legal Services.”  (Emphasis mine)

Texas Tribune coverage of the commission launch begins, “A large number of Texans — mostly middle class — fall into a “justice gap” where they aren’t poor enough to receive free legal aid provided to indigents but can’t afford basic legal services on their own….” (Emphasis mine)

Two Thoughts:

First, I’m not surprised that the Texas Supreme Court is tackling a hugely important question about how middle-income folks can (or can’t) participate in the marketplace for legal services.  This particular marketplace is not the same as the ones for cars or electronics or heavy appliances.  Access to quality legal help keeps families out of poverty, in employment, and clear of crippling legal jeopardy.  As the Supreme Court has shown with the already-established Texas Access to Justice Commission (which focuses on the poorer legal aid client population), it does not simply throw commissions at problems.  These commissions identify and implement meaningful solutions.  So, once again, big props to Chief Justice Hecht and his Supreme Court colleagues for their action and leadership in opening wider the justice system’s gates.

Second, while it’s good to open gates, it may not be good to open gaps.  I notice here a broadening of how “justice gap” is used (and not coincidentally a broadening of the gap itself).  The term “civil justice gap,” has long been employed to highlight the reality that the poorest and most vulnerable persons have tremendous difficulty accessing legal services.  For instance:

But as we’re focusing more on the legal-access plight of moderate/middle-income folks, are we going to, without realizing, expand the “justice gap’s” width and effectively conflate the low- and middle-income populations?  (The language noted above out of Texas isn’t the first I’ve seen in which the middle class is tossed into the justice gap.)  Our efforts to help both of these cohorts are well-intended and important.  And they both experience legal-access barriers.  So, am I just being pedantic?

I don’t think I am.  The “justice gap” concept has served a purpose in advocating for the poorest among us.  It allows us to better identify, define, and understand an amorphous segment of the population that faces significant, some times insurmountable, barriers to accessing the legal marketplace.  The kinds and degrees of those barriers will vary depending on whom we focus on as part of this segment.  And while lines certainly blur on the socio-economic spectrum, I believe it’s important to separate the poorest and most vulnerable (“low-income” is my shorthand here) from the middle income.

Low-income people are living in or just barely above a state of poverty.  The barriers they face in getting meaningful legal help will be different, often in kind and always in degree, from what middle-income folks will face.  The solutions we tailor should be different based on the differences in barriers.  Thus we should observe some separation of the low-income and middle-income populations at all stages in the process: identifying the populations, identifying the barriers they face, and knocking down those barriers.

Also, if the “justice gap” metaphor is ever used in reference only to middle-income folks, it necessarily will imply that low-income folks haven’t fallen into a gap at all – they are able to get legal help because, after all, they are eligible for free legal aid.  Imagine the irony of attention shifting away from the plight of low-income client populations because of the re-purposing of a term created to highlight the plight of low-income client populations.


Equal Justice Journal – June 29, 2015


Waking up on June 29
Waking up on June 29

Greeting and happy Monday, lords and ladies, from the unseasonably warm Teton Valley.  I will spare you my prefatory ramblings and pontifications, but here are five items I’ve flagged for your consideration before the straight ATJ news:

The ATJ news in very short:

  • The American Lawyer’s just-published “Special Report: The Justice Gap”
  • legal aid funding news from Boston, DC, NH, and WY
  • inaugural class of NY’s Pro Bono Scholars gets admitted
  • Rhode Island does some unbundling
  • pro bono patent law program launched to serve VT entrepreneurs, and some FL news
  • NYT op-ed: narrowing the justice gap by better using the supply of lawyers
  • a call to provide lawyers for all unaccompanied minors
  • the Aloha State’s annual ATJ conference
  • new research: the cost of seeking civil justice in Canada
  • music (x 3)!!!

The summaries:

  • State & city legal aid funding announcement potpourri:
  • 6.25.15 – “The first class of Pro Bono Scholars, a program that allows 3L students to spend their final semesters of law school working in the field, was sworn in this week.”  (New York Law Journal).  Here’s more on the Pro Bono Scholars program.
  • 6.22.15 -unbundled legal services OK’d in Rhode Island.  “The high court earlier this month cleared the way for lawyers to provide a limited scope of representation…for people representing themselves, as long as those services are reasonable and the litigant gives informed consent.  Lawyers must sign any pleadings that they help a client prepare and disclose extent of their role in the case.”  (Providence Journal)
  • 6.22.15 – pro bono patent law program in Vermont.  “A new program…will help inventors and small businesses to get donated legal services from patent attorneys. Burlington Generator is a space where…entrepreneurs can work…without having to invest in office space. Just the kind of folks who could benefit from a new program made possible by the Leahy-Smith America Invents Act. It requires the U.S. Patent and Trademark Office to work with law associations to create programs to connect small businesses and inventors with patent attorneys willing to help them free of charge.” (WCAX coverage)
  • 6.17.15 – a New York Times op-ed by Citizen Advocacy Center founder Theresa Amato looks at the justice gap, notes that the problem is not an undersupply of lawyers, and proposes ways to connect more lawyers and service-innovators with underserved client populations.
  • 6.16.15 – “The U.S. government should guarantee legal representation to unaccompanied minors seeking asylum, end expedited processing of those children and families, and begin recognizing gang violence as a basis for asylum claims.  Those are among recommendations Tuesday by Jesuit Refugee Service/USA and 13 Jesuit law schools following a study of efforts to represent asylum seekers from Central America.” (National Law Journal)
  • 6.15.15 – Hawaii’s “Narrowing the Justice Gap” conference: “Leaders in Hawai‘i’s legal, judicial, business, academic and social services communities will examine ways to increase services to the state’s most vulnerable citizens as part of the day-long 2015 Access to Justice Conference, scheduled for Friday, June 19….” (U. Hawaii media release)
  • 6.10.15 – new research – “The Cost of Seeking Civil Justice in Canada”: “How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country…. [A]nalysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new…ways to reduce the costs that are most onerous to individuals with different types of civil legal need.”

Musics!!! Today there are three of them:

First, it’s Pearl Jam, and I’ve always loved their more bare-bones, punk stuff.  “The Fixer” is all energy:

Channeling the 80’s, here’s Slowdance with some advice for the fellas in “Boyfriend”:

Enough channeling.  Here’s the real thing from a recently-passed legend who always did have a knack for marrying New Orleans and Chicago sounds: