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)
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:
- here’s the Legal Services Corporation, the federal funder of legal aid: “Nearly a million poor people who seek help for civil legal problems are turned away because of the lack of adequate resources. The justice gap represents the difference between the level of civil legal assistance available and the level that is necessary to meet the legal needs of low-income individuals and families. ” Indeed, LSC’s touchstone report on the issue of serving low-income Americans is called, “Documenting the Justice Gap in America – the Current Unmet Civil Legal Needs of Low Income Americans”
- a recent New York City Bar report addresses the justice gap in reference to low-income populations
- a recent American Lawyer report is entitled, “The Justice Gap: How Big Law is Failing Legal Aid”
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.