Looking Beyond Lawyers to Close the Access to Justice Gap

Alicia, a woman with black hair and brown eyes, wears a black tank top and is smiling.S.M. Kernodle-Hodges, a Black woman with brown hair and brown eyes, wears a blue button-down shirt.By Alicia Mitchell-Mercer and S.M. Kernodle-Hodges

“If one wishes to know how justice is administered, one does not question the policemen, the judges, or the protected members of the middle class. One goes to the unprotected— those, precisely, who need the law’s protection most! — and listens to their testimony. ~James Baldwin, “No Name on the Street”

The Justice Gap

Civil access to justice is high stakes. It is a prerequisite for meeting fundamental human needs. Without access to justice, individuals are incapable of contesting injustice or holding decision-makers accountable. Access routinely determines whether basic human needs for food, clothing, and shelter will be met, and it can mean everything for a person in crisis. Sadly, when individuals realize they need legal help, they also realize they cannot afford a lawyer. More often than not, they are also ineligible for assistance from legal aid. The difference between the civil legal needs of lower-income Americans and the resources available to meet those needs is what we refer to as the “Access to Justice Gap.”

Reports on Civil Legal Needs

An Assessment of the Civil Legal Needs of North Carolina (2021)

In 2018, more than 2 million North Carolinians with incomes at or below 125% of the federal poverty level were eligible for the services of legal aid providers. Seventy-one percent of families in this low-income population will encounter at least one civil legal issue in a given year. Despite this, an astounding 86% of these legal needs will go unmet due to civil legal aid providers’ limited resources (North Carolina Equal Access to Justice Commission, 2018).

Against this backdrop, in 2020, UNC Greensboro’s Center for Housing and Community Studies, the North Carolina Equal Access to Justice Commission (EATJC), and the Equal Justice Alliance (EJA) completed the first comprehensive civil legal needs assessment in nearly two decades. The study provides an overview of civil legal needs in North Carolina and the severity and nature of civil legal problems people face.

This evaluation revealed a significant general deficiency in meeting the legal needs of low-income North Carolinians. Legal services providers say, “there is not enough capacity to serve everyone.” Among those with unmet needs are middle-income clients who are ineligible for assistance due to their income level (UNC Greensboro’s Center for Housing and Community Studies et al., n.d.).

In their report, the areas of greatest legal need include:

  • Summary Ejectment
  • Divorce
  • Collection on Account
  • Domestic Violence
  • Foreclosure
  • Custody
  • Findings and Order of Foreclosure
  • Permanent Civil No-Contact Order
  • Incompetency
  • Guardianship of the Person

The Justice Gap: The Unmet Civil Legal Needs of Low-income Americans (2022)

Additionally, Legal Services Corporation (LSC), a federally funded 501 (c)(3) nonprofit corporation established by the United States Congress, released its latest justice gap report in April 2022. Their report shows that 92% of low-income Americans with civil legal problems did not receive any or enough legal help. Further, nearly three-quarters (74%) of low-income households experienced at least one civil legal issue in the previous year.

Truthfully, quantifying the actual demand for legal services overall is more complicated than identifying the need because most individuals will not seek legal services due to the cost of court, convenience, or limited knowledge of available options. Therefore, these civil legal needs will continue to go unmet unless drastic regulatory reforms are implemented to compensate for the limited resources available to civil legal aid and pro bono providers.

The North Carolina Justice for All Project

The North Carolina Justice for All Project (JFAP) is an advocacy group dedicated to improving access to justice in North Carolina through legal regulatory reform. Our goal is to mitigate the access to justice gap by introducing innovative solutions into the existing market that do not saddle taxpayers with a heavy financial burden.

The North Carolina Justice for All Project was conceived and implemented by S. M. Kernodle-Hodges and Alicia Mitchell-Mercer in response to a keen awareness that most of North Carolina’s population cannot afford a lawyer when a civil legal crisis occurs. We examined all current state initiatives to bridge the access to justice gap and found them lacking. The limits of legal services in our state were more dismal than we could have imagined.

Legal Aid

Contributing to the access to justice gap is that, as of 2021, the income cutoff to receive assistance from Legal Aid of North Carolina (LANC) is $16,100 for one person and $33,125 for a family of four. Essentially, you cannot qualify for legal aid unless you make near minimum wage. Indeed, even when income requirements are met, LANC can only serve 1 in 10 households due to budgetary and human resources constraints. Additionally, there is only one legal aid attorney for every 8,000 North Carolinians eligible for legal services, compared to one private lawyer for every 367 North Carolina residents.

Pro Bono

Even though pro bono work is essential, it will not be the sole solution to the undeniably enormous access to affordable legal assistance problem that exists in the United States. Gillian Hadfield, Educating Tomorrow’s Lawyers Fellow and author of Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, has analyzed the data in detail.

According to Hadfield, even if each of the 1.3 million licensed attorneys in the United States were to take on all of the cases in the access to justice gap, each attorney would need to devote 180 hours of pro bono work. That is roughly 1.5 months of work each year. The current average number of pro bono hours is 55, but this represents only 52 percent of those who provided such services in 2016, a far cry from the 100 percent participation rate required to address these issues fully.

Legal Deserts

Moreover, Camille Stell of Lawyer’s Mutual addressed the growing issue of legal deserts in a recent article. There are 30,000 lawyers in North Carolina. According to the 2020 ABA Profile of the Legal Profession, there are 2.30 lawyers per 1,000 residents in North Carolina. Attorneys are concentrated in Wilmington, Mecklenburg County, the Research Triangle, and the Triad. We have ten counties with fewer than ten attorneys. Despite efforts in some states to attract young attorneys to rural areas, experts agree that the dearth of rural attorneys is unlikely to improve over the next decade.

JFAP’s Limited Licensing Proposal

Realizing that legal aid and pro bono alone could not bridge the access to justice gap, we began to consider other initiatives, some of which were already beginning to proliferate in other states. On January 22, 2021, the North Carolina Justice for All Project (JFAP) team submitted a limited licensing proposal to the North Carolina State Bar and the North Carolina Supreme Court.

Our proposal is similar to the medical industry’s licensing of nurse practitioners and physician assistants and contemplates completing specific requirements (e.g., examination, certification, education, experience) before licensing. It is focused primarily on the areas of greatest civil legal needs identified in the previously-mentioned civil legal needs assessment. The proposal provides citizens of limited means access to limited legal services to meet needs that lawyers do not often meet.

We believe that paraprofessionals and thousands of law school graduates, who have not passed the bar exam, can develop the skills necessary to offer competent limited legal services to help the millions of North Carolinians who cannot afford legal counsel. We believe that affordable legal services are in the best interest of North Carolinians, the court system, and the justice system as a whole. The legal profession must evolve to serve the broader needs of society. Otherwise, we will continue to sacrifice the well-being of millions of North Carolina residents.

Skepticism of Regulatory Reform

We also recognize that lawyers have concerns that are typically framed as follows:

Public Harm

Lawyers frequently raise public harm as a concern, and we take those apprehensions seriously. However, studies show that the number of complaints concerning harm filed in every other jurisdiction where limited licensing exists is less than or equal to those against lawyers. There is also no concern for harm at our federal court level in areas where non-lawyers already represent clients. The actual harm is forcing people into a position of no legal help when they could receive some assistance from competent professionals.

Competition

Some lawyers have expressed harm about competition and how limited licensing will affect their private practice. While we think the legal system should put the needs of the public first, we seek to serve those who could not hire lawyers anyway because they cannot afford it. Dave Byers, Director of Arizona’s AOC, has stated there is no evidence that Arizona’s paraprofessional programs (including the 15-year legal document preparer program) have depressed those legal markets. Ontario, which has licensed paralegals since 2007, has made the same statement. Furthermore, the National Association of State Courts says limited licensees “do not appear to assist customers who could not afford lawyers; therefore, they do not compete directly with lawyers.” Lawyers will not lose their practices because of limited licensing. The market has room for more than one tier of service provider.

Limited Data

Some North Carolina State Bar leaders and other stakeholders have expressed concerns regarding the lack of data concerning limited licensing. Will limited licensing actually help people?

Limited licensing offers excellent potential for high reward compared to the risk involved. The status quo is not working, and preliminary data in states that have tried limited licensing show promising outcomes. North Carolina should join Arizona and Utah as leaders in access to justice innovations.

Support of Regulatory Reform

Many other jurisdictions have begun exploring limited licensing and other types of regulatory reform. Recently, distinguished Lecturer and Senior Consultant to the Future of the Profession Initiative at the University of Pennsylvania Carey Law School and President Emeritus of the Legal Services Corporation, the United States’ largest funder of civil legal aid programs, Jim Sandman, expressed his disappointment in the California legislature for voting in favor of a bill to ban the state bar from spending funds to study regulatory sandboxes and limited licensing as potential methods of regulatory reform in the state.

“The public favors the reforms the legislature shut down. Lawyers killed this, under the guise of protecting the public based on no evidence at all. News flash: The current regulatory system harms the public. Every study of unmet civil legal needs at the national, state, and local levels reaches the same conclusion: the vast majority of people get no or inadequate help with their civil legal problems.”

These barriers are a hindrance to the process of legal regulatory reform.

In addition to the general public’s position on regulatory reform, we also see benefits to the community as a whole.

Economy

There is an economic benefit to providing access to legal services for low-income individuals and the entire state of North Carolina. The economic impact is the cost savings to the state and local economies due to the advocacy of legal service providers. A 108% Return on Investment: The Economic Impact to the State of North Carolina of Civil Legal Services, in 2012, found that the work of legal services providers across the state generated $48,775,276 in economic impact that year. The measured impact included cost savings to the state and local economies due to the advocacy of providers in domestic violence, foreclosure, and eviction prevention.

Limited licensing would produce a positive economic impact. When people receive legal services, there is less need for support from homeless shelters, temporary housing programs, government welfare programs, and community programs. Money saved can be directed to others in need.

Courts

Licensed paraprofessionals could help reduce the strain on the court system by reducing dismissals and do-overs caused by insufficient legal filings and delays and continuances due to people who do not understand state and local procedures or processes. Having an intermediary could also lead to earlier resolutions of simple disputes between parties, which would positively impact caseflow management.

Attorneys

There are benefits to attorneys as well. According to the Utah State Bar’s General Counsel, Scotti Hill, surveys suggest licensed paraprofessionals could increase an employing firm’s market reach. Licensed paraprofessionals could also independently conduct client interviews, prepare work-product, or cover for an attorney during a conflict. Licensed paraprofessionals could refer matters to attorneys if the scope were too complex.

Status of Limited Licensing Proposal

State leaders, including those at the North Carolina State Bar, are exploring regulatory reform. After nearly two years of the State Bar regulatory change subcommittee studying limited licensing and other regulatory reforms, the Subcommittee issued a report in favor of limited licensing. Executive leadership at the State Bar has not unanimously supported the limited licensing concept, but it created a standing “Access to Justice” committee to study the issue further. We hope they will consider limited licensing as an initiative to provide a more robust market for high-quality legal services that is broadly accessible and better meets the needs of North Carolina’s low- and middle-income communities.

Other Types of Regulatory Reform

Although our focus has been primarily on limited licensing, we also support other types of regulatory reform such as a regulatory sandbox, court navigators, and relaxing Rule 5.4 to allow for innovative partnerships with the tech, mental health, and other industries that will increase access to justice.

Conclusion

Our proposal was a first step in bringing stakeholders to the table to discuss these critical issues. Our Co-Founder, Alicia Mitchell-Mercer, will attend a convening at the Institute for the Advancement of the American Legal System (IAALS) in Colorado Springs, CO, in November 2022, to help craft a national model for limited licensing programs, which we hope will be beneficial to our efforts and allow us to update our proposal.

To address the elephant in the room, we acknowledge that our proposal for regulatory change is accompanied by a degree of trade protectionism. Attorneys have worked diligently and made significant sacrifices to earn their licenses. We respect this and view limited licensing as a complement to attorneys’ service to the public. We ask lawyers to consider that the medical profession faced a similar dilemma more than 55 years ago, when Congress informed the medical community that it was not serving the public’s needs. At that time, nurse practitioners, physician assistants, and other qualified medical providers entered the medical field, reducing the cost of medical services for the public. This is our objective in the legal profession.

If you would like to provide input regarding your position on limited licensing or requirements for limited licensing, we invite your feedback on our NC Limited Law License Requirements Survey.

We are also available as a panel to address any questions regarding access to justice, status updates, and future plans. Learn more at www.ncjfap.org.

S.M. Kernodle-Hodges and Alicia Mitchell-Mercer are Co-Founders of the North Carolina Justice for All Project. 

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