 |
| Daria Fisher Page |
 |
| Brian Farrell |
The premise is simple: A declining number of rural practitioners has resulted in a rural access to justice crisis. But is the relationship between these two factors — the number of attorneys and access to justice — so straightforward?
There is no question that the number of resident rural lawyers across the U.S. has declined significantly over the past decades.[2] The states with the lowest number of attorneys per capita are predominantly rural.[3]
Bar associations, court officials and legislators are taking action to try to draw new attorneys to rural communities. Indeed, bills introduced this legislative session in Iowa[4] and Wyoming[5] follow the model of the rural attorney recruitment program implemented in South Dakota a decade ago.
That program provides incentive payments to qualifying lawyers who practice in an eligible rural area for at least five years, with costs shared by the state and local communities.[6]
There is, likewise, no question that rural Americans do face real access to justice challenges. Studies show that individuals in rural areas experience certain justice problems, like family structure issues, at higher rates than their urban counterparts.[7]
A variety of factors can combine to create unique hurdles in access to justice in rural areas, as documented in a growing body of rural access to justice scholarship.[8]
For example:
- Limited availability of broadband internet can make it more difficult for rural residents to access online resources.
- Travel distances increase the time and expense required to participate in proceedings.
- So-called urbanormativity in the legal system — i.e., the "assumption that the conditions of urbanism found in metropolitan area are normative" in Lisa R. Pruitt and Marta R. Vanegas' "Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law"[9] — means that judicial processes and access to justice interventions are often not tailored to the rural context.
Moreover, these conclusions have often been reached in the absence of agreed-upon definitions of "rural" or "access to justice." We view the rural attorney shortage and rural access to justice as distinct but related phenomena.[10]
Much of the entanglement comes from the fact that access to justice has often been, quite simplistically, measured by reference to attorneys per capita or attorneys per county.
This usage reflects both a narrow understanding of what access to justice means and the fact that, unlike other potential metrics, data on licensed attorneys has been cheaply and readily available from regulating authorities.
The romantic view of the accessible, though generalist, Main Street lawyer may persist. But research shows a growing gap between the needs of low-income rural clients and available private legal services in rural communities.[11]
An attorney is a poor measure of access to justice if their skills and expertise don't match the needs of the community or their services aren't affordable.
Increasingly, access to justice scholars and policymakers have recognized that access to justice is not synonymous with access to lawyers.[12]
Instead, the focus has been to better understand the likelihood individuals in a given location will encounter justice problems and their actual legal needs when they do. An inquiry into rural access to justice focused on people's needs, the outcomes they're looking for and how they want to be treated will allow for the implementation of interventions that best match these needs.
A range of legal resources and services — all with costs and benefits — exist that can provide individuals with legal information, resources, advice, advocacy and resolution. These include online public legal libraries, self-help clinics, unbundled services, court navigators and nonlawyer legal professionals.
As we consider the full menu of potential access to justice interventions, it becomes apparent that an attorney is not always the only — or best — intervention in a given situation.
Distinguishing the decline in rural attorneys and rural access to justice problems as two separate phenomena is not tantamount to saying that attorneys are not a piece of the access to justice puzzle or that rural lawyers don't fulfill important functions in their communities.
It is critical to further examine the role and impact of resident attorneys in rural communities.
Aside from any access to justice impacts, rural attorney incentive programs like South Dakota's can address valid and important public interests, such as economic development, succession planning for older lawyers, fulfillment of a state's constitutional criminal defense obligations and cultivating civic leadership.
Meanwhile, if access to justice is the primary goal of such a program, it should be explicit, carefully tailored to meet identified needs in the community and include provisions to measure impact beyond a simple increase in the number of attorneys per capita.
Daria Fisher Page is the associate dean for clinical programs and a clinical professor of law at the University of Iowa College of Law
Brian Farrell is an associate professor and associate director of the Center for Human Rights at Iowa Law. He is also director of the Citizen Lawyer Program.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Brandon Smith, Attorney Shortages in Indiana Create 'Access to Justice Problem,' WFYI Indianapolis, Nov. 1, 2023, https://www.wfyi.org/news/articles/attorney-shortages-in-indiana-create-access-to-justice-problem; John Redfield, Attorney Shortage in S.E. Iowa Raise Concern for Timely Justice, KTVO, Feb. 14, 2024, https://ktvo.com/news/local/attorney-shortage-in-se-iowa-raises-concern-for-timely-justice.
[2] Aleks Schaefer & Andrew Van Leuven, Panel at the South Dakota Law Review Symposium on Rural Lawyers (Sept. 22, 2023), https://usd.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=477e756b-1d33-4d5f-a45d-b08300e46d9c (at 1:52:25).
[3] ABA Profile of the Legal Profession 2023, https://www.abalegalprofile.com/demographics.html.
[4] Iowa H.F. 2407, https://www.legis.iowa.gov/legislation/BillBook?ga=90&ba=HF2407.
[5] Wyoming S.F. 0033, https://www.wyoleg.gov/Legislation/2024/SF0033.
[6] Unified Judicial System of South Dakota, Rural Attorney Recruitment Program 2023 Annual Report, https://www.usd.edu/the-south-dakotan/usd-knudson-school-of-law-and-project-rural-practice-place-practicing-attorneys-in-rural.
[7] Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Problems, 2023 Utah L. Rev 530-531 (2023).
[8] See, e.g., Michele Statz, Robert Friday, & Jon Bredeson, "They Had Access, But They Didn't Get Justice": Why Prevailing Access to Justice Initiatives Fail Rural Americans, 3 Geo. J. on Poverty L. & Pol'y 321, 370-76 (2021); Lisa R. Pruitt, Amanda L. Kool, Lauren Sudeall, Michele Statz, & Danielle M. Conway, Legal Deserts: A Multi-State Perspective on Rural Access to Justice, 13 Harv. L. & Pol'y Rev. 15, 147 (2018).
[9] Lisa R. Pruitt & Marta R. Vanegas, Urbanormativity, Spatial Privilege, and Judicial Blind Spots in Abortion Law, 30 Berkeley J. Gender, L. & Just. 76, 107 (2014).
[10] Daria Fisher Page & Brian Farrell, One Crisis or Two Problems? Disentangling Rural Access to Justice and the Rural Attorney Shortage, 90 Wash. L. Rev. 849, 892 (2023), https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5280&context=wlr.
[11] Elizabeth Chambliss, Rural Legal Markets (manuscript at 19, on file with authors).
[12] Kathryne M. Young & Katie R. Billings, An Intersectional Examination of U.S. Civil Justice Problems, 2023 Utah L. Rev 487, 492 (2023).