Vulnerable middle America: Do we need universal legal care?
October 15th, 2012 by Briana Cummings
The gap in the middle
The U.S. ranks last among peer nations in access to legal services. Despite a very crowded legal profession, millions of Americans — those who are too rich for subsidized legal services but too poor to afford a private attorney at market rates of around $200 to $350 an hour — lack access to high-quality, or any, legal assistance.
As Jeanne Charn puts it, our legal system has had “a nearly exclusive focus on the very poor at the expense of middle income people who also cannot afford traditional market-rate lawyer services.” It guarantees help to those who have incomes of 125% above the poverty line but offers nothing to those whose incomes are at 150 or 200% of the poverty line, but who also cannot afford the legal assistance they need.
As lawyers know, the law guarantees the right to a (government-subsidized) attorney if you are charged with a felony. But it does not currently guarantee the right to counsel if the government wants to take away custody of your children, if you are about to be foreclosed on, if you are swindled in a contract, or if you are otherwise about to be wrongfully deprived of sustenance or livelihood.
For example, during her battle with breast cancer, nursing home attendant Joyce Griffiths incurred $70,000 of medical expenses that her insurance company refused to cover. On the brink of eviction, she had the good fortune to be referred to the founders of the Health Care Rights Initiative, a non-profit that provides legal services for people in Joyce’s situation. (These founders are also members of the Community Legal Resource Network, a network of solo and small-practice attorneys serving underrepresented clients.) It took 20 hours a week for 10 months for them to comb through her paperwork, make phone calls, etc. before they found the clerical mistake responsible for her denial of insurance coverage. This legal representation — which saved her home and her livelihood, and $70,000 — would normally have cost her tens of thousands of dollars. The Health Care Rights Initiative attorneys charged her only $500.
Until this kind of high-quality, affordable legal assistance is more routinely accessible, we are all vulnerable. Cancer could happen to any one of us. This kind of clerical mistake could also happen to any one of us.
The civil right to counsel/Universal “legal care”
The ABA is on record in support of a civil right to counsel (“civil Gideon”), on due process grounds, for matters of importance impacting family, livelihood, shelter, sustenance, parental rights, and assets, housing, education, health, personal safety, and community economic development. (Gideon is the case that established the right to counsel in criminal cases.)
Universal legal care is not only defensible on grounds of equal treatment and fundamental rights, but also on grounds of administrative efficiency.
First, like universal medical care, universal legal care would provide early intervention and preventive services to mitigate higher costs down the road. For example, evidence from other countries shows that early, full-resource investment in complex family matters (e.g., cases involving violence, at-risk children, alcohol or other substance abuse) led to earlier and better resolutions, greater compliance, and lower costs, compared to cases where legal assistance increased as crises escalated.
Second, universal legal care would also provide a simpler gateway to help access appropriate legal services.
The complexity of current legal services delivery models
Since its founding in 1965 until the early 1990s, for a variety of political and historical reasons I will not go into here (for those, see Luz Herrera’s article, cited below), the model for legal aid in the U.S. was that of the salaried poverty lawyer working in a not-for-profit legal aid organization. This model, however, could not meet the demand for legal services.
So, in the last 15 years or so, a great variety of providers and funders began adopting a multiplicity of innovative strategies to respond, in a bottom-up fashion, to unmet needs on the ground. Solo practitioners and small firms looked for new ways to attract clients, overtaxed legal aid lawyers experimented with new ways to offer at least some assistance, trial court judges and administrators created new ways to help self-represented litigants. “Loose networks and collaborations emerged” from this chaos, says Jeanne Charn, but no centralized coordination among all these different services.
As a result, the civil legal aid landscape has become, as Charn puts it, “infinitely more complex, fragmented, and opaque than it was in 1974 when Congress created” the Legal Services Corporation, the largest single funder of legal assistance in the U.S. Our legal delivery system has become a “patchwork delivery system that may offer many choices in a few areas, very few in others, and nothing to most consumers who seek or need help.”
Moreover, individuals need assistance just to navigate this landscape and get the services they need: “Available services are fragmented and inward looking,” and
There is no clear entry point for those seeking help and no menu of options and niche practices that are available. Referrals from legal aid offices are often based on out-of-date information resulting in referral fatigue on the part of consumers.
There is no single coordinated legal services delivery system in the U.S. that clients can easily access and use to learn about their legal and non-legal options.
A system of universal legal care, on the other hand, could provide well-branded (i.e., recognizable, trustworthy) entry points to provide simple information to clients, assess their problems, and direct them to the appropriate services.