The U.S. Constitution guarantees everyone accused of a crime the right to counsel, but what passes for counsel in many jurisdictions today is a disgrace, says Deborah L. Rhode in her recent book, Access to Justice, Oxford University Press, 2004. In this essay, Rhode examines the reasons for the inequities and suggests several reforms that would go a long way toward fixing the problem.

The ideal of equal justice is deeply embedded in American legal traditions, and routinely violated in daily legal practices. Our nation prides itself on its commitment to the rule of law, but prices it out of reach of the vast majority of its citizens. We have the world’s highest concentration of lawyers, but one of the least accessible systems of legal services. Our Constitution guarantees effective assistance of counsel in criminal cases, but what is held adequate to satisfy that standard is a national disgrace. Court-appointed defense lawyers for the poor are not required to have any experience or expertise in criminal defense; they do not even have to be awake. In civil matters, the law is least available to those who need it most. Primary control over the legal process rests with the legal profession, the very group with the least self-interest in reducing its expense.

At the most fundamental level, the problem involves a mismatch between what the public needs and what the system of justice delivers. Americans generally want legal services and dispute resolution procedures that are fair, efficient, and affordable. For most individuals, the system falls well short. At a minimum, procedural fairness requires opportunities for meaningful participation before a neutral tribunal. That, in turn, typically requires access to some form of competent legal assistance or well-designed self-help process. Those who need but cannot realistically afford lawyers should have opportunities for government-subsidized services. We remain a considerable distance from those goals.

Money may not be the root of all evil in our legal processes, but a lack of money is surely responsible for much of it. Americans do not believe that justice should be for sale, but neither do they want to pay for an adequate alternative. Less than 1 percent of the nation’s expenditures on legal services goes to civil legal assistance for the poor. And less than 3 percent of its law enforcement budget supports indigent legal defense. America spends only about $2.25 per capita on civil legal aid for the one-seventh of its population that is eligible. That funding level is one-sixth to one-fifteenth of that of other countries with comparable legal systems, such as Canada, Australia, and Great Britain. Criminal defense programs average only one-eighth of resources per case available to the prosecution, and their lawyers sometimes must juggle over 700 felony matters a year. The fees available for court- appointed counsel are often capped at ludicrous rates, which in complex cases can easily dip below the minimum wage. In many jurisdictions, adequate preparation is a sure route to financial ruin.

At these funding levels, not much due process is available. More than 90 percent of indigent criminal defendants plead guilty without trial, typically before any significant efforts are made to investigate their cases. Civil legal aid programs operate with similarly crushing caseloads, and state and national bar studies estimate that more than four-fifths of the individual needs of the poor remain unmet. Those estimates do not include millions of Americans of limited means who are above financial eligibility limits but who cannot afford lawyers. Nor do the estimates encompass collective problems that public interest lawyers could help address.

The inadequacy of financial support is compounded by restrictions on the kinds of cases and clients that federally funded programs may handle. Politically vulnerable groups that are most in need of legal assistance are least likely to receive it. Congressional restrictions exclude from coverage matters such as those involving prisoners’ rights, school desegregation, and undocumented aliens. Legal services organizations that receive federal subsidies are also barred from activities such as lobbying, community organizing, or class action litigation. Yet these are the very strategies that are most likely to help poor communities help themselves, and to address the root causes of poverty, rather than its symptoms.

Part of the problem is the lack of public understanding that there is a serious problem. Four-fifths of the public believe, incorrectly, that the poor are entitled to counsel in civil cases. Three-quarters believe that too many defendants get off on technicalities, a view reinforced by celebrity trials and Hollywood screenplays in which zealous advocacy is the norm. But a wide gap remains between law in prime time and law in real time, and most Americans have no realistic sense of what passes for justice among the have-nots. Few defendants “get off” for any reason; felony acquittal rates average less than 5 percent in both state and federal courts.

The prescriptions follow obviously from the diagnosis. The government needs to increase funding for civil and criminal legal assistance and expand the groups that are eligible. Many other countries have systems that could serve as models for reform. Typically, they allocate aid on a sliding scale so that individuals of limited means can receive at least partially subsidized services. Rather than excluding broad categories of unpopular causes and clients, other countries focus on the merits of the claim. Does the individual have a reasonable probability of success? What would be the likely benefits of providing aid and the harm of withholding it? In criminal cases, all jurisdictions should aim for what American bar commissions recommend: reasonable caseloads, compensation structures that permit adequate preparation, and a rough parity of resources between defense and prosecution.

The costs of such a system would scarcely be prohibitive. The annual federal budget for the one-seventh of the population poor enough to qualify for civil legal services is now only $338 million. Tripling that amount would still cost a bit more than $1 billion. For a nation that is spending upward of $120 billion to safeguard the rule of law in Iraq, a modest additional investment in the rule of law at home should not be unthinkable. There are, moreover, ways to expand legal assistance budgets that would be more politically palatable than a general tax increase, such as a surcharge on lawyers’ gross revenues or court filing fees.

Pro Bono Service

More pro bono assistance from the bar would serve similar ends. Although some lawyers are extraordinarily generous, the average estimated pro bono contribution for the profession as a whole is shamefully inadequate: less than half an hour a week and half a dollar a day. Moreover, much of the work that passes for pro bono does not assist the poor. Only about 10 percent of lawyers accept referrals from legal services or bar-sponsored programs for low-income groups. What attorneys define as “pro bono” often ends up benefiting relatives, friends, or clients who fail to pay their bills. The inadequacy of bar involvement in public service reflects a missed opportunity for both the profession and the public. Lawyers’ pro bono work has made a major contribution to every important social justice movement of the last half-century. And attorneys themselves benefit from work that can enhance their skills, contacts, reputation, and public image. The profession could, and should, do much more to promote pro bono service. The most obvious strategy is for bar ethical codes, legal employers, or courts (under their inherent powers) to require some modest contribution in time or money to legal aid or public interest programs. At the very least, these requirements would support the many lawyers who would like more pro bono involvement, but who are in workplaces that fail to provide adequate resources or credit for such work. My own study—relying on a national sample of some 3,000 lawyers graduating from six different law schools—found that the majority were not satisfied with the amount of time that they were able to spend on pro bono activities or were not satisfied with the support or credit that their employers provided for such work.

A less controversial alternative would be to require that lawyers report the contributions that they make to legal aid and public interest causes. Experience to date indicates that such reporting rules have led to modest increases in the resources available to poverty law organizations. Further improvements might result if contribution rates were widely publicized, and if clients, colleagues, and job candidates began paying more visible attention to employers’ pro bono records.

Even without changes in the rules governing pro bono work, a wide range of strategies is available to legal employers and educators to encourage charitable commitment. They can adopt formal policies, impose service requirements, and provide greater resources, rewards, and recognition for pro bono activities. It is a disgrace that most law students graduate without a pro bono legal experience. On issues of public service, the profession can and must do more to translate its public service principles into practice.

Structural Reforms

A second cluster of strategies should focus on structural changes that would improve the functioning of dispute resolution processes and the delivery of legal services. Access to law is not an end in itself; the goal is justice, and representation by lawyers or reliance on court proceedings as traditionally structured are not always the most effective way of addressing legal concerns.

One priority should be the redesign of judicial processes to reduce costs and increase accessibility. In most states, small claims courts are too limited in jurisdiction, hours, location, and enforcement power, and assistance for self-represented litigants in these and other proceedings is inadequate at best. The tort system is inconsistent and inefficient. Relatively few accident victims can afford it, and, according to studies by the Rand Institute for Civil Justice, 50 to 60 percent of the payouts by defendant insurance companies end up com- pensating lawyers. In other contexts, particularly those involving families and petty offenses, over- burdened trial courts lack the time, resources, and remedial options to address the underlying problems. Alternative models are readily available. Promising innovations include: automated document preparation and personalized pro se services; simplified forms and procedures; evening hours and community sites for hearings and legal assistance; expanded jurisdiction for small claims courts; no-fault compensation for certain specialized areas; and collaborative problem-solving tribunals that partner with other social service providers.

Comparable innovations are necessary for the delivery of legal services. In essence, Americans need a wider range of choices in law-related assistance and better regulation of the choices that are available. Less protection should be available for the professional monopoly and more for individual consumers. Sweeping prohibitions on the unauthorized practice of law and multidisciplinary partnerships (MDPs) should be replaced with more narrowly tailored ethical rules and regulatory structures. A wide array of research concerning the performance of lay experts here and abroad makes clear that they typically can provide at least as effective routine services as attorneys. Consumers need protection, but states could meet this need through appropriate ethical standards, licensing requirements, and proactive enforcement systems.

Accountability

A final set of strategies should focus on increasing the accountability of the legal profession and the legal process. More oversight is necessary both for individual lawyers and for the systems that structure their services. Courts and bar disciplinary agencies should impose more frequent and significant sanctions for frivolous claims, excessive fees, and incompetent representation. National data banks should provide ready access to information about such sanctions and other performance-related factors. Standards governing ineffective assistance of counsel in criminal cases also must be strengthened. It is appalling that courts allow cases to proceed and convictions to stand when counsel are drunk, dozing, or demonstrably ignorant of the relevant law or facts.

Courts and legislatures must also assume greater responsibility to ensure adequate legal services for the poor. In civil cases, courts should be more willing to appoint counsel or strike down eligibility restrictions where fundamental rights and substantial due process concerns are at issue. In criminal cases, courts should demand a funding structure that ensures adequate compensation and resources for indigent defense lawyers, and an independent oversight body to monitor their qualifications and performance.

Finally, government funders, bar associations, legal service providers, and academic researchers should all join forces in compiling greater information concerning access to justice. We need to know more about the effectiveness of specific strategies, and we need to do more to educate lawyers and the public about how the justice system functions, or fails to function, for the have-nots. 

The stakes in this reform agenda are substantial. Public dissatisfaction with lawyers and legal processes is increasingly visible, and public image ranks high among the bar’s own concerns. At last count, a Google search recorded some 800,000 results under “legal humor,” and the frequently unflattering content of those underscores the need for reform. Our aspirations for an equitable legal system are deeply rooted in American ideals. “Equal justice under law” is what we pledge on courthouse doors. It should also describe what goes on inside them.

This article is based on an essay that first appeared in the December issue of The American Lawyer.