When individuals in the United States face civil legal issues, they do not have a constitutional right to legal counsel and therefore must secure paid counsel, proceed pro se, or qualify for free or pro bono legal assistance. The number of Americans who are unable to afford legal counsel is now at an all-time high, and studies have shown that roughly 80% of the civil legal needs of low-income and modest-means Americans go unmet. Because the civil legal system is designed to require an attorney in most, if not all, legal situations, this ever- widening justice gap has sparked a national conversation on access to justice, particularly for those who cannot afford to pay for the legal assistance that they need.
Indeed, a civil access to justice movement has emerged that is insisting, with increasing urgency, that these problems be confronted and solved, not only for the benefit of individuals, families, and communities, but also to promote the stability of the rule of law and of the larger society. As part of and in response to this movement, the National Center for Access to Justice (NCAJ) at Fordham University School of Law created the Justice Index in 2014 with the goal of supporting the expansion of access to justice in state justice systems. The Justice Index, the first online resource of its kind, provides a comprehensive, visual picture of selected best law, rules, and policies for ensuring access to justice across the United States. The Justice Index relies on data-analytics tools to score and rank the fifty states, the District of Columbia, and Puerto Rico on their adoption of these selected best practices, making it easy for advocates to champion, and creating an incentive for state officials to replicate those practices. The Justice Index, in essence, seeks to “ensure that a person’s ability to protect and vindicate her rights in a state justice system does not depend on whether she can afford a lawyer, speak and understand English, or navigate the legal system without an accommodation due to a physical or mental disability.”
In evaluating each jurisdiction’s infrastructure, the Justice Index incorporates indicators that are widely accepted by civil legal aid and public interest organizations, the courts, and experts in the field. The NCAJ chose indicators that it believes address essential elements for expanding access to justice and provide a broader sense of the level of commitment made by each jurisdiction to an accessible legal system. In line with the Conference of Chief Justices and Conference of State Court Administrators’ resolution, which encourages state courts to assure “100 percent access to effective assistance for essential civil legal needs,” the Justice Index sorts its indicators into four key categories: (1) attorney access (the number of lawyers serving low-income communities) (hereinafter referred to as the Attorney Access Index); (2) self-representation (access for people without lawyers); (3) language access (access for people with limited English proficiency); and (5) disability access (access for people with disabilities). Pursuant to its vision, “[t]he laws, rules and policies tracked by the Justice Index represent a critical framework . . . [that jurisdictions should adopt in order] to provide access to justice to their most vulnerable residents.”
However, in evaluating attorney access, the Justice Index has yet to incorporate a critical indicator—pro bono legal services provided by the private bar. Currently, for the Attorney Access Index, the Justice Index relies on a single criterion: the “civil legal aid attorney ratio.” To calculate this ratio, the NCAJ divides “the number of full-time- equivalent civil legal aid attorneys employed in the state by the number of people in the state with incomes at or below 200% of the federal poverty [guidelines].” Incorporating pro bono legal assistance as an indicator within the Attorney Access Index is challenging; largely due to the complexity and inconsistency of data collection across the public interest community, as well as the lack of analysis surrounding the best practices necessary for states to develop a pro bono infrastructure to expand access to justice.
As the NCAJ is embarking on its third rendition of the Justice Index in 2018, now is the time to revise the Attorney Access Index to incorporate not only the “civil legal aid attorney ratio” but also civil Gideon laws and the best practices or best models for developing a strong pro bono infrastructure. As such, this article will explore and evaluate the laws, rules, and policies that some states have adopted and the public interest community has proffered as best practices for promoting pro bono. Such policies include: (1) the adoption of ABA Model Rules 6.1 and 6.5 and ABA Model Code of Judicial Conduct Rule 3.7(B); (2) requiring pro bono service as a condition to becoming licensed for law practice; (3) permitting attorneys who take pro bono cases to earn credit toward mandatory CLE requirements; (4) reporting requirements for pro bono to maintain one’s license to practice; and (5) the waiver of license requirements for law professors, in-house counsel, retired and inactive attorneys, and out- of-state attorneys assisting individuals and families in a state impacted by a disaster. Upon evaluating the strengths and weaknesses of the policies, this article will take a position on which practices or interventions are the most effective and that all jurisdictions should institute as essential elements of a sound pro bono infrastructure; thereby increasing access to justice.