How National Licensing Could Help Close the Justice Gap

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There are approximately two million eligible legal aid clients left without the help of an attorney, and one in five legal problems for people above the poverty threshold left unaddressed. The Brennan Center estimates that 80% of low-income people face a barrier to accessing the civil court system.

There is a lot of support in the legal community for the Uniform Bar Exam as a way of expanding the job market for new graduates and attorneys in general. And as a side effect, a more mobile legal workforce could be one piece of the puzzle when it comes to narrowing the justice gap.

The Lack of Rural Legal Services

One of the significant hurdles in providing access to the justice system is the extremely overburdened Legal Aid system. The Legal Services Corporation (LSC), with is essentially a parent organization to local Legal Aids, has been given only $400 million in funding by Congress. When that number is adjusted for inflation, it is half of the rate of funding that LSC had in the early 1980’s.

A recent article in the ABA Journal on access to legal services in rural America noted that “Nearly 20 percent of Americans live in rural areas, but the New York Times says just 2 percent of small law practices are in those areas. “ Census data shows that rural communities have lower incomes than their urban counterparts, and a disproportionate number of residents meet the definition of working poor. In Nebraska, twenty counties have fewer than four lawyers, and twelve out of the state’s ninety-three counties have no lawyers at all.

In Georgia, 70% of the state’s lawyers are concentrated in the Atlanta area. Six counties in Georgia have no attorneys at all, according to state bar association records, and 26 counties have fewer than five attorneys practicing there.

In Maine, lawyers who are aged 60 or older make up more than half of current practitioners, many of whom are understandably looking towards retirement.

For lower income or poor families, saving up for an attorney to help them with a child custody or estate planning matter might be possible, but taking time off and finding the resources to travel hours away from home to actually obtain those services is not within their reach.

In fact, a recent study from the LSC found that less than one in five of the legal problems experienced by low-income people were addressed by a private or legal aid attorney. This is not a surprise, considering that there is only one attorney providing personal legal services for every 429 people who are above the LSC poverty threshold.

How States are Solving Lawyer Mobility Issues

What if states and counties could reach beyond their borders and find underemployed graduates from other states looking to make a difference in a local community?

Just under 60% of the class of 2014 is currently employed in long-term jobs where bar passage is required, according to the most recent statistics from the American Bar Association. Just under 10% are unemployed, and 3.6% are working at jobs funded by their law schools. In terms of sheer numbers, this is a conservative total of about 5,800 newly minted attorneys who are not working in a role that provides legal services to the public. This doesn’t even take into account those employed at private businesses, in government jobs, in education, or other fields where a J.D. may be preferred but bar passage is not required.

If new attorneys in any state had the ability to easily transfer a law license, he or she could expand their job search and seek out programs or opportunities that suit their needs and aspirations — regardless of the location. In turn, this could help fill voids in areas lacking in local law resources.

It is clear that there is an opportunity here to match up low-and middle-income households to attorneys who need to find work, build their experience, or are interested in starting their practices.

This recent study by Good Call shows that smaller markets can be much better places for lawyers to live than big cities from an income and housing affordability standpoint.

Paying to Relocate Lawyers

South Dakota is leading the charge on relocating new attorneys to under-served communities by offering a stipend of $12,000 per year for five years. This number is meant to nearly cover the cost of attending their local university’s law school, which should be a tempting offer for hundreds of newly licensed attorneys looking for an opportunity to make an impact. Yet this program has a modest goal of recruiting only 17 attorneys by the year 2017.

Adopting the Uniform Bar Exam

The Uniform Bar Exam is a nationalized test with a portable score to all of the states that have adopted the test. While the UBE is not a nationally portable law license, it is an opportunity to apply for admission without having to sit for an additional full bar exam.

Sixteen states, most recently including New York, have now adopted the test. States still conduct their own character and fitness evaluation, and most require a shorter, less burdensome local education requirement. States also set their own passing score, which means test takers may not be certified for admission in the state they took the exam but could qualify elsewhere without retaking it.

Is It Working?

At the present, there is a limited amount of data about movement and admission to other states via the UBE. The National Conference of Bar Examiners has two years of data collection for the states that have adopted it, and what is available so far does show some movement. Over the past two years, Idaho has seen transfer admissions from the UBE more than double (from ten to twenty-four). In Minnesota, a similar jump occurred between the first and second year of UBE availability, from seventeen new admissions to forty-eight. States like Arizona, Colorado, and Missouri all post modest numbers with a large factorial increase, suggesting the start of a possible upward trend as the UBE gains momentum.

So What’s Holding Back National Licensing?

State-by-state licensing requirements were explicitly put in place for the purpose of consumer protection so anyone who hires a licensed attorney in his or her state can be promised a basic level of competency. However, it is widely acknowledged that the situation has devolved into a protectionist movement. In a 2014 Florida bar survey, seventy-seven percent of current bar members would want to qualify for an out-of-state bar without sitting for another exam, but only 61% supported extending that to attorneys from other states interested in licensing in Florida.

States that are still resisting or evaluating the possibility of adopting the UBE seem to have a few general categories of concern. The first is competition in the legal job market. The second is whether UBE takers would be adequately familiar with state law.

As a profession, there are several other ways we already address competency issues. First and foremost is Rule 1, adopted in some form by nearly every state: “A lawyer shall provide competent representation to a client.” This means a lawyer can be investigated, suspended, and possibly disbarred for failing to meet a basic reasonable-competency standard as viewed by their peers.

Second, we have continuing legal education. Although it is my opinion that CLEs should be further nationalized, the basic premise of completing seminars on relevant topic areas each year helps attorneys stay on their toes and protects consumers from out of practice and out-of-touch legal services. CLEs are also a fantastic opportunity to get to know a local community of similar practitioners, which helps many solo attorneys and small firms pool resources and knowledge in a way that ultimately helps clients.

One of the other main objections to the UBE is that it is not universal enough and doesn’t go far enough in pushing national licensing and ease of transfer. Some critics go further, arguing that testing as a whole is an outmoded method of evaluation.

The UBE is clearly not a perfect fix and probably is not the solution to all of problems in the legal industry. But an incremental move towards a more nationalized licensing process may be an important piece of the puzzle in pairing qualified, passionate attorneys with currently underserved clients who need their help.

Featured image: “businessman in a predicament balancing on a tightrope” from Shutterstock.

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  • I personally agree national licensing makes sense. Both for the reasons you identified plus our ability as lawyers to compete internationally.

  • wesleyfew

    How does a farmer in rural SC or GA or MS benefit by having counsel in Kansas that he or she never meets and never knows and who knows nothing of our state’s local rules and customs? The premise of Access to Justice is a problem. The suggested solution would be a disaster.

    • What does your license have to do with your knowledge of your state’s local rules and customs? I didn’t learn anything about my state’s weirdly conflicting rules on motion timelines from the bar exam. I learned that from handling cases in my jurisdiction.

      If you moved to SC or GA or MS, would you retain the knowledge of your state’s local rules and customs that you acquired while you lived and worked there?

      Is it at least conceivable that someone could become competent in another state’s laws even if they rarely or never go there? Especially since they’re all online.

      Nobody is suggesting we do away with the duty of competence. But it’s certainly possible to be competent to practice in another state even if you don’t live there.

  • Malby

    What is the “justice gap” and how is it determined? By organizations with a vested interest in the subject?

    • The justice gap, more commonly referred to the access-to-justice gap, is made up of those who are ineligible or unable to obtain free legal services but cannot afford to hire a lawyer.

      I went into some more detail in this post. There aren’t great numbers, but a third to a half of American households is probably about right (maybe even a bit low).

      Who has a vested interest? The entire legal industry, for one. Everyone serves to benefit if we find a way to get quality, affordable legal services to those in the gap, because almost nobody is doing that now.

  • angela l

    Seems like this system could benefit all, if in addition to sitting for a uniform bar, attorneys new to a state had an internship of some sort with a practicing attorney in that state. Not sure how practical that would be, but nothing teaches like doing.