More people are showing up in civil court in Arkansas to resolve critical issues - child custody, contested divorces, home foreclosures - without the help of lawyers.
And when Arkansans go to court alone, they rarely win, according to surveys of the state’s circuit judges.
That leaves poor or middle-class people who can’t afford lawyers without the same access to justice as those who can pay, experts say.
“I think it’s a crisis,” said Amy Johnson, executive director of the Arkansas Access to Justice Commission.
“What starts as one legal issue often snowballs for people who don’t have the resources to pay for an attorney. They end up having their home foreclosed because of a paperwork error. Their credit goes bad. It becomes a life-altering event,” Johnson said.
Created by the Arkansas Supreme Court in 2003, the Little Rock-based Access to Justice Commission focuses on civil cases because the state already supplies attorneys for indigent residents charged in criminal felony cases. The state has no similar mandate for civil cases.
Arkansas’ legal rules also aren’t as friendly as some other states’ systems toward people who try to represent themselves, said Lee Richardson, executive director of Legal Aid of Arkansas, a nonprofit that helps provide legal services in civil courts to low-income residents in northern and eastern Arkansas.
Assistance “has been done elsewhere,” Richardson said. In California, “at least 75 percent of family-law cases have one side going to court without an attorney,” he said. That state provides help to people who represent themselves, including free legal information in and out of court.
The access issue troubles judges, as well.
People who represent themselves in court “are held to the same standard as an attorney,” said 1st Circuit Judge Kathleen Bell of Helena-West Helena. “But for the most part, they do not know the rules.”
That makes those proceedings frustrating, she said, because judges aren’t allowed to actively aid either side in presenting its case.
The problem is most acute in Arkansas’ poorest, most rural counties, which have the fewest lawyers per person.
“I know I’ve seen statistics that say we have fewer lawyers for our population,” Bell said. “It does make it difficult for people over here, especially when you take into account a lack of transportation so you can’t go out of the area.”
A 2012 study by the Access to Justice Commission found that almost every family-law case in Pulaski, Cleburne and St. Francis counties involved at least one side without legal representation.
“Four in 10 family-law matters were initiated by a person without an attorney, and nine in 10 did not have an attorney defending the matter,” the study said.
In another 2012 survey, 84 percent of Arkansas circuit judges who responded said they were seeing “an increase in the number of people representing themselves” in civil court. Eighty percent of those judges said people who represent themselves rarely win.
“There have been times [self-represented plaintiffs or defendants] prevailed, but very, very seldom,” one judge wrote.
The two agencies that provide civil court help and representation to poor Arkansans - Legal Aid of Arkansas and the Center for Arkansas Legal Services - don’t have enough staffing and funding to serve everyone who qualifies. And they are set up to serve only the poorest residents, those at or under 125 percent of the federal poverty level. That’s a family of four earning about $29,800 or less, according to 2014 federal guidelines.
“The two programs get about 30,000 calls a year combined,” Johnson said. “About half are turned away and have no other source of help, unless they can find an attorney to represent them pro bono [for free].”
The issue extends beyond the state’s poorest. About half of Arkansans qualify as low-income or fall into what experts call the “justice gap” - those who earn more than the eligibility standards for legal aid, but still can’t afford an attorney’s usual charges, Johnson said.
A new study, still in draft form, shows Arkansas’ most rural and high-poverty counties are home to far fewer lawyers per capita than state and national averages.
Arkansas’ 25 most-rural counties average fewer than 1 lawyer per 1,000 residents, according to the study by Little Rock lawyer Cliff McKinney II, chairman of the Young Lawyers Section of the Arkansas Bar Association. That compares with 2.04 attorneys per 1,000 resident on average across Arkansas, which has one of the lowest concentrations of lawyers in the U.S. Nationally, the average is 4.11.
Seven of the most-rural counties have fewer than 0.5 attorney per 1,000 residents.
When attorneys are more plentiful, poor and even middle-class people can benefit, experts say. More lawyers are available to do work for free for low-income clients. Arkansas lawyers reported providing more than 100,000 free hours to low-income clients in 2011, the most recent data available.
Attorneys also can offer limited services at a discount to those who can’t pay regular fees that average about $200 an hour across the state. And more attorneys mean fewer conflicts of interest, where lawyers have to disqualify themselves from a case, whether paid or pro bono, because they have close relationships with other parties involved.
“I’ve heard anecdotally from people who are concerned because there aren’t enough attorneys in Arkansas’ rural areas and those who are there are aging,” said McKinney.
“At the same time, I’ve heard from younger lawyers trying to find jobs.”
McKinney, a real estate and business transactions lawyer at the Quattlebaum Grooms Tull and Burrow firm in Little Rock, undertook the study to see the scope of the issue, and where opportunities might lie.
Any lawyer shortage in Arkansas’ rural areas could get worse before it improves because both of the state’s law schools - like many others nationwide - report that applications and enrollments are down dramatically in the past two years.
The University of Arkansas at Fayetteville School of Law enrolled 112 first-year law students in 2013, compared with 139 in 2009. The W. H. Bowen School of Law in Little Rock enrolled 139 last fall, down from 161 four years earlier.
The apparent ages of lawyers listed in rural counties was another “disturbing trend,” according to McKinney. The Supreme Court data don’t include lawyers’ birth dates, but do show the dates they were licensed in Arkansas.
About 19 percent of attorneys listed in the state’s 25 most-rural counties have license dates that suggest they are age 65 or older, the study found. Arkansas overall has about 15 percent of lawyers at that age, the U.S. about 14 percent.
The “dramatically low” attorney-to-population rate in rural areas and the aging population of lawyers, “to me, is sad,” McKinney said. “It doesn’t seem like we’re replacing them. I’m afraid the situation is going to get worse with time if nothing is done to correct it.”
The Arkansas Access to Justice Commission has a grant from the American Bar Association to help attorneys offer what they call Limited Scope Representation to clients at lower costs. That concept involves lawyers who help people who plan to represent themselves in civil court, by offering advice on document preparation and other issues.
“It’s a major initiative we’re undertaking now,” Johnson said. “Other states have implemented it. It’s a way for folks who might not have access to an attorney to be able to get and pay for the services they need.”
Other ideas are getting scrutiny as well.
McKinney talked about programs in Arkansas and other states that help doctors and veterinarians repay their college loans if they live in rural areas for a certain number of years.
“Why not lawyers?” he asked.
South Dakota recently enacted a program to pay about $13,000 a year - or about 90 percent of tuition and fees at the University of South Dakota School of Law - for five years to attorneys who practice in rural areas.
“We’re not the only rural state looking at this issue,” McKinney said.
McKinney said he considers himself generally conservative economically. But the findings of his study so far have led him to think that “sometimes, the government has to step in when market conditions leave a population under served.
“We are a civil society, fundamentally built on rules and laws. The consequences are people need lawyers to help them through problems. Without legal help, a person trying to take care of their own affairs runs great risks. They could lose child custody, child support because they didn’t have someone to advocate for them to protect those rights.”
Front Section, Pages 1 on 03/16/2014