About two percent of small law practices in the United States are in small towns and rural areas, a figure greatly disproportionate to the nearly twenty percent of the population living in those places. This mismatch leaves many rural legal needs unmet. In 2013, responding to the well-documented lawyer shortage in the upper Great Plains, South Dakota became the first state to offer subsidies to lawyers who practice in rural areas through a program called Project Rural Practice.
This article takes the opportunity invited by Project Rural Practice--and this symposium issue about it--to discuss a range of access to justice issues in rural places. Those providing rural legal services face challenges, of course, the most obvious being the struggle for economic viability, along with others generally associated with small firms and solo practice. Rural lawyers also face socio-spatial barriers to professional development and networking opportunities, and the lack of anonymity associated with rural places creates both ethical and economic conflicts of interest. Beyond the challenges facing rural lawyers, we recognize that individuals residing in rural America encounter obstacles to seeking legal services. These obstacles include affordability, confidentiality, and even inability to actually get to courthouses and other legal institutions and actors. Compounding matters, rural denizens are associated with an ethic of law avoidance. Persistently high poverty rates in rural America aggravate the challenge because poor people are less likely to have their legal needs met, wherever they live.
We situate our discussion of rural legal practice within the larger body of access to justice scholarship. While we recognize Project Rural Practice as a strong step in support of rural legal practice, and therefore in support of rural communities, we argue that it should be supplemented by programs aimed at helping those least likely to get the legal assistance they need, especially low-income and other vulnerable populations. We also advocate additional supports for lawyers willing to provide such assistance. Among other issues, we discuss the roles that paralegals, technology, and the broader social-service non-profit community can play in responding to rural legal needs. We pay particular attention to pro bono publico in the rural context. Lastly, our article includes a modest comparative component, surveying available information about rural lawyering and access to justice in other nations, most notably Canada and Australia.
We conclude that achieving robust access to justice requires the attention and effort of an entire community. Enabling access to justice should include partnerships with a wide array of service providers who can meet non-legal needs while also helping those confronting problems to identify when legal assistance could be of use. Given the dearth of rural lawyers, the surfeit of urban lawyers, and the preference of many attorneys to deliver pro bono services away from their usual practice settings, we also see collaboration among lawyers across and along the rural-urban continuum as critical pieces of the rural access to justice puzzle. We believe not only that these myriad collaborations can help rural residents get the legal assistance they need to solve their most pressing problems, but that the collaborations also hold promise for ameliorating the structural deficits that afflict entire rural communities.
INTRODUCTION II. THE RURAL LAWSCAPE: SPACE, ECONOMY, SOCIETY A. MATERIAL SPATIALITY B. THE SOCIAL IMPLICATIONS OF RURAL SPATIALITY: BY YOURSELF, KNOWN TO ALL C. ECONOMIC AND ETHICAL CONFLICTS OF INTEREST D. INFORMAL ORDER E. THE RURAL DATA SHORTAGE AND NATIONAL NEGLECT OF RURAL AMERICA F. THE RURAL JUSTICE NEED G. SUMMARY III. ACCESS TO JUSTICE: A PROBLEM ONLY A COMMUNITY CAN SOLVE A. A "THICKER" CONCEPTION OF ACCESS TO JUSTICE B. LEGAL SERVICES CORPORATION: LIMITED FUNDING FOR A GREAT NEED C. THINKING OUTSIDE THE (LEGAL) BOX: USING EXISTING AND INNOVATIVE RESOURCES TO MEET RURAL LEGAL NEEDS 1. Using Technology and Transportation to Bridge Distance 2. The Pro Se Solution: Enabling Individuals to Help Themselves 3. Local Tribunals for When Courts are Fewer and Farther Away D. SUMMARY IV. THE PROMISE OF PRO BONO: RELYING ON ATTORNEY ALTRUISM TO MEET GROWING NEEDS A. MODEL RULE 61: DIFFERENTIATING BETWEEN FREE AND REDUCED-PRO BONO B. PRACTICE SIZE AND SETTING INFLUENCE PRO BONO PROVISION C. PRO BONO ACROSS THE RURAL-URBAN AXIS D. THE NEED FOR RURAL-URBAN PARTNERSHIPS V. AN INTEGRATED ACCESS TO JUSTICE: FOSTERING A CULTURE OF SERVICE AND A ROLE FOR THE COMMUNITY VI. CONCLUDING THOUGHTS I. INTRODUCTION
[G]eography is destiny: the services available to people from eligible populations who face civil justice problems are determined not by what their problems are or the kinds of services they may need, but rather by where they happen to live. (1)
Access Across America, First Report of the Civil Justice Mapping Project, 2011
Struggles for "access to justice" are pervasive across the United States, but rural Americans face particular challenges to accessing lawyers and courts, and generally to getting legal needs met. Ethan Bronner, writing for the New York Times in April 2013, observed that "[r]ural Americans are increasingly without lawyers even as law school graduates are increasingly without jobs." (2) Bronner reported that sixty-five percent of South Dakota's lawyers live in urban areas. (3) Indeed, as of the spring of 2014, twenty-five South Dakota counties had three or fewer attorneys, and six had no attorney at all. (4) Other states face a similar problem: in Georgia, seventy percent of attorneys practice in the Atlanta area; in Texas, eighty-three percent practice in and around the largest cities; and in Arizona, an astonishing ninety-four percent practice in just Maricopa and Pima counties, the state's population behemoths. (5) Nationally, just two percent of small law practices are in rural America, (6) representing a serious mismatch for the roughly twenty percent of the populace who live there. (7)
Responding to this problem, the South Dakota legislature took an unprecedented step in 2013 and enacted the Attorney Recruitment Assistance Pilot Program, (8) commonly known as Project Rural Practice. (9) The law offers subsidies to attorneys who agree to work in a rural area, defined as a county with a population of 10,000 or less. (10) Any participating county must provide thirty-five percent of the total incentive payment. (11) All attorneys licensed in South Dakota are eligible to participate, but a five-year commitment to practice in an eligible county is required. (12) Only sixteen attorneys (and therefore up to sixteen counties) may participate at one time. (13) The incentive payment is made in five equal annual installments, each valued at ninety percent of the University of South Dakota School of Law's tuition as of July 1, 2013. (14)
Project Rural Practice is a strong step toward helping South Dakota's rural residents get access to a lawyer, and it is one model for affording some 59 million rural Americans (15) the same opportunity. But the lawyer shortage in rural America has many causes and many consequences, and what works in South Dakota may not work elsewhere. We are unable to address all of the causes or implications of the rural lawyer shortage in this overview article, but we take this opportunity to acknowledge some of the web of issues associated with the dearth of lawyers serving rural America. In particular, we discuss at length below the consequences of the lawyer shortage for the most vulnerable populations: the elderly, disabled, veterans, children, and the poor.
Among the reasons that newly-minted lawyers might be reluctant to practice in rural America is skyrocketing law school tuition, an increasing constraint on the employment options of recent law graduates. (16) Further, law schools are increasingly under fire for failing to produce practice-ready graduates, (17) and they presumably could do more to inculcate an ethic of service in their students. (18) These factors pose particular problems in rural areas, where the dominant practice types are solo practitioners and small firms that may struggle to provide adequate training, mentoring, and oversight of young lawyers. (19) Lacking both the financial wherewithal and the practical legal skills to hang out the proverbial shingle, highly leveraged law graduates may seek large-firm experience and salaries as their only apparent choice, which necessarily places them in metropolitan areas. (20) Beyond these obvious reasons for the shortage of rural lawyers, hard data and empirical studies are needed to inform evidence-based solutions to this problem. (21)
While our focus is the consequences of the rural lawyer shortage for vulnerable populations, the shortage affects entire rural communities, as by hindering economic development. (22) That is, the missing lawyers could serve not only the needs of individual clients, but also those of local entities, both public and private, while providing the sort of human and social capital that helps communities innovate and flourish. (23) As a related matter, the absence of local lawyers may mean that public officials and public entities unwittingly run afoul of the law, failing to comply with norms of transparency and good governance. Such failures of checks and balances within and among public institutions may infringe civil liberties, and the resulting mistakes can be costly for local government entities to remedy. (24) Lastly, the rural lawyer shortage means that local dollars are diverted from the local community as rural residents and entities hire lawyers from metropolitan areas to meet their legal needs. (25) Project Rural Practice implicitly recognizes this range of issues by valuing all that lawyers can bring to their communities.
While Project Rural Practice's approach to increasing rural...