Planting the seeds and getting into the field: the role of law schools in ensuring access to justice in rural communities.

• Author: Runge, Robin
• Position: Project Rural Practice Symposium

Public law schools in rural states have a strong incentive to undertake curricular changes and activities that will encourage students to enter rural practice. Each state has a duty to ensure its residents have access to justice no matter where they live. By encouraging law students to enter rural practice, law schools can work toward ensuring each person's legal rights are protected. This article provides a description of the challenges law schools face in encouraging current students and alumni to consider practicing law in rural communities and provides detailed suggestions for overcoming them.

1. INTRODUCTION

   Legal education suffers from a lack of awareness and knowledge of the rural experience. (1) Law students and scholars focus less on rural perspectives and challenges than on their urban and suburban counterparts. (2) This lack of interest correspondingly affects the level of legal service provided to rural areas in the United States. (3) We have witnessed first-hand--as lawyers and professors of the legal academy at the University of North Dakota School of Law ("UND")--the access to justice issues faced by residents living in rural areas and the challenges faced by law schools trying to address them. From the North, we have witnessed South Dakota pass legislation to encourage new and experienced attorneys to move to more rural communities in the state to provide much needed access to justice and establish long-standing community ties. UND, like the University of South Dakota, is the only law school in the state and has increasingly attracted students from outside of the state because of the opportunity to gain a good education at a much discounted price in a community where the cost of living is low. The challenge UND faces is preparing and encouraging a higher percentage of graduates to stay in the state and replace retiring attorneys in smaller communities. This article will discuss the problem, including the layers of challenges facing rural communities without access to justice, and propose concrete and specific ways that law schools can effectively meet these challenges.

2. THE PROBLEM: ACCESS TO JUSTICE & PERCEIVED CHALLENGES

   1. ACCESS TO JUSTICE

      We have a crisis. As of 2013, North Dakota had 1,560 active, resident attorneys and an estimated population of 723,393. (4) South Dakota had 1,905 active, resident attorneys and an estimated population of 844,877. (5) Wyoming had 1,681 and Montana 3,046 active, resident attorneys and estimated populations of 582,658 and 1,015,165 respectively. (6) There is an average of only 1.3 lawyers for every 1,000 people in rural areas of North Dakota. (7) Recently, the Nebraska State Bar Association reported that "12 counties in the state have no lawyers," leading individuals who need a lawyer to have to travel up to 200 miles to find one. (8) Although the overall number of attorneys in North Dakota has been increasing in recent years, the attorneys are not equally dispersed across the state. Most of them are living in metropolitan areas leaving large sections of the state without access to justice. Of the 357 towns in North Dakota, the North Dakota Supreme Court reports that only eighty-five have an attorney. (9) According to the Rural Lawyer, "the human population of North Dakota tends to be spread a bit thin, but when 21 counties have fewer than 4 attorneys (4 counties have no lawyers, 8 counties only have 1), access to justice is problematic and a lawyer's retirement can have far-reaching consequences." (10) Attorneys in South Dakota are in a similar situation. As of 2011, sixty-five percent of South Dakota's attorneys were located in four cities: Aberdeen, Pierre, Rapid City, and Sioux Falls. (11) The State Bar of South Dakota has stated that six counties have no attorneys and nineteen have around one to three each. (12)

      The access to justice problem caused by the decreasing number of rural attorneys is exacerbated by the increasing average age of attorneys. In 2005, the median age of attorneys had increased nationwide to forty-nine years old. (13) The particular challenge facing rural communities is that the few attorneys who live in the area are aging out of the profession without identified replacements. In South Dakota and North Dakota, small communities with one or two attorneys face a crisis when their local attorneys retire, but this problem is not unique to the Dakotas. (14) In Minnesota, as of 2010, it was predicted that a high percentage of attorneys would retire from the practice of law in rural areas over the next ten years. (15) In Iowa, more than 100 small-town attorneys approach retirement age and have not identified successors. (16)

      The lack of access to legal advice and counsel in civil and criminal arenas has significant repercussions, including the possible violation of state and federal law. (17) As Chief Justice of the North Dakota Supreme Court Gerald VandeWalle notes, a lack of an attorney may lead to family property being lost. (18) It means people with disabilities go without access to public benefits or employment. Without adequate access to legal assistance, individuals living in rural areas face risk of eviction. (19) Victims of domestic violence living in rural areas are more often seriously injured and have fewer services available. (20) Research has indicated that in situations with a known lack of access to justice, those in positions of power use the lack of a rule of law to exploit vulnerable populations. (21)

      The lack of attorneys living in rural communities has a disproportionate impact on the poor. The lack of attorneys in rural areas means low-income individuals in those communities are more likely to be deprived of legal information and assistance meant to ensure access to the population's most basic needs. Rural America is disproportionately poor. In 2012, 46.5 million people lived in poverty, defined as a family of four with an income of $23,850 or less, in the United States. (22) This represents fifteen percent of the total population. (23) The rate of poverty in rural communities is 17.7 percent in contrast to 14.5 percent in urban areas. (24) Of the 353 most continuously impoverished counties in the U.S., eighty-five percent of them are rural. (25) In states like New Mexico and North Dakota, poverty intersects with race, resulting in even higher poverty rates in counties where Native Americans and Hispanics make up much of the rural population. (26) A lack of legal resources impacts individuals living in poverty in rural communities more heavily because they do not have the resources to travel to larger communities and pay private attorneys employed by large law firms. Although each state has a non-profit legal assistance organization that receives federal finding to provide free legal services to the poor, their offices and attorneys are primarily based in the urban communities in the states. (27)

      In addition to a lack of access to civil attorneys, the lack of public defenders in rural areas of the U.S. has a drastic impact on basic constitutional rights. In these rural states, the nearest public defender or prosecutor may be hundreds of miles away. This leads to possible violations of the U.S. Constitution. (28) Individuals charged with a crime may not be represented by an attorney or may be represented by attorneys who are unfamiliar with criminal law. (29) Judges may be forced to delay proceedings until a public defender is available. Because of the problems caused by a lack of attorneys in rural areas, it is in the best interest of the state government, the state bar, and law schools to come together and address this crisis to ensure rural residents have equal access to justice

   2. PERCEIVED CHALLENGES

      There are several challenges in encouraging new law school graduates or any attorney to move to a rural community to practice law. Metropolitan areas are perceived to offer better opportunities and lifestyles, especially to new law school graduates. Concerns about isolation and insufficient opportunities to make money to pay back increasing debt from law school loans are often cited as reasons why attorneys do not consider moving to smaller communities. (30) Recent graduates may also feel ill equipped to start their own practice and move to a community where they do not know anyone. When young lawyers start a new practice on their own, they face a higher risk of committing malpractice. Finally, even if young lawyers start practicing in rural areas, they may not stay once an initial investment is made. (31)

      These problems may stem from, and be compounded by, a lack of awareness or information about what it is like to live and work in a rural area. For example, law students may not realize that residents in rural communities need help with estate planning, including large amounts of farm land that may be very valuable, contracts, and legal advice on how to run a farm business. In addition, these communities have professionals including teachers, doctors, and bankers who need legal advice and representation. (32) These individuals are more comfortable being represented by someone local, who knows their community, than a big name from a city miles away. Finally, law students may not recognize rural practice is an opportunity to work in public interest law because rural attorneys ensure equal access to justice for low-income community members.

      Attorneys practicing in rural area are best equipped to educate law students about the practice of rural law, however, it is often difficult to convince them to hire a law student as a summer law clerk. Not all rural attorneys want to serve as mentors to law students who may just looking for a job in a bad economy, rather than an opportunity to explore a possible career option. Moreover, the time and cost of mentoring a law student places a financial burden on a solo, rural practice that cannot be absorbed in the same way a large firm in an urban area might...