Rural incentive programs for legal and medical professionals: a comparative analysis.

• Author: Alsgaard, Hannah
• Position: Project Rural Practice Symposium

1. INTRODUCTION

   In 2013, South Dakota became the first state to enact legislation establishing an incentive program for attorneys who agree to practice in rural areas. (1) That legislation is Project Rural Practice and establishes "a pilot program to assist rural counties in recruiting attorneys." Project Rural Practice has already had success. Within five months, Project Rural Practice placed its first lawyer in a rural community. (3) Even though there are more lawyers than legal jobs in the United States, (4) many rural areas of the country do not have sufficient lawyers. (5) Lawyers are incredibly important in rural communities, and there are definite harms to communities and individuals when lawyers are not available. (6) Inspired by Project Rural Practice, The South Dakota Law Review has taken on the project of hosting a symposium discussing the rapidly declining number of attorneys in rural areas across the nation and what can be done to confront the shortage. (7) This symposium is particularly important because of a general lack of academic research into rural access to justice. (8) The academic study of legal systems tends to neglect rural courts and lawyers. (9) This symposium thus fills a niche in existing scholarship--access to justice in rural America.

   In contribution to the Project Rural Practice symposium, this piece engages in a comparative analysis of incentive programs for medical and legal professionals in rural areas, specifically focusing on South Dakota. The storied history of incentive programs for rural medical professionals lends background knowledge and experience to a project that is simply unprecedented in the legal community. (10) For many reasons, it is natural to compare rural incentives for lawyers to rural incentives for medical professionals, and many have done so. South Dakota Senator Mike Vehle explained Project Rural Practice by saying, "South Dakota has enough attorneys--they're just not in the right locations. We [provide incentives] for doctors, dentists and nurses, so why not lawyers?" (11) Chief Justice David Gilbertson of the South Dakota Supreme Court noted, "A hospital will not last long with no doctors, and a courthouse and judicial system with no lawyers faces the same grim future." (12) The current American Bar Association ("ABA") president discussed how Project Rural Practice "is being compared to similar programs designed to attract doctors, nurses and dentists to rural areas." (13) While many mention Project Rural Practice in comparison to incentive programs for medical professionals, as of yet no in-depth comparison has been published. This piece seeks to fill that gap.

   Before comparing programs, a discussion of what professional services mean for rural communities is in order. Thus, Part II is a discussion of rural access to justice and how the lack of lawyers and legal communities harms rural areas. Part III moves to the medical profession and examines the various policies that the South Dakota State Medical Association and the University of South Dakota ("USD") Sanford School of Medicine have used over a number of years to incentivize medical professionals to practice in rural areas, focusing on the current system. A discussion of rural access to legal professionals in South Dakota would not be complete without a discussion of Indian Country. (14) Therefore, Part IV of this piece turns to an examination of the services provided by the Indian Health Service ("IHS") and how IHS brings medical professionals to rural reservation communities. The medical services provided by IHS are starkly contrasted against a nearly absolute lack of law-trained court personnel in many tribal courts. Whereas the United States Federal Government provides health care on reservations, the Federal Government also has allowed, perhaps even incentivized, the lack of law-trained personnel in tribal courts. This piece not only compares the current state of medical and legal access on rural reservations, but also demonstrates how Project Rural Practice is critical to all of rural South Dakota, even, if not particularly, Indian Country.

   Moving beyond a mere examination of these practices, Part V compares the types of incentives that have been and are being used for medical professionals with Project Rural Practice. Certainly, there are differences in medical and legal practice; however, it is helpful for a discussion of Project Rural Practice to understand how young medical professionals have been incentivized to practice in rural communities over a number of years. This article argues rural legal access is critical to rural communities, just as is rural medical access. In examining the types of services necessary for rural communities--medical, psychiatric, and legal, to name a few--it is clear legal services are necessary for rural communities. Thus, this piece concludes the strong historical precedent of incentives for medical professionals to practice in rural areas is instructive for Project Rural Practice, in part because both services are vital for the welfare of rural communities and their inhabitants.

2. RURAL ACCESS TO JUSTICE

   Project Rural Practice is an ambitious plan, which is sorely needed to bring access to justice to rural parts of the state. South Dakota does not have a lawyer shortage; rather, South Dakota has a lawyer-allocation problem. (15) Part II argues rural legal access is critical to rural communities, just as is rural medical access. The dwindling number of rural lawyers, which Project Rural Practice hopes to change, is only one of myriad resource issues faced by rural judicial systems.

   A number of studies of rural courts have documented problems in [resources], ranging from low budgets to inadequate referral services. Rural courts routinely receive less federal money and have a lower local tax base than urban and suburban courts, which accounts for the fact that facilities often are outmoded and salaries are low. A shortage of funds and geographical distance often prevent staff from taking advantage of training programs offered in centralized areas. The pool of available attorneys, expert witnesses and even jurors is diminished considerably. Peripheral services, such as the availability of victim's assistants, shelters and services for diverting such special populations as juveniles at risk, substance abusers or the mentally disordered often are lacking. (16) These are real problems faced by rural communities. In general, rural areas receive fewer government benefits per capita than urban areas. (17) Yet neither the Federal Government nor the states have worked to increase lawyers or legal resources in rural areas. Perhaps one reason states have not worked harder to promote rural access to justice is "[historically, the plight of rural courts in this country has been quietly ignored or overshadowed by the escalating and more visible problems of urban courts." (18)

   While most academic research focuses on urban courts and legal

   services (19) rural areas face their own particular access to justice issues. (20) The issues faced by rural courts can be severe, in part because "even our legal system has an urban orientation." (21) Although rural courts are guided by the same fundamental principles as those in (sub)urban settings--independence, adversariness and the rule of law--they are confronted with special problems that sometimes constrain their effectiveness such as lack of resources and isolation." (22) One common perception is, because there are fewer cases filed in rural courts than urban courts, rural courts are less busy. (23) This, however, is not true as rural courts are often in session less frequently, such as when multiple counties share a single judge. (24) Rural judges are also more likely to have no staff members--such as clerks and court administrators and thus are performing additional jobs (25)--and are more likely to be part-time. (26)

   Not only judges and court staff carry heavy loads without sufficient resources in rural communities. Practicing lawyers also face resource issues. To begin, there are not enough lawyers in rural areas. (27) Of course, the idea of Project Rural Practice is that the right lawyer placed in a town could sustain access to justice for decades. (28) While having one attorney is better than having none, even one attorney may not provide full legal support for a community. (29) Many rural counties only have part-time prosecutors, who also maintain private practices. (30) With a small legal community, conflicts of interests become more real, and more common. (31) When lawyers don multiple hats in a small community, those multiple roles can "undermine the role of courts as fair and impartial arbiters, and they can foster perceptions of courts as pawns of attorneys promoting their own economic self-interest." (32) Rural courts are also more likely to be attorney-controlled; attorneys frequently control the pace of rural courts because of local expectations and norms. (33)

   A lack of lawyers can present particular problems in criminal defense cases. In rural areas in particular, "it may be difficult to find lawyers who are both trained in criminal law and philosophically inclined to represent criminal defendants." (34) Studies have shown juveniles in particular are frequently left without representation in rural areas. (35) It is not only criminal defendants who suffer when there are few attorneys available, parties in civil cases can also be left without adequate representation because "few local attorneys in small rural communities are inclined to forcefully adjudicate controversial cases for fear of community antagonism." (36) The same close-knit community which may allow the only local attorney to intimately know and understand his or her clients, may also lead to that same attorney being unable or unwilling to take a difficult or unpopular case. (37) Because local attorneys are less able to take...