The Justice Gap: Confronting Complicity in the Legal Profession to Better Reimagine Reform

• Author: Natalia C. Ortiz
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Duke University (2018)
• Pages: 1167-1187

The Justice Gap: Confronting Complicity in the

Legal Profession to Better Reimagine Reform

NATALIA C. ORTIZ*

INTRODUCTION

“Equal justice under law is not merely a caption on the facade of the Supreme

Court building. It is perhaps the most inspiring ideal of our society . . . it is fun-

damental that justice should be the same, in substance and availability, without

regard to economic status.”

–United States Supreme Court Justice Lewis Powell, Jr.

While equal justice under law is an ideal to which this nation aspires, the

United States has systematically failed to fulfill this purported commitment.

Unfortunately, in this country, access to justice necessarily favors those who can

afford it.

1

Rising income inequality in the United States has only exacerbated the

problem, resulting in a justice gap that leaves the most vulnerable without

adequate legal representation.

2

The justice gap is defined as the “difference between the civil legal needs of

low-income Americans and the resources to meet those needs.”

3

In 2017, “86%

of the civil legal problems reported by low-income Americans” received inad-

equate or no legal help.

4

While demand for legal services is high, the supply of

those able to assist is not; there is less than one civil legal aid attorney for every

10,000 people living in poverty.

5

In 2014, the United States tied with Uganda

“for sixty-seventh out of ninety-seven countries in access to the justice system

and affordability of legal services.”

6

It is quite ironic, then, that the United States

* J.D., Georgetown University Law Center (expected May 2022); B.A., Duke University (2018). © 2021,

Natalia C. Ortiz.

1. Deborah L. Rhode, Access to Justice: A Roadmap for Reform, 41 FORDHAM URB. L.J. 1227, 1228 (2014)

(“Money may not be the root of all evil, but it is surely responsible for much of what ails the current legal aid

system.”).

2. See Robert H. Frank, How Rising Inequality Has Widened the Justice Gap, N.Y. TIMES (Aug. 31, 2018),

https://www.nytimes.com/2018/08/31/business/rising-inequality-widened-justice-gap.html [https://perma.cc/

3S9D-DFHH].

3. LEGAL SERVICES CORPORATION, THE JUSTICE GAP: MEASURING THE UNMET CIVIL LEGAL NEEDS OF

LOW-INCOME AMERICANS 6 (2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.

pdf [https://perma.cc/64NK-3M8H] [hereinafter LSC REPORT].

4. Id.

5. Number of Attorneys for People in Poverty, THE JUSTICE INDEX, https://justiceindex.org/2016-findings/

attorney-access/#site-navigation [https://perma.cc/C7VK-H6XU].

6. Rhode, supra note 1, at 1227.

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proclaims to provide “equal justice under law,” yet is so glaringly deficient in ful-

filling this purported commitment. This is the access to justice problem.

In response to this problem, the legal industry has increasingly turned to pro

bono initiatives and programs.

7

As a result, pro bono services now account for the

provision of more legal help to low-income individuals than government-funded

programs do.

8

While pro bono participation has grown steadily over the years,

9

the legal profession as a whole still fails to satisfy the aspirational pro bono rec-

ommendation promulgated by the American Bar Association (ABA) in Rule 6.1

of the Model Rules of Professional Conduct. Rule 6.1 establishes the professional

responsibility to provide pro bono service and recommends that each lawyer ren-

ders at least 50 hours of pro bono legal services per year.

10

To better achieve the

objective of equal justice under law, this Note posits that lawyers should receive

exposure to and substantive training in pro bono early in their careers. In addition,

Rule 6.1 should be made mandatory. However, this Note will argue that these

proposals are the floor, not the ceiling, of reform.

This is because the reliance on pro bono to solve the access to justice problem

fails to grapple with the structural incentives inherent to the legal industry.

Specifically, it ignores the ways in which the legal profession, including law

schools, systematically incentivizes the pursuit of employment in the private sec-

tor, rather than public interest work. Although many students initially pursue a ca-

reer in the law to help the underserved and underrepresented, post-graduation

employment outcomes indicate that their motivations change along the way. As a

result, there is a dearth of public interest lawyers.

This Note explores income inequality trends, how those trends and correspond-

ing issues exacerbate the access to justice problem, and will conclude by offering

recommendations—both existing and proposed—that can better afford all indi-

viduals equal justice under law.

Specifically, this Note examines the efficacy of the current solution the legal

industry utilizes to tackle the access to justice problem—pro bono. The Note sug-

gests that while lawyers are society’s solution to effectuate justice, many fail in

this respect. Ultimately, this Note argues that continued reliance on pro bono to

solve the access to justice problem is misplaced and ignores the widespread,

structural mechanisms that fundamentally incentivize students to pursue private

sector employment.

This argument proceeds in eight parts. Part I establishes important background

information that contextualizes the discussion that follows. Part II defines the

justice gap and outlines the data and statistics in order to better ground the

7. See R. Lawrence Dessem, Emeritus Attorney Pro Bono: From Rules, to Programs, to Law School

Clinics, 44 J. LEGAL PROF. 83, 87 (2019).

8. Id. (“Attorneys now provide more legal services through ‘private lawyer charity,’ or pro bono, than are

provided through government-funded programs.”).

9. Id. at 89.

10. MODEL RULES OF PROF’L CONDUCT r. 6.1 [hereinafter MODEL RULES].

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