The Access to Justice Gap Affects Everyone
When many people hear the phrase ‘access to justice’ they often envision legal services for the low-income. In Contra Costa County, thoughts of nonprofits such as Bay Area Legal Aid, the Family Justice Center and Contra Costa Senior Legal Services may come to mind. And while the services that these and many other legal aid organizations provide are vitally important for the people who qualify for those services, there is another, even larger group of people who do not have adequate access to justice, those in the middle class or with ‘moderate means’. Many of these people own their homes and/or have a middle-class income and therefore do not qualify for assistance from many legal service organizations and other community nonprofits. Yet they are not able to afford the legal assistance they require, even seemingly very basic legal services. Dealing with legal issues is just as important and critical to their lives as it is for low-income folks.
In 2019, the State Bar of California conducted a survey where thousands of Californians of all income levels were surveyed about their civil legal needs. The resulting California Justice Gap Survey, found that 55 percent of Californians experienced at least one civil legal issue in their household over the past year and 13 percent experienced six or more. There are two different types of justice gaps – one is a knowledge gap, where people of all income levels do not even understand that their problem has a legal remedy. The other is a service gap where consumers cannot afford the cost of the legal assistance they require. The survey found that this service gap persists even with those whose incomes are 601 percent above the federal poverty line (income of $154,501 and over) where 78 percent of people in that category received no or inadequate legal help.
As there is no right to counsel in civil cases like there is for criminal matters, many people of all income levels are left to handle important legal issues without assistance or even basic legal information. In cases involving divorce or child custody, housing and employment (all legal areas severely impacted by Covid restrictions) most litigants have to handle their legal issue on their own. According to the California Justice Gap Survey, as many as 90 percent of those facing eviction do not have legal assistance and in 70 percent of family law cases one or both parties are unrepresented.
We all know how expensive it is to live in the Bay Area and this cost leaves even middle-income families struggling to pay their bills, much less save for retirement and college. According to census data, the median household income in Contra Costa in 2019 was $99,716 which works out to $48 per hour, pretax. Given the 2019 average attorney charges of $323 per hour , it would take over seven hours of work to pay for one hour of legal services. The median gross rent in Contra Costa County in 2019 was $1,819, which is the same as approximately 5.5 hours of legal services at that same rate. The choice between paying for less than 6 hours of legal services or paying a month of rent is usually not a choice. This shows just how out of reach attorneys are for most people in Contra Costa.
Someone who was lucky enough to have bought a house in the Bay Area 20+ years ago, is likely to be house rich and cash poor. One example is a recent case that a legal services organization recently assisted with. An older person was dealing with a slip and fall defense case that was not covered by their homeowner’s insurance. They had equity in their home but very low savings and monthly income and could not afford to pay an attorney. Protecting the house was vital not only for them but also for the adult disabled child who lived in the house with them. It is only because of the legal nonprofit stepping in and helping with this case, with pro bono assistance from a large insurance company’s in-house counsel, that the family was able to successfully defend themselves. This is just one example of the tens of thousands of people who need legal assistance and can’t afford it. Using this method to close the justice gap would require hundreds more legal aid organizations employing thousands of legal aid attorneys who can leverage tens of thousands more private attorneys to take on pro bono work. That seems to be an impossible task.
There are other ways that those with a modest income may be able to access legal assistance. Legal incubators provide support and education to new attorneys (or those transitioning to a new practice area) as they build their practices and in return, they can help clients at a much-reduced fee. The courts provide assistance through various programs such as small claims advisors and family law facilitators, as well as through attorney volunteer efforts like as the Double Pro Per calendar, one of many ways that CCCBA Family Law section members give back to the community and support the court.
CCCBA’s Moderate Means program was established to provide clients who cannot afford to pay full attorney fees a referral to an attorney who has agreed to take on certain cases on a reduced fee basis. The original Moderate Means program had two levels of income for qualification, with Level 1 being the lowest income and Level 2 for those on what is considered “moderate” income. “Moderate” yearly income at Level 2 can range from $20,544 for a one-person household up to $60,000 for a five-person household. A family of four would not qualify for the program if their gross yearly income exceeded $52,500 (just over $25/hour). Using the average attorney hourly rate of $323, it would take someone making “too much” to qualify for the Moderate Means program almost 13 hours to earn enough (pre-tax) to pay for one hour of attorney fees.
Finding enough attorneys willing to take on moderate means cases has been an increasingly difficult challenge exacerbated by the effects of Covid. The need is great, and the supply is few so even the applicants that qualify for the Moderate Means program are not able to be helped. In fact, recently we had to put a hold on the Moderate Means program because of a lack of available attorneys to take cases.
The LRIS committee is in the process of revising the Moderate Means program to make it easier to administer, and we hope, more beneficial to attorneys who agree to take on Moderate Means cases.
Access to justice isn’t an issue that affects the poor, it affects all of us.