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Joshua Silverstein on the Importance of Pro Bono Work in the Legal System

6 min read

As part of Pro Bono Week, which ends Saturday, Arkansas Business talked with Joshua Silverstein, a law professor at the Bowen School of Law at the University of Arkansas at Little Rock, about the importance of pro bono work in the legal system. 

Arkansas Business: Why is pro bono work so important to the legal system?

Silverstein: “Pro bono” legal work is free legal work provided by practicing lawyers, typically to clients who cannot afford to pay for legal services. Pro bono work ensures access to justice for many Arkansans who otherwise would suffer the loss of their legal rights.

Arkansas is one of the poorest states in the union. As a result, many of our citizens cannot afford to hire an attorney when they need one. In fact, one in four Arkansans qualifies for civil legal aid. This means that their level of income and wealth makes them eligible to receive free legal services in civil matters from one of the two legal aid providers in the state — the Center for Arkansas Legal Services and Legal Aid of Arkansas. 

These organizations receive the bulk of their funding from the federal government. Each group provides outstanding services. But because they have limited resources, the two organizations must turn away more than half of the Arkansans who contact them seeking legal assistance. Combined, the Center for Arkansas Legal Services and Legal Aid of Arkansas have only 52 lawyers. That’s 52 lawyers for the roughly 840,000 people eligible for legal aid in the state. The two organizations are thus forced to turn away more than 10,000 cases each year.

Given the existing need for legal services and the limited resources available at the two legal aid organizations, pro bono work performed by private lawyers is the only way many citizens can obtain legal representation. Arkansas lawyers as a whole provide over 100,000 hours of free legal services every year. Without these services, their clients might lose custody of their children, lose their house to foreclosure, or fall prey to an unscrupulous debt collector. 

Similar problems exist in the criminal law context. While the state is obligated to provide a public defender to every criminal defendant who cannot afford a lawyer, there are too few public defenders to ensure that those charged with a crime receive the best legal services. Pro bono criminal work helps to alleviate the burden placed on public defender offices.

AB: How much pro bono work is requested, and are there enough attorneys in Arkansas to handle the need? 

Silverstein: No one knows precisely how much pro bono work is requested. We do know that the Center for Arkansas Legal Services and Legal Aid of Arkansas turn away over 10,000 case a year. And private lawyers turn away countless more. Thus it is clear that we lack a sufficient number of attorneys to fill the needs of Arkansans for free or low-cost legal work. 

A big part of the problem is that Arkansas has the fewest number of attorneys per capita in the country. There is roughly one lawyer for every 500 Arkansan. The average nationwide is four lawyers for every 500 citizens. And the problem is considerably worse in Arkansas’s rural communities. Attorneys tend to be concentrated in larger cities like Little Rock. The 25 least populated counties in our state have only one attorney for every 1,300 residents. And this ratio is even smaller if we restrict it to lawyers who are in private practice representing clients, and exclude other lawyers, such as those employed full-time with government agencies. 

In sum, by every relevant measure, there are too few lawyers in Arkansas, and especially too few lawyers in rural parts of the state. This causes numerous problems for the legal system and results in countless Arkansans being deprived of their legal rights. 

AB: What happens to people who are unfamiliar with the legal system and try and represent themselves in court?  

Silverstein: They get far worse results than people represented by attorneys. And those results can be catastrophic. 

People without a lawyer may not be able to get a divorce so they can move on with their life. Or they may lose custody of a child. Or they may be deprived of child support payments necessary to the care of their kids. Or they may lose their home to foreclosure or in a dispute with a landlord. Or they may be denied social security or other government benefits critical to their financial well-being. A lawyer is often the difference between tragedy and the successful resolution of a legal problem. 

AB: What legal issues do you find the biggest need for pro bono work?

Silverstein: Family law is the area of greatest need. This includes cases involving divorce, alimony, child custody and child support. Two other areas of critical need are government benefits and consumer issues. 

Regarding the former, Arkansans often need representation in matters concerning social security, disability, food stamps and unemployment insurance. The consumer category involves issues such as debt collection and bankruptcy. Another area of increasing significance is real estate — namely landlord/tenant disputes and foreclosures.

AB: What can be done to help people who can’t afford an attorney?

Silverstein: First, they can seek assistance from the Center for Arkansas Legal Services or Legal Aid of Arkansas. Second, they can look for a private attorney willing to work for free or for a small fee. Third, they can obtain various materials on how to act “pro se” — on how to represent themselves. But as I noted previously, this final option is a recipe for disaster. Unfortunately, because of the lack of lawyers in our state and the lack of funding for free legal services, self-representation is often the only option for people of limited means.

AB: Do you think the 50 hours that attorneys are required to serve pro bono is enough? What would you like to see?

Silverstein: Actually, there is no requirement that attorneys provide pro bono legal services. Fifty hours is simply a recommendation set out in the ethical rules that govern the practice of law. Most lawyers oppose mandatory pro bono work. And I agree with them. Pro bono work should not be required. The access to justice problems in this country are not the sole responsibility of attorneys. The problems are the responsibility of the entire community. 

Lawyers certainly have an important role to play in providing free legal services, educating citizens and elected officials about the legal system and changes that need to be made and donating money to legal aid organizations. But comprehensive access to justice can be achieved only through a broader social commitment to that end.

How can we get there? First, money. We need considerably more government funding for civil legal aid providers — like the Center for Arkansas Legal Services and Legal Aid of Arkansas — and for public defender offices. We also need government money to create incentives for attorneys to move to rural communities and set up law offices. For example, the state could provide student loan forgiveness or tuition reimbursements for recent graduates who agree to practice in a smaller town for a set number of years.

Second, rule changes. We need to loosen the rules that govern the practice of law. For example, it should be permissible for lawyers to provide “unbundled” legal services. Unbundled services are the performance of discrete legal tasks rather than representing a client for an entire lawsuit. Some clients cannot afford a lawyer for a full case. But those same clients often are able to pay the lawyer for one or two specific projects that might be enough to bring the overall matter to a successful resolution.

Money and rule changes; without both, equal justice under the law will remain a dream rather than a reality in Arkansas and in the rest of the nation.

(Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law.  He teaches and writes primarily in business law fields, such as contracts and bankruptcy.)

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