Legal reform for rural North Carolinians

Imagine needing legal assistance in a child support case or trying to settle a relative’s estate only to find that the handful of lawyers in your town are unable to help.

In North Carolina, this is the reality for nearly half of our counties. Many locations in our state have been designated as legal deserts — areas with fewer than one lawyer per thousand residents. This lack of basic legal representation led one legal adviser to call the attorney shortfall a “threat to justice.”

I’m not sure I would go that far just yet, but this isn’t merely a minor inconvenience. In North Carolina’s legal deserts, an estimated 86% of civil legal needs go unmet due to the scarcity of legal resources, and according to one report, more than 25% of our counties have fewer than 20 lawyers. With competing schedules, conflicts of interests and unforgiving legal deadlines, what may seem like an abundance of lawyers can quickly turn into a desperate search for knowledge and assistance.

Now, it’s easy to make fun of lawyers (cue your favorite lawyer joke), and if you live in the larger urban areas, you’re probably correct in thinking we have a surplus of attorneys. That’s because nearly two-thirds of all lawyers in North Carolina work in five counties — Mecklenburg, Wake, Guilford, Forsyth and Durham counties.

But prosecutors and public defenders across the state have difficulty staffing offices. In child welfare cases, proceedings face significant delays because the few available attorneys who handle these cases are overwhelmed, leading to continuances that can have serious consequences for families. And when courts become clogged with cases that could have been resolved more efficiently, the quality of justice suffers.

This is not just a rural issue; it’s a fundamental challenge to the rule of law.

And if you believe those who can afford representation have a leg up, you’re not far off.

Judges are often asked in and out of court by litigants if representation is necessary. A now-retired judge I appeared before would respond, “If I had anything greater than a parking ticket, I would get a lawyer.” That’s simply not realistic or reality these days.

But North Carolina’s story is not unique. States across the country are experiencing a shortfall of rural attorneys. Some are attempting to address the issue through alternative paths to licensure while others are licensing paraprofessionals — think physician assistants in the medical field.

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Just last week, the Texas Supreme Court, on the heels of a successful similar program initiated by Justice Clint Bolick in Arizona, asked for public comment on the issue to help pro se litigants in civil cases. Justice Brett Busby, who heads up the effort in Austin, said, “Despite the hard work of volunteer attorneys, legislative appropriations for legal aid and the generosity of private donors, these unmet needs are growing. We must explore innovative structural changes … if we are to close this gap and ensure that justice is not simply a privilege for those who can afford it.”

North Carolina should take Justice Busby’s words to heart and explore successful models from other states as we consider solutions for North Carolina. This problem may very well be solved here by volunteers. But as other states have seen, and North Carolina’s legal leaders have acknowledged, this issue is too big and too pervasive to simply hope licensed attorneys, with their own caseloads and personal obligations, answer the pro bono call.

A past president of the North Carolina Advocates for Justice has stated that “More work by lawyers, whether pro bono or paid, cannot solve the problem.” In other words, this issue cannot be addressed effectively by simply looking to the existing pool of legal resources — we need more minds, more bodies, more human capital. What is certain, however, is that the current approach is unsustainable.

Should we explore the proposals Texas and Arizona have advanced, or look to the rural licensing proposal in South Dakota? Perhaps we should adopt diploma privilege like Wisconsin, or look to the Daniel Webster licensing protocol in New Hampshire that focuses on experiential learning as a pathway to obtaining a law license — after all, North Carolina’s law schools all have wonderful internship/externship programs that focus on practical application of the law.

Or maybe we simply need to expand the third-year practice program that already exists here, allowing law school graduates to practice under the supervision of a licensed attorney until he or she passes the Bar. These are not mere stopgap measures — they are proactive steps that would help our rural citizens have access to legal services.

It is my hope that North Carolina follows the example set by Justice Busby and the Texas Supreme Court and studies this issue with a creative eye toward structural change in the delivery of legal services — because the quality of justice in this state demands it.

Philip Berger Jr. is an associate justice of the North Carolina Supreme Court.

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