Wanted: Lawyers for Rural America

This article originally appeared on Stateline, an initiative of the Pew Charitable Trusts.

After an early career modeling in Los Angeles and New York City, Furonda Brasfield returned home to pursue her passion: practicing law in rural Arkansas.

Brasfield had graduated from high school in 1999 in Stuttgart, a town of 7.2 square miles known for its fertile soil, good for growing rice, and the migratory ducks that draw serious hunters. She left the state to become a contestant on “America’s Next Top Model,” returned to attend the University of Arkansas in Fayetteville, and left again to pursue her modeling career. But her legal ambitions, rooted in memories of growing up during the war on drugs, pulled her back.

“Every summer there would be a wave of mostly African American men who were taken from the community,” Brasfield, 38, recalled in a recent interview. “And then there would be a new group trying to reintegrate [from prison] into the community, most of the time unsuccessfully.”

With the support of a program encouraging more lawyers to practice in Arkansas’ underserved areas, Brasfield finished law school in 2015 and went on to do her part to fill a national shortage of attorneys in rural America.

National data on the legal profession can mask the problem: Overall, the population of lawyers increased by 14.5% since 2009, according to a 10-year survey from the American Bar Association. Only Alaska and Massachusetts saw modest declines.

But there is no national repository on the number of lawyers in each county, according to ABA communications manager Marc Davis. The association did not make anyone available to discuss the shortage of attorneys in rural America. According to a 2014 study in the South Dakota Law Review, about 2% of small law practices are in small towns and rural areas. (Around a fifth of the U.S. population lives in rural areas, according to the U.S. Census Bureau.)

State-level data from Arkansas, California, Georgia, Maine, Minnesota, Wisconsin and several Plains states underscores that lawyers cluster in urban areas. Their disproportionate coverage creates “legal deserts” or patches of the state with few, if any, lawyers in private practice. Meanwhile, many of the existing rural lawyers are approaching retirement age, with too few law school graduates moving in to replace them.

Legal deserts disproportionately affect rural and especially poor people, who may have to travel hundreds of miles, or experience lengthy and expensive delays for routine legal work. Lawyers often handle complicated cases, but also standard fare such as divorces, contract disputes and eviction threats. With limited access to legal representation, vulnerable populations may be exploited by those in positions of power.

“You see the gap in services and the lack of legal knowledge,” Brasfield said. “People who are entrenched in the legal system — it’s astonishing how little they know about this system that they are engaged in all the time.”

Law schools and some states seek to encourage more graduates to fill the rural attorney gap. But the reasons behind legal deserts are much like the other problems plaguing rural America: population shifts, often due to the loss of industries; a tight job market with urban centers promising higher salaries; and a desire to avoid the isolation that can come with being the new person in a small town. Even rural lawyers acknowledge the job is a tough sell.

“Nobody wants to do it,” Brasfield said.

‘Modest Success’

In 2012, the American Bar Association called on federal, state and local governments to curb the decline of rural lawyers, and South Dakota responded. The following year, it became the first state to enact legislation to recruit lawyers to rural areas.

The five-year pilot program, which became effective in 2017, pays lawyers about $13,000 a year on top of their salary to practice in eligible counties, whose populations are 10,000 or less. The state pays for half, the local government funds 35%, and the South Dakota Bar Foundation covers the rest. So far, no other state has enacted similar legislation.

The program currently contracts with 24 lawyers, including an early recruit who’s completing his five-year commitment this year, according to a recent report from the South Dakota State Bar Association.

Many legal advocates would like to model their state programs after South Dakota’s. But leaders in Arkansas say their program needs more time to collect data, or indicators for success, such as the type of attorney who’s most likely to locate to a rural area, to make their case.

Bradley Myers, interim dean of the University of North Dakota School of Law — where a rural justice program was started in 2012 and received dedicated funding starting in 2015 — tried to attract state support with no success this past legislative session. Instead, the program is working on identifying private funding or a publicly funded system of loan forgiveness, Myers said.

But states are taking varied approaches to filling their attorney gaps, whether it’s recruiting incoming college freshmen, supporting law school students or helping lawyers set up rural practices.

Of North Dakota’s 53 counties, seven have just two lawyers, six have one lawyer, and three have zero, Myers said. In response to the ABA’s call, and a desire to tackle the state’s needs, the law school began funding summer clerkships in 2014 so students can experience living in rural communities firsthand.

“I’m going to sound really old, but kids these days really are more attracted to larger practice areas, so it’s much harder to get them to take opportunities in smaller communities, particularly if they’re not yet married or not in a stable relationship,” Myers said. “It’s hard to move to a town of a thousand people.”

In Nebraska, 12 of its 93 counties have no attorneys, and most counties have fewer than 20, according to a 2017 count by the Attorney Services Division of the Nebraska Supreme Court.

So in 2016, three state schools — Chadron State College, the University of Nebraska at Kearney and Wayne State College — began recruiting rural incoming college freshmen to pursue legal careers outside Nebraska’s urban areas. The students receive free undergraduate tuition and guaranteed admission to the University of Nebraska College of Law in Lincoln, so long as they maintain a minimum 3.5 GPA and meet admissions standards.

“Statistics showed us that we have a much better opportunity of getting law students who are from the rural areas to go back and practice in the rural areas as opposed to taking a student who grew up in the more populated areas of the state,” said Thomas Maul, a former president of the Nebraska State Bar Association who helped start the program.

While Nebraska considered South Dakota’s funding model, Maul said organizers weren’t convinced the state would provide enough support to entice students to participate.

Arkansas is taking a different approach. Brasfield is among the first cohort of lawyers to participate in the Rural Practice Incubator Project, an 18-month program at the William H. Bowen School of Law at the University of Arkansas at Little Rock.

The pilot program, funded by the attorney general’s office and donations, provides continuing education programs, introduces participants to rural attorneys and judges and offers training and resources on how to run an office. Most participants have set up solo legal practices. Brasfield and others launched theirs in the rural counties where they grew up.

But each program, regardless of structure, shares common challenges. Small-town lawyers must be generalists, while the legal profession is becoming more specialized. Rural areas often have poor broadband access, creating technical challenges to accessing legal information.

A March 2015 survey of Arkansas students and lawyers commissioned by the Arkansas Access to Justice Commission found distance from the nearest city with its various entertainment options and a perception of limited career growth opportunities among respondents’ primary deterrents to working in rural areas. Other discouraging factors included the perception of a “good ole boy” system and lack of acceptance as an ethnic minority or member of the LGBT community.

In North Dakota, a field placement may be 10 hours away from campus, making it impossible for students to attend classes during the semester, Myers said. However, beginning this fall, students in faraway internships can take additional classes online.

“In an era where we have so many law graduates who cannot find jobs, it’s always disheartening when we have a rural law firm who wants to come and interview and hire somebody, and very few people will sign up to the interview,” Myers said.

Once lawyers set up shop, some say it’s difficult to make a living. Jarred Kibbey, who commutes twice a week from Little Rock to his hometown of Glenwood, Arkansas, said he cuts his rates, sometimes in half, and doesn’t bill for certain services. Rural clients often still consider the rates astronomical, he said. The Glenwood office, which is part of a larger practice, breaks even, but Kibbey doesn’t expect it to grow.

“We would love to say it’s going to do great, we’re going to all move down there. But I just don’t see that happening,” Kibbey said. He added, “A town of 1,200 people cannot service a full-time attorney.”

Among the Arkansas incubator cohort, several have fulfilled local needs and padded their incomes by taking part-time contracts as a prosecutor, court-appointed guardian or public defender, said Amy Pritchard, the project director.

“They’re still meeting that justice divide,” Pritchard said, “but they’re doing it with a consistent, state-provided paycheck and then some with their private practice.”

On top of that, the lawyers say they’ve had to adjust to different norms and slower lifestyles. People in rural communities tend to be chattier. Sometimes, there’s an expectation the lawyers will offer free legal advice. Some clients are comfortable showing up unannounced and without an appointment. Being from Glenwood helped kickstart Kibbey’s practice because rural people are generally distrusting of outsiders, he said, but the work is still tough.

“If you were just somebody from out of state thinking you were going to go to a small town and hit it big, that’s probably not going to happen,” Kibbey said.

His advice: Get involved in the community.

“You’re not there to skim all the money, you’re there to offer a service that’s needed,” Kibbey said. “A lot of people don’t know they need an attorney.”

Trend Continues

The number of attorneys in private practice in Arkansas’ 25 least-populous counties declined roughly 18% between 2010 and 2014, according to a case study in the University of Arkansas Little Rock Law Review. The attorneys also tend to be closer to retirement age.

“The trend of rural communities losing lawyers is clearly continuing,” said Amy Dunn Johnson, executive director of the Arkansas Access to Justice Commission.

Limited-scope legal services , which Arkansas began offering in 2017, help make attorney services more affordable. Attorneys may unbundle their services, whether it’s just drafting a plea or motion, or representing a client in court.

“Rather than say, ‘I’m going to provide representation from start to finish,’ and that being cost-prohibitive for the individual, finding a piece they can provide at the rate the individual can pay for,” Pritchard said.

Arkansas should adopt creative solutions to meet its justice gaps, Johnson said. Just as the medical profession has deployed physician’s assistants and advanced-practice nurses to address certain ordinary medical issues, the legal profession should similarly empower paralegals, librarians and court staff to demystify a complex system, Johnson said.

“Front-line court staff and librarians are information experts,” Johnson said. “They know what the process is at the court, they know what the steps are to follow, and providing that information in a neutral way is not giving legal advice.”

A draft administrative policy, which the Arkansas Access to Justice Commission submitted to a committee of the Arkansas Supreme Court, guides librarians and others to provide legal information and stop short of giving legal advice.

Other states have gone further. Washington recently became the first state to expand the scope of its “limited license legal technicians,” who can advise people going through divorce, child custody and other family law issues, including completing and filing court documents, assisting in certain types of hearings and participating in mediation, arbitration and settlement conferences.

Since 2014, the Court Navigator Program in New York has deployed and supervised non-lawyers to provide general information, written materials and individual assistance to eligible unrepresented plaintiffs in the city’s civil courts. In a 2016 report, the American Bar Foundation and the National Center for State Courts recommend replicating the program across the city and state, and in other states too.

“Our system is designed with the expectation that every case that comes through necessarily needs to be adversarial in nature, and there will be a lawyer on both sides,” Johnson said. “And that’s just not the prevailing reality, nor is it ever going to be again.”