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The Justice Gap Has Become a Chasm
The Justice Gap Has Become a Chasm
As appeared in the New York Law Journal June 16, 2025
Most lawyers know that low-income individuals must often navigate civil-justice issues without legal representation. Most lawyers have also heard this phenomenon described as a “justice gap.” But these two words may not prick the lawyers’ conscience. They blur a discomforting reality, by creating the illusion that the difference between legal needs and available legal services is a mere “gap”—and a readily closable one to boot.
The phrase “justice gap”—coined in 2004—has outlived its usefulness. American courts no longer face a gap but an ever-widening justice chasm into which nearly 50 million unrepresented people fall every year. Millions more face life altering consequences unrepresented in state and federal administrative proceedings involving benefits and services.
Access to justice is growing out of reach for all but the affluent. It is simply too expensive for low- income families and middle-income individuals to hire a lawyer to help them with civil legal matters, such as child support, custody, visitation, debt collection, foreclosure, eviction, and guardianship. Many small businesses likewise lack the resources to hire a lawyer to draft a contract or resolve a commercial dispute.
In a modern democratic society, lawyers are necessities, not luxuries. The assistance of counsel is a prerequisite for meaningful access to justice. Legal representation levels the playing field when a person faces a represented adversary. The lack of counsel enfeebles the capacity to defend or pursue rights. It can also result in devastating outcomes for vulnerable low-income seniors, children, immigrants, disabled persons, veterans, and the unhoused.
The magnitude of the access-to-justice crisis is staggering. According to a 2022 study, low- income persons do not get enough—or any—legal assistance for 92% of their substantial civil legal problems. In a similar vein, the World Justice Project’s 2024 Rule of Law Index ranks the U.S.
107th out of 142 countries on accessibility and affordability of civil justice. This is a fall of 42- spots from 2015 when the U.S. ranked 65th out of 106 countries.
The relentless increase in self-represented litigants is reshaping American courts and eroding the rule of law. Following years of investigation and study, professors Anna E. Carpenter, Collen F. Shanahan, Jessica K. Steinberg and Alyx Mark found that rates of self-representation in state civil courts exceed 90% on many dockets. In these “primarily lawyerless” courts, they write, “traditional adversary litigation has largely disappeared, the judicial role is not working, the law is not developing, and people’s court experiences amplify inequality and human suffering.”
While this crisis is dire, it is not new. In 1990, a blue-ribbon “Committee to Improve the Availability of Legal Services in New York” catalogued the catastrophic consequences of the “crisis of unmet legal needs.” After months of hearings, the Committee issued its final report, recommending that New York courts adopt rules compelling “all lawyers admitted to practice and registered as attorneys in New York…be required to provide a minimum of 40 hours of qualifying pro bono legal services every two years.
The Committee knew that if most resident New York lawyers complied with its recommendation the combined contribution of legal services would “fall far short of completely meeting the estimated extreme need.” It concluded nonetheless that the effect of mandatory pro bono would be “difficult to dismiss…as quantitatively insubstantial”—an assessment made when 88,000 lawyers practiced in New York State. Today there are more than 187,000.
The call for mandatory pro bono met with fierce resistance from the organized bar. Ultimately, the court system held the recommendation in abeyance based on the pledge of bar associations to rally attorneys to provide more pro bono services.
But 35 years later the need for pro bono is greater than ever. Despite numerous bar association campaigns and referral services, and countless pleas in reports and law review articles, no discernible increase in pro bono services has materialized. To the contrary, data maintained by New York’s court system reveals that, prior to COVID-19, 60% of the bar did not report providing any pro bono services.
At the same time, government funding for public legal services is receding. New York’s state government just swept $120 million from the Indigent Legal Services Fund, and last year seized another $55 million from the Interest on Lawyer Account Fund.
Civil legal providers (and those who champion their cause) are the legal profession’s heroes. Every day they do extraordinary work across the state and nation. But the resources granted to legal aid societies and other providers do not come close to meeting the demand for legal services.
Mindful of the gravity of the crisis, state courts across the nation have stepped into the breach. Late last year, Georgia established a Supreme Court Study Committee on Legal Regulatory Reform to address the shortage of attorneys in rural counties. In New York, family courts utilize social workers and other non-lawyer professionals, including “navigators,” to provide essential non-legal services to unrepresented court users.
A growing number of states now allow non-lawyer legal service providers, such as licensed paralegals and trained volunteers, to offer certain legal services to people who cannot afford a lawyer. States that permit this includes Alaska, Arizona, Colorado, Delaware, Hawaii, Minnesota, New Hampshire, Utah and Washington.
The National Center for State Courts is studying ways to harness and leverage AI to solve the access to justice conundrum. Court systems are also utilizing self-help centers; standardized forms; simplified procedural information; plain language and multilingual resources and services; educational programs on best practices in handling cases with self-represented litigants; and triage and online systems to facilitate the referral of lawyers to people who need them.
In the midst of this ferment of judicial innovation, lawyers cannot sit on the sidelines. The promise of equal access to justice is our responsibility. The legal profession’s primary purpose is public service—and, as Roscoe Pound famously observed, it is “no less a public service because it may incidentally be a means of livelihood.” Forward-thinking leaders of the bar, therefore, must drive innovation, not resist it.
Embracing regulatory innovation is not just the right thing to do, it’s the smart thing to do. The profession both regulates itself and holds a monopoly over the practice of law. Lawyers do not have an inherent right to these privileges; they enjoy them because the profession fulfills important societal responsibilities in exchange.
This social contract includes the responsibility to provide access to legal services without regard to wealth. The ancient tradition of pro bono publico (literally, “for the public good”) is the purest expression of lawyers’ commitment to do the public good. It enhances the bar’s reputation and is an important reason why lawyers deserve public respect.
Some argue that the legal profession cannot be blamed for the justice chasm or expected to fix it, because poverty is a societal problem. Everyone has a role to play alleviating the effects of poverty. But the very nature of an adversarial justice system makes access to legal services the legal profession’s concern, and unfairness in the system its problem.
So, lawyers must proactively address the plight of unrepresented litigants. If we fail to do so, it is conceivable that the profession will be held to account by legislatures, where practicing lawyers are now scarce, and fewer lawmakers appreciate the pivotal importance of lawyers and courts. Inaction risks not only the profession’s exclusive franchise over the practice of law, but also the kind of government regulation that is imposed on other industries.
Speaking at the Legal Aid Society of New York’s 75th anniversary celebration in 1951, the immortal jurist Learned Hand observed: “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” Truer words in the law may never have been spoken. Yet the harsh truth is that justice is being rationed.
Denial is not a public policy strategy. The legal profession must boldly face up to the reality of a justice system where self-representation is a norm. The eternal ideal of justice for all is the lawyers’ lodestar, our guiding light. Let us redouble our efforts to ensure access to justice for all.
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Page printed from: https://www.law.com/newyorklawjournal/2025/06/16/the-justice-gap-has-become-a-chasm/
Henry M. Greenberg Henry M. Greenberg is vice president of the New York County Lawyers Association, a board member of the National Center for State Courts and a past president of the New York State Bar Association. The opinions expressed in this essay are those of the author and do not necessarily reflect the views or opinions of any entity or organization with which he is affiliated.
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Reprinted with permission from the June 16th 2025 edition of New York Law Journal ©2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.