Access to Counsel: Reframing Legal Aid’s Mission
While we often speak of increasing “access to justice,” wouldn’t it be far more precise and effective if we spoke of increasing access to a lawyer? This provides clarity and finality to this abstract problem.
By Jeffrey D. Harvey
“Justice,” in the minds of many, is an ambiguous term often claimed by both plaintiffs and defendants, regardless of innocence, behavior, or intention. It is often thought of as “what I deserve.” However, justice essentially means, at its root, that the process was fair. But for millions of low-income Americans, true justice requires one to successfully navigate a vast, complex and often intimidating legal system. The answer is through access to counsel.
Access to counsel means, a person’s ability to seek assistance of any kind from a lawyer. Unfamiliarity with the system, the perception that a lawyer is financially out of reach and not knowing the benefits of representation are the core reasons people don’t choose to hire an attorney or seek advice. When this happens, common transactions such as leases, wills, mortgages, health care directives, investments and even simple consumer matters have the potential to become more complex civil legal matters. While we often speak of increasing “access to justice,” wouldn’t it be far more precise and effective if we spoke of increasing access to a lawyer? This provides clarity and finality to this abstract problem.
A Justice Gap That Widens With Income Disparity In its 2022 Access to Justice report, the Legal Services Corp. effectively illustrates the justice gap among Americans. Higher income individuals seek counsel more often, are more likely to use legal help to solve substantial issues, and are more confident that they can find and retain a lawyer if needed. Thereport states that 92% of low-income individuals did not get adequate—or any—advice for their substantial problems. Not surprisingly, only 39% of low-income people have faith in the legal system. These disparities underscore the disproportionate need for representation among this population for relatively simple issues. As I’ve mentioned here before, when we increase access to counsel, the benefits to the profession, the judicial system and society are exponential.
For the 50 million low-income Americans who qualify, legal aid can be a direct path to counsel. Knowledge of the process is a highly effective way to put legal issues on hold, solve them or dissolve them all together before they can escalate, and sound counsel eliminates the perils of self-representation.
Understanding the Access Disconnect Making a decision to seek counsel is influenced by prior knowledge of the system and the resources available to handle a potential matter. This process includes identifying and accepting there’s an issue; deciding on action or inaction; and choosing whether or not to seek counsel. To better understand access to counsel and the perils of self-representation, let’s first look at the decision cycle of the justice seeker.
Do I have a legal problem? Statistically, lower-income Americans face simultaneously more legal problems than higher income citizens. In the legal aid sector, many times we encounter clients who are not aware of a legal process or the ramifications of making certain decisions, such as creating medical powers of attorney or signing a lease. This is primarily due to their unfamiliarity with the law and what attorneys can help with, socioeconomic distance from lawyers, belief that counsel is cost prohibitive, and a general distrust of the legal system. These all lead to the potential that a person may not even be aware that the problem they are dealing with is legal in nature.
How Do I Proceed? Clients who realize they have an issue often differ on how they proceed. Some choose to resolve issues through the legal system; some deal with them in other ways; and some decide to do nothing (a choice in and of itself). Again, knowledge and opinion of the justice system and its process are important determinants in this stage. Most low-income citizens do not know an attorney personally or even where to find one. Many do not even know that legal aid organizations exist for their benefit or whether they will qualify. These factors may dissuade some from taking legal actions.
Pursuit by Legal Means. Now What? For those that decide to pursue a solution via the legal system, the crucial final step is deciding whether to seek counsel. Many individuals falsely believe they can successfully navigate the system on their own. Others will educate themselves in earnest via online resources or a library but still pursue the matter themselves. The smart choice is to engage a lawyer who has relevant experience with the matter and the court and can guide the individual to resolution.
At this crossroads, it’s important to look at the self-representation choice and the significant risks it introduces:
The Perils of Self-Representation Highlight the Need for Access The reasons for representing oneself are considerable and particularly personal. The accompanying perils underscore the importance of access to counsel:
Not knowing a court’s rules. Each jurisdiction, each court, and even each judge has their own rules and procedures. For the unrepresented, this creates a minefield of obstacles. Even those with some familiarity with the law will face a multifaceted, unfamiliar system. Rules of procedure and jurisdiction vary from court to court, as do each individual clerk office’s rules, impacting everything from document formatting to electronic filing.
Passion versus objectivity. My entire career, I’ve heard the saying and seen examples of “cases based on principle cost double.” When an individual is representing themselves, it’s far too easy to become myopic and frustrated with the minutiae of the system and let passion cloud reason. Most unrepresented individuals lose sight of their overall goals and abandon effective strategies. I’ve seen many who miss opportunities for settlement and make foolish decisions that are ultimately self-defeating. As they say – ‘even a lawyer who represents himself has a fool for a client”. Part of a lawyer’s job is to help clients understand what is realistic.
Costly procedural errors. The adage that time is money is especially true when resolving legal matters. Process errors only exacerbate and delay the resolution of the issues at hand. Coupled with the blinders of one’s passion, errors and delays can be disastrous.
A weakened justice system. Self-representation can ultimately weaken the justice system. Lack of knowledge and procedural errors create case backlogs that overwhelm civil courts. Self-representation undermines the profession’s efforts to increase efficiency and resolve matters before trial. Our reputations suffer as cases slog through courts. This self-perpetuating atmosphere creates distrust in a system that is the foundation of a society based on laws.
Making the Profession Easily Accessible These perils could be avoided if we as lawyers increase awareness in our communities about the possibility and availability of legal counsel. Being visible and accessible through civic involvement is critical. Most people have some idea that they may be appointed a lawyer in a criminal matter, but what about counsel for the more routine civil matters they face?
As a profession, we need to think creatively about how to spread the word about our practices. Legal aid, obviously, is a great start. Although legal aid mostly serves low-income individuals, I doubt many know that, under the Older Americans Act of 1965, many legal aid organizations offer advice to seniors regardless of income. This is just one example of an easy way to expand our reach.
High-volume, high-visibility personal injury and family law firms may actually be showing us a path forward. In a way, these organizations are making the public aware of their services and positioning themselves as the starting point in the representation decision process. Their ability to sift and screen hundreds of calls is something we should take note of. Calling an 800 number is an easy hack for a person questioning whether their case is viable or whether to seek representation. Can’t similar awareness campaigns and intake methods be applied to less emotional, more everyday civil matters? Currently, to the public, those lawyers are the face of the profession.
Other simple ways of making access to counsel easier include standardized clerk forms (e.g., eviction forms for both landlords and tenants), better marketing to nonlegal audiences by the bar, increased community involvement by individual attorneys and a lower price point for simple advice at the beginning of the decision-making process. When we do these things, we’ll find we’ve better proven our value proposition while elevating our reputation as a profession.
Increased Access to Counsel Begins With an Engaged Bar When we speak of justice, we must not forget that at its core, justice is more than fair process; it’s a fair process that people understand and can use. Access to counsel is by no means a new concept—John Adams wrote so eloquently about its necessity before our country was even founded. He was a fervent believer that having counsel, regardless of innocence or guilt, was not only a cornerstone of justice, but necessary to a healthy democracy and a civil society.
Indeed, access to counsel ensures that everyone has the tools necessary to decide how best to navigate their legal issues. The legal profession should strive to better inform all individuals, regardless of income or ability, of the necessity and benefits of adequate legal representation. By doing this, we can break the cycle of fear and distrust of the system and elevate our profession’s reputation and standing in society. Educated and informed clients achieve better outcomes for themselves, their communities, the judicial system and society as a whole.
Jeffrey D. Harvey is the chief executive officer of Community Legal Services, a full-service civil legal aid law firm serving the Central Florida community. He is a 24-year veteran of the U.S. Army and recently completed a master’s degree in strategic studies at the U.S. Army War College.
Page printed from: https://www.law.com/2025/10/06/access-to-counsel-reframing-legal-aids-mission/print/
Reprinted with permission from the October 6, 2025 edition of Daily Business Review © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.