Denver County alone has about 42% of the state’s active attorneys, according to registration data obtained from the Colorado Office of Attorney Regulation Counsel. But what if a community has few or no private attorneys? Wide swaths of Colorado, mostly counties clustered around the southern and eastern parts of the state, could be considered “legal deserts,” creating a challenge for access to justice.
Although there isn’t a precise way to delineate a legal desert, data shows about half of Colorado’s counties have fewer than 25 attorneys, and many have fewer than 10. The numbers of private attorneys in these regions are likely even smaller considering the OARC’s raw data includes judicial officers and public-sector lawyers.
Pierce Fowler is an attorney in Trinidad, where he estimates there are eight or 10 private attorneys. But contract work with the state, in dependency and neglect cases as a guardian ad litem and as respondent parents’ counsel, makes up almost all of his practice. He said if not for the state contract work, he doesn’t think he’d be able to make a living in Trinidad as an attorney because of the area’s poverty. Las Animas County is one of Colorado’s poorer counties, with a median household income of just $41,945 in 2018, according to U.S. Census data.
Fowler understands the difficulty of making a living in a poor rural area. Before moving to Trinidad, Fowler worked in private practice in La Junta. Otero County has even higher poverty than where he lives now, with a median household income of $34,136.
“I spent most of my time hunting down retainers, trying to get collection on bills, he said. It was really, really hard to make enough money.”
Nonprofits can provide a rare viable option for legal representation in rural areas because they receive funding from sources such as grants and donations instead of relying only on client fees. Jen Cuesta, a rural pro bono program attorney for Colorado Legal Services, said the diversity of funding sources allows CLS to serve low-income clients everywhere in the state. CLS’s offices cover all of Colorado’s 64 counties.
“Every challenge low-income communities face is exacerbated by that geography,” she said.
‘A Societal Problem’
In counties that show at most a few dozen attorneys, and in many areas barely a handful, the raw numbers can belie the true extent of a county’s shortage of access to private representation. The data includes each county’s public-sector attorneys, such as prosecutors, public defenders and county attorneys.
Fowler said of the small handful of private attorneys in Trinidad, several do state contract work and only a few of them take private clients. That means people in the area who do have the money to pay an attorney often need to look to a metropolitan area such as Pueblo or Colorado Springs.
He said he almost always refers cases outside his state contract work to other attorneys because his current work on dependency and neglect cases demands all his time, or he may have a conflict of interest because he frequently works with the Department of Human Services.
“You’ve got to pay someone to drive down here from either Pueblo or Colorado Springs, which obviously, is going to make your bill a lot higher. And this is a poor area,” he said. “It’s a societal issue down here.”
Colorado Bar Association President Kathleen Hearn Croshal said she does believe the small-city hubs such as Pueblo and Grand Junction where an attorney can build an economically viable practice are important because they bring lawyers “at least closer to people’s homes.”
The CBA has formed a Greater Colorado Task Force, which Croshal said began meeting in February. She said during her yearlong term as president, she has prioritized engaging attorneys throughout Colorado.
Chris is an attorney in Alamosa who is part of the 12th Judicial District’s Access to Justice Committee. He asked Law Week not to use his last name because he didn’t want the views he expressed associated with his employer. He also said it’s common for private attorneys in the area to make a living with government contract work, as alternate defense counsel, guardian ad litem or respondent parents’ counsel. There is one two-person law firm there he knows of.
“Access to just your old-school general practice attorney that doesn’t have some sort of contracted parachute, they’re just not here,” Chris said. “And there’s work to be done.”
He said the judicial district’s Access to Justice Committee has been in the process of putting together an internship program for recent graduates that would provide a housing stipend and get them interested in working in a public-service attorney position or in private practice.
“If you’re ambitious and just want to hang your shingle, there’s a lot of civil work and DR work to be had,” Chris said. He said the living stipend would cover about $1,500 for two months of dorm housing. The coronavirus’s economic damage to county budgets has thrown a wrench in the committee’s original plan for local funding of the stipends, but Chris said he believes it’s doable to raise money from local attorneys who take interns and possibly get some state grant funding.
“Assuming that [ballpark] price rate holds and the dorms reopen moving forward, it’ll be a relatively easy amount to come up with, frankly,” he said.
Fowler moved to rural Colorado after growing unsatisfied with his law firm job in the Denver area. He connected with a firm in La Junta, which promised him an associate position with opportunities to go to court. Fowler grew up in West Virginia, so he said he knew living in a rural area was doable for him.
He said when he practiced in La Junta, he found the successful lawyers in the area tended to be older attorneys who were from the region and had the institutional clients, such as banks and businesses.
“The younger guys who were still trying to make it work in private practice, kind of the implicit understanding was we had to wait for so-and-so to retire before there’s going to be good business in this town,” Fowler said. But he added there is camaraderie among rural lawyers, and the older ones are willing to help out younger lawyers with advice.
“It’s not necessarily a cutthroat environment where you don’t care about the guy because we all see each other so much,” he said. “So I think that does kind of help the goodwill toward one another.”
A generation of lawyers getting close to retirement is contributing to the risk of a new wave of lack of legal services in rural areas if not enough young lawyers to replace them are willing to settle in the areas.
“You’ve got a handful of baby lawyers, recent law graduates, who know they want to go to a rural place. … They know what they’re getting into,” said Lisa Pruitt, a professor at the UC Davis School of Law 2018 who co-authored a study in the Harvard Law and Policy Review on legal deserts in a selection of states. “But there are so many people, even people who are raised in rural places, that they’re the ones who most want to get the hell out of Dodge and know that they’re never going back.”
She said succession planning is key to keeping legal work in rural areas local as attorneys age out of practice.
“One of my fears is that if those ‘old boys’ don’t effectively pass the bank work and the institutional work off to a younger lawyer in the area, usually by having brought that person into the practice, that bank or that other institution may start going to whatever the regional center is, or even Denver, right?” Pruitt said. “So there’s a certain amount of cherry picking that city firms do in rural areas.”
Kathleen Schoen, the CBA’s director of local bar relations and access to justice, said unbundled services can have an important role in improving access to legal representation for small businesses or individual clients with modest resources. In unbundled representation, an attorney is involved in discrete tasks within a case instead of full representation through each step of the case as a way to save the client money. The CBA has a Modern Law Practice Initiative that does training workshops on unbundled services for attorneys around the state.
“Then … the attorney and the client can figure out what they can afford,” Schoen said.
Croshal said a member of the CBA’s Executive Council has volunteered to work with Colorado’s two law schools on strategies to persuade graduates to consider moving away from the state’s metropolises.
One benefit, Croshal said, is attorneys who want to be judges will have smaller pools of applicants to compete with in more sparsely populated judicial districts than in Colorado’s urban areas.
“Your chances, frankly, of getting on the bench in some of these jurisdictions that have very few attorneys is much higher,” she said.
Some attorneys who move to a rural community or small city to start careers in the public sector such as public defense or a deputy district attorney position “like the fact that they can advance quicker in a place like Pueblo; they can get more involved in the community at a higher level; in nonprofits and politics [and] what have you,” Croshal said. “It’s easier to get those doors to open for you.”
Fowler doesn’t know if he’ll stay in Trinidad for the long term, but he said right now he’s buying a house, which he expects to anchor him there for at least a few years.
Chris, the attorney in Alamosa, moved there five years ago and loves the area. He said salesmanship is important to persuade attorneys to move to a remote area beyond one of Colorado’s metro areas, but young lawyers should also keep an open mind about the types of opportunities they’re willing to consider.
“I kept expanding my net, and I found a great place. I hadn’t planned on looking as far south as I ended up,” he said. “The right opportunity came up and it’s worked out fantastically for me. I think a lot of people can experience my same situation if they look a little beyond the metro areas of the I-25 corridor.”
CLS’s Response to COVID-19
Legal deserts have been a persistent problem in Colorado and throughout the U.S., but Colorado Legal Services is developing an initiative in response to one type of legal need expected to skyrocket in the coming months: evictions, as the COVID-19 pandemic has forced hundreds of thousands of people in Colorado out of work and left them unable to afford housing. CLS’s yet-to-launch initiative, right now called the Pro Bono Rural Eviction Team, is in the process of recruiting volunteer attorneys to provide pro bono help in cases over private evictions for non-payment.
Cuesta is coordinating the project along with Patricia Craig, CLS’s administrator for its northwest Colorado office. Cuesta said the attorneys won’t represent clients in the court hearings themselves but will help them with the processes leading up, including negotiations with landlords, drafting any subsequent agreements and helping clients with documents if the case does go to court — all work that volunteer attorneys can do remotely. She said ideally, much of the assistance will focus on negotiations with landlords to avoid the legal process and homelessness associated with evictions.
The initiative is narrowly designed to focus on private evictions for non-payment on purpose. “It is an area of law that we think will result a lot from COVID, those cases. But also, it’s an area of law that we can really narrow down into to really hone the training, so that we can use attorneys that don’t have previous experience in this area of law,” Cuesta said.
CLS will run the initiative with its existing resources for now, but Cuesta said the organization may seek extra funding for dedicated staff support of volunteer attorneys, depending on how much need CLS sees for eviction help and how long it lasts.
A Pioneer for Policy in the Heartland
It’s one thing to form a task force or a committee to talk about improving rural access to legal services. But it’s another to translate attention on the issue into concrete policy. South Dakota has been perhaps the most successful state to make the leap with Project Rural Practice, a program designed by the state bar to provide financial incentives for attorneys to work in the most sparsely populated counties. South Dakota’s legislature not only passed legislation in 2013 to set up funding for the incentive program but has expanded it several times since.
Patrick Goetzinger made rural access to lawyers a priority when he started his term as South Dakota’s state bar president in 2011.
“There’s been an incredible demographic shift, and with that demographic shift, the Main Street lawyer was regarded as an endangered species in South Dakota and elsewhere,” he said. Goetzinger said South Dakota’s chief justice, David Gilbertson, has also prioritized drawing attention to the issue. “Chief Justice Gilbertson, in his 2011 State of the Judiciary message, stated that we face the very real possibility of whole sections of this state being without access to legal services.”
The program funds financial incentives for up to 32 attorneys to work in rural areas for five years, up from 16 attorneys when it started. South Dakota’s legislature funds 50% of the incentives, local governments in the counties where the attorneys in the program work provide 35% of the incentives and the South Dakota Bar Foundation funds 15%. The legislature established the incentive amount equal to 90% of a year of in-state tuition at the University of South Dakota School of Law.
Goetzinger said the initial iteration of the program had $1 million in funding, half appropriated by the state legislature. The legislature eventually expanded the program to pay incentives to 32 attorneys with another $1 million between the three funding sources.
The incentive program’s 32-spot capacity is rolling, meaning that each time an attorney completes the five-year commitment, the program can replace them with another attorney.
Hannah Haksgaard, a professor at the University of South Dakota School of Law, said she believes the state succeeded in passing concrete policies to improve rural access to lawyers because people in influential positions, including state bar leadership and the Supreme Court’s chief justice, prioritized the issue and pushed it until lawmakers acted.
“It just has to be at the top of the agenda. Otherwise it’s another one of these things where for decades you can keep saying we have a rural lawyer shortage and do nothing about it,” she said. Haksgaard co-authored the 2018 study in the Harvard Law & Policy Review on legal deserts, including South Dakota. She added because the state’s prevalence of rural areas means their issues don’t get swept to the bottom of policymakers’ priority lists the way they tend to in states with major urban centers.
“The rural voice is really heard in state politics,” Haksgaard said. “You’re able to garner respect as a rural legislator, and agriculture is such a big deal here that everybody understands … that we have to support agriculture in order to collect taxes and have a successful state.”
Goetzinger acknowledged the bar association’s relationships in the legislature and the governor’s office helped the policy to implement South Dakota’s incentive program get traction. The governor at the time, Dennis Daugaard, also has a background as a lawyer.
“But a very conservative lawyer, and he said, ‘Don’t even talk to me until you’ve got a way to pay for it,’” Goetzinger said. “Well, we found a way to pay for it and got him on board.”
In April, the New York State Bar Association’s Task Force on Rural Justice published a report with recommendations for improving access to legal services in the state’s rural regions.
The report suggests establishing a direct payment pilot program similar to South Dakota’s model. It recommends five years of payments of $22,148, equal to a year of in-state tuition averaged between New York’s law schools.
According to the recommendation, the program would target counties with fewer than 100 people per square mile or less than two lawyers per 1,000 people.
Taier Perlman is a co-chair of the task force. Among the task force’s recommendations, she said repealing a state law that requires practicing attorneys to have a physical address in New York could help them serve clients remotely.
“We’re trying to get rid of that as a threshold for a New York-licensed attorney to offer legal services in New York,” she said. But Perlman added broadband and other technology infrastructure needs to expand for attorneys based in urban centers to effectively serve rural clients. She said a lot of courts in rural communities don’t have e-filing, and areas without broadband or reliable cell phone service require traveling to a town center to send and receive files.
“It makes it difficult for [clients] to utilize technology that might get them access to a lawyer,” she said.
—Julia Cardi