Spotlight on Pro Bono: Tackling Legal Challenges in Wealth Diversity of America

by Judith Miller, Esq.

Americans are fairly comfortable with wealth inequality. At least, that is one conclusion that can be drawn from the 2011 research findings of Dr. Michael Norton, Harvard Business School.¹

Norton compares what Americans believe is the ideal distribution of wealth in the country with what we think currently exists, then compares those with what the distribution is in actuality. Examining these discrepancies, I will focus on the composition of the least wealthy and how that impacts the legal profession. 

In idealized American thought – what the vast majority of Americans think is an equitable, fair and expected distribution of wealth – the top 20% of Americans own about 35% of the wealth in our country. The middle classes combined hold a little more than 45% of the nation’s wealth.  And the lower classes – both the working poor and most indigent – own about 20%.²

Of course, we know that the ideal is rarely the real. In the past few years, word has spread that the income and wealth gap is growing. This translates into a general belief that the top 20% of the richest Americans own nearly 60% of the nation’s wealth. We give the middle class a little less than 40% of the wealth. In our minds, this leaves the lower classes with more than five percent.³

Sadly, what we think is as far from the real as it is from the ideal. In reality, the top 20% of the richest Americans hold a whopping 85% of our country’s wealth. That leaves barely 12% for the middle classes – upper class and middle class combined – and a paltry zero-point-three percent (0.3%) for the poor … including the working poor.⁴

Suffice to say, Americans wish for more equal distributions, but the reality far outpaces their worst nightmare.

There was a time – not that long ago – when the real came closer to our ideal. But the past quarter century hasn’t been good for the majority of us. From 1998 to 2013, the top 20% have far outpaced the other 80%.⁵ Now, in 2021, we can only reason that the gap is even wider.

For those at the bottom of the wealth ladder – the ones we referred to as “poor” or “living in poverty” – how does this look in 2021 dollars?  According to the federal government, a single person is poor if their annual income is less than $12,880.⁶ Yet for many assistance programs, a person does not have to be quite that poor to get help. For many programs, the cut-off is 125 percent of the Federal Poverty Guideline (FPL). This means a single person can earn $16,100 in the year and be eligible for various assistance programs. This is important for Illinois litigants. For it is at 125% or below this annual income that an Illinois litigant may petition for, and receive, a waiver of court costs and free legal counsel  – be it a public defender in criminal matters or a pro bono attorney in civil matters.⁷  In Illinois, nearly one third  (~33.3%) of the residents live at or below the poverty line.⁸ 

Having considered the current wealth gap r, and what it looks like in dollars, I turn our attention to the root causes of poverty. Is the root grounded purely in social forces beyond the control of the poor, such as racial prejudice, economic deprivation, joblessness, and other inequities? Or is it found in the flaws of individuals? When it comes to the topic of poverty, these two views represent polar opposites.  

In examining the complex world of economics and human behavior, social science informs us that the causes of poverty are remarkably balanced. “Poverty is caused by both behaviors of the individual and political/economic structures – and everything in between,” states Dr. Ruby Payne in her book A Framework for Understanding Poverty.⁹  Her research categorizes the causes of poverty along a continuum of four clusters: 1) Behaviors of the individual; 2) Absence of human and social capital; 3) Exploitation; and 4) Political/economic structures.¹⁰  Payne also offers an alternative definition to poverty as simply a lack of assets, income and wealth accumulation. She broadens the definition to encompass eight resources, other than financial assets, that are needed to create wealth, and where the lack thereof creates poverty.¹¹ These resources are:

1. EMOTIONAL: Being able to choose and control emotional responses, particularly to negative situations, without engaging in self-destructive behavior.  This is an internal resource and shows itself through stamina, perseverance, and choices.
2. MENTAL/COGNITIVE: Having the mental abilities and acquired skills (reading, writing, computing) to deal effectively with daily life.
3. PHYSICAL: Having physical health and mobility.
4. KNOWLEDGE OF HIDDEN RULES: Knowing the unspoken cues and habits of different groups, especially wealthier groups.
5. LANGUAGE/FORMAL REGISTER: Having the vocabulary, language ability, and negotiation skills necessary to succeed in school and/or work settings.
6. SUPPORT SYSTEMS: Having friends, family, and backup resources available to access in times of need.
7. RELATIONSHPS/ROLE MODEL: Having frequent access to individual(s) who are appropriate, who are nurturing, and who do not engage in self-destructive behavior.
8. SPIRITUAL: Believing in divine purpose and guidance.¹²

According to Payne, these factors play off of one another.¹³ If you have strong relationships, solid mental and physical capability, the lack of financial resources isn’t going to knock you down for the long haul. But if you have financial resources yet are unable to function due to debilitating mental, emotional and physical handicaps, your world will begin to unravel as relationships fall apart and your money drains away.

You get the picture.

When you lack financial resources, you can’t access many of the support systems that well-financed individuals can. What about good schools, safe neighborhoods, reliable transportation, decent grocery stores, affordable housing? And yes, what about an attorney when you need one?

According to the World Justice Report, the U.S has been slipping in its access to affordable legal services.¹⁴ In 2016, the U.S. ranked 65th in the world.¹⁵ We fell to 97th in 2018 then further back to 98th in 2019.¹⁶ By 2020, The U.S. ranking dropped to 110th out of the 128 countries studied.¹⁷ This report reflects the fact that one in three Americans cannot afford an attorney.¹⁸ 

So where does that put thirty-three percent the population? Where does that put all of those we define as “poor” – including those we define as the “working poor” and even a portion of those we see living among the American middle class?

What does a ranking of 110th in the world of justice mean? How does that impact the number of pro se litigants in courtrooms? How does it decrease the chance of a level playing field between the litigants? How does it undermine efficiency with court dockets? What does it do to the Rule of Law, the state of democracy, and the much larger concept of justice for all?

So where does that put us, as a nation? More specifically, where does that put us as a State?Around the turn of the 20th Century, Judged Learned Hand reflected, “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.¹⁹  

Closer to home, and considerably closer in time, the Illinois Statutory Court Fee Task Force stated: “Today, Illinois is facing a serious threat to the fundamental right of equal access to justice.”²⁰

The intensive study of the Illinois Statutory Court Fee Task Force was made possible under the Illinois Access to Justice Act.²⁰ The Act created a 15-member Task Force comprised of judges and legislators. The Act charged these leaders to “conduct a thorough review of the various statutory fees imposed or assessed on criminal defendants and civil litigants.”²¹  The Act states that “[t]he justice system in this State can only function fairly and effectively when there is meaningful access to legal information, resources, and assistance for all litigants, regardless of their income or circumstances.”²²  The Task Force found that Illinois has a byzantine system with constantly increasing fines and fees that are outpacing inflation … and impose severe and disproportionate impacts on those with low and moderate incomes.²³  

Who holds the key to righting these inequities?  I assert: Lawyers!  Lawyers comprise zero-point-four percent (0.4%) of the population, yet they hold an enormous amount of power.²⁴ Lawyers are our advocates, litigators, judges, professors, power-brokers, and law-makers. 

This outsized power is mitigated by a code of ethics established for the profession. The law of lawyering was common law until 1836 when David Hoffman, a Baltimore lawyer, as part of a course of legal study. set forth fifty rules concerning the profession, including Rule 28:

“To my clients I will be faithful; and to their causes zealous and industrious. Those [clients] who can afford to compensate me, must do so; but I shall never close my ear or heart because my client's means are low. Those who have none and who have just causes, are, of all others, the best entitled to sue, or be defended; and they shall receive a due portion of my services, cheerfully given.²⁵

Coming closer to home and to a more current time, Illinois attorneys are governed by Illinois Rules of Professional Conduct, where the PREAMBLE, in Section 6A states:

“It is also the responsibility of those licensed as officers of the court to use their training, experience, and skills to provide services in the public interest for which compensation may not be available.
“It is the responsibility of those who manage law firms to create an environment that is hospitable to the rendering of a reasonable amount of uncompensated service by lawyers practicing in that firm. Service in the public interest may take many forms. These include but are not limited to pro bono representation of persons unable to pay for legal services and assistance in the organized bar’s efforts at law reform. …”²⁶

For those attorneys who embrace our profession’s call to service, our state offers ample opportunity through numerous legal aid organizations and pro bono programs. All are in need of more volunteer attorneys to meet with clients or provide pro bono representation. All provide legal services for those who would otherwise lack access. All provide a scarce skill set that is essential to balancing the scales of justice. All provide a piece of the resource pie.

Judith (“Judy”) Miller is the executive director of Administer Justice, a non-profit Christian legal aid serving low-income individuals throughout the State of Illinois. In her role as executive director, Judy oversees the function of all legal clinics. She earned her juris doctorate in 2008 from Northern Illinois University College of Law and is barred in the State of Illinois, the U.S. Bankruptcy Court, the U.S. Tax Court, and the U.S. Supreme Court. 

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1. Elizabeth Gudrais, What We Know About Wealth, Harvard Magazine, Nov.-Dec. 2011, at https://harvardmagazine.com/2011/11/what-we-know-about-wealth.
2. Id.
3. Id.
4. Id.
5. Heartland Alliance Social Impact Research Center, 2016 Report on Illinois Poverty, Feb. 2016, at www.ILPovertyReport.org.
6. U.S. Department of Health & Human Services, Poverty Guidelines, March 1,2021,at https://aspe.hhs.gov/poverty-guidelines.
7. 735 Ill. Comp. Stat. 5/5-105.
8.  Heartland Alliance, Illinois Poverty Update, April 2018, https://www.heartlandalliance.org/research/wp-contents/uploads/sites/10 /2018/04/PR18_IL_POV_UPDATE.pdf
9. Dr. Ruby Payne, Ph.D., AFramework for Understanding Poverty: A Cognitive Approach165 (2013).
10. Id.
11. Id. at 8-9.
12. Id.
13. Id. at 171.
14. World Justice Project Rule of Law Index, 2016, 2018 and 2019 at https://worldjusticeproject.org/our-work/wjp-rule-law-index.
15. Id. at 2016.
16. Id. at 2018 and 2019.
17. Id. at 2020.
18. The Justice Gap:  Measuring the Unmet Civil Legal Needs of Low-Income Americans, 2017 at https://www.lsc.gov/media-center/publications/2017-justice-gap-report.
19. The Legal Aid Society at https://www.legalaidnyc.org/historical_event/thou-shalt-not-ration-justice/.
20. Statutory Court Fee Task Force, Illinois Court Assessments, at 7(June 1, 2016).
21. 705 Ill. Comp. Stat. 95/25(a).
22. Id.
23. Statutory Court Fee Task Force, supra note 19, at 1, 2.
24. Debra Cassens Weiss, Lawyer population 15% higher than 10 years ago, new ABA data shows, ABA Journal, May 3, 2018, at https://www.abajournal.com/news/article/lawyer_population_15_higher_than_10_years_ago_new_aba_data_shows.
25. Henry Drinker,Legal Ethics,14-15 (1953), at 342.
26. Illinois Rules of Professional Conduct, § 6A.