A surge in evictions, domestic violence and child poverty last year has heightened the demand for legal services to help low- and middle-income families, and worsened a shortage of attorneys to assist in matters ranging from housing to healthcare to benefits and beyond in 2024.

Experts say that confronting that reality in the new year will require increasing federal funding for civil legal aid, expanding the use of nonlawyers, and simplifying the way people can settle civil issues.

A nationwide push to guarantee a right to counsel in eviction proceedings and the elimination of court fees are other key issues that will come up in the new year.

Here, Law360 hears from legal experts and attorneys about the issues that are likely to shape access to justice in 2024.

Funding Legal Aid and Simplifying the Civil Dispute System

The new year begins with a staggering picture of unmet legal needs. About 92% of civil legal problems faced by low-income Americans either go unaddressed or receive inadequate assistance, according to Legal Services Corporation, the congressionally chartered nonprofit created to disburse federal grants to civil legal aid providers across the United States.

LSC President Ronald Flagg told Law360 in a recent interview that federal funding for civil legal services is not nearly enough to keep up with inflation and the increased need for services. Congress earmarked $400 million for LSC in 1994. As of last year, that funding has only increased to $560 million. The government will likely provide the same amount during fiscal year 2024, which began on Oct. 1, while LSC had asked for about $1.6 billion.

"We have this huge, gargantuan mountain of unmet civil legal need in America. And the question going forward is, how do we address it?" Flagg said. "One way that we have to address it is with increased funding for civil legal aid."

Another way to ease the demand for lawyers is to improve the ways in which members of the public solve civil disputes and access public benefits, Flagg said.

"Our systems for resolving disputes and providing public benefits have often been premised on the assumption that the people using these systems would have to be represented, have access to lawyers," he said. "That assumption is false."

The Legal Aid Interagency Roundtable, a joint project involving 28 federal agencies and offices chaired by the U.S. attorney general and the White House counsel, said in a report published in early December that steps such as simplifying government forms, eliminating unnecessary requirements, using plain rather than legal language, offering information in languages other than English, and providing self-help information would enable people to represent themselves more easily in federal administrative proceedings if they can't find a lawyer.

Flagg said the report is a sign that the government is paying attention to what legal experts, attorneys and scholars have long called an access to justice crisis.

"You'll see all sorts of hopeful developments that the federal government is trying to advance to, at least in some measure, address the justice gap," he said.

Rachel Rossi, the director of the U.S. Department of Justice's Office for Access to Justice, told Law360 that the government is also looking to boost a federal program that connects government lawyers with pro bono opportunities. A new online portal launched at the end of October now allows government attorneys to apply directly to participate in volunteer legal aid services.

"We're mobilizing the many federal government lawyers from across the government — I believe now over 50 federal agencies participate — to engage in actual pro bono work," Rossi said. "A big priority for us is expanding the reach of the program, and how many communities, people we are touching and helping."

The DOJ is also seeking to increase its partnerships with other federal agencies. Last year, for example, the department joined hands with the U.S. Bureau of Prisons to conduct a 100-day review of access to counsel practices at all federal facilities where criminal defendants are held pretrial. That review concluded with over 30 recommendations that the Office for Access to Justice and the bureau are now working on implementing.

One area of focus is a soon-to-launch civil legal services pilot program designed to help incarcerated individuals with problems such as loss of public benefits and issues with debt.

"The hope is that providing for these very critical civil legal needs can improve successful reentry, and really disrupt the cycle of recidivism, poverty and returning back to prison," Rossi said.

Expanding the Use of Nonlawyers

Conversations about meeting Americans' legal needs in 2024 will also focus on expanding the role nonlawyers can play in assisting people with their issues.

In 2023, LSC funded the Alaska Legal Services Corporation to train nonlawyers to serve as legal representatives in remote rural Alaska Native communities. The program was effective in addressing a massive backlog of Supplemental Nutrition Assistance Program, or SNAP, applications, which had worsened a hunger crisis in that state.

As of July, about 325 trained nonlawyers had taken 400 SNAP-related cases in Alaska, securing over $5.5 million in benefits for clients, according to the LSC. Flagg said the program could be replicated in other areas of the country.

Arizona State University professor Rebecca L. Sandefur, an expert on access to justice issues who's served with organizations including the American Bar Foundation, added that nonattorney advocates have been authorized to assist in certain federal law matters, including immigration and the disbursement of benefits, for decades.

In recent years, states have started coming up with ways to create exceptions to their policies on the unauthorized practice of law, or UPL, to allow more nonlawyers to provide guidance in certain areas of the law.

In 2020, the Utah Supreme Court allowed nonlawyer advocates to apply to have UPL restrictions lifted in certain practice areas such as immigration, domestic violence, medical debt and the expungement of criminal records. And in 2023, the high courts in Utah and Arizona authorized programs training nonlawyers to provide limited assistance in eviction cases.

Last month, the Texas Access to Justice Commission voted to recommend that paraprofessionals be allowed to assist low-income clients in certain areas of the law. To be implemented, the recommendation will require approval by the Texas Supreme Court.

At the same time, however, the commission declined to support nonlawyer ownership of legal aid providers serving low-income Texans.

Moving into 2024, North Carolina is actively exploring how to implement nonlawyer models, Sandefur said. An organization co-founded by Sandefur called Frontline Justice is advocating for changes in laws and regulations to empower nonlawyers to serve clients.

Meanwhile, pending litigation involving UPL workarounds, including a case filed in New York by legal tech nonprofit Upsolve Inc. and one from the NAACP of South Carolina, could also bring developments in the new year.

In the New York case, the Second Circuit is currently considering whether to overturn a lower court's decision finding the First Amendment shielded Upsolve and the Rev. John Udo-Okon, a South Bronx pastor, from prosecution under New York's UPL statute for coaching low-income people on how to fill out forms used to defend themselves in debt collection lawsuits.

In South Carolina, the NAACP is challenging a state UPL from applying to a new eviction-help program, arguing that statute violates the advocates' free speech rights. The NAACP argues the program is necessary to confront an access to counsel crisis in South Carolina, which has the smallest average number of civil legal aid attorneys for every 10,000 low-income people in the whole country, according to a ranking compiled by the National Center for Access to Justice at Fordham University. In December, the Fourth Circuit paused the NAACP's lawsuit while the issue at its core is considered by the state courts.

David Udell, the center's founder and executive director, told Law360 in a recent interview that justice worker programs such as those at the center of the Upsolve and NAACP cases could effectively help people defend themselves from aggressive debt-collection practices, particularly in legal aid deserts.

"I think that it would make a huge difference in people's lives to be able to help them defend these debt collection lawsuits," he said. "It's just tragic that most people have no access to anyone to help them, including in New York."

The Challenges of Guaranteeing a Right to Counsel

Four states, 12 large cities and one county have adopted a right to counsel for people facing eviction proceedings since the COVID-19 pandemic put the issue in the spotlight. But as eviction filings continue to rise, providing low-income tenants with free legal representation is becoming a greater challenge due to an ongoing shortage of attorneys, experts say.

"If we can get the funding and if we can pass right to counsel, and there just aren't enough attorneys who are willing to be the attorneys, then we won't be able to continue doing the work we're doing," said John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel. "That's a civil justice crisis."

According to the Eviction Lab, a project run by Princeton University, eviction filings before the pandemic were already extremely high in certain areas of the country. For instance, in 2018, in Baltimore County, Maryland, there were nearly 99 eviction cases filed for every 100 renter households. The eviction filing rate includes all eviction cases filed in an area, including multiple cases filed against the same address in the same year.

Federal rental assistance and eviction moratoriums helped drive those numbers down, but as those protections have sunset, the situation has already reverted to pre-pandemic levels, if not worse, Pollock said.

The eviction filing rates in Las Vegas; Gainesville, Florida; and Houston soared by 61%, 51% and 44%, respectively, from their pre-pandemic averages, according to the Eviction Lab's most recent data, which runs through December 2022.

Housing is only one area where a lack of attorneys is being felt. Although a legally mandated right to counsel doesn't currently exist for immigration-related matters, there are currently more than 50 publicly funded programs across the country providing representation in immigration cases. Also, immigrant rights advocates in various states are actively campaigning for legislation to adopt right-to-counsel measures at the state level. There are ongoing efforts at the federal level as well, the Vera Institute of Justice told Law360 in an email.

Vera, which runs a national network of deportation defense providers in local and state jurisdictions, is advocating for passage of the Access to Representation Act in New York, which would require the state to appoint an attorney for every person who has a case before an immigration judge, and for the Fairness to Freedom Act in Congress, which would establish a federal right to legal representation in certain immigration proceedings.

"These are a key part of the solution to address the needs of arriving immigrants and immigrant communities around the country," said Annie Chen, director of Vera's Advancing Universal Representation initiative.

But immigration attorneys as a general matter continue to be hard to find in a moment when a surge in illegal border crossings and a greater influx of asylum seekers have increased the demand for legal representation.

Meanwhile, only 22 states currently guarantee a right to counsel in guardianship proceedings for adults, where a person could be forced into a nursing home, prohibited from seeing certain people, or be involuntarily medicated.

As the national population ages, access to counsel in guardianship proceedings will become an even bigger issue, Pollock said.

"In some cases, you don't even get a hearing, let alone a lawyer," he said. "Someone files paperwork saying, 'This person is disabled,' and the court grants the guardianship without even holding a hearing, which is pretty shocking."

More Jurisdictions Consider Eliminating Court Fees

In recent years, several states have taken steps to limit court fees, which critics say are a form of taxation that hits low-income people disproportionately. Last April, New Mexico joined California as the only two states in the country to have abolished criminal court fees for adults.

Lauren Jones, the legal and policy director at the National Center for Access to Justice, which runs a ranking system for states looking at a wide array of policies impacting access to justice, told Law360 the New Mexico law could be a blueprint for other jurisdictions.

Driven by advocacy groups like the Fines and Fees Justice Center, the movement to eliminate fees is looking to keep up the momentum in 2024.

"We will continue to see a lot of movement," Jones said.

While eliminating fees altogether is the advocates' ultimate goal, some states have taken incremental steps to help ensure some fairness in the process. Last year, for instance, Oklahoma passed a law establishing ability-to-pay hearings in which a criminal defendant's financial means are considered before a court decides whether to impose fines and fees.

But Jones said that in many jurisdictions, there is still no ability to have such hearings. In some places, fees — or fines, which are part of a person's sentence — are set by law and judges have no power to lower them or waive them. And even when the law requires judges to consider a defendant's ability to pay, there is little guidance on how to do it.

Jones said the issue of fees and fines offers a rare example of bipartisan interest.

"It has not been a Democrats' issue or Republicans' issue," she said. "People are starting to recognize across the political spectrum that this is an issue that needs to be addressed."

Udell said he expects to see more states make progress on ability-to-pay hearings this year.

The Fines and Fees Justice Center, meanwhile, is advocating for legislative changes at the state level, including restoring the ability to vote and preventing driver's license suspension for people who still owe fines and fees, and eliminating fines and fees for juveniles.

Those efforts have already begun to pan out as bills championed by the Fines and Fees Justice Center were introduced this week in Florida to give judges the discretion to conduct ability-to-pay hearings and to waive or reduce fines and fees.

"Our team in Florida will be actively working to secure passage of the bills," the center's co-director, Lisa Foster, told Law360.

Meanwhile, California has been piloting MyCitations.com, an online platform that allows people who receive traffic citations to ask a judge to waive or reduce fines and fees. Currently, a citation with a $100 fine in the Golden State carries an additional $390 in fees. MyCitations will be implemented statewide this year.

This year, the center is advocating for fee elimination at the state or local level in Nevada, New York, Florida, New Mexico, Virginia, Maryland, New Jersey, Oklahoma, Illinois, Michigan and Delaware, Foster said.

In 2023, the center was instrumental in getting a bill ending driver's license suspensions for both failure to pay and failure to appear passed in New Mexico. The legislation automatically reinstated roughly 300,000 suspensions. This year, the center is working on similar bills in Massachusetts, North Carolina, Ohio, Kansas and New Jersey.

--Editing by Robert Rudinger.

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Correction: A previous version of this story misattributed a quote from a Vera Institute of Justice staff member. The error has been corrected.