Study outlines barriers to civil legal service aid in South Dakota

There’s a lack of civil legal aid services across South Dakota, and a group of three legal aid services have come together to publish a report illustrating the need for services.

The recetly published statewide legal needs assessment was a partnership between East River Legal Services, Dakota Plains Legal Services and Access to Justice. The study surveyed and conducted in-depth interviews with community partners and potential clients across South Dakota.

“We’re really in a crisis when it comes to civil legal access to courts,” said Lea Wroblewski, the East River Legal Services executive director. She noted the crisis isn’t unique to South Dakota, but rather the nation.

What is unique to the South Dakota civil legal crisis is the lack of lawyers in rural areas, leaving people to represent themselves in court. The study also surveyed populations that commonly come in contact with the civil legal system and the issues they face. The report also listed recommendations for ways to ease some of the issues.

“There is absolutely a lack of attorneys in rural areas in South Dakota and the state bar’s done a number of things to try and help with that,” Wroblewski said. “But, there are communities that don’t have lawyers. Those resources aren’t available even if you can afford to pay for it.”

And when people need help navigating the civil court system, it can be an uphill battle trying to access legal service aid.

Nearly one out of every five civil cases between 2018 and 2021 were rejected, leaving people without legal aid while navigating the civil court systems, according to the report.

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That means people are typically left to represent themselves in court, also known as pro se cases. About 80% of divorce cases in parts of the state are pro se cases.

“Honestly, a lot of the time, the [divorce] process can’t be completed,” Wroblewski said, explaining that one party may be able to file the divorce but might be unable to overcome the systematic barriers. “The cases will drag on sometimes for years because the parties can’t figure out how to finalize the case or they can’t figure out how to calculate child support.”

Pro se cases can also be a drain on the court, with Rapid City court clerks noting in the report that they can’t provide legal advice or help individuals fill out the form.

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“From the court’s point of view, it is so much better for all parties when an attorney is involved in a case,” according to the report. “It is hard for judges to help when the litigants are not prepared or do not know what they are doing.”

Denise Langley, the executive director of Access to Justice in Pierre, said she's hopeful the study could pave the way for the three programs to establish pro se form clinics in rural areas.

Wroblewski added when pro se cases have a party represented by a lawyer, the outcome isn’t as good for the person representing themselves. And, it’s not just divorces Wroblewski said, it’s also evictions.

“Almost 100% of those tenants are unrepresented,” she said, adding that COVID-19 pandemic rental resources are running out but rental assistance is still a viable pathway for tenants. “We have recently seen several instances where if we know the tenant is going to be receiving assistance that’s on its way, the landlords are done. They’re ready to get the tenant out and move someone else in.”

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Surveying overrepresented populations

As part of the data gathering process, specific populations were oversampled to gain a better understanding of legal barriers they confront. Those populations included Native Americans, seniors, victims of domestic abuse and veterans.

Of the 10 counties that have a high rate of legal aid, eight are on reservations and seven of those 10 have the highest poverty rate in the state.

Most legal aid clients were white and Native American, and a majority of clients were women.

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Civil court cases that needed more legal aid included child abuse and neglect, housing, divorce and child bustody, elder abuse, and tribal law. There’s also a shortage of expertise on immigration, bankruptcy, family law and tribal law.

Immigration and bankruptcy cases tend to get sent to attorneys in Sioux Falls where someone might be able to take their case. South Dakota Voices for Peace, a non-profit immigration and civil rights group, has attorneys specializing in immigration law.

On the western side of the state, people with more specialized cases have to go to Rapid City.

What can be done?

The civil legal study comes as a group of judges, lawyers, court experts and lawmakers work throughout the summer on a taskforce focused on barriers within criminal indigent court services.

The legislature also helped fund access for legal services in South Dakota during the 2023 session, Paul Cremer, the executive director of the South Dakota State Bar said.

"We're hopeful that they will continue to provide funding for efforts to address access to legal services in South Dakota," he said.

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As for civil legal services, Wroblewski said the study was surprising based on how many of their community partners didn’t understand what cases East River, Dakota Plains and Access to Justice could and could not take on.

“We haven’t done a very good job about messaging,” Wroblewski said. “I think that would help the frustration level, too, if clients or agencies knew you’re not likely to get an attorney — I just don’t have enough attorneys for the need — but we can give you advice, we can help you with the pro se forms and help you know what type of outcome to get.”

Joint recommendations between the three civil legal services included clarifying application processes, the creation of legal aid referral sheets for county courthouse clerks to give out, recruitment and education partnerships.

Langley said the groups are already working through the recommendations and are looking for the potential for collaboration between legal aid service programs and other stakeholders like the Uniformed Judicial System and non-profits.

Overall, Wroblewski said the thinking around accessing legal services needs to change.

“I do think we need to just think about the legal profession and consider different ways to help individuals access the courts,” Wroblewski said. “I think rather than just say everyone needs a lawyer, because I don't think that's realistic, I think we need to say what are other options to help this person get through this process in a successful way.”

This article originally appeared on Sioux Falls Argus Leader: Study: Lack of lawyers in rural South Dakota cause of legal ‘crisis’