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Attorney shortage creates challenge to affordable representation

Laura Johnson

South Dakota attorneys cannot keep up with the demand for their services. That’s prompted some state residents to represent themselves in court, especially for civil cases. But at the same time, the pandemic has reduced the overall number of civil cases heard in court.

People who represent themselves in court are called "pro se" litigants, and recently, South Dakota’s Chief Justice Steven Jensen highlighted one reason people make that choice.

"Litigation has become more and more expensive, and many people do not have the financial resources to hire a lawyer," Jensen said. "As a result, the number of pro se litigants continues to grow, as does the number of their disputes.”

In his State of the Judiciary address, Jensen was referencing a trend that primarily affects civil cases. They include a wide range of legal issues including family court matters, contract, employment and probate actions.

However, the number of civil cases has decreased since 2019. The court administrator for the state, Greg Sattizahn, said that during the pandemic, the courts have prioritized criminal cases, putting many civil cases on hold.

"I think this was a nationwide trend that a lot of individuals decided to figure alternative ways to address whatever issues are out there and perhaps not involve the court system,” Sattizahn said.

In 2019, 25% of civil litigants in the state represented themselves. This year, that number is down to 17%. Low-income plaintiffs face a special challenge finding affordable legal representation.

Laura Johnson

Annemarie Michaels is deputy director of Dakota Plains Legal Services, which offers free legal counsel to clients who qualify financially. Michaels said the organization is extremely short staffed and sometimes needs to use outside attorneys.

“We will pay another attorney, a private attorney, up to $4,500 for them to take on our client’s case,” she said.

Conflicts, costs

But some people are still left without representation.

Jesse Hauk is representing himself in a child custody case with his ex-wife, who has an attorney.

Hauk qualified for assistance, but said he faces another challenge — finding an attorney.

Many of the attorneys and firms he has contacted have connections to the case or are too expensive to hire.

“Most of them come back with, 'It’s a conflict of interest,’” Hauk said. “I’ve contacted several of the legal services and they’ll come back with a conflict of interest, or they all want an exorbitant amount of money down to represent me.”

Hauk said attorneys who would take his case asked for at least $10,000.

Initially, Hauk had an attorney represent him in divorce proceedings in 2014. Custody of their children was evenly split. But, when his ex-wife filed a protection order against him, Hauk couldn’t find another affordable attorney. Currently, Hauk is allowed one hour of supervised visitation with his children each month.

Access issues

As for representing himself in court, Hauk said the system makes it tough. Attorneys have access to a digital portal and can file for information remotely.

“South Dakota is one of the states that they do not let us non-licensed individuals be able to do any filing through that digital portal," Hauk said. "You have to actually be in the court and submit it into the clerk of courts.”

The attorney shortage plays out in other ways. Amber Richey is director of the Lawrence County Public Defender’s Office in Spearfish. It’s one of just three in the state.

"It is noticeable, and it has been a trend for at least the last five plus years I would say, is that we simply don't have a large number of attorneys to draw from whether that's for civil cases or criminal cases, honestly,” Richey said.

The state’s other public defenders' offices in Pennington and Minnehaha counties said they have enough attorneys now, but are concerned about retaining them.

Richey said defendants who use public defenders and court appointed attorneys still must pay legal fees to the county’s office. The fees can cost more than $100 an hour along with additional charges for evidence analysis when necessary.

Other options, ideas

There is another source of legal aid in the state, and it comes from the University of South Dakota law school.

Neil Fulton, the school’s dean, runs an organization called the Works Clinic in some of the state’s circuit courts. It brings in USD law students to provide free legal advice and mediation tactics in divorce cases.

“If you can have mediated and agreed upon resolutions in these instances, it's better for the litigants," he said. "It’s better for the kids involved than when people are fighting it out, if there’s actually an agreement that can be reached.”

Fulton said the approach provides essential hands-on experience for law students and encourages more students to pursue a legal career in the state.

The state’s court administrator, Greg Sattizahn, is also looking into ways to consolidate resources.

“Our ability to have a coordinated approach probably allows us to provide I think more accurate and helpful information as opposed to a person kind of having to go, 'What's on the state bar’s website? What would the law school have?' Then how would you get connected with a legal service entity and what that process looks like."

Improving the public's access to documents is another way the court system is trying to level the playing field for people who choose to represent themselves in court.

Laura (she/her) is based at the Sioux Falls Studio. She is a journalism/anthropology student at Augustana University.