Providing Access to Justice
The Bencher—July/August 2017
By Dean James H. Rosenblatt
The Legal Services Corporation (LSC) and the men and women who have served that organization over the years have contributed in a mighty way to our nation’s wellbeing: They have provided citizens who are not able to afford to retain a private attorney with legal services. Many attorneys have remained in the organization for their entire professional careers, while others have moved to private or government practice, taking with them the experience they gained while in the LSC. They have also taken with them an understanding of the needs of those who could not afford to pay for legal services and have used that understanding to continue their part-time representation of the underserved, and to champion and promote the need for resources for the LSC.
We are all aware of the budgetary cuts the organization has taken over the years and the pending cuts it might have to absorb in the near future. Other articles in this issue speak to and discuss this concern. While the LSC is a major component in the challenge to provide access to justice to those who cannot afford to pay for legal advice and representation, no amount of funding reasonably available will permit the provision of all of the legal support needed in this country. The solution must come from elsewhere.
What follows are some suggestions as to how legal assets can be organized and brought to bear on the issue of providing access to justice on a statewide basis. These suggestions are based on how my home state of Mississippi has taken on this challenge.
In most states, the legislature does not play a significant role in providing access to justice. Legislatures may appropriate funds to support legal services or may indirectly provide funds to legal services organizations through legislative measures, such as adding an extra charge to tickets or fines. The legislature may direct that funds seized from illicit operations be directed to legal services. Legislatures may also offer legislation designed to protect or support those who offer pro bono legal services or to encourage those who offer these services. These measures may range from liability protection to tax incentives. If filing fees or other legal fees are legislatively set, there could be a relaxation or elimination of those fees for pro bono work.
The courts of a state typically will control many aspects of providing pro bono legal services. If not controlled by the legislature, here are some steps the courts can take to ensure that access to justice is available:
Appoint an Access to Justice Commission to develop a unified strategy as to how best to offer legal services for civil cases. Such a commission can work to ensure that the various legal providers in the state complement each other, that state-provided resources are properly allocated, that publicity to support this work is advanced, that recommendations regarding changes in rules and procedures can receive the proper attention and be directed to the appropriate authority, that the assets of the private bar can be engaged in this work, and that legislative proposals can be developed and advanced to assist with offering pro bono services. The commission can also develop resource materials and training that can serve legal providers throughout the state. It is important that the membership of such a commission include a range of representatives from the business, legal, religious, legal services provider, judicial, law school, media, and executive branch communities. The commission should be led by one or two individuals with such prominence that all would recognize the importance attached to this work.
Examine rules promulgated by the court to see how providing pro bono services could be made easier. These rules could allow attorneys who are not admitted in the state (law professors, out-of-state volunteers, etc.) to provide pro bono legal services. Other rules could allow attorneys to provide limited representation where they could assist a client with a portion of the case, but not be obligated to carry the case to completion. Rules regarding filing fees, charges for access to electronic filing systems, and bar dues could be examined to ensure they provide the maximum incentive to offer pro bono legal services. Rules regarding conflict representation can be modified to allow limited representation that could not be offered because of the type of client or representation the firm or the attorney offers without compromising representational duties. The court could also set standards as to how attorneys could fulfill their pro bono responsibilities.
Structure rules for bar admission and continued bar membership to provide incentives to provide pro bono services. These rules could include requiring newly admitted attorneys to provide pro bono services, mandating a certain level of pro bono services to maintain bar membership, mandatory annual reporting of pro bono services provided that year, and affording attorneys a method to contribute to the funding of legal service organizations.
Law schools offer tremendous assets to the goal of offering access to justice. Many offer clinics that provide legal advice or representation. Faculty members can provide advice concerning issues that providers encounter. Students are available to work as volunteers in legal services organizations or to serve as externs with limited practice representation opportunities.
Our Mission First Legal Aid Clinic operates in a partnership between a 501(c) organization—Mission First—and Mississippi College School of Law, and uses law students to accomplish the client intake and interview process. This allows the students to identify the legal issue involved and develop the facts surrounding that issue. The students do a case workup that allows the clinic director to solicit the appropriate volunteer attorney to handle the case. The attorney knows the type of issue involved and is not going in blind to the possibility of getting a case that expands exponentially and takes many hours to resolve.
The clinic director has worked to develop a cohort of more than 300 attorneys who are willing to be called because the attorneys know they can use their legal skills in an efficient way. The dollar value of the legal services provided by these private attorneys is in the millions of dollars each year. With only one full-time attorney and one administrative support employee in the clinic, a valuable range and degree of legal services are provided to more than 1,400 clients each year. The clinic uses an income guideline of 200 percent of the federal poverty guidelines to allow the clinic to represent the working poor who might not be eligible to be seen by LSC organizations.
Legal Service Providers
These providers may be modest in scope and offer only basic legal advice, or they may be sophisticated, expertly staffed operations. They may be associated with a soup kitchen, a church, a veterans group, or a homeless shelter or a well-endowed nonprofit group. The legal issues with which they deal can range from straightforward issues such as governmental benefits to complex immigration matters. They are often regarded as welcoming places for those who need food or shelter or legal services to turn because of their mission and the people who work in these organizations. It is important to recognize the important and often critical legal services these organizations provide and to offer encouragement in the local community to support these providers and to offer volunteer time and expertise to them.
Local city or county bar organizations are in an excellent position to offer pro bono legal services. Many clients in need of legal advice are not willing or able to travel or do not have the skills necessary to take advantage of legal services offered through computer access. There is also a great degree of trust in getting legal services from a local attorney who is known. It can be productive for bar associations to embrace the provision of pro bono services. Bar organizations can coordinate, encourage, and implement the offering of pro bono services in an effective manner that an unorganized group of private attorneys could not.
LSC organizations cannot be looked to as the sole answer to providing access to justice. A combination of monetary, organizational, and human resources must be organized in a cohesive and coordinated way to ensure that the individuals without the means to hire an attorney are able to claim their legal rights. Judges, attorneys, law schools, bar organizations, and the judicial and legislative arms of the state all have a role and obligation to ensure the legal system operates for all and not just for those who can afford to participate. The alternative is to have a legal system that many citizens are afraid of, that they do not trust, and that serves to separate the citizenry in inappropriate ways.
Jim Rosenblatt is Dean Emeritus and Professor of Law at Mississippi College School of Law in Jackson, MS. He is an honorary member of the Charles Clark AIC and member of the editorial board for The Bencher.
© 2017 Jim Rosenblatt. This article was originally published in the July/August 2017 issue of The Bencher,
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