To Everything There Is a Season…Now Is the Season to Be a Lawyer

The Bencher—July/August 2017

By Frank Natale, Esquire

In 2017, a new and serious threat to legal services for the poor has emerged in the form of the President’s proposed budget, which suggests the complete defunding of the Legal Services Corporation (LSC), which had requested more than $502 million. Established by Congress in 1974, LSC affords critical representation to some of the most vulnerable people in our society. It is the single largest funder of civil legal aid in the country, awarding grants to eligible nonprofit organizations that served more than 1.8 million individuals, children, families, seniors, and veterans in 2015. Legal services lawyers often have the most meaningful and direct contact with at-risk communities and can identify trends affecting wide swaths of people across ranges of socio-economic status. These contacts provide context for impact litigation and for informing lawmakers (when permissible) how current or proposed laws are affecting their constituents. Further, these lawyers often provide the private bar with client referrals for fee-generating cases and pro bono opportunities.

“LSC implements the most fundamental of American values—ensuring equal access to justice for those who cannot afford to pay for a lawyer. Every year since LSC was founded in 1974, Republican and Democratic Congresses have funded us, because they recognize the importance of the services that our grantees provide to their constituents…I am optimistic that Congress will continue to fund us, and I have been heartened by the outpouring of support for LSC from across the country,” said LSC President Jim Sandman.

For some states, an LSC-funded program is the only access to justice program available to low-income residents, who are trying to navigate the complicated legal system on urgent issues from evictions to domestic violence. Sandman says LSC’s services are critical to “helping victims of domestic violence secure protection orders against their abusers, allowing veterans to access benefits they earned through their military service, protecting seniors from consumer scams, and enabling disaster survivors to get back on their feet.”

Even with funding in place, there are courtrooms around the country where pro se litigants struggle with procedure and applicable law. Judicial calendars get slowed down because judges generally try to accommodate unrepresented litigants. Ultimately and not surprisingly, the unrepresented are often placed in much worse positions than they would have been if represented by counsel.

Two recent studies highlighted the impact of lack of representation on individuals in landlord–tenant matters. The first study, “Justice Diverted: How Renters Are Processed in the Baltimore City Rent Court” (Public Justice Center, December 2015), noted that in Baltimore City alone, 6,000 to 7,000 renters are evicted every year. This study focused on 300 renter-defendants in courts in Baltimore City; among many of its observations was this telling statement: “Our study shows that the court system prioritizes efficiencies which privilege the landlord’s bottom line, and as a result, it decidedly ignores two predominating realities of poor renters and their housing. First, renters lack access to timely legal advice and have insufficient knowledge to navigate the process. Second, renters are poor, have few rental options other than Baltimore’s crumbling housing stock, and look to the court to enforce housing standards.”

On the critical aspect of insufficient knowledge, the study authors note that 50 percent of renter-defendants surveyed knew nothing about how to defend their cases. These defendants are economically vulnerable and live in poorly maintained units—as many as 80 percent were living in facilities with serious housing defects, and 70 percent of those had notified the landlords. When these defendants appear in court alone, they are dissuaded from representing themselves and often enter into agreements that do not serve their own best interests.

The second study, “Human Rights in Maryland Rent Courts,” published in 2016 by the Maryland Legal Aid Bureau, examined the statewide impact on renters in Maryland. The authors looked at a sample of rent court cases, covering every jurisdiction in Maryland. Some of the issues they identified include:

• Errors in Failure to Pay Rent cases (unclear, insufficient, or incomplete records necessary for judges to make a definitive conclusion)
• Default judgments entered against tenants even though some landlords did not meet their Legal Obligations to make a basic case for an eviction judgment
• No Service or Improper Service to tenants (adequate notice of legal claims and an opportunity to present defenses to their case in accordance with Maryland law).

Any legal representation for renters would drastically reduce these effects. If nothing else, trained lawyers appearing and practicing in these courtrooms would make it less likely that these systemic practices would continue unabated.

In the District of Columbia, the landlord–tenant courts are filled with unrepresented renters facing landlords who are nearly unanimously represented by counsel. It is said that even if every legal service provider in the District provided representation in landlord–tenant court to tenants, there would not be adequate coverage to represent them. (There are approximately 33 legal service firms in Washington, DC. Most are small and concentrate their work on serving specific populations or for specific legal problems, and not all provide representation for housing matters.) The problem is not limited to the District alone. Recently a judge from Milwaukee visited the District’s landlord–tenant court and various legal services programs, and explained that the Wisconsin courts are facing many of the same dilemmas with staggering numbers of unrepresented litigants.

There are hundreds of anecdotal and statistical studies to support the basic fact that there is a crisis of lack of representation for the poor.

The question of what we should do as a profession to address the inequities faced by the poor in our society is not taken lightly. Many judges, law school deans, and corporate counsel have voiced their support for a continuation of funding for LSC. Many of those same folks are actively engaged in creating court-sponsored self-help centers, legal clinics, and pro bono initiatives. If we fail to address the growing divide between the haves and the have-nots, the ideal of a rule of law will fail as a practical matter. If a vast majority of our citizens cannot avail themselves of legal assistance, they are essentially frozen out of the remedies available in the law. That is not an ideal shared by anyone I know within the legal profession.

Now is the time to give of your time and talent, to jump into the breach and fight the difficult battles as pro bono counsel. Volunteer at legal clinics. Provide a voice for community members at legislative hearings. To observe authority and make sure it is not overreaching. To donate when possible to local legal service firms that are dedicated to providing meaningful representation to the most vulnerable among us.

Our moment to be heroes is upon us and it is imperative that we rise to the occasion.

Frank Natale, Esquire is the Director of Litigation & Advocacy at Neighborhood Legal Services Program in Washington, DC.

© 2017 Frank Natale, Esq. This article was originally published in the July/August 2017 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.