Pro bono legal services: the silent majority - a twenty-five year retrospective.

• Author: Marrero, Victor

Introduction I. Background II. Legal and Policy Issues III. The Fire Next Door: From Legal Crisis to Moral Crisis A. The Picture Then 1. A Plan of Action 2. And Reaction 3. Inaction: The Silent Majority 4. Keeping the Light Flickering. B. The Picture Now 1. A New Benchmark 2. Amber Light 3. Sooner Action and Why It Matters 4. Fighting the Fire 5. The Most Fundamental Issue 6. Synthesis Conclusion INTRODUCTION

The beginning of this Essay takes an unorthodox course. As a starting point, I jump to the middle of my topic. I do so by telling a story. Through this approach, borrowing a page from the style of children's stories and biblical text, I seek to simplify my task. The tale I will relate is meant as an expression that sometimes, complex challenges are easier to explain and best understood when clarified with plain illustrations. Graphic contrasts and allegorical aids open lines to purpose and meaning. Casting things in a different light this way can serve not only to gain clearer understanding, but to change hearts and minds, and perhaps even catalyze sooner action in response to a need or a cause.

The story occurred to me recently while reading a statement made by a judge that contains an insightful comparison; one I think sheds light on my thesis. The judge commented on the function of our courts as the place to which people must sometimes resort in coping with the countless acute afflictions of life, many of which involve urgencies they, especially the poor, endure daily as they struggle to satisfy basic human needs. In this connection, the judge said that "[t]he courts are truly the emergency rooms of society." (1)

That judicial metaphor is generally apt and should work well as applied to most people. But, now vary the analogy. Change the hospital emergency room by adjusting how it functions to reflect the workings of the courthouse, focusing in particular on the realities poor unrepresented parties encounter daily in our courts. What would hospital patients experience if some of the treatment and practices that poor people face in our justice system applied to medical care as well? The new setting, even with its bizarre distortion, is not hard to visualize. And the picture it would paint is not pretty.

In the emergency room as imagined, two groups of patients--one wealthy and one poor--enter presenting similarly serious wounds and acute pains. The rich patients--those able to afford the full expense of medical services--are sent to an intensive care unit for treatment by certified physicians and trained nurses. The poor ones--those possessing no means from any source to pay for doctors--are shunted to a common waiting room. There they sit for hours until their names are called, at which point they are handed a first-aid kit, an abbreviated medical manual, and other self-help guides. The package includes forms describing various common conditions by which the patients might be able to identify what they feel and compare their symptoms to those of known illnesses, and thus self-diagnose what ails them. The kit also provides how-to instructions that the patients can follow in operating the image scanning machines; pads on which to write prescriptions for their own medications; and even simple 11 instruments with which to perform surgical procedures on themselves. To handle extreme circumstances in which the poor patients encounter exceptional difficulties employing this handy service, the hospital maintains on standby duty a limited number of medical students and nurse trainees to provide low-income patients some basic guidance on the use of the various medical tools supplied to them. Meanwhile, the hospital's physicians, on the way from their lounge to and from serving the paying patients, regularly pass by the poor people's waiting room.

Would the hospital trustees and administrators maintain a health care system featuring the emergency room service this illustration depicts? In our civilization, indisputably not. Indeed, even in the world's least progressive societies it would be derided as a travesty, a mockery not only of health care standards, but of any measure of human caring as well. Yet any judge would readily recognize a parallel courthouse caricature. To a judge watching litigants represent themselves in a courtroom, the event often seems like the justice system's version of assisted suicide. The scene of self-help in the courthouse is especially poignant at a trial or in complicated proceedings in which the controlling legal issues lodge somewhere within the arcana and long-studied subtleties of the law. The experience could be every bit as disturbing and pitiable as it might be to witness a hospital patient self-administering surgical aid.

If this hypothetical sounds too fanciful or far off the mark, think of real cases taken from the courts' dockets every day. Consider the recent crisis in this country's housing market brought about by mortgage foreclosures. We know now that vast numbers of those proceedings were basically flawed, if not recklessly fraudulent or otherwise unlawful. Yet, in New York, in over 60% of the foreclosure actions filed by the nation's largest banks, homeowners were not represented at a critical stage of the proceedings that the applicable statute requires before a judge can grant relief.2 By contrast, the banks appeared in court through specialized lawyers. Literally tens of thousands of those individuals lost their homes improperly, and many of them might have avoided that fate had they received adequate legal assistance. How many of those families are now homeless, on the streets, in shelters, or sharing overcrowded quarters with relatives and friends? The same situation continues to play out daily in New York City Housing Court. Every year, in hundreds of thousands of eviction actions, over 95% of tenants appear in court as defendants without a lawyer. Landlords represented by counsel confront these tenants in almost all cases. (3) Massive numbers of those poor tenants end up homeless and cite eviction as the cause, while eviction ensues in few of the cases in which they are assisted by a lawyer. (4)

Applying my own comparative scoring of the physical and emotional pain levels people experience in a hospital and a courthouse on a scale of one to ten, I would say that in many circumstances the hurt ratings would at minimum coincide. For a resident evicted from a home and thrown out onto the streets, for a parent who loses custody of a child, for an elderly person who forfeits health benefits or financial assistance--in each of these cases by lack of legal aid in court proceedings instituted to curtail rights to basic human needs--the outcome could feel as excruciating, and pierce as deeply into the sinew and bone of daily life, as wounds inflicted by bodily injury. The emotional distress and psychological aches these unassisted parties suffer in the courthouse may be no less acute and traumatic than the pain associated with many physical ailments for which they can secure routine medical treatment in the emergency room.

1. BACKGROUND

   The hospital analogy in my Introduction can be brought closer to home in court, as I will try to do later in my presentation through another fable. For now, let us return to actual developments in the real world of legal services for the poor. Earlier this year a spate of articles appeared in the news media and in academic literature commemorating the fiftieth anniversary of Gideon v. Wainwright. (5) Much of the commentary focused on assessing whether the U.S. Supreme Court's ruling in that case has achieved its full promise: the constitutional right of indigents to representation of counsel in criminal proceedings. (6) Over time, the circumstances that compelled Gideon--the denial of equal access to justice in our courts based on a person's inability to pay--has prompted examination of the same fundamental issues as they relate to the civil justice system. Perhaps the most prominent question in this debate is whether the time has come for what is referred to as a "civil Gideon," and how the courts and members of the Bar should gear up to address both the overwhelming need and the growing demand for legal services for low-income persons in civil cases in view of the limited available resources.

   During the past twenty-five years, as this retrospective will demonstrate, the New York State court system has been recognized as a pioneer in addressing these issues. Working closely with New York's organized Bar, our State judicial officers and administrators have led the way in calling attention to the legal needs of the poor, in advocating for improvements in programs devoted to meeting those needs, and in highlighting the public benefits and personal value that lawyers, litigants, and the courts derive from pro bono and public interest legal service. This Essay examines what New York has and has not done in this sphere over this time span, the extent to which the State's efforts have and have not succeeded, and what more may need to be done to realize better results. My thesis stresses a vital point: the severe crisis that large numbers of unrepresented poor people creates for our civil justice system, as well as for our larger society, raises not only grave legal and administrative concerns, but profoundly moral predicaments.

   As an opening historical backdrop, I quote from statements made by two New York State Chief Judges. In the spring of 1988, then Chief Judge Sol Wachtler noted that "the growing need for providing legal services to the poor has worsened." (7) He added that "[t]here has been a disproportionate growth in the number of lawyers engaged in the practice of law in relation to the number of people who are denied effective access to the civil justice system in this state because of a lack of means." (8) In early 2013, Chief Judge Jonathan Lippman made a similar observation. He wrote that "we are facing a crisis...