Tributaries of justice: the search for full access.

• Author: D'Alemberte, Talbot
• Position: Pro bono legal services

A lawyer long active in the struggle for equal access considers the larger picture

When we compare the record of the United States in providing legal services to the poor to that of other countries, despite our elaborate public rhetoric laced with sentiments of "liberty and justice for all," we lag behind in providing financial support for legal services. California Justice Earl Johnson, Jr., who has examined the financial commitment of various jurisdictions to provide access to legal representation, concludes that "[w]hen it comes to the legal entitlement to free counsel for indigent civil litigants, the United States is in a distinct minority among the industrial democracies of the world."[1]

One of Justice Johnson's recent publications provides a chart comparing the financial support for civil legal services in the United States and certain other Western jurisdictions.[2] Although this chart may require annotation,[3] it casts doubt on the real commitment of Americans to a justice system which truly provides access to all.

A quick look at Justice Johnson's chart shows that, based on an analysis of per capita government spending for legal services, the support for civil legal services to the poor in California is about 10 percent of that in England and Wales.

With a gap so wide in provision of financial support, we are tempted to ask how we can ever expect to provide adequate services, particularly if the gap between rich and poor continues to widen.

Justice Johnson believes that we will achieve access to justice only if we think of the road to access as a multi-lane highway, not a single-lane road.[4] This access problem traditionally has been addressed through individual solutions--pro bono services, alternative dispute resolution, funding for legal services, and so forth. Yet, successful access is more likely achieved through a combination of these efforts.

Florida Supreme Court Justice Ben F. Overton has recognized the importance of bringing many elements together to improve access to justice. In an opinion reviewing recommendations to improve access to justice, which included a pro bono plan, Justice Overton recognized the many other programs that can contribute to access:

[F]or this justice system to maintain credibility, we realize that it must be available and affordable to all segments of society.... This Court and The Florida Bar have regularly adopted programs to improve the accessibility of our judicial system. These include simplified proceedings in small claims court, probate, and dissolution of marriage matters; the development of simplified forms for a litigant's pro se use; the establishment of citizen dispute settlement centers; and the recent implementation of mediation and arbitration programs designed to resolve disputes in an efficient and economical manner.[5]

Justice Overton stressed the need for providing legal services to the poor: "[T]he obligation to represent the `defenseless and oppressed' is critical to our judicial system if it is to work properly for all segments of our society."[6]

The court declared its duty to assure access to justice: The lawyers of this state have recognized that they have a debt of service to the poor in the oath each took upon becoming a member of the legal profession and an officer of the courts. This important commitment assures a justice system for all. We acknowledge our responsibility to provide the necessary leadership to accomplish that goal.[7]

The court also recognized the lawyer's sworn duty to respond to legal needs: "[E]very lawyer of this state who is a member of The Florida Bar has an obligation to represent the poor when called upon by the courts and ... has agreed to that commitment when admitted to the practice of law in this state."[8]

In a later opinion, the Florida Supreme Court adopted a comprehensive access to justice plan in substantially the same form in which it was submitted,[9] modifying it in minor ways to address concerns about such issues as the duty of government lawyers to provide pro bono services.[10] Of great significance, the court narrowed the definition of "legal services to the poor," which governed the pro bono reporting element of the plan:

Florida lawyers should strive to render (1) pro bono legal services or (2) to the extent possible, other pro bono service activities that directly relate to the legal needs of the poor. It is also our intention that the definition include legal services not only to indigent individuals but also to the "working poor."[11]

The Florida pro bono plan is interesting in part because it is built on the middle ground between the poles of mandatory pro bono and purely voluntary pro bono service.[12] The plan provides lawyers minimum standards for annual pro bono contributions, encouraging lawyers to contribute at least 20 hours of direct legal service to the poor or, alternatively, a payment of $350 to legal services providers.[13] The rule does not require the performance of these minimums but it does mandate the reporting by each lawyer of the annual performance of pro bono service or payments in lieu of service.[14]

The Florida pro bono plan places an expectation on Florida attorneys that they will provide direct legal services to the poor, not just "good works."[15] The court does not expect, though, that even this focused, comprehensive pro bono plan, fully backed by the court, will meet the needs of the poor.[16]

I like Justice Johnson's analogy that we have multiple lanes of a highway to lead us to the goal of access to justice. When I spoke in Seattle at the launching of a campaign by Washington lawyers to raise money for legal services in the spring of 1991, I used another analogy that described these lanes as tributaries feeding a mighty river. After my speech, James Noe, a very thoughtful state court judge, came forward and said that the analogy of the river is better and reminded me of the passage from the Book of Amos: "Let justice run down like waters, and righteousness like an ever-flowing stream."[17]

If we are to achieve access for all our citizens, we need to have a plan, and we need to know where we are today. In this paper, I use Florida as a model because it has a comprehensive pro bono plan with mandatory reporting and provisions for court leadership in the creation of local pro bono plans. Florida also has recently assessed the legal needs of its poor. In 1997, there were more than two million Floridians in poverty,[18] and most do not have access to the civil justice system. A study commissioned by the Florida Bar Foundation indicates that 81 percent of the legal needs of the poor in Florida were not being met as of 1995.[19]

Although the legal needs of the poor continue to increase, many of the resources for legal services have stagnated or declined. Now that the pro bono reporting requirement is in place, it is possible to conduct an assessment to better determine the status of achieving access to justice for all of Florida's citizens. Full access to the civil justice system can be achieved through free-flowing tributaries of resources that enable the impoverished to secure legal representation. An examination of current and potential tributaries indicates which are providing, or might provide, full access to the legal system.

Tributary 1: Federally Funded Legal Services

The program that is the most efficient in providing legal services to the poor is the federally funded Legal Services Corporation (LSC). The LSC disperses federal funding to legal services offices nationwide, which are staffed by committed and well-supervised full-time lawyers, paralegals, and clerical help.[20] While these legal services offices receive funding from various sources, most are supported primarily by federal dollars. Despite their critics,[21] these programs are serving a large client base at a minimum cost. For example, in fiscal year 1997, legal services agencies closed some 1.46 million cases,[22] and operated on a federal appropriation of $283 million dollars.[23] Florida legal services agencies in 1997 closed 116,000 cases, operating on a federal appropriation of about $42.8 million.[24]

Sadly, after the Republican Party took control of Congress in 1995,[25] the Congressional funding for legal services dropped to its lowest level of $278 million for all programs nationally.[26] That funding level, in real dollars, was 12 percent below what it was in fiscal year 1981 when Ronald Reagan took office,[27] yet there were about 16 percent more people in the target group of defined poverty level citizens.[28] Although the funding level for 1999 rose 5.3 percent over that of 1998, Congress is simply keeping the 1996 funding level current with inflation.[29]

It is essential that federal appropriations be restored to their 1981 level of $321 million,[30] and then increased to the long-targeted level of providing two federally funded legal services lawyers for every 10,000 persons living in poverty.[31] To do this would require, in present-day dollars, approximately $400 million,[32] with Florida receiving approximately $22 million dollars.[33] Unfortunately, federal funding has never reached this level and is stagnating.[34] Moreover, in recent years there has been little commitment to the legal problems of the poor in either the legislative or executive branch.[35]

As we look at Chart 3, we must remember that the decline in actual resources would appear even more dramatic were we to adjust for inflation.

Tributary 2: Interest on Lawyer's Trust Accounts

The second tributary of this highway to access to justice is one of the most remarkable innovations in legal services--the Interest on Lawyers' Trust Accounts (IOLTA) program, originated by Florida Supreme Court Justice Arthur England during his service on the court.[36] The program is based on Justice England's observation of a similar program in British Columbia.[37] Justice England realized that interest on small...