Impediments Committee Report to ATJ Board, 1996

Central both to the idea of the rule of law, and to our own Constitution's guarantee of equal protection, is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. " Romer v. Evans, U.S. , 134 L.Ed. 2d 855, 866 (1996) (as quoted in Leonard W. Schroeter, Esq.'s treatise, THE JURISPRUDENCE OF ACCESS TO JUSTICE: FROM MAGNA CARTA TO ROMER v. EVANS VIA MARBURY v. MADISON.).

A. History and Committee Membership

After many years of task force study and cooperative work by members of Washington's legal community to develop proposed solutions to improve the delivery of legal services, the Washington Supreme Court established the Access to Justice (ATJ) Board on April 18, 1994. The ATJ Board ("the Board"), an independent body operating under the auspices of the Washington State Bar Association, already is viewed nationally as a model to effectively address access-to justice issues. To facilitate its purpose, the Board was charged with establishing, under its general oversight, such committees as it deemed appropriate, with a goal that the committees be comprehensive and eliminate redundancy.

In 1996, the Board established the Systems Impediments to Access to Justice Committee (SIAJ Committee, or committee), composed of non-members of the Board, from throughout the state. The Committee membership is as follows:

• Honorable Cynthia Imbrogno, Chair United States Magistrate Judge, Eastern District of Washington
• Kenneth L. Isserlis, Esq. Lee, Michaud & Isserlis, P.S. Spokane, Washington
• Honorable Rebecca M. Baker Superior Court Judge Republic, Washington
• Jack W. Fiander, Esq., Yakima, Washington
• Lori Terry, Esq., Preston, Gates & Ellis, Seattle, Washington
• Patrick W. Ryan, Esq., Perkins Coie, Seattle, Washington
• James E. Baker, Esq., Miracle, Pruzan, Pruzan & Baker, Seattle, Washington
• Connie Gould, Esq., Seattle, Washington
• Travis Sines, Law Student, University of Washington Law School, Seattle, Washington
• Uri Clinton, Law Student, Gonzaga University School of Law, Spokane, Washington
• Joan Fairbanks, Esq., Access to Justice Manager, Access to Justice Board

B. Mission

The SIAJ Committee recognizes that while the right of access to justice is inherent in our judicial system, citizens often effectively are blocked from obtaining civil access. Functions of the SIAJ Committee include identifying and developing strategies to overcome legislative, administrative, and judicial rules, practices and procedures that serve as barriers to civil access to justice for low and moderate income residents of Washington State, and developing new strategies to expand opportunities for low and moderate income residents of Washington State to obtain meaningful access to the civil justice system. In this Report, the Committee attempts to underscore systems impediments recommendations that have been offered either through this Committee's work or other committee or conference work, but which may not necessarily be memorialized elsewhere in an easily accessible report. As such, its Report is viewed by the Committee as a blueprint for the Committee's evolving approach to its mission. In addition, the Committee will attempt to collect writings relating to systems impediments and be a clearinghouse source for parties that wish to research, learn about impediments, or be part of a solution process.

In preparation for this Report, the Committee collected and reviewed numerous other studies and literature, listed in the Appendix, and the excellent work accomplished through the CLEAR System and the Telephone Access Systems, designed to interface with CLEAR. In addition, Committee members participated in conferences, including the 1996 Access to Justice Conference in Chelan, Washington, and has been an active observe of the legislative process and the work of the committees convened by the Access to Justice Board. Input was requested from over 70 organizations, listed in the Appendix. The Committee also gratefully acknowledges generous contributions made through interviews with Lisa Brodhoff, former Chief Judge of the State Office of Administrative Hearings (OAH); Robin Zukowski, Administrator, Olympia, Washington; and constitutional scholar Leonard W. Schroeter, Esq., of Seattle, Washington.

The Committee membership also is grateful to Spokane County Superior Court Judge Paul A. Bastine; James Bamberger, Transitional State Coordinator for Columbia Legal Services Center; and Spokane attorney Nancy Isserlis for their assistance as liaisons to the ATJ Board. In addition, the Committee is grateful to Columbia Legal Services' Ada Shen-Jaffe, Northwest Justice Projects' Patrick McIntyre, attorney Mary Alice Theiler, Representative Marlin Appelwick, and Assistant Attorney General Narda Pierce, for helping the Committee.

A. General

Education as to the proper definition of Legal Services is a primary weapon in the fight for monetary support for Legal Services. Education as to the origins of the ideals of the civil access movement may remind people that civil access is a fundamental right. Our own Washington State Constitution states that "[a] frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." Wn. Const. Art. 1, § 32. It may be time for such a recurrence. If the people of this nation remember that what amounts to civil access to justice is mentioned in the same breath as form[ing] a more perfect Union . . . insur[ing] domestic Tranquility, provid[ing] for the common defence [sic], promot[ing] the general Welfare, and secur[ing] the Blessings of Liberty to ourselves and our Posterity" (U.S. Const. pmbl.), then possibly the battles on the floors of Congress and the various legislatures will cease, and the funding for Legal Services will become more stable.

It is evident from analyzing the history of funding for the Legal Services Corporation, stability only will come through the unyielding support of both Democrats and the Republicans—one party alone cannot guarantee the health of Legal Services. This necessary BI-partisan support should come through an acceptance by both parties that under the United States Constitution, particularly Amendments V and XIV § 1, Legal Services are a necessary and fundamental part of our government structure and not, as they are sometimes misnamed, social programs. This difference in definition may be one reason some politicians have been hesitant to continue support, while others have unwaveringly upheld Legal Services funding. As Leonard W. Schroeter, Esq., eloquently stated in his paper, the idea of access to justice as a pillar of our government structure is traceable to the founding documents. THE JURISPRUDENCE OF ACCESS TO JUSTTCE: FROM MAGNA CARTA TO ROMER v. EVANS VIA MARBURY v. MADISON. In Marbury, Chief Justice Marshall stated "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the-protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Marbury v. Madison, 15 U.S. 137, 163 (1803) (emphasis added). Chief Justice Marshall certainly had no concept of our modern day social programming, yet he emphatically described what is viewed modernly as access to justice. Politicization is the death knell to civil access to justice. To move closer to BI-partisan support, the name calling and booing across the aisle must stop. Even the jocular references to the parties and their support or undermining of funding must cease. Civil access to justice should neither become a casualty of an ad hominem war, nor should it be lost because of "jocularity" which is found to lack humor. Civil access to justice is a serious subject. The people opposing funding for Legal Services should be approached with respect and in an effort to change their position, not to wage a war against them and, while doing so, harden their hearts to the subject.

There are 60,000 case filings a year in Washington for state administrative hearings. Less than 1% of these filings are appealed from the administrative level to Superior Court. Yet, resources seem to be the most stressed at the administrative level, and these processes have generated fewer studies and less attention than has the court process. Accordingly, emphasis in the Report will be more focused towards the administrative level, as this seems to be where the need for solutions is greatest.

DINOSAUR STATUTORY ADMINISTRATIVE PROCEDURES WHICH ARE NOT USER FRIENDLY FOR PRO SE PARTIES

An example of administration procedures which are not user-friendly for pro se parties is found in the State Administrative Procedure Act, RCW 34.05, which requires personal service of process where an aggrieved party wishes to perfect its Superior Court appeal against certain agencies, and that personal service of process means serving the agency head in Olympia RCW 34.05.542(4). Judges, as well as the bar, should be lobbying the legislature to change that provision to provide for an easy waiver of service of process. Some agencies, to their credit, will permit service by mail, but the aggrieved party who typically is proceeding pro se is at the mercy of the agency in that regard. The waiver provision could be one such as that in Fed. R. Civ. P. 4. There, if the defendant waives service and provides a notice of waiver to the plaintiff; then the plaintiff proceeds by filing the waiver. If an individual refuses to waive personal service, or fails to comply with the request to waive service of the summons, the Defendant must pay the costs incurred in personal service. See, also, discussion infra, at 7, about the need to restore certain administrative level automatic stay provisions.

Judicial officers and the bar can help in assisting and encouraging attorneys to help people at the administrative level. As previously noted, Only 1% of the 60,000 cases are appealed from the administrative level to Superior Court. By the time these matters reach superior court, the damage has been done in terms of the record, which may not have been developed if there was no attorney involvement. (In addition, if there are remanded matters to an agency where the litigant has engaged successfully in the ambitious undertaking of brokering the process from the administrative level to court, judges should be helping claimants find an attorney who is conversant in administrative law to help them on remand.) Judges and bar leaders should ask the administrative law section of the bar and attorneys to put themselves on the county pro bono lists so they will be easily available for a phone call. Given what is at stake, it is important to locate competent administrative law attorneys. Local pro bono programs should be encouraged to seek attorneys who would provide mentoring and 'It is believed that legislation slated as "welfare reform," not only will stress state administrative processes, but also federal ones. For example, it is estimated that in 1997, over 100,000 disabled children will lose Supplemental Security Income (SSI).

The issue of lack of attorney representation at the administrative level not only impacts persons seeking entitlement who live belong the poverty line, but also persons of moderate incomes. For example, the Environmental Hearings Board has jurisdiction over, among other things, appeals of civil penalties, orders and permits (or denials of permits) issued by the Department of Ecology. Many individuals and small business owners find themselves thrust into this unfamiliar administrative setting, which contains some pitfalls for even the most experienced lawyer. While the Environmental Hearings Board should be commended for its efforts to simplify the process, some significant procedural impediments remain. For example, stays of permit conditions and orders are not automatic. This means if an environmental permit or an order contains inappropriate conditions, the appellant must not only appeal the permit, but also must apply for a stay. See, e.g, WAC 371-08-415. Additionally, the rules governing the computation of time are different from-the rules used in court. When computing days within which to do an act, such as filing an appeal, Saturdays count. Thus, if the last day to file an appeal falls on a Saturday, the appeal must be filed on the preceding Friday, because the Environmental Hearings office is not open Saturday. See, e.g., WAC 371-08-310. Finally, the thirty-day time period within which to file an appeal begins to run on the date that a copy of the order or decision is mailed to the appealing party and not the date received. See, e.g.. WAC 371-08-0335.

Operators of adult family homes also face similar financial and procedural obstacles. Adult family homes provide in-home care to elderly and disabled individuals. These are often very small businesses; the operators of the homes frequently provide this care in their own homes to a maximum of six people.

The Department of Social and Health Services (DSHS) regulates the operation of adult family homes. Under its regulatory authority, DSHS may, among other things, issue a "stop placement" order or suspend an adult family home license. A stop placement order prevents a home from adding new residents; a suspension prevents a home from operating at all and means that a home's current residents must be relocated.

Until the law was changed in 1995, an operator's appeal of a stop placement order or a suspension served as an automatic stay at the administrative level. This meant that a home could continue to operate pending a hearing before an administrative law judge--subject to DSHS' ability to summarily close a home upon a showing of "imminent danger" to the home's residents.

A 1995 change in the law provides that an operator's appeal no longer automatically stays a DSHS stop placement order or license suspension. RCW 70.128.160(4); WAC 388-76-560(8). As a result, a home may be closed or new admissions stopped without any kind of hearing. The operator of the home must then attempt to finance his or her appeal with either no income or a reduced income from the operation of the home itself -- unless the operator at his or her own expense can move for and obtain a stay.

Given both the great imbalance in resources between DSHS and adult family home operators and the lack of any administrative hearing-level fee shifting, the loss of the automatic stay further limits (and in many cases eliminates) the ability of these small business owners to retain counsel to appeal DSHS' actions. As such, while DSHS certainly should retain the ability to summarily close those homes which pose a true imminent danger, the administrative-level automatic stay should be restored. This will presumably require a return to the pre-1995 statutory scheme.

Washington State has three law schools with active public interest programs. This state also has several paralegal training programs which may have internship requirements for their students. Administrative advocacy is an extremely relevant and educational activity for these students because they do not have to be licensed attorneys to appear before the administrative tribunals, and because the quasi-judicial nature of the process provides students with experience in case preparation, opening and closing arguments, direct and (in some cases) cross-examination. Most of the cases are denials of applications for benefits, termination's of benefits, or overpayments. These cases tend to be relatively straightforward, and can be resolved within a reasonable period of time, e.g, a school semester. The benefits to low income clients are significant, because these cases involve nutrition, housing, unemployment, utility, health care and financial support. There are model projects throughout the country to support the premise a significant number of clients will receive quality representation through advocacy projects that utilize law and paralegal students. There is a range of options for involvement in administrative advocacy by students and professors, including the following:

1. Integration of a clinical component into law school and paralegal program curricula that focuses on administrative law and procedure and the direct representation of clients at administrative hearings.

2. Involvement by professors in the organization and supervision of these clinics in lieu of the "publish or perish" requirements for tenure.

3. A courthouse facilitator-type function performed by these students to assist claimants in identifying and collecting appropriate documentation, in understanding procedures and time lines, and in assessing claimants' ability to represent themselves.

4. Law school/paralegal program involvement in development of special projects, such as interactive computerized administrative advocacy training for advocates and clients.

Pro se litigants often lack knowledge about administrative appeal processes. For example, litigants may not know that there are specific time frames for appealing or that it is important to collect appropriate documentation, such as copies of pay stubs. Similarly, pro se litigants may not know that it is important to make a record for appeal. To overcome this impediment, the Committee recommends the following:

1. Administrative coordinators, similar to the courthouse facilitators, should be developed. The advice given by the administrative coordinator would be limited to procedural advice. It is suggested that a working group be convened to meet and work with the Office of Administrator Hearings (OAH) to explore the feasibility of developing such a position at the OAH.

2. To help pro se litigants through the process, the Administrative Law Section of the bar association should be encouraged to work with the administrative law judges to develop a Pro Se Handbook.

3. The steps for appealing should be fully explained on all notices of adverse action.

4. With each administrative ruling, the litigants should be given a one-page information sheet detailing what steps must be taken to appeal.

Often, claimants must forego available remedies because of an inability to participate in an administrative (or court) hearing requiring physical presence (to be distinguished from telephone conferences, which should be encouraged as well) during business hours. Judicial officers should work with funding agencies to be creative in scheduling hearings after hours and on weekends to accommodate those who cannot appear during traditional business hours.

For the person who is unable to afford child care, often important administrative hearings must be missed. It is not an answer to simply say that the parent bring the child to the hearing as a child who needs immediate attention will distract a parent from his or her ability to hear and participate at the hearing. It is recommended that volunteers be encouraged, as described infra in the discussion at Impediment No. 11, for on-site child care which is outside the hearing room or courtroom.

In recent years, progress has been made interpreting written notice and other forms, and providing interpreters at administrative hearings. See, e.g., RCW 2.42.010; WAC 10.08.040(2) and 10.08.150. However, this is not enough. There is a real need for interpreters to be used as liaisons for assisting individuals with navigating the basic administrative process and with communicating with volunteer attorneys when available to prepare for hearings. The courts have lists of paid interpreters who are available for court proceedings. It is recommended that interpreters be contacted and asked for a commitment to provide unpaid assistance at the administrative level for a number of hours per year, just as attorneys are asked to make this commitment. In addition, it is recommended that bilingual or multilingual retirees, qualified language students (perhaps as independent study for credits), or other persons in or away from the work force who are not employed as interpreters be solicited for this area of volunteerism, again with the protections in the discussion following Impediment No. 11.

In state administrative hearings, individuals and small businesses frequently litigate their claims against state agencies. In these cases, the agencies almost always have far greater resources available to them. Under current law, an individual or small business who prevails in an administrative hearing cannot ordinarily recover the fees and costs incurred in this litigation at the administrative level. Rather, fee shifting generally does not occur until a case reaches the Superior Court level; and any fees awarded are for work performed only at or above the Superior Court level and not for work performed at the administrative level. Given this situation, extending fee shifting to the administrative level should, at least in part, level the playing field and thereby improve and expand access to legal representation at this level. Presumably appropriate legislation will be necessary to accomplish this.

C. Legislative

Access to justice requires both the enactment of changes to the civil justice system, and resistance to other changes to the civil justice system. During the past decade, there has been a steady attempt to enact tort reform in the form of "loser pays." Loser pays should continue to be resisted by those who are concerned with access to justice. Loser pays was discussed at the Access to Justice Conference at Chelan, Washington, on October 4, 1996, by the Honorable Anne Wellington, a judge on the Washington Court of Appeals, Division I, Seattle. Judge Ellington noted that "loser pays" is "exactly the wrong kind of change" that is needed for access to justice. She said that loser pays is "the wrong thing to do" because it favors large corporations that can afford to pay legal fees over individuals who cannot afford to pay legal fees. It was Judge Ellington's comments at the conference that persuaded this Committee to include a section on loser pays in this report.

Under the so called "American Rule," it has been traditional for litigants in the United States to bear their own attorney fees even if they prevail in a particular litigation. This differs from the so called "English Rule," where the unsuccessful litigant is taxed with the attorney fees of the winning party.

The American judicial system did not adopt the English Rule due to a belief that the English Rule hinders equal access to the courts. The English Rule has an extremely chilling effect on middle class plaintiffs who are automatically required to pay the attorney fees of the defendant if the defendant prevails. The stakes for middle income persons are enormous. Thus, injured persons in England, faced with the possibility of paying an insurance company's attorney fees, often choose not to pursue a legitimate claim. There is a disproportionate financial impact on the parties; the injured plaintiff may face immediate bankruptcy while the costs on a large corporate defendant are minimal.

The Washington Center for Consumer Law, in an article titled "English Rule (a/k/a "loser pays"): Why It's a Bad Idea, " explained what a loser pays rule would mean to individual litigants. [S]uppose you are severely injured by a defective product, or hurt due to the negligence of a medical practitioner. Even if you knew you were right, would you risk your house, your life savings, or a portion of your future wages if the possibility existed that you might lose in court? Plaintiffs only win about half the time in court, so on average, you would have a 50-50 chance of having to pay the legal bills of a large corporation. This would deter all but the wealthiest plaintiffs from bringing suit. This is exactly what the big corporations want -- to weight the legal system disproportionately in their favor. Reprinted at p. 11 of Washington Center for Consumer Law, Conflict in Our Courtroom: Why Big Business and the Insurance Industry Want to Restrict Citizen Access to the American Civil Justice System (1996).

The disproportionate effect of loser pays is why the Clinton Administration opposed such legislation during 1995. In a letter dated March 6, 1995, from Attorney General Janet Reno and White House Counsel Abner J. Mikva, to House Speaker Newt Gingrich, loser pays was characterized as "tilt[ing] the legal playing field dramatically to the disadvantage of consumers and middle-class citizens." That is in part why the American Bar Association has consistently opposed loser pays. See, e.g, ABA Says No to Litigation "Reforms" in Republican Contract with America, 63 U.S.L.W. 2506 (Feb. 21, 1995).

The British legal system with loser pays does not promote access to justice like the American legal system. The problems with the English Rule were explained in an article titled "Bring the Balance Back" which appeared in the January 14, 1995, issue of Economist. an English weekly news magazine. (The article was discussed in detail in M. Barber, Who should have access to justice?, 31 Trial News 2 (Sept. 1995)). The Economist article noted:

So much fury is leveled at litigation in America that the merits of its civil justice system are often forgotten. Unlike in Britain, almost anyone can uphold his rights in the courts. That means redress for consumers against unscrupulous firms and protection for voters against unaccountable public officials. Neither should be sacrificed lightly.

The Economist article further noted: The best way to open the doors of the courts to everyone, without extending legal aid to virtually the entire population, is to learn from a country whose legal system is closely modeled on that of Britain, but where access to the courts is already available to nearly everyone: America. Abandoning the "loser pays" rule in Britain and introducing contingency fees would make it possible for millions more people to use the courts, whatever their wealth. Admittedly, such changes would also mean more litigation, though that is the inevitable and, up to a point, desirable result of providing more access to the courts for more people. Overall amounts spent on litigation might rise, though government-funded legal aid could be curtailed drastically and applied only to a handful of cases. But there would be a much greater benefit. Every citizen in the land would, at last, have a fair opportunity to have a case heard in the nation's courts. Access to the civil justice system is also threatened by attempts to weaken the contingency fee system. Attempts to weaken the contingency fee system should also be resisted by those who are concerned with access to justice. The contingency fee system is a method via which an ordinary citizen can obtain a competent lawyer who can compete with the lawyers of corporate defendants. The quality of lawyers for corporate defendants is usually very high - "the best lawyers that money can buy." If laws reducing contingency fee compensation are passed, then the quality of legal representation for ordinary citizens will be diminished. Thus, it will be easier for corporate defendants to defeat the claims of ordinary citizens.

Proposals to weaken the contingency fee system frequently are suggested by groups representing corporate defendants. Such proposals are not supported by victim rights groups. Moreover, while proposals to weaken the contingency fee system seek to limit the compensation paid to counsel for plaintiff, there are no corresponding proposals to limit compensation to counsel for corporate defendants.

An example of an attempt to weaken the contingency fee system is SHB 1804, which recently was considered but rejected by the Washington State Legislature. The major proponent of the bill was the Liability Reform Coalition (LRC), a coalition of some of the most powerful corporate interests in the state. The proposal provided:

Sec. 101. (1) An attorney who represents a claimant who has accepted an early settlement offer shall not collect a contingent fee that is greater than twenty percent of the early settlement offer.

(2) An attorney who represents a claimant who has rejected or failed to accept an early settlement offer shall not collect a contingent fee that is greater than twenty percent of the amount of the early settlement offer, plus the percentage of the amount recovered in excess of the early settlement offer as was agreed to by the claimant and the attorney.

(3) A claimant's attorney who has failed to make a demand for compensation under section 102 of this act, or who has omitted from the demand information required under section 102 of this act of a material nature which the attorney had in his or her possession or which was readily available to him or her, shall not collect a contingent fee greater than twenty percent of the amount recovered

(4) A claimant's attorney who has failed to provide his or her client a true and the proposal originally called for a maximum of 10% throughout the bill, but it was increased to 20% in an attempt to gain more legislative support. A complete copy of an early settlement offer received by the attorney, as required under section 103(3) of this act, shall not collect a contingent fee greater than twenty percent of the amount recovered.

(5) Reasonable costs and expenses incurred by an attorney up to the time of receipt of an early settlement offer are deducted from that settlement offer for purposes of calculating the maximum permissible fee under subsections (1) and (2) of this section.

(6) An attorney shall disclose, plainly and in writing, to claimants whom the attorney proposes to represent on a contingent-fee basis: (a) The fee limitations imposed by this section; and (b2 the fact that such limitations are maximum limits and that the attorney and claimant may negotiate a lower fee. The attorney shall also provide to each claimant a copy of chapter 4—RCW (section 101 through 106 of this act).

(7) The fee limitations imposed by this section may not be waived.

(8) This section applied to all attorneys practicing in this state, including attorneys prosecuting claims filed in federal court, to the maximum extent permitted by federal law.

The editorial boards of many of the state's leading newspapers were correct in concluding that the proposed tort reform would interfere with access to justice for the citizens of this state. Some of the editorial comments are set forth below.

In an editorial, the Seattle Post-Intelligencer said this about placing a limit on plaintiff's attorney's contingency fees in cases where a settlement offer is accepted within 60 days of a demand for compensation:

The likely result is to make injured parties more amenable to accepting an early (and often low-ball) offer to settle by reducing the attorney's cut. Attorneys' contingency fees are already subject to negotiation by the plaintiff. And, frankly, it is the potential for a one-third share of eventual settlements that makes it financially feasible for attorneys to take on such cases for folks who can't afford the high-priced lawyers that outfits such as Boeing and Weyerhaeuser and Safeco consider just part of the cost of doing business. An important hint about the intent of this legislation is that it does not call for limits on fees for defendants' lawyers. Liability Reform Bill Adds Insult to Injured People, C2 (March 2, 1997).

The Tri-City Herald editorialized:

One provision [of SHB 1804] would interfere in the private, financial relationship between the plaintiff and attorney by limiting the attorney's contingency fee to 20 percent when a settlement officer is accepted within 60 days of a claim for compensation. (An earlier version of the bill limited it to 10 percent.) The effect would be to encourage plaintiffs to accept initial offers, which often are low, forgoing a more sizable and perhaps more appropriate award. Yet this bill would place no limit on defendants' lawyers fees. Tort Reform Bill Should Be Defeated (March 19, 1997).

The Yakima Herald-Republic stated in an editorial:

The bills would work against plaintiffs' interests by limiting plaintiffs' attorney fees to 10 percent when a settlement offer is accepted within 60 days of a demand for compensation. This would put great pressure on people to settle cheaply and quickly, make it harder to hire a lawyer and work against people who could not afford big attorneys fees. Injured plaintiffs' cases often are taken by attorneys based on the prospect of recovering. And the bill would place no similar limits on defendants' attorneys fees. Liability Reform Should Be Rejected (March 6, 1997).

And an editorial in The Spokesman-Review stated:

But, the bills would cut and cap contingency fees by which plaintiff's lawyers get paid. And, they'd increase these lawyers' up-front costs in evaluating cases. So, of you've been injured, it would be harder for you to find a lawyer willing to help you. This especially would be true if your damages were below the six-figure mark, as they are in many cases. Get it? The reforms would make it unattractive for lawyers to take the bulk of personal injury claims. How nice for insurers. Tort Reform Only Benefits Insurers (March 14, 1997).

The courts exist for the purpose of trying to dispense justice. Proposed tort reform which interferes with an individual's access to the courts should be resisted.

To encourage volunteerism, a type of qualified immunity or indemnification should be explored for persons willing to assist at the administrative and court levels. This type of mechanism is available in the federal system. Federal courts are able to engage "volunteer" employees. Although there is a general prohibition against voluntary federal service, 31 U.S.C. § 1342, the Director for the Administrative Office for the Courts is authorized, 28 U.S.C. § 604(a)(16), to accept and utilize gratuitous services in the Director's discretion. Before the volunteer begins work for the court, he or she first must sign an "Acknowledgment of Gratuitous Services and Waiver for Uncompensated Employees." The volunteer waives any rights to compensation, retirement and fringe benefits, and agrees to be respectful of confidentiality, but does not waive rights he or she may have for claims concerning personal injury.

Another often-overlooked source of assistance, although not entirely without expense, are the traditional "work-study" program. With those programs, the student remains as an employee, with all employee benefits, of the law school or college where the student attends school. However, the courts or agencies, through a liaison officer, can contract to reimburse the law school or college (typically 40% or 50%) of the student's salary. With these work-study programs, the court or agency would not bear the cost of benefits, and other overhead costs, as the student is strictly the "employee" of the educational institution. See, generally, Chapter X to Volume I, Guide to Judiciary Policies and Procedures, Subchapter 1308.2 (1992). These described mechanisms cloak the volunteer/employee with the same immunity as are accorded to the supervisor of the employee. Volunteer employees are and should be checked as to credentials and referenced, just as a paid employee would be.

A LACK OF AWARENESS BY SOME MEMBERS OF THE JUDICIARY OF ACCESS TO JUSTICE ISSUES

There is a need for increased awareness of access issues for members of the judiciary. Accordingly, whether judges are chosen by the electorate or appointed, those who select or elect should be encouraged to ask the following access questions of persons running for office or seeking appointment:

1. How do you define access to justice, and why is access important?

2. What have you done professionally to study access issues and to become more aware, including pro bono work?

3. What will you do as a member of the bench to protect/increase access to justice for those whom the court serves, as well as encouraging your colleagues to do the same? Through training sessions for judges, access to justice issues need to be identified and discussed. The Education Committee of the Access to Justice Board has become active in the education of new members to the judiciary. There could be a crossing of sovereigns/jurisdictions to stretch judicial/quasi-judicial training dollars (e.g, such as bias training which occurred two years ago) to include federal, state, tribal, and administrative law judges.

Judges should be encouraged to have regular meetings among themselves, e.g, "brown bag" lunches, to discuss these issues, and brainstorm and troubleshoot ways for finding solutions, volunteers and funding, e.g, look to non-appropriated local funds for payment of witness fees for pro se plaintiffs. In addition, judicial officers should meet regularly with and work with the bar to develop pro se handbooks, forms and needed processes. The judiciary can assist with access by studying and encouraging the formation of inexpensive administrative processes. This has occurred in the area of civil rights and other civil actions brought by prisoners pro se, but the concepts also apply to other areas of administrative processes. For example, there is concurrent jurisdiction in federal and state courts for the processing of civil rights actions under 42 U.S.C. § 1983, not only for prisoners but for others who allege state action involvement in the deprivation of a constitutional right. As the studies bear out, most of these kinds of cases involve physical security, medical treatment, physical living conditions and religious expression. In 1980, Congress enacted 42 U.S.C. § 1997(e), the Civil Rights of Institutional Persons Act (CRIPA), addressing civil rights and grievance remedies of prisoners and other institutionalized persons. That version of CRIPA authorized federal courts to require state prisoners to exhaust prison administrative remedies in civil rights cases if the administrative grievance procedures had been certified as in compliance with certain fairness standards. Washington was the second state to devise a relatively inexpensive grievance process to be exhausted before filing court actions.

This type of process came about, more probably than not, as a case management tool, and certainly that is why the process has been studied so much in the federal system. Yet, the fact is, having a fair and effective administrative process could result in improved access, for others, as well as for prisoners. In 1994, about 21,000 administrative complaints were filed in Washington's state prisons. Eighty-seven percent of those complaints were resolved in a manner that left the prisoner feeling someone had listened and that the grievant had a resolution to the problem. While the entire 21,000 original complaints probably would not have resulted in court actions, it is clear having an administrative process diverted a significant number of grievances that would have become lawsuits, which would have clogged the system and taken a long time for resolution. As has often been said, justice delayed is justice denied.

The way to best explain this is with an example. A prisoner has a bad back, and needs a lower bunk, instead of a high bunk, but no one is listening. So, the prisoner files an administrative complaint. Now, assuming this matter is resolved properly administratively, which means having a process in place that is both timely and addressed by someone perceived by both sides as neutral and fair, probably the prisoner will receive the lower bunk — or a pair of eyeglasses —or a change in medication. This results in a prisoner having less pain and discomfort. He or she becomes less angry and more functional, and is able to accomplish goals. This as a win/win situation, without filing a tort claim in state court, without filing a constitutional claim, either in state or federal court, and with the added result of more resources for others who need a post-administrative procedure to receive a remedy. This example, aside from taking time away from other cases, would not rise to the level of a constitutional claim. Yet, it is an important life issue to this person. If it is not resolved administratively, it will languish in and clog the system, but likely will not be resolved.

Unfortunately, there is danger of losing this valuable administrative process. Congress recently passed federal legislation that does a couple of things. First, it says the administrative process does not have to meet standards, but the aggrieved party still has to exhaust the process to get to court. 42 U.S.C. § 1997e(a)(1996).3 Obviously, if the process does not have to be fair, in other words if it does not have to meet the standards that were originally put into the statute—if there is no requirement for timely investigation and an objective, neutral decision-maker, if there is no requirement for an appeal mechanism, it is not going to be effective. The result will be more lawsuits and more angry litigants. In addition, it will take a long time to address the issues. Again, justice delayed is justice denied.

The second problem is that Congress, in April 1996, enacted a provision that requires payment of filing fees, regardless of how little money the prisoner has. 28 U.S.C. 1915(b) (1996). In addition, there is a civil three strikes and you're out provision in the statute. 28 U.S.C. l915(gX1996). Because the filing fee only applies to federal court, this is going to end on the backs of state courts. State courts will be burdened with more civil rights complaints that previously could have been solved administratively, or could have been shared by federal courts, where everyone can agree there are more resources to address these problems. So, judicial officers can and should be lobbying Congress and the legislature to stop enacting these statutes. The ethics rules do not prevent judges who have taken the time to become well-informed from lobbying on these kinds of efforts, since the legislature impacts administration of justice.

3Section 1997e(a), as amended in 1996, provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

Judges have a duty to comment on any type of legislation that creates barriers for low and moderate income people. For example, there was a recent amendment to federal collection statute called the Higher Education Technical Amendments of 1991 (HETA), codified at 20 U.S.C. § lO91(a), that revives actions on defaulted student loans, which previously had been barred by a six-year statute of limitations, regardless of whether a complaint had been filed or served on or before the 1991 HETA amendments. Thus, the statute of limitations could have run in 1980 but the government can start an action today, even though previously no effort was made to collect on the loan, not only during the six-year limitation period, but in the years that followed, and instead permitted the interest to accumulate to astronomical numbers. There is no quid pro quo in the statute to encourage an agency to avoid sitting on its rights, and there is no hardship provision. Since the people who, at this point, are finding themselves in these collections actions, often do not have resources, so they do not have an attorney, it is incumbent upon judges to make sure the constitutional minimums are met. Judges should have been involved in 1990, when congress was putting together this one-sided statute. They and others need to be talking to congressional members now about changing it to be more fair. In the meantime, judicial officers can, and should make sure they have explored with each debtor whether he or she has a financial condition that would preclude as a matter of due process the retroactive application of the statutory amendments which would result in financial hardship.

With the ever burgeoning expenses of going to trial, the importance of amicable resolution should be stressed when training the judiciary, the bar, law students, and with earlier education. If parties are required to participate in mediations (and this needs further study which is occurring through the ADR Task Force), not only should the judiciary and the bar be encouraging volunteerism of mediators by local rule or otherwise, but also a species of "unbundling" representation should be developed for the pro se during mediation. Judicial officers should be seeking representation for pro se during mediation/settlement conferences so the individual is not relying upon the neutral facilitator for direction. The concept of low cost or no cost mediation with representation should also be available to parties who are not required to explore ADR, but who desire the option. Judge must be trained to be aware and be vigilant to refer cases to ADR when appropriate.

The term "unbundling" was used by courthouse facilitators, presenters and attendees during the 1996 Chelan Conference to reference a short-term, limited-scope attorney representation with the purpose of addressing acute, urgent matters.

The Systems Impediments to Access to Justice Committee recommends:

(1) The funding process for Legal Services be depoliticized and that to move closer to bi-partisan support, the persons who support the funding of Legal Services approach those opposing funding with respect in an effort to change their position. As education about the proper definition of Legal Services is a primary weapon in the fight for monetary support for Legal Services, and will de-mystify the issue, it also is recommended that members of the profession give freely of their time to educate children, teachers and the community with respect to access to justice issues, and the Constitution;

Responsible Parties: Members of the Judiciary, Washington Administrative Law Judges Association, Access to Justice Board Education Committee, LAW Fund, Legal Foundation of Washington, Equal Justice Coalition, WSBA Board of Governors Legal Services Funding Committee, members of the profession who speak to educators and students.

(2) That Judges and members of the bar take the time to be informed about laws impacting access issues, and lobby the legislature to change administrative procedures which are not user-friendly for pro se parties;

Responsible Parties: Supreme Court, Members of the Judiciary, Washington Administrative Law Judges Association, Access to Justice Board Education Committee.

(3) Judicial officers and members of the bar encourage attorneys knowledgeable about the administrative processes to volunteer representation at the administrative level. In addition, local pro bono programs should be encouraged to seek attorneys who would provide mentoring and training on administrative issues;

Responsible Parties: Members of the Judiciary, Washington Administrative Law Judges Association, WSBA Administrative Law Section, WSBA Pro Bono and Legal Aid Committee, County Bar Associations, Law School Deans and instructors, and pro bono programs.

(4) That there be integration of a clinical component into law school and paralegal programs curricula to focus on administrative law and procedure and the direct representation of clients at administrative hearings. In addition, it is recommended that law professor/client representation and supervision of these clinics become a partial substitute for the "publish or perish" requirements for tenure;

Responsible Parties: Access to Justice Board Education Committee, Law School Deans and instructors, Clinical Law Program Directors and instructors, Paralegal Education Program Administrators and instructors, Legal Services providers.

(5) A courthouse facilitator-type function be performed by law students, located at law school clinics, and for clinic credit, to assist claimants in identifying and collection of documentation, and in understanding procedures for navigating agency processes;

Responsible Parties: Law School Deans and instructors, Access to Justice Board Education Committee, WSBA Administrative Law Section, Office of Administrative Hearings, input from Courthouse Facilitators.

(6) There be Law school/paralegal program involvement in development of special projects, such as interactive computerized administrative advocacy training for advocates and clients;

Responsible Parties: Access to Justice Board Education and Technology Committees, Law School Deans and instructors, Paralegal Training Program Administrators and instructors.

(7) An administrative coordinator, similar to a courthouse facilitator, should be developed as a part of the OAH, with the advice to be given by the administrative coordinator to be limited to procedural matters;

Responsible Parties: Office of Administrative Hearings, WSBA Administrative Law Section, input from Courthouse Facilitators.

(8) The Administrative Law Section of the Bar Association work with administrative law judges to develop an administrative pro se handbook;

Responsible Parties: WSBA Administrative Law Section, Office of Administrative Hearings administration, Washington Administrative Law Judges Association.

(9) Detailed, easy-to-read multilingual instructions for taking an appeal from each adverse administrative ruling;

Responsible Parties: Office of Administrative Hearings, WSBA Administrative Law Section, Washington Administrative Law Judges Association, Legal Services providers, United Way or other similar volunteer agencies, multilingual citizen volunteers.

(10) Judicial officers explore the ability to schedule occasional evening or Saturday administrative/court dockets to accommodate low income persons who work outside the home;

Responsible Parties: Members of Judiciary, WSBA Administrative Law Section, Office of Administrative Hearings, Washington Administrative Law Judges Association, Washington State Association of County Clerks.

(11) Volunteers be encouraged for on-site child care outside administrative hearing rooms and courtrooms;

Responsible Parties: Office of Administrative Hearings, Washington Administrative Law Judges Association, Members of Judiciary, Washington State Association of County Clerks, United Way or other similar volunteer agencies, citizen volunteers.

(12) Employed interpreters, as well as bilingual or multilingual retirees, and qualified language students be contacted and asked for a commitment to provide unpaid assistance at the administrative level for a number of hours per year, particularly in the area of hearing preparation rather than only at the hearing;

Responsible Parties: WSBA Administrative Law Section, Office of Administrative Hearings, Washington Administrative Law Judges Association, United Way or other similar volunteer agencies, bilingual citizen volunteers and interpreters.

(13) Extending the fee-shifting statutory reach, available at court level, to the administrative level;

Responsible Parties: WSBA, Legislature, Adult Family Home Association(s), HUD Home Association(s).

(14) Oppose "loser pays" tort "reform," and the weakening of contingency fee system;

Responsible Parties: WSBA, Legislature, Washington State Trial Lawyers

(15) Encouraging volunteerism, by exploring development of statutory qualified immunity mechanisms for volunteers at the administrative and court levels, and more expansive contracting with "work-study" programs;

Responsible Parties: WSBA, Legislature, colleges and universities (for "work-study")

(16) Encouraging questioning applicants and candidates for public office and the judiciary on their awareness of access to justice issues;

Responsible Parties: Access to Justice Board, Equal Justice Coalition, WSBA State Judicial Evaluation Committee, and local judicial evaluation committees, Governor's Coordinators, Senatorial Judicial Aids, County Commissioners, and major political parties (as to candidates for public office).

(17) Encouraging development of inexpensive administrative processes, which can result in speedy and effective remedies, without the necessity of commencing a court process;

Responsible Parties: Judicial Officers, Legislature, WSBA Administrative Law Section, Legal Services providers, Washington Administrative Law Judges Association.

(18) Stressing the importance of amicable resolution (solutions, not war), and involvement of "unbundling" attorney representation of pro se individuals in a limited capacity to assist during judicial settlement conferences and mediations, when training the judiciary, the bar, law students, and with earlier education.

Responsible Parties: WSBA ADR Section, Judicial Officers, Access to Justice Board Education Committee.

To implement the earlier enumerated recommendations, the following blueprint is suggested:

(1) The SLAJ Committee actively participate in the annual ATJ Conference, and if the Committee's Report is acceptable to the Board, seek permission from and assistance of the Board to distribute the Report and otherwise make it available to interested parties; (2) The Board encourage presiding judges to schedule regular meetings, not only with judges at the same duty stations, but also in other locales, sovereigns, and at other levels, including administrative adjudicators, to discuss common challenges, including the issue of pro bono representation by attorneys and lay assistants.

(3) The Board encourage administrative adjudicators and presiding judges, to meet with bar leaders to discuss access issues, including the question of pro bono representation by attorneys and lay assistants during the administrative, as well as during the court, processes.

(4) The Board meet with law school leaders and encourage consideration of substitution for law school professors of representation of low income parties during the administrative and court processes in lieu of the "publish or perish" requirement.

(5) The Board encourage the Washington Supreme Court and bar officials to take leadership roles in commenting on proposed legislation that will negatively impact access to justice, and take an affirmative approach to suggesting new legislation that could relieve current stresses on access.

(6) The Board encourage the Washington Supreme Court and bar officials to take a leadership role in encouraging members in the profession to speak about the Constitution in the schools and at community gatherings.

(7) The Board encourage or convene a working group to meet with and work with the

OAH to explore the feasibility of administrative coordinators to function in a manner similar to courthouse facilitators.

(8) The SIAJ Committee continue to seek direction from the ATJ Board and meet regularly to study pending legislation and court rules, and make recommendations for action to the Board;

(9) The SW Committee continue to work with the Board's other committees, and specifically with the Education Committee, in training judges and lawyers, and participating in access to justice discussions with law school and bar leaders.

To conclude, this Report is viewed as a blueprint for an evolving approach, a work in progress, for identifying, addressing, and seeking solutions to systems impediments, and for preventing additional erosion to solutions that already are in place. Providing meaningful and timely access to the processes for low and moderate income persons requires a strong and broad-based partnership commitment. The areas most stressed in this Report are at the administrative level, as this seems to be where the need for solutions is greatest, and the least studied. Judicial officers, lawyers and other members of the legal profession, and all citizens must join to teach and learn about access to justice issues. Funding Legal Services must be depoliticized. Statutory procedures which are not user-friendly for pro se claimants should be amended. Judicial officers, bar leaders, and law school administrators must reach out and seek more creative ways to represent and communicate with persons of low income. Creative solutions should include non-traditional business hours, onsite child care, and a more inclusive, less rigid, concept of volunteerism that incorporates concepts of qualified immunity previously reserved for paid public servants. This shift in paradigm also should include new concepts in fee-shifting statutes; provided, however, that the shift is consistent with the American Rule.

1. J. Evans, England's New Conditional Fee Agreements: How Will They Change Litigation? The English Answer to Contingent Fees Has Gone Into Effect, But It Applies Only to Personal Injury and Insolvency Matters, 63 Def. Counsl. J. 376 (July 1996)

2. K. Adamo, Loser Pays, 43 Fed. Law 8 (June 1996)

3. T. Cams, Alaska 's English Rule: Attorney's Fee Shifting in Civil Cases, 13 Alaska L. Rev. 33 (June 1996)

5. H. Chang, An Analysis of Fee Shifting Based on the Margin of Victory: On Frivolous Suits, Meritorious Suits, and the Role of Rule 11, 25 J. Legal Stud. 371 (June 1996)

W. Olson and D. Bernstein, Loser-Pays: Where Next?, 55 Md. L. Rev. 1161 (June 1996)

6. Note, "Common Sense" Legislation: The Birth of Neoclassical Tort Reform, 109 Harv. L. Rev. 1765 (May 1996)

7. S. Butler, Some Thoughts on Civil Justice Reform, 64 Fordham L. Rev. 2149 (April 1996)

8. K. Hylton, Rule 68, The Modified British Rule, and Civil Litigation Reform, 1 Mich. L. ~ Pol'y Rev. 73 (1996)

9. J. Merrick, O.J. Simpson Trial Shows Perils of Oregon 's Loser-Pays Law, Oregonian, October 7, 1995, at D7

10. M. Barber, Who Should Have Access to Justice?, 31 Trial News 2 (Sept. 1995)

11. F. Carney, "Loser Pays"—Justice for the Poorest and the Richest, Others Need Not Apply, 8 Utah B. J. 18 (May 1995)

12. J. Manning, F. Lee Bailey on Offense Against "Loser Pays" Bill, Oregonian, March 6, 1995, at B3

13. ABA Says No to Litigation "Reforms" in Republican Contract with America, 63 U.S.L.W. 2506 (Feb. 21, 1995)

14. D. Lenckus, "Loser Pays" proposals Make Strange Bedfellows, Bus. Ins. 41 (Feb. 20, 1995)

15. Bring the Balance Back 13 Economist (Jan. 14, 1995)

16. J. Vargo, The American Rule on Afforney Fee allocation: The Injured Person 's access to Justice, 42 Am. U. L. Rev. 1567 (1993)

17. Note, Rule 82 Revisited: Attorney Fee Shifting in Alaska, 10 Alaska L. Rev. 429 (1993)

18. Note Three Attorney Fee-Shifting Rules and Contingency Fees: Their Impact on Settlement Incentives, 90 Mich. L. Rev. 2154 (1992)

19. J. Donohue, Opting for the British Rule, or If Posner and Shavell Can 't Remember the Coase Theorem, Who Will?, 104 Harv. L. Rev. 1093 (1991)

20. J. Lenbsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47 Law & Contemp. Probs. 9 (1984)

21. W. Pfennigstorf, The European Experience with Attorney Fee Shifting, 47 Law & Contemp. Probs. 37 (1984)

22. T. Rowe, The Legal Theory of Attorney Fee Shifting: A Critical Overview, 1982 Duke L. J. 651 (1982)

23. R. Posner, An Economic Approach to Legal procedure and Judicial Administration, 2 J. Legal Stud. 399 (1973)

24. Effective Prisoner Remedy Procedures, Report to the Ninth Circuit Judicial Council by Task Force on Prisoner Remedy Procedures (1995)

25. Gates Commission Report

26. Trial Court Performance Standards Project, Washington State Final Report

28. WSBA Report, Access to Justice Task Force, 1992-1993

27.

B. List of Organizations and Individuals Contacted by Letter for Input

Adams County Bar Association

All Washington State Bar Association Sections and Committee Chairs

Benton/Franklin Counties Bar Association

Chelan/Douglas County Bar Association

Clallum County Bar Association

Clark County Bar Association

Columbia Legal Services

Cowlitz/Wahkiakum County Bar Association

East King County Bar Association

Ferry County Bar Association

Grant County Bar Association

Grays Harbor County Bar Association

Island County Bar Association

Jefferson County Bar Association

King County Bar Association

Kitsap County Bar Association

Kittitas County Bar Association

Klickitat/Skamania County Bar Association

Lewis County Bar Association

Lincoln County Bar Association

Mason County Bar Association

M. Wayne Blair, Former Washington State Bar Association President

Northwest Justice Project

Okanogan County Bar Association

Pacific County Bar Association

Pend Oreille County Bar Association

San Juan County Bar Association

Skagit County Bar Association

Snohomish County Bar Association

South King County Bar Association

Spokane County Bar Association

Stevens County Bar Association

Tacoma/Pierce County Bar Association

Thurston County Bar Association

Walla-Walla County Bar Association

Whatcom County Bar Association

Whitman County Bar Association

Yakima County Bar Association

American Corporate Counsel Association

American Immigration Lawyers Association

Asian Bar Association of Washington

The Cardozo Society

Federal Bar Association

Filipino-American Legal Association of Washington

Government Lawyers Bar Association

Hispanic Bar Association

Korean-American Bar Association

Lesbian/Gay Legal Society of Puget Sound

Loren Miller Bar Association

Minority Lawyers Association of Eastern Washington

Minority Bar Association of Tacoma

National Conference of Black Lawyers

Northwest Indian Bar Association

Puget Sound Area Nurse Attorneys

Washington Association of Attorneys With Disabilities

Washington Association of Criminal Defense Lawyers

Washington Association of Prosecuting Attorneys

Washington Defender Association

Washington Defense Trial Lawyers

Washington-Employment Lawyers Association

Washington State Association of Municipal Attorneys

Washington State Society of Hospital Attorneys

Washington State Trial Lawyers

Washington Women Lawyers