Access to Justice for Civil Legal Services

With Liberty and Justice for All —Democratic Truism or Lip Service?

by Ron Ward, WSBA President

The Human Faces of the Crisis

An elderly woman is confined in her fourth-floor apartment for two months because her landlord won’t fix the elevator. A single mother is improperly denied government medical coverage, then harassed by creditors to pay for her sick daughter’s care. A woman who comes to work bruised by an abusive partner must quit or be fired, and finds herself without income, shelter, or benefits. Homeless.

These are the human faces of the grave civil legal needs crisis in Washington.

Dave Savage, WSBA’s immediate past president, eloquently addressed this issue in his column in the June 2004 issue of Bar News. You may ask why I am revisiting this. The answer is that providing solutions to this societal problem is absolutely crucial to all of us, lawyers and nonlawyers alike.

The Washington State Supreme Court’s Civil Legal Needs Study
The Washington State Supreme Court’s September 2003 Civil Legal Needs Study,1 under the leadership of co-chairs Justice Charles Johnson and Judge Mary Kay Becker of Division 1 of the Court of Appeals, convincingly documents the fact that one million poor people in Washington with civil legal causes of action go unserved every year. (A link to the report can be found on the WSBA homepage at www.wsba.org.) These causes of action involve basic human needs. Citizens are losing their houses to foreclosure, are losing their children, are discriminated against racially and in employment, and are being forced to exist in the living hell of domestic violence and abuse. Eighty percent of the victims of domestic violence are women and children. It is an undeclared crisis of epidemic proportions that cuts across all races, creeds, and classes of society. These are our mothers, grandmothers, nephews, and sisters — our families. Those who are increasingly vulnerable, such as physically and mentally -disabled persons and dependent and -at-risk juveniles, are also excessively and disproportionately affected. Nowhere is the problem more grievous or the victims more susceptible than among the poor, because the poor are virtually bereft of recourse or redress, in the absence of legal representation.

Findings of the Civil Legal Needs Study
Access to justice in this country is not a privilege of the well to do, but a right of us all. The stability and the very existence of our system and our society are dependent on preserving that right — FOR ALL. Equal access to justice for everyone is a cornerstone of our democracy, yet the vast majority of Washington’s poor and vulnerable -residents are unable to obtain necessary legal assistance. Some of the findings of the Civil Legal Needs Study are set forth below.

•  There are more than one million low-income people in Washington. Washington state ranks 22nd nationally in poverty. On a statewide basis, about 13 percent of Washington’s population is low-income; in King County, slightly less than 11 percent.

• For many thousands of low-income families, basic promises guaranteed them under the laws of our state — promises to personal and family safety and security; fair treatment by landlords, employers, and creditors; and fair and proper treatment by governmental agencies — are unenforceable because these families cannot secure the legal representation needed to effectively assert, defend, or enforce these promises.

•  More than three-quarters of Washington’s low-income households -experience a civil legal problem each year. Only 12 percent are able to obtain assistance from a lawyer.

•  Housing, family safety and security, and employment matters account for nearly half of all issues affecting low-income people.

•  Women and children are disproportionately affected, especially on matters related to family law and domestic violence. Issues related to wrongful discrimination appear in more than one-quarter of all legal problems experienced by low-income people.

•  Legal assistance is the key to securing effective outcomes for people whose legal rights are at stake. Nearly two-thirds of low-income people who are able to secure legal assistance obtain a fair resolution to their legal problems. On the other hand, fair outcomes are realized by less than 25 percent of those who do not secure legal assistance.

•  Our state’s nationally recognized civil equal justice delivery system is grossly understaffed and increasingly incapable of meeting the legal needs of those who are poor or vulnerable. Despite significant technological and related delivery efficiencies in recent years, and despite the contribution of more than 100,000 hours (valued in excess of $14 million) of volunteer legal assistance each year from Washington lawyers, the study clearly documents that more than two decades of capacity losses and office closures have left the system increasingly inaccessible to those who need it most.

•  It is estimated that there is a $28 million dollar shortfall, which is the additional funding needed to address the findings in the Civil Legal Needs Study. Eighteen million dollars of this amount is estimated to be the state’s share. (Note: This is the figure for the coming two-year period.)

•  Funding for civil legal needs is one part of our larger justice system. Stable and adequate long-term funding for our courts is also an area of grave concern. Washington ranks last among all 50 states in support of its trial courts. Less than .3 percent of the state’s general fund goes to supporting our courts. And significant reforms in Washington’s indigent defense system, and state funding of indigent defense, are desperately needed.

The Washington State Bar Association, the Washington State Courts, the Washington State Access to Justice Board, and the Washington Defender Association are working closely together to address this crisis facing our justice system. As I documented in my December column on court funding (Bar News, December 2004, p. 9), we will be going to the state Legislature in January to ask for help.

What Is the Value of Civil Legal Services?
Legal aid promotes fairness and justice; helps families in crisis return to safe, productive lives; and saves dollars for taxpayers by preempting a spiral of costly social problems and ensuring a well-ordered society.

The independence of the judiciary as a separate, co-equal branch of government; the justice system; and Washington society will be the victims of our failure to make good on the Constitutional promise of adequate representation and justice for all.

I am proud that my first legal job while a law student was clerking at the San Francisco Neighborhood Legal Assistance Foundation. It gave me perspective and purpose, and allowed me to pass on that sense of hope that has been so important to my family and me.

What We Can Do to Help
This is a multifaceted societal problem, and it requires a multifaceted societal solution, which inevitably must include an apportionment from the state budget’s General Fund, for both civil legal services and indigent defense. But we as lawyers are also an essential facet, and we have the ability to effect change in two important ways: we can contribute our time and we can contribute financially.

My perception is that mandatory pro bono legal services (such as have been promulgated in some states) are not a viable option in Washington at this time, so I won’t go there. As a bar association, Washington has an aspirational goal of 30 hours of pro bono work for every lawyer.2 Despite the substantial efforts of some, it’s not enough. There is still no civil Gideon.3

As a natural outgrowth of our aspirational goal for Washington lawyers, the WSBA should launch a pro bono initiative encouraging Washington law firms to commit a specific number of hours to pro bono work, create pro bono budgets, and establish volunteer projects. WSBA would partner with the Access to Justice Board, Northwest Justice Project, and others, to offer the law firms pro bono opportunities through legal clinics that will address client issues such as elder law, basic tax law, and family law issues.

In addition to making the commitment to pro bono service, the funding environment today requires an infusion of private capital if there is to be a stable base of support for legal aid. Making a meaningful contribution to legal-aid programs is becoming much easier, thanks to efforts across the state to create a unified Campaign for Equal Justice. The campaign is a joint fundraising effort between legal-aid programs and local bar associations that will allow attorneys, law firms, corporations, and others to make a single annual gift that will help fund every legal aid and pro bono program in the state. In King County this past fall, the Eastside Legal Assistance Program, the King County Bar Association, and LAW Fund kicked off the campaign by approaching King County law firms jointly in asking for support for legal aid. Law firms are stepping up their support for legal aid as a result. It is now time for individual attorneys to follow suit.

As Dave Savage suggested in his Bar News column last June:
 
It may also be time for us to consider making a financial contribution. While I am convinced that any thoughtful analysis must conclude that meeting the legal needs of the indigent and the vulnerable is an obligation that must be publicly funded, we would certainly do ourselves no harm by contributing . . . . It would certainly give us the high ground in any discussion with our Legislature, and it would serve as concrete evidence of our commitment to ensure a democratic system that delivers on its promise to provide justice for all.
 
Oregon has proven the substantial difference individual attorneys can make to legal aid through financial participation in their own unified Campaign for Equal Justice. With approximately half the number of attorneys of Washington, Oregon raises almost twice the amount of money we raise from attorneys here. We can do better. Every attorney should consider making a contribution to the Campaign for Equal Justice. For more information about the campaign, or to make contribution, you can write, call, or find the campaign online: LAW Fund and the Campaign for Equal Justice, 1325 Fourth Ave., Ste. 1335, Seattle, WA 98101; 206-623-5261; www.lawfund.com.

Lawyers are society’s advocates. We must advocate and we must educate to a far greater degree than we do now — in our daily lives, in our practices, and in the halls of the Legislature. In my December column on court funding, I noted that we can get involved personally with the legislators who represent our communities, for the purpose of educating them about the justice system and about the importance and appropriate priority that adequate court funding should have in the legislative process.

Plaudits and Kudos to the Access to Justice Movement
As you are aware, the theme of my presidential year is “Lawyers Render Service.” Legal-services attorneys and those who serve people in need of indigent defense are outstanding examples of the great generosity of the thousands of lawyers who faithfully render service on a daily basis to their clients, to the public, and to the profession.

To the many dedicated legal-services attorneys, to those who are committed to helping people who are less fortunate by providing legal assistance on a pro bono basis, to those in public-service work, and to those who provide critical social services, I commend your dedication and your fine work. You are making a difference in your communities, and in the lives of those you serve. We all need to join together in helping you, in providing pro bono, in convincing our fellow citizens and our legislators of the critical role legal services plays in our society, and of the primacy of values and funding priority which it so richly deserves.

The question is not whether we can; it is whether we will. We can and we will, because working together there is nothing we cannot change for the better.

NOTES
1 More than 2,100 face-to-face and phone interviews were conducted. The Court wanted to learn who had experienced civil legal problems, what the nature and substance of these problems were, how they affected people, the degree to which people understood their problems had a legal dimension, the degree to which they were able to secure legal assistance, and the consequences experienced when they were unable to get necessary legal assistance.

2 RPC 6.1. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono service annually.

3 Gideon v. Wainwright, 372 US 335 (1963), a U.S. Supreme Court decision that established that anyone who is charged with a crime is entitled to legal representation. The right to counsel of anyone charged with a crime was deemed fundamental and essential to fair trials.