Deborah Rhode & James Sokolove / Special to The National Law Journal
(original available here)
December 22, 2008
Give us your poor, but only on the holidays. This Thanksgiving, droves of well-meaning volunteers had to be turned away in some affluent communities when there weren’t enough poor diners. On that day, but that day only, there were no shortages of contributions. The back-to-back holidays of Thanksgiving and Christmas do temporarily turn our attention to the poor.
Yet all too often, the needs of America’s some 37 million poor people remain out of sight and out of mind. And the social activism of the rest of us too often addresses symptoms rather than sources of the problem. As lawyers, we are especially troubled by our inability to make legal assistance a more central part of the solution.
“Equal Justice Under Law” is what we put on courthouse doors. It comes nowhere close to describing what goes on inside them. In law, as in life, the haves come out ahead. State and national surveys consistently find that fewer than four-fifths of the civil legal needs of low-income individuals, and two- to three-fifths of the needs of middle-income households, remain unmet. Although indigent criminal defendants are constitutionally entitled to legal representation, crushing caseloads and declining budgets have made effective assistance a statistical impossibility. The time spent by free legal defenders on some felony cases is less than the average American spends showering before work.
Part of the problem is that most of the public has no sense of how serious the problem is. Four-fifths of Americans believe, incorrectly, that the poor have a right to counsel in civil cases. During the recent presidential campaign, talk of unmet legal needs was notable for its absence. The price is paid in human misery. Domestic violence victims lack protective orders, disabled children cannot get educational assistance, elderly patients cannot collect health benefits. The list is long, the costs are incalculable, and both are certain to increase in the current economic crisis.
Addressing basic legal needs
The new administration should be at the forefront of addressing these needs and joining a national consortium to build a “roadmap to justice.” The objective should be to guarantee all individuals the right to assistance for fundamental legal needs and to ensure that such assistance meets reasonable standards of effectiveness. To that end, we need to both increase resources and reduce costs.
Money may not be the root of all evil in our justice system, but it is surely responsible for part of it. Less than 1% of the nation’s expenditures on legal services goes to civil legal assistance for the poor, and fees for indigent criminal cases are capped at ludicrously inadequate levels. We can and must do better.
Not all of the funding need comes from strapped federal, state or local budgets. Other sources might be surcharges on court filing fees or some minimum required contribution of time or money from lawyers. Although some attorneys are already generous, the profession’s average “pro bono” contribution is estimated at only about a half-hour a week and half a dollar a day. Surely one of the nation’s highest paying occupations could afford more.
At the very least, attorneys could be required to report their charitable contributions, and large government and corporate clients could select only counsel who meet the bar’s own pro bono ethical standards.
A second reform strategy is to provide more efficient and accessible dispute resolution structures. Laws and procedures should be simplified, and more low-cost assistance should be available to permit individuals to address routine needs themselves.
User-friendly courthouse hours and self-help centers, and online resources, are part of the answer. Bar prohibitions on legal advice from qualified nonlawyers should be relaxed. The vast majority of other nations allow such assistance, and no evidence suggests that it has been unsatisfactory.
It is a shameful irony that the nation with the world’s largest concentration of lawyers does such an abysmal job of making legal assistance available to those who need it most. Occasions like Thanksgiving and Christmas should remind us that the poor need more than holiday handouts. They need legal tools to help themselves and to secure fundamental rights that are now available in theory but inaccessible in practice.
Deborah L. Rhode, a professor of law and the director of the Center on the Legal Profession at Stanford University, and James Sokolove, founder of The Law Offices of James Sokolove, have created the Roadmap to Justice Project, a national effort to chart key policy priorities in enhancing access to justice by those who need it most.