Finding Good News and a Strategy for Access After the Midterms

Posted on November 5, 2014 by richardzorza

Obviously, the results of yesterday’s election are potentially very bad news for legal aid funding (broadly defined).  Notwithstanding the generally bipartisan support demonstrated for LSC at its recent 40th anniversary, the risk of cuts to the LSC budget is very real.

But the passage of the minimum wage referenda, often by overwhelming margins, by very red voting pools in several states such as South Dakota and Alaska, as well as in bluer Pennsylvania and Illinois, suggests that the unfairness of income inequality is well known and understood as an action item by huge swathes of even this red electorate.

So, while I would obviously not advocate branding legal aid as “the legal arm of the minimum wage increase movement,” we should think about how to build on the fairness arguments (“Civil legal aid helps ensure fairness for all in the justice system, regardless of how much money you have.”) which came out of the legal aid communications research.

Given that this communications research indicates that support for legal aid depends on the sense that it will be available to those in the middle, the minimum wage referenda might be explained by the widespread fears that they, or their family members, may need the protection of minimum wage.  It might also be true that people understand that, to misquote, “a rising minimum wage lifts all boats except the heaviest.”  Or it may just reflect the power of very simple fairness arguments even in this very angry and bad tempered electorate.

In any event, time for careful thinking on how to apply these fairness arguments most effectively to the access context.

Posted in Communications Strategy, Funding | 1 Comment

Part II of “Assessing Innovations” — A Rights Oriented Analysis

Posted on October 31, 2014 by richardzorza

A recent post discussed how to analyze the value of different approaches to access to justice in cost benefit terms.  This follow-up post takes a different approach, looking at the same issue — of how to decided whether to implement an innovation in more traditional rights terms.

“Civil Gideon” advocates assert a “right to counsel” in certain types of cases.  While they are deeply nervous about individualized assessment at the counsel assignment stage, they generally concede that there are cases that do not need, or are simply not worth, counsel.

More general access advocates assert that the right should be to access to justice, and that at a minimum one is entitled to an individualized (or triaged) analysis of what is needed to fulfill that right.  They believe that Turner, regardless of what it does to the right to counsel argument, strongly supports the general access argument in any case in which there is no right to counsel.

So, what does one do when faced, for example, with the question whether to implement an unbundled attorney advice only program, or a non-lawyer initiative?

For the general access advocates, the argument is simple, at least conceptually.  The question is whether the program, as designed, provides “access.”  Presumably that means whether the case is sufficiently presented that it is heard on the substantial and procedural merits in the particular forum.  How that is answered will depend on the court environment, as well as how what is being offered fits against what is needed to get the case prepared and presented — i.e. triage.

For right to counsel advocates, perhaps the question is simpler, whether this case fits in the broader class of case in which an attorney is necessary for such a presentation.  If the answer is yes, then it should be a right to counsel case.

If this is a fair analysis (and I welcome more nuanced versions or alternatives), then the benefit of the right to counsel analysis is that, assuming resources are available, it is less likely to produce cases in which cases that need counsel do not get them.  The obvious problem is that the resources are just not available, and are unlikely to be unless the class of cases in which counsel is needed can be radically reduced.  This too can be achieved by changes in court process.  (I would urge “right to counsel” advocates to focus heavily on court processes, and thus strengthen their argument for counsel when the process can not be changed enough.)

On the other hand, the benefit of the right of access analysis is that is more flexible, and perhaps easier to achieve, while the risks include that more complex cases are wrongly pushed into the wrong service category, or that lower levels of service to not provide the supervision and skill in fact required, given the stakes.

Perhaps the long term way to integrate these perspectives is to make sure that access innovations include real individualized triage that reduces the risk of the above errors.  It is equally important that they build in sufficiently specific and nuanced evaluations that that the lessons can constantly improve the triage process.

Similarly, perhaps right to counsel folks should focus as much as who does not need counsel as who does.

Once again, I welcome comments and alternative views on this central, important and difficult subject.

I hope to post a third part of this series, applying these modes of analysis specifically to situations in which the litigant is paying directly for the resource.  We will see how customer choice impacts the analysis, and whether this analysis then impacts back on the cost-benefit and rights analyses.

Posted in Access to Counsel, Budget Issues, Legal Aid, Non-Lawyer Practice, Systematic Change, Technology, Triage, Unbundling | 1 Comment

Assessing the Appropriateness of ATJ Innovations

Posted on October 28, 2014 by richardzorza

The more I am involved with discussions about possible access to justice innovations, the more I am struck that often those in favor and those against are really talking across each other because they are assessing the utility and value of against two different yardsticks.  I offer some thoughts that may help clarify things

Let me suggest that the skeptics in fact are asking the question:  “Would this innovation be as good as a lawyer?’

The advocates are asking the question:  “Would this innovation be better than nothing?”

In the more sophisticated versions of the discussion the skeptics then admit that some things do not need a lawyer, but that most do, and they continue to ask the question in lawyer-centric terms.  The advocates, of which I am one, admit that some things will require a lawyer, talk about triage, and then emphasize the benefits for those who would otherwise get nothing.

So the question becomes how do we realistically and practically develop a scale of comparison.

The usual current approach is to develop a theory of triage by which one identifies those things that do not need a lawyer, and then design a service that will meet a particular cluster of services to meet the intermediate need.  But maybe in the real world that process, useful as it is, does not always resolve the dispute because it requires the drawing of too bright lines, and assumes that benefits of assistance are full or zero.

Let me suggest therefore a different algorithm.  What, in a world in which most people in need of access services still get nothing, is the point at which an intermediate cost service which gets only intermediate results, is better because sufficiently more people can get those intermediate benefits that would get the full benefits of traditional full services?

To give a concrete example, suppose expanded non-lawyer services, which hypothetically might cost half of a full lawyer, would result in more than half the return in value of additional tenancy compared to that obtained by a full lawyer.  Would that be the tipping point, or would it need much more?  And, if so, how much more?And why?

Or to put it another way, to how many people are you willing to say, we will give you no help, because we want to give someone else better help.  As was sometimes said to those who complained about the potential for “McJustice,” to how many hungry people are you willing to refuse even hamburgers, on the grounds that its better to serve steak to a few.

In such a cost benefit analysis, those innovations that have a marginal cost of almost nothing, such as well organized volunteer navigator type programs or online document assembly programs, obviously score much better than higher cost innovations.  This  is probably why very low cost innovations can be accepted even when there is a consensus that they may not be as effective as full representation, while less-super-cheap alternatives are often expected to demonstrate, even before testing, that they are just as good as full lawyer intervention, regardless of relative cost.

Obviously, these are not questions that would be asked in a world of limitless resources.  And the greatest fear is that by asking them we could exclude the possibility of obtaining the full benefit for all.  But, on the other hand, by failing to ask them, we may be condemning ourselves to ineffectiveness.  If we knew the impact of spreading around the benefits, we might be able to make better arguments for raising the standards.  Perhaps this is the lesson of last week’s New York quality of criminal counsel settlement, in which the state committed to significant investments in quality, and sufficient mechanisms to promote and monitor their implementation.

I welcome debate and different perspectives on these very difficult questions.

 

Posted in Non-Lawyer Practice, Self-Help Services, Systematic Change | 4 Comments

NY Quality of Counsel Settlment May be Template for National Reform

Posted on October 26, 2014 by richardzorza

This blog has been following the New York quality of defense counsel case.  Last week, perhaps in part because of the filing of a statement of interest by US DOJ, the parties, just before trial, have come to a proposed settlement, which is now to be presented to the judge for approval (assuming certain other things drop into place, as expected). Here is the settlement proposal.  Here is the NY Times description of the five county case,which nonetheless has many statement elements.

The state agreed to cover the costs of hiring more defense lawyers, investigators and expert witnesses to improve the defense for the indigent in the five named counties. The Cuomo administration agreed to establish standards for how many cases each public defense lawyer could handle in those counties and to provide resources to reduce caseloads to those levels.

Moreover, the state agreed to assume the final responsibility for making sure people who cannot afford lawyers are well represented, rather than leaving the task to county governments.

. . .

The settlement would run seven and a half years. It requires the state to guarantee that within 20 months, all poor defendants in the five counties have defense lawyers at their first appearance. Ten months later, public defender caseloads must not exceed levels set by the state.

Less emphasized in the Times is the extensive role that the Proposed Settlement would give to the Office of Indigent Legal Services, which would responsible for establishing statewide indigency determination requirements, setting quality standards for counsel, setting caseload standards, as well as monitoring and moving forward with many aspects of the settlement.  The settlement provides for state funding of these functions.

Having worked for many years in Massachusetts with the head of the office, Bill Leahy, when he ran the Public Counsel Division of that state’s integrated public defender system (he later came to run the whole system), I have absolute and complete faith in his ability to take full advantage of this unique opportunity to create a high quality statewide system.  I hope I will not embarrass the genuinely humble Bill too much when I reveal that one of my teachers at Harvard, one who taught many of the current generation of legal leaders, once described Bill as one of the best students he had ever had.  Bill is one of those rare lawyers whom the opposition sees sort of wandering around the case — till suddenly their case has slipped through their fingers and there is Bill with an almost inevitable “not guilty”.  It was never about Bill, always about the result.

At the national level, this very high profile case, with its clear programmatic solutions and enforcement mechanism, and its strong DOJ role, is likely dramatically to shift the playing field when it comes to other similar cases around the county.  I suspect that the DOJ role is likely to be repeated.

In particular the result in this case emphasizes the need for a strong state and statewide role, even when the system is decentralized, and for state funding to solve problems and provide leadership.  That might be something to consider for those civil community-based legal aid programs that still resist moving to a statewide model.

P.S.  Lots more information about the settlement now online at the OILS site.

Posted in Access to Counsel, Criminal Law, Defender Programs, Dept. of Justice | 1 Comment

Minnesota Supreme Court Takes Important Step Reversing Attorney Misconduct Admonition in Unbundled Case

Posted on October 24, 2014 by richardzorza

This may be the first time that a state Supreme Court has intervened to protect the integrity and force of a limited scope agreement. As such it is an important step in defending the force of the rules that protect attorneys from judges, and attorney discipline bodies who appear to ignore the concept.  The decision is here.

The case arose from an alleged failure by an attorney’s failure to appear in court.  Several of the five occasions on which the attorney purportedly failed to appear in court are disposed of by the fact that they were adjourned or the attorney was not at that point “of record”, but, in one, the attorney was formally “of record” and did not appear at an actual hearing.  However, as explained by the Court (bold added):

At most, the record establishes that A.B. failed to attend only a single hearing: the one that occurred on June 20. As to each of the other hearings, the district court rescheduled them, or A.B. was not required to appear because he was no longer counsel of record. Because there were not “four consecutive hearings” at which A.B. failed to appear, we conclude that the panel’s determination that A.B. violated [*4] Minn. R. Prof. Conduct 8.4(d) rested on a clearly erroneous factual finding. See In re Jones, 834 N.W.2d 671, 677 (Minn. 2013) (stating that a factual finding is clearly erroneous if it does not find support in the record). Based on the unique facts of this case, we further conclude that the panel erred when it determined that A.B.’s failure to attend the June 20 hearing violated Minn. R. Prof. Conduct 8.4(d).[fn2] A.L. instructed A.B. not to attend the hearing pursuant to the terms of a limited-scope legal representation, the propriety of which the Director does not challenge. A.B. reasonably believed that A.L. would attend the hearing, at which point she could inform the court that she had instructed A.B. not to attend. Under these circumstances, we vacate the admonition because A.B.’s conduct was neither prejudicial to the administration of justice nor warranted discipline.

Perhaps the greatest importance is in the Court’s finding that “[the lawyer] reasonably believed that [the client] would attend the hearing, at which point she could inform the court that she had instructed [the lawyer] not to attend.”  In other words, that lawyers can reasonably believe that unbundled clients will inform the court of that status, and thus do not need to take independent action to ensure that the court knows of the status — even when, as here the client in fact failed to come to court.

I suspect that state supreme courts relatively rarely reverse the merits of attorney discipline decisions (although changes in penalty may be more frequent) and so this protection of unbundling can be given some greater weight.

Posted in Access to Justice Generally, Unbundling | Comments Off on Minnesota Supreme Court Takes Important Step Reversing Attorney Misconduct Admonition in Unbundled Case

NY Comission on Judicial Conduct Criticizes Judge For Failing to Recognize Need for Interpreter

Posted on October 22, 2014 by richardzorza

It has been my experiencce that judges are far more anxious about the risk of adverse action from a judicial conduct than of an appellate reversal, no matter how harshly worded.

So it may be particularly significant that the New York Commission on Judicial Conduct has just publicly admonished Niagara Falls City Judge Robert Merino for failing to appoint an interpreter when requested.

After the tenants requested an interpreter, the Judge appeared to agree, but then continued to ask some basic questions.  When the tenant said that he did not understand, the judge asked where he was born, and the tenant replied Puerto Rico, the Judge commented:

Okay. Go ahead, Mr. Koryl. I think he understands English.

The last time I heard, I think Puerto Rico was bilingual.

The Judge then proceeded, ultimately entering judgement against the tenant.  It is clear from later comments on the record that the tenant did not even understand that the case was over, and anticipated returning for participation of an interpreter.  As the Admonishment explained:

As the proceeding continued, respondent, who never made clear that the case would not be adjourned, continued to ignore red flags indicating Mr. Santana’s litnited proficiency in English. The litigant responded to some questions in Spanish, or told his wife to respond, or did not respond at all as his wife answered for him. While his wife attempted to present defenses for non-paymnent of rent, Mr. Santana barely participated in the proceeding. In this context, when respondent asked Mr. Santana several times if he understood what was said, his halting affirmative responses hardly seem convincing. Even after respondent announced that the warrant of eviction was granted, Mr. Santana asked if an interpreter was coming and if they had to return to court, suggesting he did not realize he had just been evicted. Despite Mr. Santana’s evident confusion about what had transpired, respondent simply told him to “talk to the clerk downstairs” who would “explain what happens next.”

It is perhaps most significant from the Admonishment that the Judicial Conduct Commission took into account the asymmetry of representation status.  The tenant had no counsel, the landlord had counsel:

Mr. Santana was in an especially vulnerable position since he was unrepresented by counsel and was facing an adversary with an attorney. With no lawyer to protect his rights, the fact that he could barely communicate in English compounded his vulnerability and left him virtually defenseless.

Aside from putting judges on clear notice of their obligation in such circumstances to provide an interpreter, the decision may also highlight the extreme frequency of the overlap between self-representation and language access issues.  This is a lesson that advocates must internalize.  I remain unable to understand the focus by language access advocates on interpreters (important though that is) while placing less attention on the grossly exacerbating implications on the lack of counsel, and need for court procedures to compensate.

 

Posted in Judicial Ethics, LEP | 1 Comment

FLASH — New DOJ Access Head Announced — Former California Judge Lisa Foster

Posted on October 16, 2014 by richardzorza

Eric Holder has just announced the appointment of Lisa Foster as the new head of the DOJ Access to Justice Initiative.  Ms  Foster was until recently a judge in San Diego.  Her experience on the bench, with LAFLA and the Center for Law in the Public Interest, and other groups, will stand her in good stead in this critical job.

This is indeed great news for the Initiative, as well as for access as a whole.  I particularly want to echo the AG’s comments (how nice it is to be able to write that phrase) about Karen Lash, who has been wonderfully filling the role of “acting” in the last few months, and achieved so much during that time.  (I previously wrote about Deborah Leff here.)

The full press release appears below:

ATTORNEY GENERAL HOLDER ANNOUNCES LISA FOSTER TO SERVE AS DIRECTOR OF THE ACCESS TO JUSTICE INITIATIVE

WASHINGTON—Attorney General Eric Holder announced on Thursday Lisa Foster as the Director of the Access to Justice Initiative (ATJ). Founded in 2010 by Attorney General Holder, ATJ seeks to address the access-to-justicecrisis in the criminal and civil justice system by working within the department, across federal agencies, and with state, local and tribal justice system stakeholders to increase access to counsel and legal assistance and to improve the systems that serve people who are unable to afford lawyers.  By supporting the right to counsel in state and local courts, educating the defender community, supporting defender services in tribal courts, strengthening the juvenile justice system, and enhancing federal programs though civil legal aid, ATJ staff work to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.

“Lisa is a staunch defender of due process, a champion of the rights of all Americans, and a passionate advocate for equal justice under law,” said Attorney General Eric Holder.  “Throughout her impressive career – from her earliest days in public interest law, to her work as a legal aid provider and her distinguished service on the bench – she has consistently demonstrated superior judgment, impeccable integrity, and a steadfast commitment to the high ideals that the Access to Justice Initiative is charged with protecting.  I have no doubt that, under Lisa’s leadership, this important initiative will continue to expand its groundbreaking work to build the more effective justice system – and the more just society – that all Americans deserve.”
Prior to joining the department, Foster served for ten years as a California Superior Court Judge in San Diego presiding over criminal, civil and family law departments.  Foster began her legal career as a Staff Attorney at the Center for Law in the Public Interest in Los Angeles and later joined the Legal Aid Foundation of Los Angeles. Following her service at the Legal Aid Foundation of Los Angeles, Foster served as the Executive Director of California Common Cause before becoming an Adjunct Professor at the University of San Diego Law School and later joining the law firm of Phillips & Cohen as Of Counsel.  For the past year, Foster was a judicial fellow in the Office of Senator Edward J. Markey where she advised Senator Markey on a variety of issues including judicial nominees, patent legislation, regulatory reform and international law and policy.  She received a B.A. in American Studies from Stanford University and J.D., magna cum laude, from Harvard Law School.

“The Access to Justice Initiative does critical work to increase access to counsel and legal assistance for all,” said Acting Associate Attorney General Stuart F. Delery.  “We are privileged to have a person like Lisa, who has dedicated her career to supporting a justice system that is fair and accessible to everyone, guiding this important effort.  I am confident that, with Lisa’s leadership, the initiative will continue to build on the outstanding work done by Deborah Leff, Karen Lash, and the dedicated team working with them.”

Last month, as part of ATJ’s work with the Civil Rights Division, the department filed a statement of interest with the Supreme Court of the State of New York, Albany County, in Hurrell-Harring v. State of New York.  In this class action litigation, the plaintiffs allege that, due to systemic failures in four New York counties, indigent criminal defendants have been constructively denied the right to counsel.  And in April, ATJ launched the Legal Aid Interagency Roundtable Toolkit. This online resource located on ATJ’s website is the product of collaboration with the White House Domestic Policy Council and 18 federal agencies dedicated to examining current programs and practices in order to create better outcomes.

To learn more about the Access to Justice Initiative, visit http://www.justice.gov/atj/.

Posted in Access to Justice Generally | 1 Comment

Roger Smith on Contrast Between British Columbia and UK Legal Aid Cuts Has Valuable Lessons

Posted on October 16, 2014 by richardzorza

I want to draw your attention to a blog post by the UK’s wonderful Roger Smith contrasting the BC and UK approach to cutting, and response to cuts in, legal aid budgets.  His essential point is that the BC cuts, while apparently just as draconian, were structured to allow for flexibility and innovation, and the challenges were  approached in that spirit.

A couple of paras of contrast from the post:

The crucial difference between our [UK] position and that of BC is that, unlike by Chris Grayling and the Legal Aid Administration, cuts were not seen as an end in themselves. Yes, the government wanted blood but, provided legal aid could work within a reduced budget, then its administration was left free to do the best that it could. At first, the extent of the slaughter left little wriggle room and lawyers still argue that they should have been the first beneficiaries of any discretionary cash. But, the Legal Services Society, the legal aid administrator, has gradually sought to re-engineer its purpose as not only to provide representation in core cases but to deliver self help and advice designed to assist people to resolve legal problems on their own.

The difference a decade after BC’s cuts is that I have come all the way to Vancouver to see the brilliant work that the Legal Services Society, the Justice Education Society and the Courhouse Libraries are providing in digital delivery to those on low incomes. Google clicklaw.bc.ca, families change.ca, familylaw.lss.bc.ca (soon to be mylawbc.org) for a host of cutting edge provision in the province. Even the Ministry of Justice is joining in. Legislation in 2012 allows the funding of an online small claims court, the civil resolution tribunal, which will come on stream next year. Try even to file an electronic document in our own dear courts. No chance. No imagination. No innovation. Just a Minister and a Ministry shorn of any interest save in reducing expenditure. Cuts, Mr Grayling, are the easy part. Making sense – or even the best – of them takes imagination and innovation. Get on a plane; meet your BC counterparts and be appropriately humble about your government’s limited imagination and barren approach to policy.

In some ways, the cuts in these jurisdictions put them roughly where the US is now.  So the question is whether we approach digging ourselves out of the access crisis with the same creativity.  Or are we only nibbling at the edge of change.  Inevitably, in the US the answer is “it depends” usually on the state and on the quality of leadership in the state.  But I fear that our fragmentation means that we lack national leadership on things like a broad roll-out of self-help centers, forms, unbundling, and the other elements of the continuum of services, and all the quality and cost benefits that would come from national strategies.  An exception is special kudos to LSC, Pro Bono Net and others for creating a near-national network of websites (although all would agree that the integration could go much further particularly on the marketing/partnering end.)

I hope that we as delivery innovators never forget that there will always be cases in which lawyers are needed — even as we work through simplification and innovation in both community based and court-based legal aid to reduce that percentage.  But I also urge right to counsel folks not to forget that explicitly or implicitly taking the position that lawyers are always needed makes their proposals far more expensive and both politically and legally much more likely to build resistance.  It’s an interesting question how the recent Boston Bar (article) (Report) and Maryland Right to Counsel reports deal with this challenge.

The key, of course, is triage and the key to the politics of a solution to the differences in perspective is common research and understanding about triage.

p.s. There is a newly updated website on right to counsel developments, including an interactive map, recently launched by the Coalition.

Posted in Access to Counsel, Budget Issues, International Models, Legal Aid, LSC, Technology | 1 Comment

An Argument as to Why Courts Should Not Require Self-Represented Litigants to Draw Up Orders for Judges to Sign

Posted on October 15, 2014 by richardzorza

I have long found it utterly incomprehensible that many courts still require litigants to draw up their own draft orders for the judge then to sign — and they then sometimes blame the litigants for not getting their cases to conclusion and compliance.

Those who oppose self-representation love to use the medical analogy: “Would you do brain surgery on yourself?”

How about this one;  Making people do their own draft orders is like a doctor saying:  ” OK I will sign your prescription if you prepare it and leave it with my secretary.

(If anyone argues that this is more an argument that no-one should be self-represented, the answer is that no-one says that patients should not be allowed to present their own symptoms and needs to the doctor.)

Posted in Court Management, Judicial Ethics, Plain Language | Comments Off on An Argument as to Why Courts Should Not Require Self-Represented Litigants to Draw Up Orders for Judges to Sign

Interesting Juxtaposition: ABA President Supports NonLawyer Practice While Supreme Court Explores Potential Anti-Trust Violation by Dentist Self-Regulation

Posted on October 15, 2014 by richardzorza

Its news on its own that ABA President William Hubbard appears to have endorsed nonlawyer practive:

As OrgeonLive.com reported, at an ABA Young Lawyers Division meeting. . .

Hubbard saluted the state of Washington, which was the first in the nation in 2012 to create a new class of legal worker known as a limited license legal technician. This ‘LLLT” role, somewhere between a lawyer and a paralegal, could help the state address the justice gap, in part because they will work cheaper than attorneys.

Hubbard also drew attention to the critical importance of technological change:

Hubbard, a commercial litigator from Columbia, S.C., is convinced technology offers answers. Consider a young, poor single mother who receives an eviction notice. Imagine if the woman could photograph the eviction notice, email the image to a legal portal, and get some initial advice online.

“Technology can make us more efficient,” he said. Given that more than 80 percent of Americans, regardless of income, have access to smart phones, “they can be a game-changer.”

Sophisticated investors are betting millions that technology will fundamentally remake the way law is practiced in this country. Venture investors and private equity companies in 2013 invested $458 million in technology firms that provide some sort of legal service. Similar investments are on track to surpass $1 billion in 2014.

“We need to marry that spirit of innovation with a system that works for all Americans,” Hubbard said.

But what is particularly interesting that this all happened the same week that the US Supreme Court heard an oral argument in which the FTC and the North Carolina Dental Board went up against each other on whether the Board violated the Sherman Anti Trust Act when it defined tooth whitening as within the practice of dentistry, open only to dentists. (Interestingly part of the case focused on the fact that technology had now made tooth whitening much simper to do — maybe sort of like court forms versus old style pleadings.)  (New York Times account of Tuesday’s hearing here.)

While the argument  (transcript here) tended to focus on the scope of the state action exemption to anti-trust law, in the background the question of monopoly protecting regulation was very much present.  While a small group of state bars did submit an amicus in support of the regulating dentists, it is somewhat encouraging that the ABA did not join that amicus (although it is always possible that the was less a policy decision than a product of the complexity of the ABA amicus process.)

In any event, it will be fascinating and important to see how this plays out.  That the ABA is moving in an access direction is all to the good.  Lets hope it is maintained as the presidential succession moves inexorably on.

Update:  Here is the SCOTUS report on the oral argument, Court wary of immunity for licensing boards, but what about doctors?

Posted in Anti-Trust, Non-Lawyer Practice, Supreme Court | Comments Off on Interesting Juxtaposition: ABA President Supports NonLawyer Practice While Supreme Court Explores Potential Anti-Trust Violation by Dentist Self-Regulation

What Does it Mean that DOJ Has Filed a Statement of Interest in NY Right to Quality Counsel Case?

Posted on October 8, 2014 by richardzorza

As folks should know by now, the US DOJ has filed a “Statement of Interest” in the ongoing New York State case about the quality of indigent defense services.

While taking no formal position on the merits of the case, the Statement, urges three things:

  • That if liability is found, the court has broad authority to enter injunctive relief and to appoint an independent monitor,
  • That such a monitor would be critical in such a complex situation, and
  • That the remedy should include caseload controls.

This is the second such involvement (I am avoiding the formal word “intervention” here), and as such highlights the systematic and national interest that DOJ has in this issue.

I wonder if there are similar statements of interest that might be appropriate in civil access to justice cases.  The Department’s amicus in Turner was clearly highly influential.  I would encouage those involved in cases that might benefit from such engagement to be in appropriate touch with DOJ.  Even if initial requests do not obtain the desired result, surely even the triggering of a discussion within DOJ would be a good thing.  Now that there is an Access to Justice Initiative within DOJ, such things become more possible.

 

 

Posted in Access to Justice Generally, Criminal Law, Dept. of Justice, Public Defender | Comments Off on What Does it Mean that DOJ Has Filed a Statement of Interest in NY Right to Quality Counsel Case?

Sad News About the Dissolution of the American Judicature Society

Posted on October 1, 2014 by richardzorza

The American Judicature Society, which had been over 100 years old, has announced its dissolution.

AJS played a very major role in moving forward a broad view of access to justice.  They published the first national materials on self-represented litigants, organized the critical 1999 Scottsdale Arizona Conference on the self-represented, and put together a number ot regional conferences.  Kate Sampson, their now retired SRL leader, “got” this issue long before almost anyone else.  The AJS magazine Judicature, has carried many articles on access to justice, and their Center on Judicial Ethics has been a leader in promoting changes in the Model Code of Judicial Conduct, particularly with respect to SRL issue.  Fortunately, the Center, run by Cindy Gray, will now be part of the National Center for State Courts.  Cindy has long been an expert to whom I have always known I could turn.

What is particularly sad is that AJS was one of the very few organizations promoting a general view of justice, rather than the perspective of particular stakeholders – valuable as that is too.

Lets hope others also step up to this important plate.

 

 

Posted in Access to Justice Generally | 1 Comment

Pro Bono Could Lead the Way in Resolving the Struggle for the Soul of the Legal Profession

Posted on September 27, 2014 by richardzorza

I have been up in Canada to address the excellent National Pro Bono gathering in Regina Saskatchewan, and hearing about the many pro bono and court innovations moving forward there, as well as from Justice Thomas Cromwell of their Supreme Court on very encouraging progress on the goals set by the recent superb Report of the Task Force established by the Chef Justice.

My speech was about the role of the pro bono community in what I have started to call the struggle for the soul of the profession.

The bar is going to have to decide if it is going respond with protectionism or openness to the rapid changes in society, such as the increasing overall inequality, the dramatic changes in the stratification of the bar, and the transformation of courts’ self-perception as access to justice institutions that are starting to take responsibility for the broad accessibility of the system.

As courts commit to access to justice, they are starting to consider a wide range of innovations such as nonlawyer practice and process simplification. The bar may, as it ultimately has in Washington state with nonlawyer practice, embrace these innovations as part of their commitment to access to justice, or they might respond, as at least part of the bar has in Texas with respect to forms, with protectionism, even if sought to be justified in consumer protection terms.

In this environment, pro bono lawyers and leaders have a particularly important role to play. First, the polling data tells us that pro bono lawyers have very high approval and credibility with the general public and the bar (it’s one of the few Latin words that most people seem to know). Secondly pro bono lawyers have lots of real world experience in the actual system. They can tell both the public and the profession just how bad things can be, just how much difference the innovations can make, and what the consequences can be of failure to permit or adopt them.

So, I would urge everyone involved with pro bono to see their networks as a major tool for change advocacy – not just for pro bono, but for innovation, and for the bar to be at the forefront of change, not fighting it.

As Deborah Rhode said at the LSC 40th anniversary celebration: “We need less protection for lawyers, and more protection for consumers.”

Here are some thoughts on steps that might be taken to help pro bono play this advocacy and conscience role:

  • At those gatherings at which pro bono lawyers are congratulated (yes, they do happen!) speakers might also address these broader issues and how pro bono lawyers might address them with bar and public
  • At pro bono trainings, these issues might also be addressed.
  • To the extent that pro bono programs have “volunteer councils” (and they should), these councils might be given training on the substance of these issues and how to address them.
  • Pro bono lawyers might be more assertive in sharing the perspectives they have from working in both the market and non-profit sectors.

 

 

Posted in Judicial Ethics, Non-Lawyer Practice, Pro Bono, Systematic Change | Tagged | 1 Comment

Governing Magazine Spreads the ATJ Message Beyond Courts With Article on NY CJ Lippman

Posted on September 21, 2014 by richardzorza

It has long been a goal of the more visionary access to justice commissions, now joined by Voices for Civil Justice, to spread the ATJ message beyond courts to other government actors.  So it is particularly good news that there is a great article about NY Chief Judge Jonathan Lippman’s ATJ efforts in the current issue of Governing Magazine, which claims a “circulation of approximately 85,000 [with t]he core of GOVERNING’s readership consist[ing] of elected, appointed and career officials in state and local government, including governors, mayors, county executives, city and county council members, state legislators, executives of state and local agencies, and those holding professional government positions such as attorneys, public accountants, engineers and educators.”

The article may well be the first exposure that many of the magazine’s readers have had to ideas such as the cost savings from state legal aid investments, the possibility of rules changes to make foreclosure and other processes fairer and simpler, law student pro bono requirements, and court navigators:

Borrowing from other courts is also a Lippman tactic. This year, in a further effort to deal with the problem of legal representation for the poor, New York City launched a pilot program for indigent litigants modeled after the United Kingdom’s Citizens Advice Bureau. So-called “court navigators,” trained non-lawyer volunteers, are helping unrepresented residents in Brooklyn Housing Court and in certain consumer debt courts with filling out paperwork and accessing services they need. They may not address the court for the litigant but they can answer questions if asked by a judge.

Perhaps most importantly, however, the article should promote the idea that Chief Judges should be aggressive and engaged in promoting an access agenda.

Lippman has not reached the end of his list of reforms, but he is acutely aware of the fact that he will reach the state’s mandatory retirement age next year. He says the deadline is merely a reason to work harder. “My job is not to sit around and talk about things, my job is to take an idea and make it a reality,” he says. “You’ve got to be a leader — you have to grab the pulpit and use it.”

Let’s hope the CJ’s greatest legacy is lots more Chiefs like him.  And, after his retirement, lets hop that he finds a platform from which he can be a mentor and a standard bearer for those who follow him in all the states.  From that legacy will also follow more Commissions, more involvement from other sectors of government, and hopefully a national commitment to access to justice.

As a final thought in this direction, what about a joint meeting of the Conference of Chief Justices/COSCA with the National Governors Association, or with the National Conference of State Legislators?

 

 

Posted in Access to Justice Boards, Access to Justice Generally | 1 Comment

American Assoc of Law Libraries Issues Report on Acess to Justice

Posted on September 20, 2014 by richardzorza

An important step from a very significant ally in the access coalition.  The American Association of Law Libraries has issued Law Libraries and Access to Justice, which was drafted by a special committee of the Association.

The Report brings together a wide variety of ideas and examples on how law libraries can better contribute to access to justice.  It would be a rare expert indeed who would not learn a new idea here.  Some of those most worth highlighting:

  • Encouraging public and private law librarians to contribute through pro bono
  • Detailed sets on setting up self-help services in a law library
  • Participating with state access to justice commissions
  • Moving to advanced levels of service while remaining within ethical guidelines
  • Helping build access to justice into the law school curriculum
  • Applying Access to Justice Technology Principles to law libraries

Congratulations to AALL  Non librarians look here for ideas on how to partner.  Librarians look here for how to do the same.

 

 

 

Posted in Access to Justice Boards, Libraries | Comments Off on American Assoc of Law Libraries Issues Report on Acess to Justice