Lawyers must close the justice gap

By Dave Jones
Chair, Assembly Judiciary Committee

Jones

As Chief Justice Ronald George has reminded us, “If the motto ‘and justice for all’ becomes ‘and justice for those who can afford it,’ we threaten the very underpinnings of our social contract.” Chief Justice George has done much to promote equal access, joined by State Bar leaders who convened the California Commission on Access to Justice which has reported on the disturbing — and increasing — disparities in our legal system, and the daunting obstacles faced by the exploding number of pro se parties, many of whom face language barriers in addition to unawareness of legal rights and court procedures.

The magnitude of the need was underscored recently in a joint hearing of the Assembly Judiciary Committee and the Judicial Council. In testimony from a distinguished group of judges, lawyers and others, we heard that legal aid providers are currently able to meet only a fraction of the demand for help. In 1996, California failed to meet 75 percent of the legal needs of poor people. Ten years later, we are stuck at the same level — still failing to meet at least 75 to 80 percent of these needs.

Despite the establishment of the state’s Equal Access Fund, and impressive gains in efficiency and fundraising by legal aid programs, the current “justice gap” is estimated to be at least $350 million, largely because of federal funding cuts and escalating poverty rates. Put another way, there are about 10,000 low-income Californians per legal aid attorney, compared to approximately one civil attorney for every 300 persons in the rest of the population.

Although we lag far behind other states in total funding of legal services for the poor, California is not alone in this dilemma. Other states have responded with a number of innovative measures, including requiring every lawyer to report pro bono service hours and/or financial contributions, as well as mandatory lawyer surcharges to support legal aid programs. These steps have reportedly led to dramatic gains in resources. My hope is that it will not be necessary to move to mandatory pro bono hours or surcharges, but as lawyers we can and must do more to live up to our professional responsibilities. I look forward to working with the State Bar to do more to facilitate voluntary contributions from lawyers to legal services for the poor.

The Access Commission has long urged that the Equal Access Fund meet at least 50 percent of the legal needs of the poor. We are currently more than $150 million short of that modest goal. If every California lawyer contributed only $100 to legal services for the poor (far less than the value of 50 hours of service expected by ABA rule 6.1), we would double the size of the Equal Access Fund this year, even though we would still fall well short of the Access Commission’s goal of meeting even half the need.

State Bar President Jim Heiting has singled out the need for increased funding for equal access as one of the pressing issues facing the profession. President Heiting has also reminded us of the noble calling and great responsibilities of our profession and the high standards of ethics, public service and problem-solving to which we are bound. As he has pointed out, the solemn pledge of “liberty and justice for all” is a work in progress, and we are each integral players in its progression, either forward or back.

As lawyers, we know that access to justice generally requires representation by counsel. As officers of the court, we know that the absence of representation has a negative effect on the functioning of the judicial system. As citizens of California, we know that a viable system for the orderly resolution of disputes is not just a nice aspiration. Whether disputes are brought to the legal system for resolution or decided in less desirable ways depends in part on whether the courts are accessible to all who face legal problems. Nor do we encourage respect for the law if, as a recent Judicial Council survey reported, most Californians believe that low-income people fare worse in court than those of means. As taxpayers, we also know that the resolution of conflicts through the legal system offers financial and economic benefits by reducing the need for many state services.

We have far to go if we are to respect not just the abstract ideal but the practical reality of equal access. Lawyers who do pro bono work and make financial contributions deserve our respect. Unfortunately too many still sit on the sidelines. Our profession should lead the way by contributing pro bono hours and financial, not just rhetorical, support to the principle of justice for all.