Time for action to close the justice gap

By Dave Jones
Chair, Assembly Judiciary Committee

Jones

In 2001, David Hused hit bottom. He was homeless. He had no money, no driver’s license, no job. His credit was shot, he was on parole from Folsom prison, his family was gone, and he had no idea where to turn. Six months later, thanks to Legal Services of Northern California (LSNC), he was able to move into transitional housing and received advice and assistance on family law matters, evictions and repairing his credit. 

With the help of LSNC, David went on to reinstate his driver’s license, graduate from college and become a counselor. As he puts it, “I went from hopeless to hopeful, from a tax-taker to a taxpayer, and from homeless to an owner of a house with a white picket fence.” 

I met David Hused in a recent legislative hearing where the Assembly Judiciary Committee examined a new report by the California Commission on Access to Justice. Sadly, his inspiring story is all too rare. 

There is a dire need for civil legal services for poor Californians – especially underserved groups such as the elderly, disabled, children and people needing assistance with English. Because of insufficient resources, legal services programs can offer assistance in only a few types of cases; and even most of those who meet the strict eligibility limits and seek assistance regarding problems for which a legal services office provides service are nevertheless turned away, simply for lack of staff. For every client assisted, two others who could be helped are now rejected. 

Governor Schwarzenegger has noted that access to justice is a bedrock principle of our democracy. Unfortunately, we have allowed that foundation to weaken in recent years by failing to keep up with changes that have profoundly affected our legal system.

Despite significant efforts and important progress, the justice gap between the civil legal needs of low-income Californians and the help they receive is still very large. The Access Commission estimates that the current justice gap is nearly $400 million. In fact, legal representation appears to be getting further beyond the reach of more Californians. Access to justice is not meaningful, the commission concludes, when there remain such inadequate resources to meet the need.

The unavailability of legal services not only disadvantages people with legal problems, it also burdens the justice system itself. On a practical level, a lack of counsel impairs the administration of justice because unrepresented litigants consume significant court time, causing inefficient and costly delays in proceedings for all court users. Unrepresented parties also exacerbate the shortage of judges.

The shortage of civil legal services for the poor also erodes the public’s confidence that our courts and system of laws can work for everyone. Not surprisingly, opinion surveys show that lawyers and court personnel believe that unrepresented parties are at a significant disadvantage. Surveys show that a large majority of the public has the same perception. Parties that are unable to obtain a lawyer not only believe they would have had a better outcome, they believe that they would have been treated better – a factor that surveys show may be just as important as the results. Respect for a system of laws is not encouraged if most people perceive, rightly or wrongly, that the financial situation of a party is more likely than the merits of an issue to dictate the process or the outcome.

Working with the legislature, the courts have made great efforts to provide innovative self-help services. This approach is particularly beneficial for relatively sophisticated parties and where neither side has an attorney, such as is frequently true in family law matters. But judicial leaders acknowledge that in many cases a party must have the assistance of legal counsel to have meaningful access to justice, especially where there are education or language barriers, or the presence of opposing counsel.

In addition to increased state spending, the Access Commission has endorsed many creative recommendations to fund legal services, including improving the rates banks offer on IOLTA accounts, promoting financial contributions by lawyers to legal services organizations, and dedicating unclaimed residual funds from class actions. I intend to advance as many of the Access Commission’s legislative recommendations as possible. But it is no secret that state budget limitations are severe. If we are to maintain a healthy legal system, the legal profession must lead the way – not only because we have an ethical duty to do so, but because no stakeholder can be expected to do more unless we as lawyers have demonstrated our commitment to the principles we profess and the legal system that sustains us.