Playing the one-note blues

by Steven A. Nissen

Contrary to George Kraw's interpretation in the January Bar Journal, the State Bar's Access to Justice Report is not a one-note call for a mandatory pro bono requirement. The report states that considering adoption of an aspirational pro bono goal similar to that in the ABA's Model Rules of Professional Conduct is one of many options for further serious study.

Concentrating opposition on one option unfortunately detracts from the scope of the report, which provides an exhaustive look at delivery of legal services to those who cannot afford lawyers.

Our report includes many recommendations to achieve the goal of securing equal justice for all Californians: dedicating a portion of punitive damage awards to legal services, encouraging law students and legal professionals to volunteer, or increasing charitable and governmental support for legal aid. No single option presented would fill the unmet need for civil legal services in California.

The Working Group also recommends the creation of an Access to Justice Commission (comprised of representatives from the State Bar, the governor, the legislature, the Judicial Council, the Chamber of Commerce and others) to study, debate and, we hope, implement some of the report's recommendations and options.

The commission's founding members must confront the pressing issue of access with minds open. Mr. Kraw says the "skills of criminal lawyers or civil practitioners such as patent or corporate lawyers" are not easily applied to needs of the state's poor. Nothing could be farther from the truth.

At Public Counsel, for example, criminal defense attorneys help runaway and homeless youth re-enter society's mainstream, patent lawyers aid community-based non-profits and corporate lawyers assist inner-city entrepreneurs and affordable-housing projects. All that is required of legal volunteers is vision, creativity and heart.

Though Americans like to believe we are leaders in providing access to the justice system, the report shows how poorly the United States fares when compared with other countries. France has granted its citizens the right to counsel in civil matters since the 1800s and Switzerland's Supreme Court has held that poor people cannot be "equal before the law" unless they have access to lawyers. Many Americans mistakenly believe our Constitution grants us that right too; it doesn't, and advocating for it is a concern for all of us.

The Access Report provides a challenge for all lawyers. In these days of increasing levels of poverty, cataclysmic shifts in our welfare system and drastic restrictions on government funding for the Legal Services Corporation, it is more important than ever that we explore increasing access with thoroughness, fairness and creativity.

Mr. Kraw calls our effort controversial. I would call it a tragedy if his review deflects attention from the array of crucial issues all of us need to consider to preserve our nation's legacy of justice for all.

Steven A. Nissen is executive director of Public Counsel and a member of the State Bar's Access to Justice Working Group.