Where is RI’s Access to Justice Commission? Guest MINDSETTER™ Geoff Schoos

Friday, June 23, 2017

Geoffrey A. Schoos, Guest MINDSETTER ™

 

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Last week I attended the Rhode Island Bar Association’s Annual Meeting. I go each year to meet friends, renew acquaintances, learn new things, and be reminded of things I knew. On the last session of the last day, I was reminded of something very important. 

Article V of Rhode Island’s Rules of Professional Conduct, Preamble and Scope, A Lawyer’s Responsibilities, paragraph (6) provides that:

“As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

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A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

Equal Access 

As a public citizen and as a lawyer, I’d like to focus on the Preamble’s admonition to equal access to justice, particularly for the poor. Having operated a now-closed legal services organization (LSO), this is something with which I am quite familiar. One reason I started my LSO was to attempt in a small way to help remediate the “deficiencies” in the administration of justice in Rhode Island as they pertain to indigent parties.

At the meeting, there was a session entitled “Dealing with Pro Se Litigants.” The primary focus of this presentation was on litigants with emotional or psychological challenges, and because of one presenter’s area of practice, debt collection. I found the presenters to be very good but limited in their scope. Low-income people have unique challenges when accessing the court system, and save for brief inferences, went largely ignored. 

In a word used by Michael Harrington, the poor were “invisible.”

Years ago, the American Bar Association urged state Bars to adopt Access to Justice programs to ensure that indigent litigants would receive some level of legal counsel. Deeply committed to the goal of expanding Access to Justice, the ABA provided funding to support the creation of these commissions at the state level. According to the ABA website, in 2013 a grant was awarded to the State of Rhode Island for the development of an Access to Justice Commission. 

So, my question is, where’s the Commission? I know that I was told two and one-half years ago by someone whose information is unimpeachable that the Commission had yet to be formed. That was in 2014. To date, as I look online on the ABA and National Center for State Courts websites, there are reports of the various state Commissions available to all to read. Sadly Rhode Island appears on no list. One organization’s website which I recently visited indicated that the formation of Rhode Island ATJ Commission was still in progress.

I fully appreciate how difficult establishing such a Commission can be, but it’s not like Rhode Island is inventing or re-inventing the wheel. There are similar Commissions to our immediate north and west. The ABA has guidelines to assist in the creation of such a Commission. A couple of years ago, 38 states had established Access To Justice Commissions, with Rhode Island being one of the remaining states that did not. 

It isn’t like nothing is being done to help the poor.  There are two significant community-based LSOs in Rhode Island that do serve the poor. In addition, a Court Rule was recently promulgated permitting limited scope representation to low-income litigants. However, that Rule was more of a result of a recent Rhode Island Supreme Court judgment than the product of any comprehensive approach to serve indigent clients. Depending on the level and intricacy of the case, this often is slightly better than a stick in the eye.  

And, of course, there’s the Volunteer Lawyer Program of the Bar Association. However, along with the numerous attorneys who provide services to low-income clients on their own outside of any organization or program, that barely scratches the extensive surface of need. 

Lawyers' Responsibility

The Court Rules have a Pro Bono Publico service section that sets out a voluntary aspiration that each attorney annually provide 50 hours of legal service to indigent clients. Indeed, this section uses the word “responsibility” but imposes no sanction on an attorney who fails to meet that “responsibility.” Unsurprisingly, the number of attorneys who meet this aspirational responsibility is minimal. Fifty hours at an average rate of $200/hour equals $10,000 each year of free services and lost income to the attorney and/or his business. Given that many, particularly newer attorneys, carry heavy law school loans, and each legal office must operate as a business to keep its doors open, a $10,000 annual loss in billable hours can be quite a bite. 

Clearly this is not a sensible or sustainable means by which to provide legal services to low-income clients. Given the Preamble’s assertion that it is vital that the legal profession provide services to those who cannot afford them in order to ensure equal justice for all, it is obvious that we must and can do better. To do less is unacceptable and jeopardizes the concept of justice as a basic societal value that underpins our democracy. 

At long last, it is imperative that an Access to Justice Commission be formed and comprehensive reforms implemented. I well understand that ensuring that access to justice is provided to each Rhode Islander, irrespective of ability to pay, will not be easy and will take a commitment from the Judiciary, the Bar Association, community organizations and individual members of the Bar. And I understand that these reforms will require the expenditure of public funds. However, any cost in time, effort, or dollars will be more than offset in a renewed public respect of all Rhode Islanders for the rule of law, our judicial institutions, and the democratic values that we all share. 

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Geoffrey A. Schoos, Esq is the past President of the former Rhode Island Center for Law and Public Policy.    

 

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