Justice and the Poor

This intriguing article in December's "Washington Lawyer" takes a look at the newly appointed Justice Roberts' opinion on the legal system and how it best may serve the poor, and says he's flat wrong:

Senator Herb Kohl from Wisconsin asked Roberts, “Do you agree that for our nation’s working people securing civil justice is often rendered substantially much more difficult because it simply costs too much?”

Roberts responded by recognizing the problem: “You know, I do think that the availability of legal services is not as broad and widespread as it should be. There are so many things and areas where I think lawyers could make a valuable contribution, but it’s too expensive.”

He went on to place the responsibility for meeting the needs of poor litigants on the private bar, urging that the problem be addressed through increased pro bono.

Chief Justice Roberts got it wrong.

Though programs exist to provide representation in civil cases, they are underfunded and inadequate to meet the need. Pro bono is an indispensable component of the effort to provide representation, and private lawyers in many places are generous with their time. The District of Columbia is uniquely blessed with a generous pro bono bar. Nevertheless, 90 percent of poor families and individuals who need a lawyer will not be able to secure counsel and will be forced to negotiate the legal system on their own.

Studies consistently confirm what common sense would suggest, that lawyers make a difference in the outcome of these cases. In many cases the ability to access a lawyer can prevent an elderly couple from losing their home to a scam artist; ensure that a family with children is not evicted because they complained of dangerous health conditions in rental housing; ensure that a disabled veteran obtains medical benefits after having been terminated from the program in error; assist a mother fleeing violence with her children to secure a safe place to live; and help a low-income worker obtain the wages he is entitled to receive under law.

By suggesting that the problem of equal justice be resolved solely through voluntary activity—pro bono—Roberts has relegated justice to the realm of charity. Equal justice cannot be a matter of grace or favor, but must be available as a right.

It's not possible for me to agree with the author's assessment more. It's been clear to me for some time that what America's poor need more then anything is more access to the courts, and my year and a half in law school has only reinforced this notion. I'm not talking about car crash victims suing insurance companies for whiplash. Trial lawyers get paid well for that sort of thing, which is why their commercials are all over the place. I'm talking about the sort of situation the author is discussing above, where average everyday people get screwed over by beauracracies or people who can afford lawyers and access to the courts, where they can't. Certainly I'm biased by my education thus far in law, but to me there are fewer things that would make life easier on the poor then being able to turn to a lawyer when somebody is trying to screw them over. But for people like Justice Roberts, who himself has certainly never gotten an eviction notice on the door during the holidays or a threatening letter from a creditor, simply hoping that lawyers will volunteer more of their time is an adequate solution to the problem. It's not. Of course whatever I think about this, the fact that we have Republicans in Congress and a Bush admnistration that wishes only to cut back access to the courts to protect corporate interests does not give one reason to hope for more legal representation for the poor anytime soon. But it's clear that pro bono work and legal aid programs simply aren't good enough to serve the multitudes of those who cannot afford legal representation that is growing ever more expensive. While as a lawyer I certainly intend to devote myself zelously to pro bono work, I also believe it's time to start calling for programs to fund legal aid for the poor. Such a thing is probably 50 years away at best, but you have to start somewhere and sometime, and what better time or place then right here and right now?