This legal article of mine was published in THE LAWYERS REVIEW (January 2003).
ACCESS TO JUSTICE IN AMERICA: THE CALIFORNIA EXPERIENCE.
By
Atty. MANUEL J. LASERNA JR., AB, L.B. Ll.M. (cand.)
Professor of Law, FEU Institute of Law
Partner, Laserna Cueva Mercader Law Offices
President, Las Pinas City Bar Association
Director, Integrated Bar of the Philippines (PPLM Chapter)
Source: “The Path to Equal Justice: A Five-Year Status Report on Access to Justice in California”, available at http://www.calbar.ca.gov. Published by the California Commission on Access to Justice with the cooperation of the State Bar of California and the Foundation of the State Bar of California.
Introduction
The California Commission on Access to Justice, in cooperation with the State Bar of California and the Foundation of the State Bar of California, has released a report entitled “The Path to Equal Justice: A Five-Year Status Report on Access to Justice in California” (hereinafter called “the report”; available at http://www.calbar.ca.gov).
California Chief Justice Ronald M. George State, in his Judiciary Speech of 2001, opined that “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”. U.S. Supreme Court Justice Wiley Rutledge, speaking to the American Bar Association on Sept. 29, 1941, stressed that “equality before the law in a true democracy is a matter of right (and) it cannot be a matter of charity or of favor or of grace or of discretion.”. In a very real sense, access to justice is a basic foundation of the legitimacy of a republican state. This article describes the salient points of the report of the California Commission on Access to Justice, one of the most significant projects of the state governor, attorney general and legislature of California in cooperation with business, labor and community groups.
Access to justice is a fundamental and essential right in a democratic society. It is the responsibility of government to ensure that all people enjoy this right. In our civil justice system, equal access to justice requires that parties have access to legal assistance. Free legal help for the poor, or partially subsidized assistance for other low-income people, must be provided and a broad spectrum of free or low-cost legal services must be made available so that each litigant obtains the level of assistance needed to achieve justice. Government is responsible for providing access to lawyers for those who cannot afford representation, just as it provides judges, courts, and other means of dispute resolution in order to guarantee an opportunity for justice in civil cases, the report added.
Funding for Legal Aid
The report stated that California took the first steps toward adequate funding of equal justice when its Legislature and Governor Gray Davis established the Equal Access Fund through the Judicial Council, “allocating an initial appropriation of $10 million a year, (thus) placing California among the 40 state governments that fund legal aid”. The private sector has responded with “an unprecedented level of commitment”. While public funding increased 40 percent (27 percent after correcting for inflation), private funding of legal services – primarily from foundations and law firms – increased more than 70 percent (55 percent after correcting for inflation), the report stated. The report credited California Chief Justice Ronald George and the Judicial Council “for working with the state legislature in taking a series of bold steps to increase pro bono representation and to make the courts more user-friendly for those who don’t have lawyers”.
Poverty in California
The Legal Services Corp. (LSC), a US-funded public entity, for many years has been the primary source of legal aid of indigent Americans but its resources have been insufficient to fully serve the needs of the great majority of the indigent population of the United States. (Visit www.lsc.gov).
In the case of the wealthy state of California, surprising as it may sound, “in 2000, 6.4 million Californians lived in poverty, including nearly one in five children, and California’s poverty rate remained higher than the national average”. Despite the economic boom of the 1990s and the changes in welfare rules, “the number of people in poverty in the 1990s – and the number of potential legal aid clients – jumped 30 percent”. “Twenty-six percent of California workers earn poverty-level wages. The result is a substantial increase in the number of working poor who remain impoverished even as they work part- or full-time jobs”, the report stated.
California’s high cost of living means “families earning relatively moderate incomes still cannot afford adequate legal representation when the need arises”. Prepaid legal service plans, limited-scope representation and other creative solutions must be explored, evaluated and implemented or expanded to ease the strain on moderate-income households, the report stated.
Government, private and other sources of funding provided “nearly $149 million for California legal services programs in 2000, up from approximately $101 million in 1996”. In 1996, the access gap was $440 million; in 2000, $384 million. “Yet, even with the increased funding and the diminishing access gap, just 28 percent of the legal needs of the state’s poor and lower-income residents are being addressed”, according to the report. The gap has been aggravated by the recent economic downturn and the impact of September 11, 2001 terrorist bombings in New York.
The report noted that California lagged far behind most comparable industrial states and even farther behind countries with similarly sized economies in its financial commitment to equal justice. As a result, a large percentage of California’s most vulnerable residents could not access the legal assistance they needed and suffered economic, emotional and physical hardships as a result.
Nearly six million Californians were living at or below 125 percent of the federal poverty level in 1993. For a family of four, that meant a household income of $19,500 or less.
The report noted that since 1996, although the number of people receiving welfare has dropped and most poor families now have at least one person who is working, still for many, employment has not necessarily been an escape from poverty. An increasing number of low-income Californians work at “low-paying jobs with no health insurance, and they lack childcare and adequate transportation resources”. A disproportionate slice of their income goes to “housing that, because of short supply, is often both costly and substandard”. These difficult circumstances are now compounded by new problems associated with an uncertain economy. “The recent recession has boosted unemployment and exacerbated problems in housing, transportation, health care and education. In addition, federal and state budget cuts are significantly affecting programs that protect the poor. The lingering effects of the recession will plague poor and lower-income families for years to come”, the report stated.
Economic Inequality
The report cited the following statistics of poverty and economic inequality:
CALIFORNIA’S PORTION OF NATIONAL POVERTY GROWTH
(1990 - 2000)
Increase in number of people in poverty in the U.S.: 1,955,826
Increase in number of people in poverty in California: 1,078,545
Increase in number of people in poverty in Los Angeles County: 478,627
Percentage of total poverty increase in the entire country
that occurred solely in Los Angeles County: 24.5 percent
(Source: U.S. Census Bureau)
The report noted that according to the US Census Bureau, “the number of people living in poverty in California jumped 30 percent during the 1990s – increasing significantly the number of people turning to the legal aid system for help”. A U.S. Census study for 2001 reported that the poverty rate in California declined slightly more than the national average during the prior year, “but the current poverty rate in California, 12.6 percent, is still higher than the national average of 11.5 percent”. During the 1990s, “more than half of the increase in poverty in the United States occurred in California, and one-fourth of the nation’s increase occurred in Los Angeles County alone”.
According to the report, “in early 2000, when high-tech stocks were soaring, the widening gap between rich and poor in California was noted with alarm”. It cited a Los Angeles Times article which stated that “the income gap between rich and poor was wider than at almost any time in history,” and that the state’s poorest working families "now bring home 22 percent less in real dollars than they did in 1969.” The reasons the state’s prosperity had not resulted in higher incomes across the board were twofold, according to the article: “High-tech doesn’t create a vast array of well-paying factory jobs, and it puts a premium on an educated work force. And California, more than other states, has a high concentration of uneducated immigrant workers.” It also cited a 2000 report by the Federal Reserve Bank of San Francisco which confirmed the fact that California had “larger numbers of high-income and low-income families, and a narrower middle class than in other states.” The state’s poorest working families now bring home 22 percent less in real dollars than they did in 1969, the report stated.
Next Five Years
The target of the Commission is that “during the next five years, the Equal Access Fund must be dramatically enhanced, and total resources for legal services for California’s poor should be increased so that at least 50 percent of the legal needs of the poor are being met”. Public and private sector leaders must be actively involved to ensure adequate government funding for legal services is available to reach this important five-year goal and financial and pro bono contributions from attorneys and law firms must increase.
Pro Bono Services by Private Lawyers and Legal Aid Organizations
are Insufficient
In 1996, legal aid organizations throughout the state offered legal assistance to low-income people and private lawyers were estimated to be providing “nearly one million hours of pro bono legal service each year”; however, the demand for service far outweighed these limited resources. In 1996 “approximately 75 percent of the legal needs of poor people were not being addressed”. And the problem was not limited to California’s poorest residents. Studies showed that “low- to moderate-income households – those earning between $27,000 and $45,000 – also averaged one new or ongoing legal need per year, and that fewer than 40 percent of these families were able to pursue legal action”.
The state government recognizes its obligation “to ensure all Californians equal access to justice and solidify a financial commitment to providing legal services to the poor”. Among the important recommendations it had considered in the past years were:
- create a broad-based, statewide commission to provide leadership and oversee efforts to increase funding and improve the delivery of legal services;
- develop programs to expand delivery of a wider range of legal services to provide assistance ranging from full legal representation to guidance for self-representation;
- take steps to make the courts more user-friendly for unrepresented litigants; and
- develop innovative legal services for near-poor and moderate-income Californians who do not meet the federal poverty threshold but still struggle to afford adequate legal services when the need arises.
In 2000 US poverty level was pegged at US $15,600 annual income.
Senior Citizens, People with Disabilities, and Children
Poverty disproportionately affects women and the most vulnerable members of society: the elderly, the disabled, immigrants and children. Citing a national report published by the American Association of Retired Persons, based in part on research published in the Journal of Gerontology, the reported stated that “half of all Americans over age 60, regardless of their current economic circumstances, would see their income drop below 125 percent of the federal poverty level at some point in their later lives”. Poverty is of similar concern to “people with disabilities who, as a group, had an unemployment rate exceeding 70 percent in 1999”. The situation for California’s poor children is particularly bleak, according to the report. Although child poverty has decreased since the mid-1990s, by the end of 1990 “more than 19.5 percent of children in California were poor compared to about 17.1 percent in the rest of the nation”.
The median household income in California in 1999 was still below the level of the previous decade. Between 1989 and 2000, hourly wages fell for workers at the lowest 20th percentile as well as the 50th percentile, adjusting for inflation. Only 31 percent of California households could afford to purchase a median-priced home in 2000, down from 36 percent in 1999. In 2000, more than 1.8 million of California’s working families had an income below 200 percent of the federal poverty line – about $35,000 for a family of four. Many individuals and families in this lower-income group do not qualify for legal aid or other legal assistance that is available to those just above the poverty line. Most would face severe economic hardship if confronted with a legal problem.
In California, the decrease in the number of families receiving welfare in the late 1990s mirrors the national trend, with the number of families on welfare declining much faster than the poverty rate. In 1995, half of all Californians living in poverty received welfare; in 2000, just 34 percent did. Between March 1995 and February 2001, the number of people receiving welfare declined 44 percent, from 932,345 to 521,916. But from 1995 to 2000, the poverty rate in California fell much less, from 16.7 percent to 12.9 percent.
Other Core Issues
1. Education
Without educational opportunities, families will not escape poverty. As studies documenting the persistence of income inequality show, lack of education is a key barrier to advancing in an increasingly information-based economy. According to the report. more than one of every four (26 percent) California workers earned poverty level wages in 2000, and efforts to break the cycle of poverty through education and training are a vital new area of advocacy for legal services programs.
2. Housing
Low wages and housing problems also are intertwined. A severe shortage of affordable housing in California has compelled low-income families to spend a disproportionate percentage of their income on housing. Citing US Census Bureau figures for 2000, the report noted that 47 percent of California renters devoted 30 percent or more of their incomes to rent. Among the 50 states, that was second only to Louisiana and significantly higher than the national average. “Six of the 10 least affordable metropolitan areas are in California”, the report stated.
The report further described the housing crisis, thus: “California has a particularly large discrepancy between the number of affordable housing units and the number of low-income people in need of a decent place to live. In 2001, the fair market rent for a two-bedroom apartment in California was $957 a month. A minimum-wage worker (earning $6.25 an hour in 2001) could afford monthly rent of no more than $325; a disabled recipient of Supplemental Security Income could afford monthly rent of no more than $208. To afford a two-bedroom unit at the fair market rent, a worker earning the minimum wage would have had to work 118 hours a week. In Los Angeles, in 2002, average rents for a two-bedroom apartment at the low end of the rental market climbed to $1,088, requiring an hourly wage of $20.92, or an annual income of $43,500.”
3. Domestic Violence
The report noted that domestic violence-related calls for assistance in California “increased from 186,406 in 1999 to 196,880 in 2000”. It further stated: “Legal services advocates around the state report an increasing number of domestic violence cases, particularly in the Central Valley. The County of Fresno leads the state in the number of felony domestic violence cases filed with the District Attorney’s Office. Seventy percent of domestic violence calls in Fresno county involved guns; 69 percent of cases in Tulare county involved weapons, according to a report of the California State Attorney General’s office. In the first eight months of 2002, Fresno experienced three times the number of domestic violence killings than had occurred the entire previous year. Domestic violence accounted for 26 percent of all homicides in Fresno in 2002; the national average is approximately 10 percent.”
4. Legal needs of immigrants
The report noted that the 2000 census confirmed that the percentage of first- and second-generation immigrant families in California was on the rise: “In addition to having to deal with immigrant status issues, these families have legal needs related to housing, employment, domestic violence and other issues, just as others do; however, immigrants also are hampered by language and cultural differences. They generally cannot be served by federally funded legal aid offices because of Legal Services Corporation (LSC) restrictions. A network of legal service providers is working to fill the need, but the need far outweighs the available resources.”
5. Litigants of Modest Means.
Many legal services programs offer services for those who are “above 125 percent of the poverty level but still unable to afford an attorney”. These services are offered particularly through programs for “seniors and domestic violence victims, law school clinics and programs relying on pro bono attorneys”. While funding sources for most legal aid agencies require that services be limited to those who are poor, some funding sources allow legal assistance for families “earning two to three times the federal poverty level” – the levels considered “lower-income” by the U.S. Department of Housing and Urban Development. As a result, a wider range of people are eligible for some of these services. Self-help clinics, community education programs and instructional materials developed by legal services offices also are invaluable sources of law-related information.
According to the report, “the ratio of poor people to legal aid attorneys in California is 10,000 to 1”.
Lawyer Referral and Information Services
Lawyer Referral and Information Services (LRIS), offered primarily through local bar associations, provide a critical link, and many are starting to offer "limited-scope legal assistance" panels composed of attorneys willing to provide some coaching and advice, or to make a court appearance, without taking on full representation of the client.
Despite these services, working families of modest means often have little access to the legal system thus, innovative methods of low-cost delivery must continue to be developed and expanded to increase the help provided to those of modest means facing critical legal needs.
Aftermath of September 11, 2001 New York Terrorist Bombings
The events of September 11, 2001, and their aftermath have dealt a deep blow to working low-income families, the report noted. In March 2002, California’s unemployment rate “reached 6.5 percent, the highest level in five years”. The downturn particularly hurt “the Central Valley, which has some of the highest poverty rates in the state”. Three of the four California counties with the highest poverty rates are “from the San Joaquin Valley, led by Tulare County at 23.9 percent”. Officials predicted that “Los Angeles County alone would lose 41,000 tourism related jobs, and some 40 percent of the county’s unionized hotel workers – 3,500 people – lost work or saw their hours cut”. Statewide, the tourism sector has been hard hit. These problems are not likely to recede any time soon.
The report cited a study issued by the Economic Policy Institute which stated that unemployment will continue to rise through 2003: “Long after the economy begins to grow again, and even after unemployment stops climbing, it may be years before the jobless rate returns to the 4 percent level enjoyed at the end of 2000, and years more before families see their incomes return to pre-recession levels.”
The report predicted 2003 thus: “Clearly, higher unemployment will exacerbate already serious problems. Evictions will multiply, and with greater demand for housing, property owners will have fewer incentives to repair slum dwellings. Homelessness and its attendant problems will increase.”
Accomplishments
California took significant steps during the late 1990s toward ensuring equal access to justice. The state committed $10 million a year to legal aid, which helped compensate for a significant drop in federal funding and interest on lawyers’ trust accounts (IOLTA). In addition, Chief Justice Ronald George made equal access a top priority, and a growing community of equal justice advocates worked together with the newly created Access to Justice Commission to ensure that what little funding is available is used in the most efficient way possible. Their accomplishments include:
_ increasing resources for legal services,
_ increasing access to the courts, including self-help services in every county,
_ increasing pro bono efforts among attorneys,
_ addressing language barriers for litigants with limited English proficiency,
_ maximizing use of technology, and
_ improving the delivery of legal services statewide.
While much remains to be done, the achievements of these past five years demonstrate that the goal of equal access to justice is an achievable goal, and one that is shared by the public as well as key leaders throughout the state, the report stated.
California Commission on Access to Justice
Launched in 1997 by the State Bar, the Access to Justice Commission is composed of members appointed by the Governor, the Attorney General, President Pro Tem of the Senate, Speaker of the Assembly, the Chief Justice, the State Bar, and statewide business, labor, religious, and civic organizations. The commission’s goal is to coordinate and advance efforts to ensure equal access to civil justice. The report noted: “During its first five years, the commission has made substantial inroads in several priority areas, including: securing $10 million in annual state funding for legal services programs beginning in 1999; facilitating bench-bar collaboration; serving as a resource for the judiciary, state lawmakers and other civic leaders on access issues; utilizing new technologies to improve legal services; and addressing ways to eliminate language barriers in the judicial system.”
State and local bar associations
Improving access to justice always has been one of the State Bar’s top priorities. According to the report: “In addition to its role in launching key statewide organizations – the Access to Justice Commission and the Legal Aid Association of California (LAAC) – the State Bar’s Office of Legal Services, Access and Fairness and its Standing Committee on the Delivery of Legal Services are engaged in promoting and supporting pro bono, providing training on poverty law issues, and developing community education materials. The State Bar’s Legal Services Trust Fund Program (LSTFP) funds over 100 local and statewide legal services organizations. Despite a dues crisis that nearly shut down the State Bar for two years, the bar has reemerged as a central player in California’s justice community. Local bar associations have also been important partners in the access to justice effort, through staunch support of their local legal aid and pro bono programs and lawyer referral services and their valuable work on issues of statewide importance to the administration of justice.”
Justice Community
The concept of “justice community” was stressed in the report thus: “The efforts of the emerging justice community would be futile without California’s strong network of legal aid providers and support centers engaged in the delivery of critical legal services. In spite of inadequate resources and in the face of overwhelming need, legal services programs have evolved, successfully maximizing limited resources through new partnerships with courts, community-based organizations, and government offices. The past five years have seen great progress toward the ultimate goal: a comprehensive integrated web of client-centered legal services for the low-income community.”
Legal Aid Association of California (LAAC).
As a membership organization of legal aid programs, “LAAC serves as a unified voice for the California legal services community and offers a forum for providers and clients to discuss challenging issues and to develop, coordinate and implement strategies for a coordinated statewide legal aid delivery system”. It also provides membership services such as “advocate training, recognition awards, and fellowship grants.”
Legal Aid Providers and Support Centers.
The more than “100 local legal aid providers and statewide support centers funded by the Legal Services Trust Fund Program (LSTFP) are the primary entities working to meet the legal needs of the poor in California”, the report stated. They help “battered spouses seeking freedom from violence; families trying to secure benefits for disabled children; elderly victims of home equity fraud; grandparents trying to become guardians for grandchildren; and home-less veterans seeking job training and health benefits they qualify for but do not receive.”
Legal services programs and pro bono organizations work with diverse partners to develop expansive new strategies to assist their low-income clients. In addition to traditional one-on-one client representation and clinics, they also “offer brief advice through hotlines, engage in targeted community outreach that is linguistically and culturally sensitive, post legal information on Web sites, reach remote communities using mobile vans, and use cutting-edge technology to help advocates be as efficient and effective as possible.”
Increasing Resources for Legal Services
Equal Access Fund: In 1998, all three branches of government collaborated to establish the Equal Access Fund, which was originally proposed by the Access to Justice Commission. The fund – appropriated to the Judicial Council and disbursed through the State Bar’s Legal Services Trust Fund Program – has provided “$10 million each year for more than 100 local legal aid programs as well as 15 court-based self-help centers operated by legal services programs in partnership with the courts”, the report noted. The fund could not have been established without the partnership of legal aid programs, the bench, the bar, and business and civic communities.
Other funding for legal services: Funding from private sources has risen from $27.8 million in 1996 to $47.4 million in 2000, the report noted. In addition to increased individual donor contributions, a significant portion of these funds comes from foundation grants, including more than $13 million (cumulatively) in large collaborative healthcare advocacy grants. Legal services agencies also have forged new partnerships to maximize resources, including programs with the U.S. Department of Justice for domestic violence prevention and with the District Attorney’s office to expedite drivers’ license approval, which is critical for clients to maintain employment. In 2001, a loan repayment bill for public interest attorneys created an endowment account for appropriated or donated funds; the bill awaits future funding. A legislatively established statewide task force is recommending ways the legislature can enhance services for seniors.
Public Outreach: The Access Commission, the Public Interest Clearinghouse (PIC) and
Western Center on Law and Poverty have begun a project to educate the public about the need
for legal services. Recent public opinion research reveals that despite overwhelming public support for the concept of government-funded civil legal services, few people are aware that civil legal services actually exist, let alone that those services are underfunded. The report stated: “To overcome the anonymity of civil legal aid and develop the essential base of support for adequate funding for civil legal aid, the Commission and PIC have begun plans for a statewide mission-focused communications plan to expand public support for legal services. In addition to policymakers and other public and private sector leaders, the effort also will target the larger foundation community on the importance of funding legal services programs, joining an existing collaboration of foundations and legal services programs educating the philanthropic world.”
Increasing access to the courts
The Judicial Council has adopted reforms to make the state’s court system more accessible and user-friendly. Statewide initiatives include efforts to simplify forms and procedures, increase the level of information available to self-represented litigants, and provide increased funding for alternative dispute resolution, according to the report. It continued: “The Judicial Council, with the involvement of the Access Commission, is developing methods for educating judges, clerks and other staff about the need for legal services and the problems faced by unrepresented litigants. The Judicial Council, the State Bar and the California Judges Association jointly present the annual Benjamin Aranda III Access to Justice Award to recognize and encourage judicial support of equal access programs. And, the Judicial Council’s ‘Community-Focused Court Planning Project’ involves the community members in identifying and addressing barriers to the courts at a local level and establishes action plans to provide better services to self-represented litigants.”
Other State Efforts to Improve Access to the Courts
Access Protocol: The report stated that the Commission developed a protocol for analyzing proposed forms, policies and court rules to ensure new measures do not inadvertently hamper access to the judicial system for low- and moderate-income individuals. The protocol was adopted by the Judicial Council in December 2001.
Self-help: The report noted that onsite assistance is now available in every county. A system of family law facilitators, established in 1996 in all 58 California counties, provides guidance to more than 30,000 litigants per month on child and spousal support. Pilot self-help centers and family law information centers serve as models for other courts. In addition, 10 percent of the state’s Equal Access Fund is designated for partnership grants to legal services programs for joint efforts with the courts to assist low-income self-represented litigants with civil matters. New videotapes have been developed in English and Spanish to explain family law and domestic violence law.
Web site: The Judicial Council’s self-help Web site (http://www.court-info. ca.gov/selfhelp), launched in 2001, is an impressive resource for all litigants and provides useful information for attorneys, court administrators and judges, according to the report. Individual courts, including the San Mateo and Sacramento Superior Courts, have developed interactive Web sites that assist self-represented litigants in preparing and filing pleadings in the areas of family law and small claims court.
Task force: The Judicial Council recently created a task force on self-represented litigants to develop a statewide action plan for assisting the large number of litigants who cannot afford representation.
Small claims: Small claims courts, where lawyers are not allowed, are another important forum for offering services to unrepresented litigants. According to the report: “There have been many suggestions over the years to increase the jurisdiction or to improve the training for Small Claims Court judges. Both of these issues deserve serious consideration. The Small Claims Court Advisory Program, although not yet adequately funded, provides important assistance to those using the small claims court system.”
Limited-scope representation: Limited representation, also called “unbundling,” will allow clients to receive the help of a lawyer for part of their case, even if they cannot afford or do not choose to pay for full representation. The Judicial Council has proposed draft forms in the family law area to document limited assistance and clarify when representation has terminated. The Access Commission’s Limited Representation Committee is coordinating with other entities to analyze the implications of limited-scope legal service, develop risk management materials, and implement a feasible system for delivery, the report stated.
User-friendly courts: The Judicial Council is working with low-literacy experts to redesign and rewrite forms that are commonly used by self-represented litigants, the report noted. Also, new materials and training sessions have been provided to court clerks on the difference between legal information and legal advice, emphasizing the importance of helping the public with legal information.
Increasing Pro Bono Legal Services
Pro bono representation by attorneys and other volunteers is a major component of the system to deliver legal services to the poor, and efforts to promote and support pro bono services have increased in recent years. State-level efforts to expand pro bono services continue to be a high priority. According to the report, recent achievements include the following:
Judicial Council: The Chief Justice appealed directly to lawyers and judges to encourage pro bono service. A 1996 Judicial Council resolution, similar to the one later adopted by the Conference of Chief Justices, outlined specific ways individual judges can encourage pro bono. In partnership with the Chief Justice and the Chief Judge of the Federal District Court, several Bay Area programs and private attorneys obtained the commitment of 19 large law firms to use best efforts to meet targeted goals for pro bono.
Federal courts: Similar efforts are underway in the Federal Courts. The Access Commission developed a resolution, adopted in 2000 by the 9th U.S. Circuit Court Judicial Conference, calling on each district to adopt an action plan to increase pro bono representation. The Access Commission is working on implementation.
Six-point Pro Bono Plan: The State Bar is implementing its six-point Pro Bono Plan, adopted in September 2000, to reinvigorate pro bono efforts, including publication of a formal pro bono resolution, training for pro bono attorneys, and promotion of pro bono services through the State Bar President’s Pro Bono Service Awards.
State contracting requirement: In 2001, the legislature adopted and the governor signed a bill calling on the state to require law firms with which it contracts to make good faith efforts to fulfill pro bono obligations (AB 913, as amended by AB 1703). Similar provisions are now being implemented at the local level.
Addressing language barriers. The report quoted the words of Chief Justice Ronald George, “There can be no justice without comprehension.”. Efforts to mitigate language barriers that hamper access to justice are a priority of the Access Commission, the judiciary and the legal services community. The report further stated:
“xxxx. The Judicial Council has devoted significant resources to increasing the availability of qualified interpreters; providing training, testing programs and a mentoring system for new interpreters; and encouraging college-level courses and degree programs. Judicial Council forms and instructions for domestic violence cases have been translated into Spanish, Vietnamese, Korean and Chinese. And, the council’s self-help Web site will soon be available in Spanish. The Asian Language Legal Access Project in Southern California is developing toll-free hotlines in the pilot languages of Mandarin and Vietnamese; six legal services agencies and 13 community-based organizations in Northern California are collaborating on the Legal Language Access Project, which developed a bank of trained interpreters. The new Language Access Project of the Access Commission is preparing a policy paper that explores language barriers, recommends possible solutions, and identifies possible responsible entities. The project is also serving as a clearinghouse for best practices and sponsored a successful 2001 statewide summit on language and cultural competence issues. xxx.”
Technology Initiatives
The Commission, the Public Interest Clearinghouse, and the CalJustice Advisory Committee are currently developing and coordinating technology initiatives focused on increasing client access to the judicial system.
Statewide Web site: To build on existing Internet resources, including the Judicial Council’s self-help Web site, California Indian Legal Services and the Public Interest Clearinghouse are collaborating to build a statewide legal services Web site. The site will offer clients a full-range of legal education material and will also refer them to an appropriate legal service provider. The site also will enable advocates to share legal resources, the report noted.
E-filing: A committee of the Access Commission analyzed issues raised by electronic filing of court documents to provide input to policy makers to ensure that legal services programs and low-income litigants are not inadvertently harmed or disadvantaged by implementation of e-filing, the report stated.
Electronic self-help resources: According to the report, Legal Aid Society of Orange County (LASOC) has developed I-CAN!, an innovative interactive system to help clients fill out Judicial Council forms. Now operating in three languages, I-CAN! is a touch-screen computer with audio and visual components that provides explanations and asks questions to help clients complete forms for immediate filing. I-CAN! offers services in paternity, domestic violence, unlawful detainer, license denial, small claims and fee waiver procedures. I-CAN! has been widely praised, and LASOC, together with the courts and other legal services providers, has begun bringing it to other counties. An e-filing component to the program is being developed with the Orange County Superior Court.
The report continued: “Court-based self-help centers are exploring ways to provide assistance to litigants using Web-based and video-conferencing technologies to reduce the need to travel to court. Butte County will offer self-help workshops to adjacent rural counties by video-conference. The San Mateo Superior Court has developed an interactive forms program to assist litigants in completing a variety of family law forms. The Sacramento court allows small claims litigants to complete and e-file their documents – saving both litigants and clerks time.”
Expert systems for advocates: The Public Interest Clearinghouse and its partners are developing “expert systems” to help advocates do centralized intake and case placement and to enable advocates to share their specific expertise with other advocates and clients throughout the community, according to the report. Two expert system modules are currently under development – one on fair housing, in partnership with Bay Area Legal Aid and Morrison & Foerster LLP, and the other on advising community-based
Improving the Delivery of Legal Services
Legal aid advocates are trained, dedicated professionals who have chosen emotionally satisfying but not financially rewarding missions because of their commitment to serving the low-income community. Programs offer a range of services, trying to fill clients’ legal needs in the most efficient, effective way, providing full representation where appropriate but also offering self-help clinics and hotlines to avoid turning away those calling for advice. Programs also have established close working relationships with other social service agencies to address the full range of issues facing a client and to truly have an impact on clients’ lives, the report stated. The report further noted:
“Recently, there has been a trend toward consolidation of legal services programs, initiated in part by changes in Legal Services Corporation (LSC) requirements that led to consolidation of more than 30 programs in California into 11 LSC-funded programs. National and state support centers lost all LSC funding in 1995 and have rebuilt their organizations over the past six years. While mergers and consolidation are often difficult, the emerging programs have largely been strengthened in their ability to provide quality legal services to the client community.
xxxx. Since 1996, the courts, state and local bars, legal service providers and the client community have engaged in statewide planning for the delivery of legal services. At the annual statewide stakeholders meeting, now held under the auspices of the Legal Services Coordinating Committee, stakeholders help set statewide priorities, identify strengths and gaps in the current system, and plan effective strategies for enhancing legal services delivery. Regular reports and evaluations are submitted to the Legal Services Corporation and other partner organizations. (See the current state plan for legal services delivery at http://www.pic.org.).”
Community Legal Education
The State Bar, AOC and legal services providers have worked together to expand community legal education through broad dissemination of culturally and linguistically relevant community education materials. Additionally, the Standing Committee on the Delivery of Legal Services regularly develops training programs on access issues to educate the broader legal community. Partnerships between a variety of agencies and the development of holistic strategies have strengthened efforts to meet the legal needs of the poor. Legal aid advocates are forming partnerships with others who have related goals to develop strategies and leverage legal knowledge to increase access to justice, the report added. The Central Valley Access to Justice Coalition, co-chaired by a Fresno Superior Court judge and a local legal services director, grew out of a partnership between the Access Commission and the legal aid program in Fresno. The Coalition has helped form neighborhood Justice Centers and is developing a Homeless Court and studying language access issues. Several new partnerships with community-based organizations are focusing on client participation and leadership, including a partnership that has become a statewide model for obtaining effective health care for low-income, uninsured communities.
The report also stated that the state legislature had passed legislation establishing certification and education requirements for nonlawyers, such as landlord/tenant and immigration assistants and document preparers, who can provide limited law-related information and assistance with forms. This legislation has helped clarify what nonlawyers can and cannot do and established minimum training requirements. Work to clarify and implement the legislation is ongoing.
Law Schools
Law schools continue to offer a range of opportunities to serve the poor, leverage human resources and inspire the next generation of lawyers to give back to the community. Through increasing numbers of partnerships, law schools and legal services offices have collaborated to create clinical and law student pro bono programs, and created new courses – sometimes taught by legal services lawyers – that address the legal problems of the poor. Campus fundraising to provide summer grants to students working at legal services offices throughout the state also has grown substantially over the last five years. Many courts are working closely with local libraries to develop self-help centers as most libraries provide free Internet access, self-help legal books and more convenient hours for users.
Government’s role
The report was disturbed by the decreasing public funding for legal aid services: “While the remarkable achievements of the past five years can be universally applauded, this good news is accompanied by a disturbing trend: Government is shouldering a smaller share of the funding responsibility for legal services than at any time in the past three decades. In 1996, federal, state and local government funds comprised 60 percent of the state’s total spending on legal services programs. In 2000, government funds accounted for 57 percent of the state’s legal services funding. Thus, despite a 40 percent increase in government funding, the government’s share of the overall expenditure actually dropped.” Government was shouldering a smaller share of the funding responsibility for legal services than at any time in the past three decades, the report stressed.
Recommendations
The author summarizes the salient recommendations of the report:
Because of the high cost of living in California, those who live just above the federal
1. Explore innovative methods for delivering low-cost legal services. - Mechanisms such as self-help Web sites, publications, centers and kiosks, statewide prepaid plans, partial subsidies and alternative dispute resolution should be developed, tested and implemented to assist low-income and moderate-income families.
2. Expand use of paraprofessionals in cases that do not require a lawyer’s expertise.
New certification standards for paraprofessionals – paralegals, land-lord/tenant/immigration assistants, document preparers – have been developed by the state legislature and are being implemented. In certain types of cases, trained paraprofessionals may be able to handle disputes and alleviate the need for the more expensive services of a lawyer. The State Bar of California should continue to work with all branches of government to evaluate implementation of these provisions and ensure that they are fair and effective.
3. Expand availability of limited-scope legal assistance. - Litigants who can participate in the development and presentation of their cases should have access to limited-scope legal assistance, enabling them to hire attorneys for specific components of their cases. The State Bar, Judicial Council, and other interested parties should collaborate to develop an outreach program to explain these options to attorneys, judges, insurers and the public, and parameters for implementation of limited-scope services should be developed.
4. Continue efforts to improve accessibility of courts . - Community-focused court planning programs and other measures described in this report have succeeded in making the courts more responsive to community needs and improving the accessibility of the courts to lower-income Californians. Self-help centers and Web sites, judicial training on access to justice issues and efforts to remove language barriers should continue to be priorities.
5. Build on expanded self-help programs to provide full spectrum of services. - Consumers of
legal services need an array of legal services that includes full-service representation and guidance for self-represented litigants. Efforts to expand self-help programs have progressed substantially, and the administration, legislature, and Judicial Council should be acknowledged-edged for their roles in expanding this important resource. A triage system always should be available to separate cases that require representation from those that can use limited legal services. This guarantees efficient use of resources while ensuring adequate assistance for those who need full representation.
6. Continue to improve small claims courts. - The simplified court system modeled by the small claims courts offers a low-cost alternative to traditional courts; efforts to make these courts more accessible to low- and moderate-income litigants and to streamline their administration within the Judicial Council should continue. There have been many suggestions over the years to increase the jurisdiction or to improve the training for Small Claims Courts judges. Both of these issues deserve serious consideration.
7. Expand efforts to provide assistance for litigants with limited English proficiency. -
The pool of court interpreters must be increased and programs providing assistance to litigants who do not speak English must be expanded to ensure these people can fully understand and participate in legal proceedings. Other institutions must join with the Judicial Council, the Access Commission and the State Bar to assist in the effort, and a broader range of solutions must be developed to ensure that litigants with limited English proficiency are able to fully understand and participate in legal proceedings.
8. Continue to develop ways to simplify the law and evaluate progress. - Efforts to simplify the law, forms and procedures have proliferated. The Judicial Council has made great strides toward ensuring that the language of justice, both the spoken and written word, is comprehensible and clear. These efforts should continue and be expanded beyond family law, where the most progress has been made. These and other simplification approaches should also be tested and evaluated on an ongoing basis for their potential impact (positive or negative) on access to justice.
9. Expand outreach effort to educate public on access to justice. - During the past several years, the State Bar, the Judicial Council and others have made commendable progress in educating the general public about their legal rights, how courts function and the legal system in general. These efforts should continue and expand. However, public opinion surveys reveal a woeful lack of knowledge and numerous misconceptions about the status of equal justice in California. To address this problem, the Access Commission is developing a major new effort to educate the public about this subject. An educated public, in turn, should contribute to the development of sound public policy in this area of governmental responsibility. Legal services programs also should continue their own outreach efforts that are linguistically and culturally competent.
10. Evaluate service delivery approaches. - Mechanisms for evaluating ongoing and experimental service delivery approaches are being used but need to be expanded and made a high priority. Ensuring the efficacy of the delivery system and measuring impact on access to quality justice is a high priority. All resources must be directed to the best possible use, and triage needs to be part of the mixed delivery system so that a person’s legal need is met with the most appropriate delivery system.
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