Needs and Deeds

Oregon lawyers and access to justice

By Richard C. Baldwin

Will my family be evicted because we can't pay a lawyer to defend us? Our landlord is evicting us because we asked him to make necessary repairs. What if we don't have first and last months' rent for a new apartment?

What do I do if my husband takes our baby after an argument and drives off in a drunken and abusive state? I called my local legal aid office and they told me they do not have enough attorneys to handle my case.

Our daughter has severe health problems but we can't afford medical coverage. Who will help us appeal the state's decision denying her coverage under the Oregon Health Plan? My family's food stamps have been cut off and I'm disabled. My caseworker won't return my calls. How will I feed my children?

These are the kinds of daily questions thousands of low-income Oregonians ask themselves. Only a few find attorneys to help them.

NEEDS
What is our responsibility, as lawyers, to address these issues of access to justice? What are the dimensions of the problem? How can we address the problem? Is it possible to build momentum toward a solution?

Most lawyers know many low-income citizens do not receive legal assistance when they need it. However, until recently we did not have an accurate assessment of the unmet need for services. Last year, the Oregon State Bar, in partnership with the Oregon Judicial Department and the office of Gov. John Kitzhaber, commissioned an assessment of the civil legal needs of low- and moderate-income Oregonians. The primary data used in the study was a legal needs survey of low- and moderate-income persons throughout Oregon conducted with the assistance of Portland State University. Additional information was provided by judges, lawyers, social service workers, community leaders and legal services providers through focus groups, interviews and surveys.

We found that low-income Oregonians were able to obtain the services of an attorney only 18.2 percent of the time. This included representation by legal services attorneys, pro bono attorneys and private attorneys working on a contingency fee basis. More than 80 percent of the respondents were unable to obtain services to address legal needs they encountered in the previous year. Two out of three clients eligible for services under federal poverty guidelines were turned away by legal services offices due to scarce resources. Two out of three clients served by those offices obtained only minimal service (e.g., brief advice or a brochure) due to scarce resources. The unmet need is estimated at about 250,000 legal problems per year.

The highest needs for legal assistance identified by the study were housing, family, employment, consumer cases and public services. Other areas of high need for particular population groups included elder abuse, education, farmworker and immigration cases. Particular population groups examined in the study have unique legal needs that often require specialized services or approaches. Lack of legal information, ignorance of resources and remedies, unavailability of convenient services and fear of retaliation were the most significant factors causing potential clients not to seek representation when they needed help.

The resulting report from the study, The State of Access to Justice in Oregon, written by D. Michael Dale, provides a detailed assessment of an enormous unmet need for legal services. Two additional findings should be emphasized: 1) 'Most people who experience a legal need and don't obtain representation feel very negatively about the legal system and about 75 percent are dissatisfied with the outcome of the case'; and 2) 'People obtaining representation have a much more favorable view of the legal system and are satisfied with the outcome of the case 75 percent of the time when represented by a legal services lawyer.' The perception of the legal system by this segment of the public changes dramatically and positively when legal representation is available. Even in cases where clients were dissatisfied with the outcome, representation resulted in a more positive perception of the legal system. These clients, at the very least, were heard and treated fairly.

Even legal services advocates were surprised by the scope of the problem identified by this study. We knew that our available dollars to meet demand for services had shrunken over the years. Federal funding for legal services has been drastically reduced during the past two decades (most recently a 35 percent cut in 1995). Adding up dollars from all sources (government, lawyers, corporations and foundations) and adjusting for inflation, the purchasing power of a legal services dollar today is worth 72 cents compared to a 1981 dollar.

The 95 legal services attorneys practicing in the various programs make up less than 1 percent of the state bar. In Oregon, there is one lawyer for every 340 people who can afford to pay for services. By contrast, there is only one lawyer for 7,500 people who cannot afford to pay. Against these heavy odds, legal services programs managed to serve about 27,000 Oregonians last year. Legal services attorneys are, by far, the primary source of civil representation for the poor.

At the same time legal services programs have been buffeted by a sharp decline in funding, the number of eligible clients with compelling legal needs has sharply increased. In the past 10 years, Oregon's poverty rate has increased from 11.7 percent to 13.7 percent, with nearly half a million Oregonians now living in poverty. This has happened at a time when the proportion of the national population living in poverty dropped from 13.3 percent to 11.7 percent. Oregon now has the highest hunger rate in the nation at 5.8 percent.

DEEDS
Oregon lawyers have long acknowledged a special responsibility to serve the poor. Over the past several decades, lawyers have played a major role in the development of legal services programs throughout the state. Substantial pro bono efforts by lawyers date back even further. However, in the past 20 years, we have seen a significant increase in lawyers contributing to access to justice. In part, these contributions have been in response to a dramatic decrease in federal funding for legal services programs - down from 70 percent to 40 percent of program revenues.

Ten years ago, many lawyers began making annual contributions to the Campaign for Equal Justice. This alone has allowed an additional 2,000 clients a year to receive services. Roughly 25 percent of the bar makes a financial contribution to the campaign each year. While good statistics are not available, perhaps 15,000 low-income Oregonians are assisted by attorneys each year on a pro bono basis. The Oregon State Bar and the Oregon Law Foundation have been instrumental in securing major funding for legal services from filing fee revenue and Interest on Lawyers' Trust Accounts (IOLTA). In the last couple of years, the bar has worked in partnership with the Campaign for Equal Justice to help develop funding for legal services programs.

Given the enormous need for services, the legal profession cannot assume complete responsibility for increasing access to justice. Increased federal funding and state funding are essential to building a more accessible system of justice. But our profession should take a leadership role in building a more accessible system. Why do we have a special responsibility to do so?

In America, our profession largely enjoys the privilege of self-regulation. This professional independence is not a right or entitlement. In a democracy, our power to shape and maintain our profession is contingent on the public's consent. Isn't the quid pro quo for the public the provision of a fair and accessible system of justice? To keep faith with the public, we must deliver on our side of the bargain. Given the great privilege of self-regulation and independence granted by the public, the public's expectation of access to justice is a reasonable expectation. To the extent we are successful in building a more accessible system, the public will respect our profession for keeping our end of the bargain. This interdependence between the public and the legal profession is well articulated in the Preamble to the Model Code of Professional Responsibility:

[9] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

[10] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

Today, the public reasonably expects greater access to justice in our communities. Last May, at the 2000 Citizens Justice Conference, many sponsors sought to identify how we might build public trust and confidence in our justice system. A pre-conference survey of participants revealed that 'equal access to the courts and legal services regardless of wealth or position in the community' ranked as the highest public concern. More than 72 percent of the respondents ranked access to justice as a 'very important concern.' Moreover, public opinion surveys have found that 90 percent of Americans believe equal access to justice is a core value of our society.

Lawyers believe that promoting respect for the rule of law is a core value of our profession. Indeed, this substantive value may well be the single most important value embraced by our profession (and our judiciary). While the rule of law is a multi-faceted principle, access to justice is central to any meaningful conception of our citizens availing themselves of the benefits and advantages of law. Under the rule of law, the legitimacy of our legal system (including our profession) can be fairly questioned if the system is not accessible to all citizens with important disputes to resolve.

Current proposed changes in the Model Rules of Professional Responsibility include a greater emphasis on a lawyer's responsibility to help increase access to justice:

[1] A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice…

[6] 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… 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, resources, and 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….

The Model Rule pertaining to pro bono service (Rule 6.1) urges all lawyers to provide a minimum of 50 hours of pro bono services annually. In Oregon, we have adopted the standard of 80 hours of service per year. The commentary to the Model Rules discusses the option of lawyers discharging their pro bono responsibility by providing financial support to legal services programs:

Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided….

Professor Geoffrey Hazard, Sterling Professor of Law Emeritus at Yale University and member of the ABA's Ethics 2000 Commission, was recently in Oregon to discuss the Commission's proposals. His remarks concerning pro bono are instructive:

On mandatory pro bono, that's precipitated, folks, by a general recognition that actual provision of pro bono is in jeopardy. That is, that the combination of increased specialization of lawyers and the intensity of law practice, having to work long hours, grueling, all that kind of stuff, billable hours, the combination has meant that fewer lawyers are giving fewer hours to actual pro bono…. And the result is, together with the crunch in federal financing for legal aid, a real crisis in adequacy of legal services for the poor, and some of the members of Ethics 2000 wanted to make it mandatory. We were told by many people involved in legal aid, don't do it, it will produce a backlash and it doesn't work anyway. And in the end we decided to vote for not making it mandatory. I think that's right, I think the tragedy of legal services for the poor is very serious. I think the idea that the bar can solve it through pro bono is fantasy, and I think that we need to have a very considerable modification, reconsideration of legal services for the poor… [Professor Geoffrey C. Hazard Jr. (Ethics 2000 CLE, Oct. 6, 2000)]

The proposed change in the Model Code concerning the responsibility of 'all lawyers' to 'devote professional time, resources and civic influence to ensure equal access to our system of justice' reflects a measured decision in favor of voluntary efforts over mandatory pro bono. However, this approach will be effective only if lawyers substantially increase their voluntary efforts in all respects - time, resources and civic influence.

BUILDING MOMENTUM
While Oregon lawyers are addressing many important legal needs of the poor, the unmet demand for legal services is enormous. More than 80 percent of the civil legal needs of low and moderate income Oregonians are currently not met. We can do better.

The good news is that we are now in a position to substantially increase access to justice in Oregon during the next few years. We have a solid foundation for doing so. This includes:

This is an opportune time for Oregon lawyers to enhance their efforts (both personally and in firms) to increase access to justice. However, we will be successful only if we pull together to reach this common professional goal. The load is simply too heavy for half of the bar to carry.

Many lawyers believe the challenge of access to justice provides us with an opportunity to improve public confidence and trust in our profession. Moreover, our core professional value of promoting respect for the rule of law will be advanced if we meet our responsibility to increase access to justice. If we make our best effort to do our part, we will better serve the public and our profession. +


ABOUT THE AUTHOR

Dick Baldwin is executive director of the Oregon Law Center and vice president of the Oregon State Bar.


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