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February 2010Civil Legal Representation and Access to Justice in Washington — An Invitation to an Important Conversationby Dean Kellye Y. Testy
These are familiar words; a refrain many people recognize, if not from a difficult personal experience, then from its too-common invocation in television and movies. Despite its familiarity — perhaps even because of it — the scope of its application is widely misunderstood. Many non-lawyers do not understand that the "right to an attorney" extends only to criminal matters. Currently, there are few civil proceedings in which indigent litigants have the assistance of counsel provided by public funding. That is so even for civil matters with enormously serious consequences. For instance, tenants face represented landlords in eviction proceedings, survivors of domestic violence face their represented abusers in custody battles, and homeowners facing foreclosure must navigate its complex processes (and the myriad of bank, collection agency, and mortgage company attorneys) without the benefit of counsel. A national discussion on expanding the right to counsel for indigent persons to civil cases has emerged under the leadership of the American Bar Association as part of its mission of expanding access to justice. In 2006, the ABA House of Delegates unanimously passed a resolution urging local, state, and national governments to recognize such a right in civil proceedings where "basic human needs are at stake," including safety, health, sustenance, shelter, and child custody.[1] Both the Washington State Bar Association and the King County Bar Association co-sponsored this resolution. To further this discussion in Washington, the state's three law schools — Gonzaga University, Seattle University, and the University of Washington — are collaborating to organize a February 19 symposium on this urgent topic. This discussion is a timely one. In the present economic climate, the number of persons facing serious civil legal matters (including foreclosure) is on the rise at the same time that the number of persons with access to legal representation is on the decline. That decline is not only due to the economic strife being faced by many individuals, but also by limited public funding for legal aid programs. In short, it is a perfect storm that is drowning the poor. That is not to say that there are not many worthy efforts being made to provide lifelines. For instance, in Washington, initiatives such as the WSBA Home Foreclosure Legal Aid Project and the Housing Justice Project provide low-income individuals facing foreclosure and eviction with highly trained and competent pro bono attorneys.[2] The lawyers in our legal services organizations work tirelessly with too-few resources, the law clinics of the state's three law schools all contribute substantial numbers of hours to help close this gap through the work of their faculties and students, and many lawyers contribute generous pro bono services. Yet the unmet legal needs of low-income individuals remain vast. In 2003, the Supreme Court's Washington State Civil Legal Needs Study found that approximately 87 percent of low-income households in Washington experience a civil legal problem and of that group, 88 percent are forced to navigate their way through the judicial system without the benefit of a lawyer.[3] Today, these numbers are even starker when we consider the subsequent deterioration of our state's economic health, the historic rise in unemployment, and the significant increases in the poverty rate. Particularly in this time of economic crisis, how do we address the needs of Washington's most vulnerable citizens? Should the "right to an attorney" extend to civil cases? Which ones? Should what some see as a limited extension to cases in which critical interests such as familial and education matters are at stake be expanded? What does it say about our system of justice if 80 percent of low-income persons are effectively denied access? Does this lack of access undermine the public's respect for law and lawyers? If the legal profession wants to address this issue, how can it be funded and implemented? What lessons can we take from the system of public defense in criminal matters — a system straining under the burden of too many cases and too few lawyers? In tackling these issues, Washington can learn from projects underway elsewhere; other states are addressing this issue, too. For example, the California Legislature recently passed a bipartisan bill that creates pilot projects throughout the state to appoint counsel for indigent litigants involved in civil proceedings where basic human needs are at stake. Despite the severe budget crisis, lawmakers were able to secure funding for the projects not by raising taxes, but by introducing a nominal (no more than $10) increase to court fees imposed on prevailing parties.[4] The bill has garnered widespread media attention, including an op-ed in the New York Times, articles in the Los Angeles Daily Journal and the Wall Street Journal, and countless legal blogs.[5] In addition to providing representation for persons who might otherwise be without it, the pilot projects are aimed at evaluating the social and economic benefits of providing representation in civil cases. Similar studies have occurred in limited settings and have shown that having representation makes a positive difference in the outcome for the poor.[6] That result is not surprising, and it contains both good and bad news. Lawyers make a difference, but we have to be there to do so. Symposium on February 19 The planned symposium, entitled "Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change?" will be held at Seattle University School of Law on February 19, 8:00 a.m. to 5:00 p.m., in Room C5. The symposium will bring together bar leaders, academics, and social justice advocates with national and state experts who have studied the origins of the right to counsel movement and who have developed standards and implemented systems in Washington and elsewhere. On behalf of all three law school co-sponsors — GU, SU, and UW — please join us for a critical examination of how best to meet the promise of equal justice for all. Online registration is available at www.regonline.com/feb192010. Kellye Y. Testy is the dean of the University of Washington School of Law. NOTES |
