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Washington Lawyer

From the President: A Commitment to Provide Equal Justice Under Law for All

From Washington Lawyer, April 2011

By Ronald S. Flagg

flagg The phrase “Equal Justice Under Law” is engraved on the front of the U.S. Supreme Court building. And while access to counsel is indisputably critical to achieving equal justice under law, the question of what role, if any, the government should play in providing access to counsel persists. Only five years ago, the Council of the District of Columbia began appropriating funds to increase the availability of legal services lawyers for low– and moderate-income litigants in civil cases. Three times in the past two years, the public funding has been imperiled by the District’s severe fiscal challenges. In each instance—heeding appeals from the chief judges of both the D.C. Court of Appeals and D.C. Superior Court, coupled with appeals from the D.C. Access to Justice Commission and D.C. Bar—the D.C. Council has preserved the bulk of the funding. Nationally, calls for the abolition of the federally funded Legal Services Corporation (LSC), which provides grants to legal services providers across the country, are common, and proposals to cut LSC’s funding are advanced annually.

I believe government support for legal services is indispensible to equal justice under law, and that the case for such funding is compelling. First, the issues as to which legal services providers render assistance often are life-altering. The paramount nature of issues such as whether a family can retain its home, who should have custody of a child, whether an immigrant can remain in this country, or whether a veteran is entitled to service disability benefits cannot be seriously contested. And whether the forum is landlord–tenant court, family court, the Board of Immigration Appeals, or the Department of Veterans Affairs, numerous studies show that having a lawyer often determines whether a litigant is successful.

Second, support of legal services by the legal profession in the form of pro bono work and financial contributions, while significant, is not sufficient to meet the acute legal needs of low- and moderate-income individuals. Advocates for cutting government support for civil legal services frequently point to the obligation of the legal profession to render services to those who cannot afford to pay. While providing free legal services to indigent clients is indeed a cornerstone of our profession—and is a commitment unmatched by any other profession—the available evidence demonstrates that pro bono legal services and private contributions to legal services providers are not even remotely sufficient to meet the ever-growing need for legal services.

The District presents strong evidence of this point. The D.C. Bar is the second-largest unified bar in the country, and more than half of our 95,000 members live and work in the Washington metropolitan area every day. One of the hallmarks of our bar is our strong pro bono culture, and the District’s law firms and lawyers have sustained their pro bono commitments, even during these difficult economic times. For example, D.C. lawyers and law firms last year contributed well over a million hours of pro bono legal services and millions of dollars to legal services providers.

Even with the private bar’s efforts, there is a large gap between available services and need. For example, in the District, only 3 percent of tenants in
landlord–tenant court and only 2 percent of litigants in domestic violence cases were represented—before the current economic recession. As documented in a joint report by the D.C. Access to Justice Commission and D.C. Consortium of Legal Services Providers, legal services providers in the District lost more than 25 percent of their funding in 2009—a drop of over $4.5 million—as a result of reduced contributions from foundations, law firms and individuals, and the historically low interest rates on Interest on Lawyers’ Trust Accounts. This forced legal services providers to shed 12 percent of their attorneys and nearly 40 percent of their nonlegal staff, even as the demand for their legal services increased by 20 percent.

Third, cutting funding for legal services providers will undermine, not enhance, the provision of pro bono legal services. I know from my own pro bono work over the past three decades that the private bar can provide effective assistance only if there is a strong core of civil legal services providers who can identify our neighbors who need pro bono assistance, make the links between clients and pro bono lawyers, and provide training and mentoring to volunteers. Because of this critical partnership, any reduction in the number of staff attorneys working for civil legal services providers will in turn result in less service by pro bono lawyers.

Fourth, in some instances the availability of a legal services lawyer saves public funds. For example, for many low-income tenants in eviction cases, having a lawyer can be the difference between preserving a home or being on the street. The cost of a small fraction of a lawyer’s time devoted to a housing case is far lower than the cost to taxpayers of supporting a need-lessly homeless family.

In sum, I believe the case for government support of legal services for persons of limited means is strong. To be sure, however, the responsibility to meet the urgent need for increased assistance for legal services rests not only on government but on our profession as well. As we advocate for increased government support of legal services, the profession also must increase its commitment. Recognizing this obligation, the Access to Justice Commission has launched the Raising the Bar in D.C. Campaign, with the endorsement of both the D.C. Bar Foundation and D.C. Bar. The campaign’s goal is to substantially increase financial support of the District’s legal services community by establishing benchmarks for contributions by law firms of all sizes. Each year, the campaign will recognize and celebrate those firms that donate at benchmark levels. You can learn more about the Raising the Bar in D.C. Campaign at www.dcaccesstojustice.org.

Reach Ronald S. Flagg at [email protected].