No Access, No Justice
From Washington Lawyer, May 2016
By Jeffery Leon
In February 2015, the D.C. Access to Justice Commission celebrated 10 years of service in the District of Columbia. Born out of a need to eliminate gaps in the delivery of civil legal services to the District's most vulnerable populations, the Commission has over the years worked to break down barriers to access to justice and allow for a unified, coordinated effort in bringing those services to underserved communities.
As it enters its second decade of service, the Commission is embarking on a major effort to act on a "truly unconscionable" problem plaguing the nation's capital: rising homelessness, escalating rents, and a rapidly declining supply of affordable housing. Vulnerable people are falling through the cracks, and for many, access to the civil justice system seems out of reach.
The District has experienced massive redevelopment and rapid population growth over the past decade, but on the other side of that change is a widening economic divide. A 2015 report from the D.C. Fiscal Policy Institute found that the wage gap between the city's richest and poorest residents was growing—in fact in 2013 income disparity in the District was at its highest in 35 years. The city's unemployment rate has increased to levels higher than before the 2008 recession.
The housing crisis is another facet of this disparity, and the numbers are staggering. Over 34,000 eviction cases were filed in D.C. Superior Court in 2015, and only about 5 percent to 10 percent of tenants had lawyers. More than 40,000 households are on the District's central waiting list for public and subsidized housing, which has been closed to new applicants for nearly three years. It takes 10 years or more for homeless families to receive a housing subsidy.
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In the past year, the Commission has partnered with the private bar, the legal services community, and the courts to launch a two-fold approach to address this crisis: dramatically increase pro bono representation for tenants in landlord and tenant court and advocate for systemic reforms to fix the District's broken shelter and emergency housing system, enforce fair housing laws, and maintain affordable housing for low-income residents.
The D.C. Access to Justice Commission believes that securing safe, affordable, and accessible housing for every District resident "requires a multi-faceted and coordinated strategy with a diverse group of stakeholders" and "demands resources far greater than what any single organization can provide."
For the past 10 years the Commission has worked to bring together local legal services organizations, law firms, the D.C. government, and the D.C. Courts to shine a light on the "appalling disparity" between the need for legal services for indigent residents in the District and the available resources to meet those needs. Since its formation by the D.C. Court of Appeals in 2005, the Commission has successfully delivered on its goals, but today its mission is more important than ever.
Calls for Cohesion
The movement for an access to justice commission in the District picked up steam in the early 2000s, but the idea had been growing for a while. Beginning with the state of Washington in 1994, commissions were being formed in several states across the nation, partly in response to cutbacks in legal services funding at the federal and state level during the 1980s.
For many jurisdictions, an access to justice commission promised a unified system and a concentrated effort of providing legal services to local communities. Additionally, many of these commissions were able to secure aid from their states. In the District, there was a wealth of legal services organizations, pro bono programs, and attorneys, but little coordination in their access to justice efforts.
Patricia Mullahy Fugere, executive director of the Washington Legal Clinic for the Homeless and member of the Commission from 2005 to 2014, recalls the lack of cohesion between the legal services organizations, law firms, and the courts, with real-world consequences. "While now we have more of a woven tapestry [in providing legal services], pre-Commission we had a patchwork quilt," Fugere says.
Jonathan M. Smith, former executive director of the Legal Aid Society of the District of Columbia and a member of the Commission, says the legal services community recognized that the vast majority of people who need a lawyer don't get one. "In a study by the Legal Services Corporation (LSC), 80 percent of people who have a legal problem and go to legal services organizations because of the lack of resources don't get a lawyer," Smith says.
How would these issues be addressed? Conversations were held, and the idea of an access to justice commission arose.
"There were a lot of conversations among the legal services providers in D.C. about the need for a mechanism to knit together the community and organize around access to justice issues," says Smith. "D.C. not only has a vibrant and effective legal services community, it also has an effective Bar. This was an opportunity to think more expansively than any single provider could think."
There have been previous attempts to bring the legal community together, with some success. In 1989 Shelley Broderick, a member of the Commission since 2008 and current dean of the University of the District of Columbia David A. Clarke School of Law; Lynn Cunningham, former managing attorney at the Neighborhood Legal Services Program; Jan May, executive director of the Legal Counsel for the Elderly; and others launched the D.C. Consortium of Legal Services Providers, a coalition of 30 member organizations with a mission to improve the quality, increase the quantity, and coordinate the delivery of legal services to low- and moderate-income individuals in the District.
In April 1999, the Consortium held a symposium attended by the stakeholders in the legal services community, including representatives from the D.C. Bar and the chief judges of the D.C. Courts, to discuss how best to address the significant gaps in the delivery of legal services to underserved communities. Ada Shen-Jaffe, then the director of Columbia Legal Services in Washington state, was among the featured speakers. A lot of questions were asked, including: Who would get a seat at the table? How would everyone be heard?
"A commission would have to push to address the greatest needs and concerns of all," says Broderick. "It has to be longer lasting and more effective, not a small boutique."
The big push for the creation of the D.C. Access to Justice Commission came in 2003, when the D.C. Bar Foundation commissioned Julia Gordon, then a senior staff attorney at the Center for Law and Social Policy, to write a report outlining the poverty problem in the District and the state of its legal aid services.
"There was pro bono work being done in the city, and a lot of people cared about working on behalf of the underserved in the District," says Emily Spitzer, then the executive director of the Bar Foundation. "But we weren't doing enough, and we weren't providing services in an organized fashion."
Spitzer attended monthly meetings with the Consortium and spoke with Smith and Gordon about how best to present the case for creating an access to justice commission. They agreed that a report would demonstrate the urgent need for a more comprehensive approach to bringing access to justice to the neediest residents of the District.
The 2003 report, "Civil Legal Services Delivery in the District of Columbia," provided a sobering look at the issues of poverty, housing, health care, and legal aid services delivery in the District. It also revealed some shocking facts: only less than 10 percent of civil legal assistance needs were being met; poverty rates were increasing and becoming more concentrated in certain areas of the District, such as east of the Anacostia River; and affordable housing was disappearing, with wait lists for public housing and family shelters stretching from months to several years. Health care coverage was inadequate, and over 55,000 people living at or below the poverty line in the city were uninsured.
Legal services providers were facing a myriad of issues, as well, such as lack of resources that stymied assistance to clients and the organizations' effectiveness. There was not enough money for adequate staffing, leading to longstanding vacancies, employee retention issues, and resources being diverted from helping clients to maintaining the organization's workforce. Legal services providers needed more training, and there was a disconnect between the providers, the courts, and the D.C. government.
The most striking part of the report, however, was that despite the substantial number of legal services organizations and pro bono assistance programs serving indigent residents, many people did not know where to turn for help, or which provider could best assist them.
The report ultimately called for the creation of an access to justice commission, urging "the courts, the bar, the legal services providers, legal services funders, and members of the community being served [to] work together to develop a sustained and comprehensive approach" to bring the city closer to achieving the goal of justice for all. The study recommended exploring funding, organization, and staffing requirements to take action.
The report generated a lot of interest, with substantial positive feedback from many corners. The D.C. Bar Foundation then began soliciting support, bringing on board law firms Steptoe & Johnson LLP and Akin Gump Strauss Hauer & Feld LLP to assist in the fundraising efforts.
At the Courts, a Limited Reach
Instrumental to the formation of the D.C. Access to Justice Commission was the D.C. Courts. In 1996 it established the Standing Committee on Fairness and Access to the District of Columbia Courts, chaired by then Court of Appeals Associate Judge Inez Smith Reid, to address racial, ethnic, and gender discrimination in the courts. In 2002 it formed the Strategic Planning Leadership Council, headed by then Associate Judge (now Chief Judge) Eric Washington of the Court of Appeals and Associate Judge (now senior judge) Ann O'Regan Keary of the Superior Court, to reach out to the community and identify barriers to justice.
The Leadership Council's work over a period of nine months served as the foundation of the D.C. Courts' 2003–2007 strategic plan, in which the courts committed to promote the availability of legal services to individuals regardless of their economic status, develop a plan for improving services to unrepresented litigants, and examine court-related costs to minimize economic disparities. To help achieve these goals, the D.C. Courts sought collaborations with the D.C. Bar, the D.C. Bar Foundation, and local legal services providers.
"Everyone seemed passionate in the belief that fairness and access to civil justice could not be achieved without a mechanism for assuring high-quality legal representation to those who could not afford it because of economic barriers or the unavailability of legal services," says Judge Annice M. Wagner, who was chief judge of the D.C. Court of Appeals during the strategic planning process.
While the D.C. Courts was making strides in community outreach, addressing language barriers and providing resource centers, it could only do so much without running into ethical constraints. Their reach was limited.
"We soon realized that the job was too big for the D.C. Courts alone to handle," Judge Reid, now a senior judge at the Court of Appeals, would write in her 2015 retrospective of the Commission. "And tasks needed to be accomplished that judges could not do."
When representatives of the D.C. Bar, the D.C. Bar Foundation, and the legal services provider community brought up the idea of creating an access to justice commission in the District, the courts welcomed it. Soon, in a series of meetings, the parties explored the issues related to forming the commission, including its objectives, structure, funding, and potential barriers. They also considered the approaches used in other jurisdictions to create similar commissions.
"We needed to establish a group that had credibility beyond the borders of this court. A diverse group of leaders who could help us identify gaps in service and advise us on ways to encourage lawyers to help us address our concerns. We recognized that community leadership was critical to helping us solve the problems," Chief Judge Washington recalls.
Looking at examples from around the country, they noticed that the access to justice commissions with the greatest successes were those with guidance coming from their jurisdiction's highest court. The Court of Appeals decided that it would establish the Commission, but that the entity would be independent and represent the interests of everyone.
This move would allow for close collaboration among the various stakeholders, and would also show that the District was committed to improving access to justice.
An access to justice commission also would advance Resolution 23 of the Conference of Chief Justices, passed in 2001, which concluded that the judicial branch "shoulders primary leadership responsibility to preserve and protect equal justice and take action necessary to ensure access to the justice system for those who face impediments they are unable to surmount on their own."
After close consideration of any potential legal, ethical, or practical constraints, the Court of Appeals issued Order M-220-04 on December 29, 2004, establishing the D.C. Access to Justice Commission for an initial three-year term, with extensions possible depending on the group's progress toward achieving its goals. The Commission is required by the court to file an annual report outlining its work.
On February 28, 2005, the court appointed the Commission's first 17 commissioners, which included two Court of Appeals and two Superior Court judges, three former presidents of the D.C. Bar, the executive directors of three leading legal services providers in the District, and community leaders. Georgetown University Law Center Professor Peter B. Edelman was appointed (and continues as) chair of the Commission.
"The court, as an independent body, didn't tell the Commission what problems to address," says Chief Judge Washington. "We said to them, 'You help us figure out where the problems are.'"
The Hard Work Begins
The D.C. Access to Justice Commission has four stipulated goals: significantly increase resources for legal services providers, reduce barriers that prevent equal access to justice by low- and moderate-income District residents, advocate for increased pro bono work by local attorneys, and improve planning and coordination efforts in the delivery of civil legal services to the community.
When it came to managing funding, the Commission took two key actions. First, it createda 501(c)(3) nonprofit with an independent board of directors tasked with raising and receiving the modest funds needed for the Commission's day-to-day operations. The Commission receives no public funds, relying entirely on private donations, primarily from area law firms.
Second, the Commission successfully persuaded the D.C. Council to establish an annual appropriation of public funds—known as the Access to Justice Program—for the delivery of civil legal services to underserved populations in the District. The funds are administered by the D.C. Bar Foundation, the leading private funder of civil legal aid in the District. The Bar Foundation disperses these funds to local legal services providers through an annual competitive grant process. Each year the Commission and other leaders in the legal community lobby the mayor and the D.C. Council to sustain the access to justice funding.
Leading all these efforts was Edelman, who, having worked with policy makers at all levels, had a vast knowledge of the legal aid landscape, and was very much attuned to the need for civil legal services. Edelman has worked on issues relating to poverty for close to five decades, getting involved while serving as a legislative assistant to Senator Robert F. Kennedy. He had extensive experience managing organizations, such as serving as director of the New York State Division of Youth. He also worked on Edward Kennedy's 1980 presidential campaign as issues director, and in the 1990s served in the Clinton administration, arguing successfully for additional funding for the LSC.
At the time the creation of the Commission was being proposed, Edelman was highly recommended by many, including those in the legal services provider community and the judiciary. When he was offered the position of Commission chair, he accepted with no hesitation.
"Getting launched was the Commission's first great achievement. The second was selecting Peter Edelman to lead it as chairman. His vision, his acuity, and his ability to connect with the decision makers in the D.C. Council, the courts, and the stakeholders have been wonderful," says Andrew Marks, a member of the Commission and vice president and treasurer of the Access to Justice Foundation.
With Edelman at the helm, and with the full support of the D.C. Court of Appeals, the Commission hit the ground running, starting with a legal needs report in 2008 that would provide the most comprehensive survey of the landscape of legal access in the District, including the availability of legal resources, the number of unrepresented litigants, and other issues.
Sunil Mansukhani, executive director of the Commission from 2005 to 2009, recalls the early days: "It was a new entity, it didn't have much of a track record, but the commissioners had good stature, and the charge of the D.C. Court of Appeals in creating the Commission was clear, which allowed the key stakeholders to collectively and collaboratively move the work forward."
The benefits of having an entity with pooled resources and legal abilities were seen quickly, and the Commission was able to enact meaningful changes in its first few years. One of the first issues the Commission worked on was funding. Unlike many states with access to justice commissions, the District of Columbia did not provide funding for civil legal services and this presented a challenge for the fledgling entity.
"The legal services organizations are the backbone for the access to justice movement," says Judith Sandalow, executive director of the Children's Law Center. "We combine on-the-ground knowledge of what residents' needs are with the capacity to translate that into law . . . the funding really makes a difference."
It was clear that obtaining support from the D.C. government would be a crucial step in decreasing gaps in the delivery of legal services. The Commission began lobbying then D.C. Mayor Anthony Williams and bringing their case before the D.C. Council, educating city officials about the need for funding and the benefits of providing civil legal services to the city's most vulnerable people.
"In the long run, providing legal services not only creates a very pivotal intervention in the lives of truly fragile District residents, but over time it also saves the government money," says Jessica Rosenbaum, the Commission's current executive director. "It is much more cost effective and humane to provide an intervention before someone loses their home than to try to care for them and their family in the multiple public systems that then have to come to bear if that person becomes homeless."
In addition to support from local legal services organizations, all former presidents of the D.C. Bar at the time also signed a letter endorsing the Commission's recommendation for District funding for civil legal services. The Commission also was supported by Councilmembers Kathy Patterson and Phil Mendelson, with Mendelson championing the Commission's work and becoming one of its biggest supporters.
In 2006 the D.C. Council agreed to the Commission's request, allocating $3.2 million for access to justice projects through the D.C. Bar Foundation.
Securing Funding, Encouraging Giving
Securing public funding was an unprecedented success for the Commission, and a victory for legal services providers and the residents of the District of Columbia. It also was a great indication of the city's commitment to work toward reducing poverty and promoting access to justice for all.
"Even if the Commission accomplished nothing else, persuading the Council to provide this critical funding for legal services providers would have been a massive achievement," says Marks.
With money from the District, the Commission and the legal services provider community quickly went to work, putting every penny toward new access to justice initiatives. In the first year, organizations like the Neighborhood Legal Services Program, the Legal Aid Society of the District of Columbia, and Bread for the City were able to put over 20 new lawyers to work in underserved neighborhoods east of the Anacostia River. In 2007 Ayuda launched its Community Legal Interpreter Bank, which assists clients with language barriers. Today it has over 150 interpreters covering 39 different languages, including American Sign Language.
Over time the Commission also worked on reducing access to justice barriers at the D.C. Courts, identifying challenges and making recommendations about streamlining the process for self-represented litigants, providing interpreters, and examining innovations at courts in other jurisdictions to see where the D.C. Courts could improve. One major success was working with the D.C. Superior Court on developing a new housing conditions calendar, allowing tenants living in housing with code violations to have their cases reviewed more quickly.
"[The Commission] looked at us with an eye toward helping us better serve the community," says Chief Judge Washington.
Over the years the reputation of and support for the D.C. Access to Justice Commission grew, along with funding from the D.C. Council. In March the D.C. Bar Foundation awarded more than $4.5 million in public grants for 33 projects by legal aid organizations in the District.
On the private funding side, the Commission launched in 2010 the Raising the Bar in D.C. Campaign, one of its huge successes. The campaign came in the aftermath of the 2008 economic downturn, when funding for legal services providers dropped nearly 25 percent while requests for legal aid rose 20 percent.
Recognizing the power of law firms, the campaign encourages firms to contribute money to legal services organizations using a three-tier benchmark for giving: Platinum, Gold, and Silver, for setting aside .11 percent, .09 percent, and .075 percent, respectively, of their D.C. office annual revenue.
Eight firms—Akin Gump Strauss Hauer & Feld LLP, DLA Piper LLP, Steptoe &Johnson LLP, Covington & Burling LLP, Jenner & Block LLP, Crowell & Moring LLP, Sidley & Austin LLP, and Sutherland Asbill & Brennan LLP—formed the Leadership Circle at the campaign's launch, rallying others to participate. The number of participating firms has grown over the years, from 23 firms contributing over $3 million in 2011 to 48 firms donating more than $5 million in 2014. All firms are recognized for their contributions at an annual reception.
"Over the years we've gotten a consistent, sustained, and positive response from those who have participated in the campaign," says James Rocap, a partner at Steptoe & Johnson and one of the Commission's earliest supporters.
Collective Push for Housing
The D.C. Access to Justice Commission has decided to act on the District's housing crisis. Starting in 2014 it collaborated with the D.C. Bar Pro Bono Center and several legal services providers and law firms to launch the D.C. Right to Housing Initiative, which they believe could serve as model for the rest of the country.
The Initiative was the result of conversations between Edelman; James Sandman, president of LSC and former president of the D.C. Bar;and Rosenbaum following a report published by LSC on the need for greater pro bono efforts across the country. The report recognized that pro bono work was effective at enhancing the level of representation for low-income people, and although much was already being done in the District, there was a need for more. The Commission decided to approach law firms with a renewed call for pro bono service.
"We sought to be as focused as we could be when approaching the law firms. We needed to stay on one issue," says Edelman. "The issue that everyone agreed on was the right to housing."
Part of the Initiative is the Right to Counsel Project, an effort to reduce evictions and increase access to legal counsel for tenants in subsidized housing. The Commission estimates that over 90 percent of landlords in the Landlord and Tenant Branch of the D.C. Superior Court have attorneys, while only 5 percent to 10 percent of tenants are represented. The Right to Counsel Project aims to provide more pro bono resources to increase representation for tenants, with the ultimate goal of serving several thousand cases each year.
The Initiative will push for enforcement of fair housing laws and challenge housing discrimination. It has identified other systemic reforms such as reducing barriers to the housing application process, ensuring that tenants with disabilities receive reasonable accommodations in a timely manner, addressing and challenging discriminatory practices in shelters and emergency housing, and securing supportive services for tenants.
Another focus is advocating for improvements to local homeless services to ensure homeless families and individuals have a safe place to sleep year round, that individuals know their legal rights under federal and local shelter and disability rights laws, and that homelessness-related programs are well funded and efficiently operated.
One of the most prominent aspects of the D.C. Right to Housing Initiative is the preservation and creation of affordable housing in the District, which over the past decade has lost more than half of its low-cost housing stock. The Initiative seeks to reverse this trend by advocating for the District to preserve threatened properties;helping tenants to purchase their properties as co-ops;working with landlords to keep their Section 8 housing;and working with residents by providing representation, information, and assistance.
Preserving affordable housing and ensuring that the city's most vulnerable residents are not forced out of their homes is becoming one of the bigger challenges facing the Commission and its stakeholders today. The stakes remain high, and for the Commission, now is not the time to rest. So far, 14 firms have pledged support for the Initiative, with 7 firms committing to accept eviction cases. Over 70 attorneys have already completed training to provide pro bono representation through the Initiative.
More Challenges Ahead
The D.C. Access to Justice Commission was formed out of an urgent need to fill gaps in access to justice and to establish a unified way to help all residents of the District of Columbia. Despite some challenges and initial apprehension over its creation 10 years ago, the Commission has made major strides in rallying the legal services community, the law firms, local government, and others toward working to increase access to justice in the District.
"The Commission is an example of smart people coming together and really working to do the right thing," says Commission member Broderick.
Sheldon Krantz, executive director of the D.C. Affordable Law Firm and a member of the Commission, credits the Commission's leadership and staff for "[doing] amazing things with the limited resources they have."
"I'm familiar with access to justice commissions around the country, and I think the D.C. Access to Justice Commission is among the very best," Krantz says.
The Commission is not resting on its laurels, however;it is well aware that there are many challenges ahead to make access to justice a reality for all.
"As wonderful as the Commission is, the District still continues to face a crisis," says Sandalow. "It continues to be a tale of two cities: A child born in Ward 8 has a much harder road than a child born in Ward 3. There's a long road ahead of us . . . There is much more to do."
The District will continue to transform, and the need will always be there. "The challenge remains in front of us to continue to do that transformative work," says Smith. "Ten years have been a critical and remarkable milestone, particularly if we think back on the individuals whose lives we've made different in a positive way. We feel immensely proud, but it should also be a call to us for that work to continue."