Category Archives: Access to Justice

“Who daddied this thing?” — NC’s system for oversight of legal services, where it came from, why, how & quo vadis?

Big questions are in play just now about the practice of law.  What is law practice? Who can do it? How should it be regulated?

Increasingly urgently, how can legal services be delivered to low wealth populations, to people who find themselves embroiled in legal processes about fundamental life issues and who cannot afford lawyers? How are they to resolve issues of child custody, divorce, spousal abuse, veterans rights and health care?

Across the country, lawyers essentially regulate themselves. The agencies that oversee legal services are composed of lawyers elected by lawyers. Some suggest that this creates built-in resistance to change.

Where did this system come from?

The system we have now was established in the 1930s. At the time, everyone generally agreed that persons who deliver legal services ought to have some verified level of knowledge about the law and should be subject to some oversight. A primary goal was to create an orderly system to facilitate national commerce. But the work required to set up and run the system looked so boring that nobody wanted to do it except the lawyers themselves.

In Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, Gillian Hadfield writes:

No one … was much interested in thinking about such dry and arcane subjects as the uniformity of standards in commercial paper or the problems created by different standards for pleading a complaint. Nor did many care about the educational requirements for those who desire to earn a living from thinking about such things. No one other than lawyers, and elite lawyers at that, was eager to wade into these waters in the early twentieth century.

So, the American Bar Association and state bar associations took the lead. They established the system we have now: of bar examinations, law school accreditation, policing of unauthorized practice, and disciplinary standards.

The system they created has worked marvelously. The American justice system is a distinctive American resource that underpins a complex, creative economy and has fostered vast prosperity, quite apart from its core political function as mediator between government prerogatives and individual rights.

North Carolina was part and parcel of the national process. Former State Bar president, John McMillan has written a superb article that tells the story. The Long Road to Founding the North Carolina State Bar

After its leaders attended ABA meetings, the North Carolina Bar Association brought a proposal to the General Assembly that mirrored what was being done in other states. It would create the State Bar in which membership by lawyers and annual dues to operate the agency are mandatory. The State Bar would oversee legal services delivery. In words drawn from the Bar Association’s records of 1932 but that ring true today, John McMillan recounts that J.W. Pless Jr. warned that the Bar Association should not expect easy passage at the General Assembly. He said, “We don’t know what success we will have with the legislature. We have never had much.”

Pless was right. Lawyers in the General Assembly immediately suspected the Bar Association of elitism. Its proposal was “hotly contested,” “spirited,” and personal. John McMillan points to an exchange between a legislator and the spokesman for the Bar Association that was reported at the time by The Raleigh News and Observer:

“Who daddied this thing?” demanded the Senator.

“The North Carolina Bar Association at its meeting last year in Asheville,” replied Mr. Bailey.

“I’ll tell you that it passed by a very small majority and over protest,” asserted Senator Kirkpatrick.

“That is not true,” said Mr. Bailey.

“You aren’t calling me what I ain’t, are you?” queried the senator, his face turning crimson.

“I may call you what you are,” Mr. Bailey shot back.

The two were declared out of order.

Upon learning that lawyers would be required to pay State Bar dues of $4 a year, another legislator pronounced that “anything you want me to join that costs over $1, I don’t want it unless I can eat it or wear it.” Dues were cut to $3 a year.

Opponents suspected elitism from the start:

Mr. Grant … charged that the bill was concocted at the Asheville convention last summer and that the convention was attended only by railroad lawyers who rode there on passes while the poor lawyers were unable to stir from home.

But the bill passed and the State Bar was created.

Today, North Carolina, led by Chief Justice Mark Martin, is a national leader in scrutinizing the system and studying the future of legal services. Many of the old questions are back. Perhaps some of the old spirits are back, too.

A theme that’s surely back is the importance to North Carolina’s economy of keeping the State’s legal services delivery processes efficient and aligned with the national system.

 

 

Supreme Court nominee says cost of access to justice broke, needs fixing

Judge Neil Gorsuch, said last year

In the American civil justice system many important legal rights go unvindicated, serious losses remain uncompensated, and those called on to defend their conduct are often forced to spend altogether too much.

“Legal services in the United States are so expensive,” he says, “that the United States ranks near the bottom of developed nations when it comes to access to counsel in civil cases.” 100 Judicature 46 (Autumn 2016).

Judge Gorsuch says we need to fix this. We need to change.

Looking beyond the possibility of increased public financing, which in 2016 he thought might be challenging, he suggested three ways to fix things:

  1. Permit delivery of more legal services by persons not licensed as lawyers, to include stock ownership of law firms and other alternative business structures.
  2. Change the rules of civil procedure to require early trials and mandate automatic disclosure of evidence.
  3. Shorten law school training and liken it more to trade schooling.

A change, the Judge says, would do you good.

Access to legal system is fundamental: John Hood of John Locke Foundation

John Locke

John Hood, Chairman of North Carolina’s John Locke Foundation, makes the same point this week that MidLaw made last week: the legal system and meaningful access to it for everybody is fundamental to our system of government. Access is a matter of infrastructure. (An on-ramp, if you will.)

Hood is not addressing the federal budget with its proposed de-funding the Legal Services Corporation. Instead, he is endorsing the just-released final report of the North Carolina Commission on the Administration of Law and Justice.

The final report calls for investments in North Carolina’s courts system up to $91 million over 6 years to improve access to the system. Hood sums up:

this plan is affordable and reflects the highest priorities of any government: public safety and the protection of individual rights.

But, if the federal government de-funds Legal Services, then the cost of the North Carolina plan will go up — both now and later.

The North Carolina report finds that

Statistics about low-income individuals’ access to lawyers are quite discouraging, … partly because legal aid programs have lost significant funding in recent years. Pro bono (donated legal services) programs have helped some litigants but simply do not have the capacity to come close to being a complete solution

Legal Aid of North Carolina brings legal services to low-income people in North Carolina. It appears to deliver a very high volume of access to justice (legal services) with limited and now declining resources. It depends heavily on funding from the Legal Services Corporation.

Hood points to technology and service providers other than lawyers, as emerging means of improving access to the justice system. He concludes:

Legal practice and public expectations are changing in response to new technologies, like it or not. North Carolina can either adjust its court system to that reality, or pay a far heavier price in the future.

Might there be better ways to deliver legal services to the poor? Technology, say, and providers other than lawyers? Bring them.

In the meantime, eliminating funding from the federal budget for Legal Services sounds like making a bad situation worse (“pay a far heavier price in the future”). And it puts a premium on State funding.

Legal aid is infrastructure, not welfare: got to have bridges so traffic can move

Word has come that the next federal budget will cut or eliminate funding for the Legal Services Corporation. Legal Services Corporation is the largest funder of legal services for the poor in the country.

Does the impetus for cutting legal aid come from a sense that legal aid to the poor is a form of welfare? Does it come from a sense that legal aid funds lawsuits against the wealthy?

That’s the wrong way to look at it. Legal aid, even when given free to the undeserving poor, is not a handout. It’s an investment in infrastructure.

The rule of law is the foundation of the economy and society. And it depends on the justice system.

Our system is complex and getting more so. (“Increasing complexity is the story of human evolution, and the story of how and why law emerged.“)

If poor people do not have effective access to this complex system, two bad things happen. First, the legal entanglements of the poor clog and burden the system. Either controversies don’t get resolved, or people try to fix them without assistance. That makes things worse.

Second, bad outcomes contaminate society. People get soured and distracted from positive, productive pursuits.

North Carolina Chief Justice Mark Martin perceptively points to domestic affairs: spousal abuse, child abuse, child custody, divorces. Often intervention by the justice system is the only fix in those cases. People helping themselves makes things worse.

That’s domestic relations. The same things can happen with healthcare, housing, veterans’ rights, benefits for the elderly, and any number of other everyday things. The unmet legal needs of poor people in these areas are growing, while funding is already on the decline.

Removing legal aid from the federal budget will make things worse. It will make our system more expensive for everybody, not less. And it will exacerbate negative spirits generally — in a way that drags down the economy, politics, and society at large.

Legal Services Corporation channels funds to local agencies such as Legal Aid of North Carolina. If there’s something wrong with Legal Services in particular, then fix that. But don’t take the resources out of the system.

Legal aid ain’t a handout. It’s bridges and roads.

Traffic has to move. Pay me now, or pay me more later.

 

 

Guilford College president meets with Congress, President

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NC Capitol

War came and North Carolina Quakers were in a bad spot. They were abolitionists and unionists and pacifists to boot.

A bill was introduced in the North Carolina legislature to require that every free male over sixteen years old must publicly renounce allegiance to the government of the United States and agree to defend the Confederacy. The penalty for noncompliance was banishment.

It was a bridge too far. Former governor William Graham, who Bishop Cheshire said was one of the greatest men North Carolina ever produced and who represented North Carolina’s traditions of progress and moderation, spoke against the bill. He said it would be “a decree of wholesale expatriation of the Quakers.” “The whole civilized world would cry ‘shame,’” he said.

And so the bill was defeated, although “not so the hostility” from which it came. “Hatred and malice … fell with much violence” upon North Carolina Quakers.

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Virginia Capitol

Legislation was proposed at both the State and Confederacy levels to provide exemptions from military service for Quakers and other “peace churches.” North Carolina Quakers recruited a committee to go to Richmond and make their case to the Confederate government.

Among the five-person committee was Nereus Mendenhall, the leader of New Garden Boarding School (later Guilford College) in Guilford County. He was “well known as one of the most learned men in North Carolina and a prominent educator.”

At Richmond, they met with a committee of the Congress. It was summer and they met at night outside on the grounds of the Capitol. One of those present said later,

It was the feeling of the delegates that Nereus Mendenhall was preeminently the man to present our case. It seemed impossible, almost, to secure his consent, owing to his natural reserve. Finally, [the chairman] said: “Gentlemen, the Committee is ready. Please state your case.” A dead silence followed. In a few minutes, fearing the committee would not understand or appreciate our holding a silent Quaker meeting then and there, I reached over and gently touched Nereus. He arose slowly, and when fully aroused and warmed up to his subject I thought I never heard such an exposition of the doctrines of Friends on the subject of war.

Later, the group visited Jefferson Davis, President of the Confederacy. Davis received them courteously but remarked that he “regretted to learn” there was a group of people who were not willing to fight in defense of their country.

A statute was passed that exempted Quakers and members of other peace churches from military service upon either payment of money or rendering noncombatant services. A participant in the process said that

To Nereus Mendenhall’s argument, perhaps more than any other one thing, was due the passage of this law.

In later times, some Quakers refused to serve and refused to make payments or perform noncombatant services. Some of them were punished severely.

Mendenhall’s home, The Oaks, was located on what is now NC 68 between Greensboro and High Point in Guilford County. It is for sale by Preservation North Carolina and may be destroyed.

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Nereus Mendenhall

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The Oaks

Video interview with NC Chief Justice on future of legal services

future-legal-services-hero_jpg_imagep_980x179-2-png-imagep-980x179North Carolina Chief Justice Mark Martin represented the judiciary on the American Bar Association’s Commission on the Future of Legal Services whose report was published earlier this year, and so Chief Justice Martin was interviewed recently by Ralph Baxter, Chairman of Thomson Reuters’ Legal Executive Institute, who asked the Chief  (i) about broadening the scope of those who can participate in delivery of legal services (that is, who beyond licensed lawyers can provide legal services?); and (ii) about opening the door for non-lawyer investment in the business of legal services (can law firms issue stock?). Chief Justice Martin described the process by which such changes could come.

New proposals can come either through the ABA or directly at the state level. The ABA’s House of Delegates has already refused to approve outside investment in law firms. Even so, the Commission recommends that the states continue to consider the issue.

“So [non-lawyer investment in law firms is] one of those things that might happen,” Ralph Baxter observed to the Chief Justice in the video interview. The Chief’s response, a nonverbal chuckle, is the very model of making a noise without making a comment. Judicial and judicious. Worth the price of the (free) video.

 

Tarboro-grown lawyer now prominent NC leader, delivering access to justice

And now it’s time for a word from our sponsor.

Our sponsor (indirectly anyway) is the North Carolina legal system.

Unhappily, it has come upon some hard times in recent years.

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As recently noted, our economy and society have become extraordinarily more complex as compared with the days when tobacco was king and music had a back beat you could not lose. In today’s more complex world, vastly more people need legal services than ever before. And many fewer can afford lawyers than before.

This falls most heavily on the poor, of whom North Carolina has many. Twenty-three percent of North Carolinians cannot afford lawyers when they need’em. Eighty percent of the legal needs of poor people are not met.

That’s bad news. The results clog the courts system, burden the State and slow our economy.

The good news is that a Tarboro native and lawyer is at the forefront of bringing legal services to people who can’t afford them. She is a leader at the State and national levels — and she is widely recognized for her exceptional abilities and good works.

Celia Pistolis, formerly of Baker Street.

In her role as Director of Advocacy at Legal Aid of North Carolina, Celia supervises one of the largest staffs of lawyers in the State and manages what is surely the largest network of law offices. In her role as chair of the North Carolina Equal Justice Alliance, Celia also leads the principal association of all the major providers of legal services to poor people in North Carolina.

Celia was honored in 2012 by UNC Law School, which granted her a Distinguished Alumni Award, putting her in company with some of the most accomplished lawyers in North Carolina and beyond. The North Carolina Bar Association awarded her the Outstanding Legal Services Attorney Award as far back as 2002. And the Z. Smith Reynolds Foundation selected her to receive a special sabbatical award in 2011 in recognition of her service.

Celia is an important leader doing badly needed work. She is in the middle of a distinguished career. A great Tarboro lawyer.

So, MidLaw’s sponsor, the North Carolina legal system, has great needs and Tarboro-born-and-raised lawyer Celia Pistolis is a key leader in meeting those needs. She is getting results.  In 2012, the total impact of legal aid in North Carolina was $48,775,276.

There’s a lot more to be done. Federal and state funding have steadily been cut. Private resources are needed. It’d be a good thing to give Celia’s organization a few bucks.

The Lawyers Weekly Interview, Part II: details never before revealed about life & career of MidLaw scrivener

149HThe last post before this one set out the first part of the North Carolina Lawyers Weekly’s article and interview with MidLaw’s scrivener. Heath Hamacher wrote the Lawyers Weekly piece, and edited the interview “for length and clarity.” Below is Part II, the rest of the interview, which mostly addresses personal biographical details.

LW:   Tell me a little about your upbringing and how you came to get into the practice of law.

MIDLAW:   I was born and raised in Tarboro and Edgecombe County, North Carolina, which I later learned is the center of the universe. My father was in the horse-and-mule business until that played out and his work subsided into farming. What I learned about farming caused me to develop an interest in other ways of earning a living.

I got onto the path that led me to law practice late one evening many years ago when, in the course of a gentlemen’s card game, one of the players remarked that anyone who signed up to take the law boards the next day would be released from duty and provided with transportation to either Long Binh or Saigon where the tests would be administered.

I signed up for a day off, and one thing led to another.

 

LW:   Tell me about your practice area and exactly what you do as an attorney.

MIDLAW:   I started in a very general business law practice, focused mainly on litigation; then I followed opportunities that led to me becoming the general counsel of the North Carolina Savings and Loan League and later the North Carolina Bankers Association, and to representing financial services companies.

The time came about 15 years ago when my partners, Jim Williams and Dan McGinn, came and asked me to consider becoming the managing partner of our firm. I thought about that and agreed to do it if the partners approved, but on two conditions; namely: (i) that I could not both serve clients and also be managing partner at the same time, and (ii) that I would not be required ever to fill out a time sheet again. (I was bluffing about the second one, but it worked.)

At midnight this past December 31, Reid Phillips became our managing partner and now I am sort of rebuilding what I do. Something will come up.

 

LW:   Where did the idea of doing a blog come from? Its subject matter is pretty eclectic. Do you just write whatever’s on your mind?

MIDLAW:   Before there were blogs, I wrote a regular series of posts for the North Carolina Bankers Association’s website; before that, I wrote legal memoranda which the S&L League published. I started doing the blog because I wanted to understand what blogs are and how they might be used by law firms. Something I published on the blog (about hummus) got written up in the Greensboro newspaper, and all of a sudden I was in the blog business.

The blog is focused on a few topics: (i) mid-size law firms and law practice management; (ii) 19th Century NC lawyers (mostly from Edgecombe and Guilford Counties) and some things about Tarboro generally; (iii) legal services delivery (I am on the IOLTA board); (iv) the importance of liberal arts education; and (v) something we call the MidLaw Diet, which is about hummus mostly.

I certainly do not write about whatever is on my mind. I might get sued.

 

LW:   Tell me about your family. Are you married? To whom? How long? How many children and their ages.

MIDLAW:   I am well and truly married to Sally Patton Winslow, as I have been ever since 1980. We are the parents of Margaret Winslow who is 32 years old and lives in Greensboro, where she is Director of Strategic Initiatives at Elon Law School; and of Ted Winslow who is 27 years old and who teaches languages and literature and lives in Castellón de la Plana, Spain.

 

LW:   What do you do when you manage to find some free time? Any hobbies besides blogging?

MIDLAW:   We have this great place in the woods in southwest Virginia, where I engage in sedentary pursuits and limited physical activities, and where I like to go whenever I can. Also, I am very involved as a trustee of a Quaker boarding school in Pennsylvania (Westtown School) and of Guilford College in Greensboro. Hobbies might include reading or something. Maybe cooking.

NC Lawyers Weekly interview of MidLaw scrivener, Part I

MidLaw’s mild mannered scrivener was interviewed by the North Carolina Lawyers Weekly last week. This was in the broader context of the recent announcement that scrivener is stepping down as managing partner of the venerable Brooks Pierce McLendon Humphrey & Leonard, after 15 years in that role.Rabbit

The interview was in the vein of, “Over the course of your long career, Elder Winslow, you must have seen many changes in the practice of law. Is that not so?”

And that set the tone for the responses.

Heath Hamacher fashioned a fine article out of his questions and my answers. It’s in the current issue of Lawyers Weekly. Sort of an old-guy-speaks piece.

MidLaw is setting out the original questions and answers. in two installments. The questions below address changes in the legal profession. A later installment will be biographical ones.

LW:   What problems exist today that did not exist when you began practicing law?

MIDLAW:   Since I began practicing law, American society and the world economy have grown and expanded and become exponentially more complex. At this moment, we are in a time of huge social and economic change. All that growth and complexity and change depend critically on the law and legal system evolving to match it. Needs for legal services have grown wildly.

Our system for delivery of legal services has not kept pace.  North Carolina’s court system is underfunded. People with average to low wealth have limited access to legal services. And, our traditional system of “full service” law firms in the partnership form, responds very imperfectly to the needs before us.

LW:   What will it take to fix these problems?

MIDLAW:   We need to reinvent our system for delivering legal services, which we are well along the way to doing. We are behind the curve, but we are catching up.

New institutions, alternative services providers and new practice settings are developing almost daily. And, many organizations now have sophisticated legal departments that have evolved into really impressive contexts for professional practice.

At the core of this, we need to rethink law firms in fundamental ways – both to ensure that firms respond better to clients’ needs, and also to be sure that law firms continue to be fun and fulfilling settings for practitioners. And some firms are going there.

North Carolina probably needs to reinvent the courts system from top to bottom. Anyway, the courts need more resources.

Low wealth people must get better access to legal services. Our society is so complex. The most mundane aspects of life are bound by laws and rules. But as many as half our citizens can’t afford the expense of untangling legal snarls when they occur, or planning to avoid them. I think this is going to require radical new ways of delivering legal services. And, again, more money.

LW:   What is your biggest concern right now regarding the practice of law and what needs to be improved?

MIDLAW:   My biggest concern right now is the plight of new lawyers. So many new graduates don’t find jobs. Whether they get jobs or not, our traditional systems for bringing new lawyers into the practice and enculturating them into the community of lawyers, aren’t working the way they used to. The profession is segmenting. Lawyers have less and less in common, and less basis for trusting each other. That is clogging the system, and it makes the practice of law less gratifying for lawyers.

LW:   The practice of law has clearly changed since you began practicing. Have you seen positive changes? If so, what are they?

MIDLAW:   In your earlier questions, you asked me about problems so I gave you problems. But please understand: I believe that positive changes abound. Our law firm had a planning retreat last weekend; and our partner, Jim Williams, who is far, far older than I am, said the same thing. He said, “Now is the best time there has ever been to practice law.” He is absolutely right.

Let me list some positive changes (there are so many):

  1. The bar is much more sophisticated than in the past, and are therefore able to be of immediate assistance to clients who need top-notch, sophisticated solutions.
  2. Access to the law and legal resources for lawyers is improved infinitely. Virtually all lawyers have access to virtually all the law virtually all the time – much of it at vastly reduced expense.
  3. Resources for continuing education and professional improvement have gone from essentially none (I remember the NC Bar Association’s first CLE courses), to constant and limitless. That has made a big difference in the quality of the law practice.
  4. All of the alternative dispute resolution processes – mediation, arbitration, etc. – have been great improvements over what we did before, settling on the courthouse steps, etc.
  5. Non-legal resources for lawyers have come into being. Lawyers may have been among the last professions to regularly access to things like self-improvement and quality-of-life resources and training; psychological, wellness and substance abuse counselling and help; and life transition services.
  6. Our tools of the trade are miracles: word processing, scanning, emailing and cell phones. Once, there was carbon paper and whiteout. Once, law firms in New York would charter airplanes to deliver papers to us to get them filed on time.
  7. We are in a time when the world needs lawyers more than ever before. What we do matters.
  8. Millennials sound to me like they may have values and attributes that suit them better to be lawyers than any generation since the 19th Century.

LW:   You said that North Carolina is one of the finest places in the world and needs well-educated lawyers to lead and make it the best. Tell me about that.

MIDLAW:   North Carolina has always been a tapestry of small towns with distinctive, vibrant and interesting local cultures. Local people lead and define their local communities. Lawyers are key contributors to the infrastructure of communities. They are well educated critical thinkers; their training is values-based; and they are uniquely able to articulate community mores. Of course, lawyers are critical to commerce and to the system of justice; and lawyers are connectors. The good ones are peacemakers.

[To be continued in a future post. Return next week to MidLaw & Divers Items, to learn fascinating details of the scrivener’s personal life elicited by Lawyers Weekly reporter Heath Hamacher. Or, as Lawyers Weekly may prefer, get the current issue of that organ to see the entire interview, “edited for length and clarity”.]

The Trouble with Lawyers — new book identifies the challenges, suggests responses

Rhode bookThere’s a new book, another book, about the trouble with lawyers. It’s called The Trouble with Lawyers.

The National Law Journal has published a short interview with the the author, Stanford law professor Deborah Rhode. In that interview, Professor Rhode makes two points that have been made here before.

NLJ: What is the biggest challenge that the American bar is facing today?

Rhode: I think it’s a shameful irony that the nation with one of the world’s highest concentration of lawyers does such a poor job of making their services available to those who need help most. Over four-fifths of the legal needs of poor individuals are not being met. And that’s a problem with enormous social costs.

NLJ: Are law schools part of the problem or part of the solution?

Rhode: I think the one-size-fits-all model we currently have fails to address the diversity in what lawyers do. It just makes no sense to train in the same way someone who’s going to be doing divorces in a small town and the person who’s going to be doing financial mergers and acquisitions on Wall Street. We need to recognize the diversity in legal tasks and to have corresponding diversity in legal education. The book argues for having one-year, two-year and three-year degrees.

Deborah Rhode is a Stanford law professor, said to be the nation’s most frequently cited scholar on legal ethics. She’s a past president of the Association of American Law Schools.

If nothing else, it’s instructive to see which issues are rising to the top: the two identified above and others also addressed in the book.