Category Archives: Access to Justice

Antonin Scalia advocated for support of legal aid, fundamental to justice

United States Supreme Court Justice Antonin Scalia believed that the Legal Services Corporation (and, by extension, its client, Legal Aid of North Carolina) pursue equal justice, which is

the most fundamental of American ideals and they pursue equal justice in those areas of life most important to the lives of our citizens. The bulk of [their] cases, if you look at their annual report, involve domestic violence, real estate foreclosures and evictions, child custody, and denial of veterans’ benefits, unemployment compensation, and other governmental benefits. More than a third of the cases closed by [Legal Services] grantees in 2013 involved family law and more than a quarter of them housing.

Scalia asked, “Can there be justice if it is not equal, can there be a just society when some do not have justice?”

And he answered,

Equality, equal treatment is perhaps the most fundamental element of justice. . . . And in today’s law-ridden society, denial of access to professional legal assistance is denial of equal justice.”

It’s fair (more than fair, it’s necessary ) to explore alternative means of delivering equal justice: technology, delivery of services by others than licensed lawyers, new sources of funding. Indeed, it’s reasonable to hope that those who develop new alternatives will be able to do it on a for-profit basis and make lots of money. (The scale is surely there.)

But it’s not right to cut funds before alternatives are available.

Justice Scalia said:

Equality … is perhaps the most fundamental element of justice.

NC legal system — invest or divest?

In the past year the North Carolina legislature enacted cuts or reductions (or proposed to) in the following, which might be characterized as the infrastructure of North Carolina’s legal system.

The number of trial court judges (emergency judges)

               The number of appellate judges

The budget (therefore staff) of the Department of Justice

Funds (therefore staff) for Legal Aid of North Carolina (formerly taken from filing fees)

Funds for the UNC Law School

Dues (paid by lawyers) that fund the North Carolina State Bar.

In periods leading to this year, North Carolina’s population has grown and its economy has grown. Commerce has picked up and unemployment has dropped. The State has pursued a policy of promoting trade and business investment in North Carolina by companies outside the state and outside the United States.

Unless North Carolina’s legal system was overfunded in the past, the conclusion might be reached that more, not fewer, resources are needed to maintain what we’ve got.

The American justice system is credited as a core element of the economic and cultural success of the United States. Enforcement of obligations (commercial and other) —predictably, impartially, efficiently and effectively — is a big part of what made America great.

And, actually, we are at a time when improvements are needed.

Closing the loop on legal aid, not in a good way

The budget finally adopted by North Carolina’s General Assembly entirely eliminates funding for the State’s legal aid agencies ($1.7 million).

Until now, that amount had been generated by taking $1.50 from every court fee and distributing it to Legal Aid of North Carolina, Legal Services of Southern Piedmont and Pisgah Legal Services, which provide legal services to poor people in North Carolina.

The point has been made here that as many as a third of North Carolina citizens qualify for legal aid. Sixty percent of Legal Aid of North Carolina’s clients earn less than $15,000 a year.

Those people, like the rest of us, must have access to the legal system, even if they can’t afford it, where

  • They are victims of domestic violence
  • They don’t get child support
  • They need to create guardianships for their grandchildren
  • They get ripped off by scammers of the elderly
  • They get fouled up applying for legislated benefits, including veterans benefits

and in a great range of other cases.

This is not a partisan issue.

21st Century society is complex. It cannot move without legal process. Everyone must use the system. And everybody needs access to legal services when they do.

Legal aid helps people get a hearing. It does not engage in politics. It does not pursue social change. And it does not target interest groups.

We all need the legal system to work at a minimal level for everybody who’s involved with it. Otherwise, over time bigger problems will develop.

For the General Assembly to stop a small portion of court fees from going to fund legal aid is bad for everyone, not just poor people.

The legislature made a mistake.

 

NC legislature proposes to eliminate access to civil justice funds — troubling

Word has come that the North Carolina House of Representatives’ Appropriations Committee has proposed a provision for the 2017 Budget entitled “Eliminate Access to Civil Justice Funds.” It would eliminate approximately $1.7 million in combined funding for Legal Aid of North Carolina, Legal Services of Southern Piedmont, and Pisgah Legal Services. Eliminating Access to Civil Justice Funds would cause drastic reductions in legal aid agencies’ services to those most in need, undermining equal access to justice for North Carolina citizens.

Take this provision together with the President’s proposed federal budget, which eliminates funding for the Legal Services Corporation, and access to the justice system will be cut off for a large number of North Carolina’s neediest people.

This includes access to legal services in cases of domestic violence, for disabled persons, for veterans, and in so many other cases.

Some issues in everyone’s lives, important issues, can only be resolved with access to the justice system. People who cannot afford legal assistance and seek to represent themselves, clog the courts. When important issues are not resolved, people are diverted from productive pursuits.

We already have a problem because so many cannot afford access to the system.

Reductions from current funding levels will make things worse.

“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

nc-capitol

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.

capitoleep357picf-auto

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.

mendenhlll

Nereus Mendenhall

nereus_mendenhall_the_oaks-16

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.