Lawyers have responsibility to preserve 'sacred ideal of justice'

Issue April 2005 By Krista Zanin

Photos by David Gordon
Engaging in a thoughtful discussion during the annual Breakfast with the Judges are (from left) Judge Allan van Gestel, who heads the Suffolk County Superior Court Business Litigation Session, attorney and Annual Conference chair David W. White-Lief and Supreme Judicial Court Chief Justice Margaret H. Marshall.
Judge Hiller Zobel discusses contingent fee practice during a session of the Bench/Bar Forum.
During a "Briefings" session on Summary Judgment in Employment Law on Friday, March 4, panelists (from left) Chief Judge William G. Young of the U.S. District Court, Superior Court Judge Stephen E. Neel, attorney Patrick Bannon of Gadsby & Hannah, LLP and attorney Harvey Schwartz of Rodgers, Powers & Schwartz give pointers on summary judgment issues.
Professor David Hall of Northeastern University School of Law calls on lawyers to continue to chase the "sacred ideal of justice" - access to justice for all individuals - during the plenary session of the Bench/Bar Forum on Saturday, March 5.
A number of prominent judges, law professors and lawyers engaged in thought-provoking discussion on challenges facing legal representation for the poor during this year's Bench/Bar Forums.

The discussion included an insightful address by David Hall, professor at Northeastern University School of Law, who described access to justice as a "search for the sacred."

"With respect to the bench and bar, access to the legal system, and thus to justice, is a fundamental right in the society … This is not just something dispensed to the privileged and the favored few, but should be available to all," Hall said. "…The most sacred ideal of the legal profession is access to the system of justice."

Hall was among eight panelists taking part in the plenary session "Affording Justice: Preserving and Expanding Legal Representation for Individual Citizens," which took place during Annual Conference 2005 on Saturday, March 5. Breakout discussions included topics on the future of court-appointed counsel; reconnecting self-represented litigants with the private bar; and contingent fee practice.

The day also included an annual address from Supreme Judicial Court Chief Justice Margaret H. Marshall, who announced the establishment of the Massachusetts Access to Justice Commission, which was developed by recommendations from the Massachusetts State Planning Board for Civil Legal Services.

The committee, chaired by former SJC Chief Justice Herbert P. Wilkins, will consider the many issues involved in the delivery of civil legal services.

"The judiciary has much more to do to broaden access to justice," Marshall said. "Yet much is beyond our control. The judicial branch does not control the harsh economics of the legal profession that spurs the hot pursuit of billable hours. We do not set the attorney pay scale that seems at times almost punitive toward those who would serve the disadvantaged or the public at large. We cannot lift the mountain of student debt that weighs down our most recently admitted colleagues, or slow down the fever-pace of modern life. But with the help of the organized bar, the judicial branch can call attention to these problems, suggest solutions, work with others to educate lawmakers and the public about the significance of our foundational promise of equal justice for all. We can work together to make our profession stronger, healthier, for those it serves and those who serve within it."

During the plenary session on "Affording Justice," Supreme Judicial Court Justice John M. Greaney, who chaired the session, characterized this era as the "best of times and the worst of times."

"It is the best of times because legal professionals are committed to the fundamental notion that everyone, whether rich or poor, should have a lawyer in serious criminal cases and in serious civil cases," Greaney said. "It is the worst of times because there is no guarantee … the guarantee is eroding due to many subfactors."

Greaney said the rising number of pro se litigants, principally in housing court and probate court, is far exceeding the number of resources and lawyers available. In addition, tort reform efforts are moving ahead on issues affecting access to justice, such as contingency fee agreement cases.

Panelists also described the impact low pay rates are having on court-appointed counsel. In addition to describing the issues confronting access to justice, they also pinpointed examples of things lawyers and judges can do to improve the system.

Hall said part of the problem lies with the legal profession becoming "slightly anesthetized" to the pains of injustice and inequality and thus are living comfortably by not seeing the ideals of justice and equality achieved from urban centers such as Baltimore and New York to rural regions including Montana and Iowa.

A member of the board of directors of the Legal Services Corporation, Hall called on lawyers to continue advocating for funding for legal services.

"We each have a responsibility to chase this sacred ideal of justice … to see it as another fundamental way to chase the illusive and sacred ideal of justice," Hall said. "It is even more crucial on the criminal side when so much more is at stake."

Issues corrupting this sacred ideal, Hall said, range from underpaid bar advocates to attorneys being encouraged to cut corners on legal cases because of time and cost demands.

"I still see the practice of law as a sacred calling … but I also recognize this is a precious vessel, which in the wrong hands can be corrupted and spoiled," Hall said. "The more we give ourselves to others and this sacred ideal, the more successful we will be in our profession and as human beings."

As he addressed attorneys and judges gathered, William J. Leahy, chief counsel for Committee for Public Counsel Services, reminded the crowd of the important ideals in the historic right-to-counsel case of Gideon v. Wainwright.

"I think back to Gideon and that wonderful moral statement by Justice Black …

'The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours,'" Leahy said.

Leahy discussed a recent ABA study that found the representation of indigent individuals is shamefully inadequate. He also pointed to an MBA study of 10 years ago that called for immediate attention to the delivery of legal services to the indigent, labeling the issue an imminent crisis. And, Leahy said, it is affecting both criminal and civil cases as 19 percent of the cases CPCS handles deal with civil cases from care and protection issues to termination of parental rights actions.

Compensation for bar advocates has been a serious issue for the bar for a decade. It reached crisis proportions in the last year when attorneys had to stop accepting cases due to the pay rates, which are among the lowest in the country.

Leahy said a state commission, which is in place to review and recommend changes, should have a report ready within a few weeks. He said members are showing a great deal of respect for legal services and "I predict a great deal of political courage." He also noticed a "sea change of attitude" from elected officials.

"This time the moment must be seized and it will be seized," Leahy said.

Judge Lynda M. Connolly, chief justice for the district court department, urged the bench and bar to both work for a solution. She called on judges to do what they can in their roles to improve the system.

"We are all in this together," Connolly said. "The role of the judiciary … in this challenge seems to me more than just calling balls and strikes. Essentially we as judges can be involved in the dialogue and discussion and management of things that come by us on a daily basis."

"As a member of the judiciary and the chief justice of the court that relies on bar counsel more than any other department, I speak on behalf of my colleagues in standing in solidarity for the increase in compensation," Connolly said.

Some courts, such as the Hampshire Probate and Family Court, are trying new projects to improve access to justice, said Judge Gail Perlman, first justice of that court.

With approximately 50,000 pro se litigants filing in the probate and family court yearly, the court system has its plate full with individuals who have little understanding of the law. Also, cases are becoming more complex today than they were years ago from more recognized illiteracy to custody cases dealing with issues across state lines.

"When you add this to the lack of an attorney, it is a recipe for a massive institutional challenge," Perlman said.

Another panelist, Richard Zorza, said the majority of self-represented litigants in court today cannot afford an attorney while there is a small population of individuals who do not hire an attorney because they don't trust lawyers.

"A small number choose to reject lawyers because they don't trust lawyers and their behavior in court shows that," Zorza said. "But the vast majority of self-represented litigants want to play by the rules. Our job is to build a system and a system of rules in which they can play."

A number of communities across the country are trying new methods to do just that, he said, including California, which has self-represented litigant centers in every county. Other courts are designing forms that are easier to understand. Innovations are becoming popular because they save courts time and money. For instance, San Diego saw a 23 percent reduction in court-window time once the centers were up and running, he said.

"They improve life for lawyers because the courts move more smoothly and it improves public trust and confidence in the system," Zorza said.

Still, challenges remain, particularly in bitterly contested court cases as well as those claims dealing with complex issues.

"We have got to find other ways … it's not a new burden for lawyers, it's a new opportunity," Zorza said.

An additional burden facing access to justice is tort reform, or as panelist Leo Boyle called it "tort deform."

Tort reform is impacting access to justice, Boyle said, because corporate interests are being allowed to insulate themselves from the reach of individuals harmed by their actions.

He said tort reform is but "one tentacle of a dangerous octopus." The others, he said, include the increasing loss of power by regulatory agencies, such as the Environmental Protection Agency, as well as longstanding efforts to disempower labor unions. The tort system may be the last frontier for individuals' access to justice, but that is now under attack, Boyle said.

"The desire of large corporate interests is to be completely unregulated," Boyle said. "The tort system is giving them a real problem. Juries can't be lobbied. Juries can't be bought. Juries can't be run out of office."