Guarding the Rule of Law Means Providing Access to Legal Services

At the American Bar Association (ABA) and National Conference of Bar Presidents (NCBP) Annual Meetings in Chicago last week, many speakers addressed lawyer groups on all manner of topics. Some of the highlights included United States Deputy Attorney General Rod Rosenstein, black civil rights attorney Fred Gray, and panelists on The Future is Now: What Does Access to Justice Look Like?  What tied these three together?

Assistant AG Rosenstein Inspires Lawyers to Guard the Rule of Law

Rod RosensteinRosenstein noted that the ABA includes lawyers with various disparate viewpoints. But he extolled that all lawyers should be united in advancing the rule of law in America and around the world.  He reminded lawyers that being a nation of laws means that we follow neutral principles of law rather than the whims of any one person in power.  Taking his audience on a bit of history lesson, he quoted Ben Franklin, the founding fathers, Supreme Court Justices and Abraham Lincoln as they talked about the struggles they faced in fashioning and furthering a republic in which the rule of law is the guiding principle.

Rosenstein explained that the duty is not only fulfilled in the professional life of a lawyer.  “Upholding the rule of law is not only about litigation in courtrooms.  It’s also about education in classrooms and living rooms.  Every lawyer should accept their duty to keep the republic sound by teaching its principles.”

This message is ever more important when, as we have written about before, over 80% of the civil legal needs of low-income Americans is inadequately addressed.

Attorney Fred Gray Motivates Lawyers to Fight Injustice

Fred GrayKnown as “the lawyer of civil rights” 87 year-old Fred Gray has been practicing law for over 60 years.  Gray shared with the NCBP audience his story of growing up in Montgomery Alabama and that of some of his famous clients, including Rosa Parks and Martin Luther King.  He told of succeeding against all odds—he initially was denied admission to Alabama’s segregated law school—to become one of the most successful civil rights attorneys of the twentieth century.

Gray is a living exemplar of one man who literally changed the course of legal history.  One of his landmark cases was a suit against Governor George Wallace and the State of Alabama that resulted in a court order mandating that the Governor and the State protect marchers walking from Selma to Montgomery to present their grievances about not being allowed to vote.  As recounted in his book, Bus Ride to Justice, Changing the System by the System, Gray says he became a lawyer to “destroy segregation in our country.”  He inspired and reminded lawyers of the important role they should play in challenging the constitutionality of government actions.

Panelists Henderson, Walters, Phelps and Kilbride Push for Access to Justice

The panel called, The Future is Now: What Does Access to Justice Look Like? continued the theme that lawyers need to be at the forefront of change.

Ed Walters, CEO and founder of Fastcase, set the stage for the discussion with slides showing the huge access to justice gap, current untapped market for legal services and challenging a common perception by lawyers that doing anything differently is inherently unethical. A frequent presenter and new author on the ethical imperative that lawyers make data-driven decisions, Walters pointed out that it is unconscionable that the legal profession fails to adequately meet the civil legal needs of one out of every five Americans.

Prof. Bill Henderson, of Indiana University Maurer School of Law, who similarly presented at the Commission’s Future is Now conference, pointed out that the legal profession is divided into two segments, one serving individuals and one serving corporations. Research shows that the “people law” sector shrank by over 10% (nearly $7 billion) between 2007 and 2012 when the number of self-represented litigants in state courts continued to climb.

Justice Thomas Kilbride of the Illinois Supreme Court agreed, pointing out the average citizen in Illinois cannot afford to hire a lawyer and that we are facing a “tsunami” of self-represented litigants.  He pointed out that pro bono service is helpful but will not solve the problem.  He also explained various initiatives of the Access to Justice Commission to make the system more understandable and accessible to people untrained as lawyers.

John Phelps, Chief Executive Officer and Director of the State Bar of Arizona, explained the bar’s new online Find a Lawyer program.  Consumers looking for attorneys can post information about their case and then select whether they are looking for pro bono or are willing to pay a low, medium, or high amount of money (for the most experienced lawyers).  Lawyers can take a pro bono matter for free or if they want to take a case for a fee, pay $300 per year. The video directed to lawyers, played for the participants, explained there was no charge per case and no fee splitting.

Fee-splitting segued into perhaps the most interesting part of the panel: whether the ethical rules should in fact be modified to better serve consumers. Research clearly shows that individuals are actively avoiding lawyers.  They are instead going to online resources and services.  Henderson, who just completed a report for the State Bar of California that has spurred that Bar to form a Task Force to consider regulatory reform, advocates for changes in Rule 5.4 (adopted in most states and prohibiting lawyers from splitting legal fees with “non-lawyers”). He said there needs to be greater collaboration between lawyers and allied professionals in other disciplines, and that the profession is at “an inflection point.”  Walters agreed, noting that nurse practitioners are not “non-doctors” and advocating for the legal counterpart to minute clinics available to take an ailing child when the doctor’s office may be closed or too far away.

In commenting on the attitude of the judiciary toward changing the Rules of Professional Conduct, Justice Kilbride reminded the audience that supreme court justices are removed from the practice of law.  “We are counting on you, bar leaders and practicing lawyers, to bring information to us,” he explained.

Lawyers Can’t Be Proper Guardians of the Rule of Law Without Addressing Consumers’ Lack of Access to Legal Services

What ties these three programs of the recent ABA/NCBP meetings together?  How we view our work as lawyers.  In his remarks, Rosenstein told a parable that I have heard and repeat in a slightly different iteration:

A woman approached three stoneworkers building a wall.  She asked the first one what he was doing. The man shrugged his shoulders and described what his work meant to him: “I’m earning a living.”

She asked the second man what he was doing, and he narrowly described his personal role in the process as “I’m placing stones one on top of another.”

When she asked the same question of the third man, his face lit up as he explained how his work affects others: “I’m helping to build a cathedral where people will be uplifted for generations to come.”

I agree with the import of the parable:  We lawyers do more than earn a living.  We do more than litigate individual cases. We are building the legal structure that will protect human liberty for generations to come.  We set the foundation for our successors and for that of our country.  We cannot shrug our shoulders while the foundation is crumbling around us.

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