Pathway to justice must not be blocked

Issue December 2003

"In last resort all rights, all legal rights, depend upon the ability of one citizen, no matter how humble, to protect himself through the courts if any invasion of his rights is attempted by any other citizen, no matter how powerful." - Reginald Heber Smith, Legal Counsel,
Boston Legal Aid Society, 1919

Recently, Supreme Judicial Court Chief Justice Margaret H. Marshall was the keynote speaker at the Hampden County Bar Association's Legislative and Judicial Dinner. At that dinner, Chief Justice Marshall spoke of our judicial system in relation to three "pillars of justice": (1) substantive justice, (2) the administration of justice and (3) access to justice. Chief Justice Marshall defined substantive justice as the quality of decisions made by our judiciary. Put in the form of a question, how do our courts do in rendering fair, intelligent decisions regardless of who the litigants are that stand before the bench? Justifiably, Chief Justice Marshall gave our judiciary high grades for substantive justice.

She then defined the administration of justice as how our courts procedurally carry out their business. Chief Justice Marshall gave the judicial system a lower grade for the administration of justice, but one that she felt would improve as various initiatives are undertaken, such as court modeling, more consistent application of time standards and "best practices" for the courts.

As her third pillar of justice, Chief Justice Marshall identified the need of our citizenry to have equal access to justice. She felt that much more needed to be done in this area, a sentiment borne out by the recent Legal Needs Assessment undertaken by the Massachusetts Legal Assistance Corporation. This comprehensive study, the first undertaken in a decade, showed an alarming increase in unmet legal needs of the poor, particularly in the areas of housing and health care.

The issue of unmet legal needs is not a new one and our profession has historically recognized the significant challenge to equal access to justice that it presents. Although there is always more that can and should be done, the bar has been proactive in many different ways, from one-on-one pro bono efforts with individual clients, to organized Lawyer for the Day programs, to the annual Walk to the Hill in support of legal services funding. As we move into the future, we will undoubtedly continue to respond to this challenge and, perhaps one day, come closer to eliminating financial status as an access to justice issue.

Chief Justice Marshall's words, however, caused me to reflect further on the concept of access to justice and what that truly means. While it has justifiably come to be associated with legal services for the indigent, it has a much broader scope - and one crucial to a free and democratic society. As the opening quote implies, the existence of the rights that we associate with our membership in a democratic society is only the first threshold. Just as importantly, the mere existence of those rights is meaningless if the path to the exercise of those rights is obstructed or if the doors to the forum in which those rights can be freely and fairly exercised are blocked.

In this new millennium, there is growing evidence of a conservative backlash that would interfere with "access to justice" by shrinking rights and hampering the attorney-client relationship. It is critical that these efforts do not go unnoticed. Consequently, when such activity is brought to light, we as a profession must call for strict scrutiny of the underlying rationale. If the rationale cannot withstand the scrutiny, we must work together for repeal, retraction or defeat.

Several examples abound on both the state and federal level.

An "anniversary fee" for state civil case filings has recently been enacted. This has occurred despite its disconnect with the realities of getting a court to try your case within a reasonable time. During the last budget cycle, Governor Romney vetoed all funding for civil legal services for the poor and a significant portion of funding for indigent criminal defense representation. Tort reform was a plank in the governor's campaign platform and is likely to reemerge in the not-too-distant future. On the federal front, significant efforts have been undertaken to cap recoveries for actual damages and federalize medical malpractice liability.

More obscurely, rules adopted by the Securities and Exchange Commission to implement the Sarbanes-Oxley Act of 2002 establish a code of conduct for attorneys that permits the disclosure of client confidences in certain circumstances and without advance notice to the client. Those rules also permit the SEC to sanction counsel for non-compliance with the Act, but gives the attorney the opportunity to avoid sanctions by revealing those client confidences. In pitting the attorney's self-interest against his or her client's, the casualty will almost certainly be the attorney-client relationship. The SEC also originally proposed "noisy withdrawal" provisions that could further pit lawyer against client. Although these "noisy withdrawal" provisions have not been adopted at the moment, it is doubtful that this delay signifies a permanent disappearance.

From another direction, the Federal Trade Commission has attempted to classify attorneys as "financial institutions" and apply the disclosure requirements of the Gramm-Leach-Bliley Act of 1999 to them. At first blush, requiring attorneys to tell their clients for whom they hold money that they won't disclose information concerning those funds (something clients hopefully already know) might seem innocuous. With an administration in Washington that has made no secret of its distaste for the legal profession, imposing an unnecessary and confusing disclosure requirement may be yet one more subtle attack on the attorney-client relationship.

A year ago, the proposed rewriting of the bankruptcy code was narrowly defeated in Congress when it became fortuitously attached to an abortion amendment. It is back again with its requirement that debtor's counsel certify his or her client's bankruptcy schedules and ability to satisfy certain payment terms. If passed, this bill and its certification requirements open a very wide door to impose sanctions upon an attorney for facts that are essentially unknowable by that attorney. In turn, such potential liability will undoubtedly have a chilling effect upon a debtor's ability to find an attorney willing to take his or her matter.

These few examples of lawmaking directed at the attorney-client relationship suggest a concerted backdoor effort to undermine the rights of our citizens by interfering with their ability to be effectively represented by an attorney. It goes without saying that interference with access to justice that is done indirectly is as effectively accomplished as when it is done directly.

We in America have constructed a marvelous system of government with a judicial branch that permits the peaceful and fair resolution of disputes among our citizens. Its "blood in the streets" alternative is an unpleasant one that no one would embrace. Nevertheless, if a wrong cannot be remedied or needed legal advice cannot be obtained because of these attacks upon the attorney-client relationship, that peaceful system of justice is threatened.

As attorneys, we cannot minimize our role in this broader vision of justice. At the request of a non-lawyer colleague and friend, I recently attempted to identify historical figures with whom I associate justice. To cause me to step out of my normal milieu, I was asked to select persons who were neither lawyers nor judges. I thought long and hard and could not come up with much more than Nelson Mandela and another name or two. Some may say it was professional myopia that caused my difficulty. I think instead that my struggle was a reflection of the reality that lawyers and judges are the primary champions of justice in our society and in the world. We each do so individually whether we appear in court or attempt to counsel a client down a legal path. As a profession, we champion justice by our awareness of the importance of a system that permits access for all. More importantly, we champion justice by our collective vigilance and protection of the access upon which that justice depends.

If lawyers were to disappear, would justice ever be obtainable? In the words of Shakespeare, would chaos reign if first we killed all the lawyers? Regardless of our politics, I think that we all know the answer. It is incumbent upon us to recognize our responsibility to preserve that third pillar of justice and do something about it.

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