Steering clear

Issue March 2009 By Ed W. McIntyre

“We Are the People We’ve Been Waiting For,as June Jordan reminds each of us in her Poem for South African Women.

That the courts and the justice system are caught in a perfect storm of circumstances there can be no doubt. I am confident, however, that together we can steer ourselves clear and end up smarter and stronger for the experience. Each one of us must accept the challenge and continue to volunteer time and talents to a greater degree.

In the face of Gov. Deval Patrick’s proposed budget not granting adequate funding for our court system, the Massachusetts Bar Association will work diligently to seek level fiscal year 2010 funding for the courts. Even level court funding, however, will not meet the unmet civil legal needs of low-income citizens, especially given the catastrophic losses in legal services funding sources.

In considering what more the bar and bench can do to address those needs, I revisited some crucial reports set forth by the bar and bench in recent years. Those included the May 2003 Policy Implications of the Massachusetts Legal Needs Survey; the Massachusetts Access to Justice Commission’s June 2007 Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court; the Massachusetts Trial Court Working Groups’ Recommendations to the Standing Committee on Dispute Resolution September 2006; and the Supreme Judicial Court Steering Committee on Self-Represented Litigants’ November 2008 report entitled Addressing the Needs of Self-Represented Litigants in Our Court. In concert with the review of these important reports, the MBA surveyed its affiliated county bar associations regarding their respective volunteer efforts with their area courts that improve access to justice across the state.

From canvassing all the mentioned resources, the areas of housing and family and consumer matters surfaced as needing immediate concentration.

According to the Policy Implications of the Massachusetts Legal Needs Survey, housing problems account for the highest rate of unmet needs. These include violations of housing codes, housing discrimination, eviction threats and other serious disagreements with landlords, shortage of public housing (Section 8 housing, landlords’ refusal to accept Section 8 vouchers and unfair denial of public housing) and foreclosure.

According to the Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court, the Housing Court’s Lawyer for the Day Program in coordination with the Boston Bar Association effectively addresses housing problems. The Volunteer Lawyers Project and the Greater Boston Legal Services train volunteer lawyers to sit at separate tables to advise landlords and tenants of their respective rights. Where one party is unrepresented, volunteer lawyers will attempt to mediate the dispute. A favorable Housing Court standing order does not commit the lawyer to the case, should the mediation fail.

In the Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court, Samuel “Sandy” B. Moskowitz, a participant in the Boston Housing Court’s Lawyer for the Day and an Adams Pro Bono Award recipient, is quoted: “There’s nothing like the feeling when you’re walking back to your office in the morning after having staffed that table and . . . realize that you helped somebody save their home. These are experiences that a lot of people went to law school thinking that they’re going to get in their careers, that as you move on through your career that you lose and miss.”

With 10 county bar associations currently not having a Housing Court Lawyer for the Day program, and with Plymouth being the only court working on such a program, the BBA’s example presents an opportunity for bench and bar leaders and legal services organizations to configure a process to the demonstrable needs of people.

 The Massachusetts Access to Justice Commission has found that the use of alternative dispute resolution in landlord/tenant conflicts has been used successfully to avoid eviction proceedings. Among the county bar associations, only Essex County offers a conciliation service in the Housing Court. Essex conciliators work also in the District, Probate and Family and the Superior Court. The Norfolk County Bar Association is developing a similar conciliation program.

Conciliation also offers potential benefit in Probate and Family Court cases. Given the delicate, life-altering matters processed by family law attorneys and decided by the court’s judges, the more legal services and support from the bar, the better. An increased magnitude of volunteerism from attorneys cannot be underestimated in this area of law.

I was pleased to learn that Barnstable County offers conciliation in the District Court and has a “work-in-progress” for the Probate and Family Court. Hampden and Hampshire counties currently offer conciliation services in the Probate and Family Court. When polled, several county bar associations expressed an interest in obtaining the eight-hour conciliation training requirement in accordance with the Uniform Rules on Dispute Resolution; while a few expressed a possible interest. The need for these highly efficient and effective (and low-cost) programs cannot be understated given the circumstances that threaten our system of justice, including the bulging pro se phenomena.

Addressing the Needs of Self-Represented Litigants in Our Court reports that at least 100,000 litigants represent themselves in civil matters and that, depending upon the county, as many as 80 percent of family cases involve at least one self-represented party. The lack of representation is alarming considering what is at stake in these cases — divorce, child support, custody, visitation, domestic violence, restraining orders, etc. According to the SJC Steering Committee on Self-Represented Litigants, lack of financial resources is the primary reason for the continued growth in self-representation.

Similar to the positive impacts realized in the Housing Court, the expansion of Lawyer for the Day programs in Family Court can help ease the strain these cases put on dwindling court resources, as recommended in Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court. At present, nine county bar associations either run or coordinate Family Court Lawyer for the Day programs. All of these programs would welcome the addition of more well-trained lawyers who are willing to volunteer their time and talents. Essex County’s example seems to be an ideal model for other counties as it has had much success in addressing the legal needs of citizens across all income levels.

Consumer issues compose the third area of extensive unmet legal needs of low-income citizens. Like with housing and family-related cases, bench-bar collaborations could play a key role in addressing today’s consumer-related cases, when some case outcomes can result with a family’s utilities being cut off. As noted in the Implications 2003 report, one quarter of low-income Massachusetts households reported legal needs related to consumer problems, including 12 percent who reported an unmet consumer problem. Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court expressed concerns about debt collection practices in the District Courts and regarding lopsided small claims proceedings when only one party is represented.

Only the Essex County Bar Association offers consumers conciliation services. Although there is no systemic, coordinated effort, ADR services are sprinkled about the small claims sessions in District Courts throughout Worcester County. With the October 2008 suspension of funding for court-annexed ADR, the fate of community-based mediation programs across the commonwealth hangs by the slimmest of threads. Given ADR’s successful niche in District Court, lawyers from local and county bar associations could assume this important service while acquiring lifelong skills that are readily transferable to the practice of law.

While the conventional, and more adversarial litigation model may be considered, the best for obtaining the “truth” in numerous cases, citizens without the means to hire an attorney are looking for resolution achieved by less confrontational means and are willing to accept adjustment over adjudication. The Essex County conciliation and mediation programs and others mentioned earlier reinforce that fact.

Some may say that lawyers already do enough pro bono. Do more anyway. Some may say if we volunteer even more pro bono, institutional change will never occur. Volunteer anyway. Some may say that other professions do not do nearly as much as we do. Help anyway. You’ll be thanked a thousand times over, and like “Sandy” Moskowitz, you’ll walk with a lighter step, a smile on your face and the knowledge you’ve done the right thing.