By Latonia Haney Keith
McDermott Will & Emery
Our country's legal system is in crisis.The U.S. Census Bureau reported that another 2.6 million people slipped into poverty in the United States in 2010, resulting in 46.2 million Americans living below the federal poverty line. That's the highest number in the 52 years of reporting such figures. As poverty increases, more people find themselves requiring a lawyer to secure the basic necessities of life, but without the means to pay for the help. And, the economic collapse has led federal, state and local governments to slash funding for legal aid services. With demand for legal aid rising and supply dwindling, the "justice gap" is widening at a precipitous rate. We are left with the stark reality that only about 20 percent of the legal needs of the poor are being met.
In August 2011, the board of directors of the Legal Services Corp., an independent corporation created by Congress that funds civil legal aid programs, convened its Pro Bono Task Force. Later the same month, the National Legal Aid & Defender Association, the largest association of legal aid professionals, launched its Blueprint for Justice: Rethink. Retool. Rebuildprogram and, in doing so, convened its own blue ribbon commission. During the National Celebration of Pro Bono in October, the American Bar Association hosted its inaugural Pro Bono Summit in Washington, D.C. In December, the Pro Bono Institute, the nonprofit that governs the Law Firm Pro Bono Challenge, organized the first of a series of regional convocations in Minnesota.
All of these commissions and conferences brought together some combination of lawyers from the judiciary, academia, corporations, private practice and the legal aid community. And each focused on examining the same basic questions: What are the best practices for improving the delivery of legal aid in both urban and rural communities? How can we better leverage the private bar? How can we replicate successful public/private partnerships? How can we address structural or systemic inequities to decrease the demand for legal aid?
There appears to be growing consensus on some basic points. First, pro bono involvement by the private bar is currently the best way to counteract the dwindling resources of legal aid organizations. Second, as large law firms represent only 15 percent of the private bar, increased participation by lawyers working in small to midsize firms and corporate legal departments and as solo practitioners is crucial to significantly improving access to justice, particularly for rural communities. Third, professionalization of the pro bono legal services delivery system is critically important. And, finally, we can serve more people in more areas, both geographic and substantive, by leveraging technology in creative ways.
The discussions also raised concrete ideas to improving access to justice, including:
• Granting Continuing Legal Education credit for pro bono time;
• Decreasing malpractice insurance and bar fees or instituting loan forgiveness programs for solo practitioners or small-firm lawyers;
• Adopting rules to allow in-house attorneys who are barred outside jurisdictions in which they work to provide pro bono legal services;
• Obtaining scheduling priority for pro bono cases and greater employment of technology in the courts;
• Recognizing clinic and pro bono experience on law school transcripts; and
• Modifying (and enforcing) ethical and bar registration rules to require attorneys to provide a certain number of hours to pro bono work or a financial contribution to legal aid organizations (at a level commensurate with income). And, that's just a few.
With as much time and intellectual capital as has been spent on brainstorming solutions to close the justice gap, we have arrived at the point at which, while discussions and thought generation should continue — action, leadership and collaboration is imperative. The challenge in 2012 is to take the concrete, realistic ideas on the table and act on a national scale. Some of the ideas raised are not particularly novel and several have been on the table for years. But none has become a reality on a scale commensurate with the problem. Why is that?
Part of the answer lies in the lack of true cooperation among the national players as each attempts to make its mark in this crisis. But with each organization plying its own course, we are not any closer to developing a concrete plan to implement the ideas on any meaningful scale. Multiple commissions focused on the same issues lead to duplication of efforts, incomplete solutions and missed opportunities to leverage the thought power, manpower and connections. Real partnership among the national players is critical to moving forward. The silos must be dissolved and a cohesive plan for action — both short-term and long-term — developed. To be clear, this is not a call for just the sharing of strategies or notes from various meetings. Rather, this is a call for the pooling of resources to implement solutions and effect real change systematically. There is no room for ego. Failure to work together will lead to failure and those already faced with poverty will bear the brunt of our ineffectiveness. It is time we choose to act and act in concert. I'm ready … are you?