Access to justice
BY KARA CARNLEY-MURRHEE (1L)
Nearly three years of economic recession have reduced state funding of the courts, resulting in layoffs and hiring freezes during a time when tens of thousands of foreclosure cases have flooded dockets. As courts struggle to manage the increased caseload with fewer resources, the gap in access to the courts has widened between the haves and the have-nots.
One might view these circumstances as a perfect storm threatening to swamp one of our country’s most basic civil rights, but many among Florida’s legal profession are making it their mission to steady the boat by increasing access to the courts for Florida’s most needy residents. Their efforts to implement better budgeting programs, increase availability of legal aid and assistance, and provide equal access to and protection under the law are proving to be safe harbor for many.
Spearheading the access to justice campaign on the national stage is Stephen Zack (JD 71), American Bar Association president and administrative partner of Boies, Schiller & Flexner LLP, in Miami. Advocating for adequate and appropriate funding for the judiciary is a priority for Zack during his tenure at the ABA helm.
“I watched the rule of law destroyed as a young teenager in Cuba, and the first knowledge that we were going to have, potentially, the loss of our liberty was the attack on the judiciary,” Zack said. “And the failure to adequately fund the judiciary becomes a direct attack on the judiciary. That’s why we have been focusing on the preservation of the judicial system.”
Many courts around the country have been closing due to inadequate funding, Zack said. Though Florida has not been forced to close any of its courthouse doors, its court system is funded at a percentage considerably below the national average — 0.7 percent of the state budget, compared to 1.81 percent in other states, as indicated in the report on Florida’s Budget Fiscal Year 2010-2011. The result is a judiciary that operates below maximum cost-efficiency — one that prevents judges from focusing on expeditiously resolving the cases before them.
“We just can’t operate like that,” Zack said. “The judiciary is a co-equal branch of government, and our democracy is founded on co-equal branches of government. Co-equal means co-equal, and that begins with funding. You can’t starve the justice system out of existence and expect justice.”
As the gap in judicial funding widens, the state’s most vulnerable citizens — the poor and indigent — will potentially be budgeted right out of their fundamental right for legal redress.
“We’re talking about a justice system that serves all Americans — the rich, the middle class and the poor,” Zack said. “Particularly when we’re talking about the poor, we have a justice gap in this country. Eighty percent of poor people cannot afford a lawyer and therefore have no access. They have no ability to redress their grievances, which is guaranteed by our Constitution.”
One way Florida’s lawyers can help is by volunteering with a local legal aid organization or pro bono program, said Sheila Seig (JD 82), former pro bono coordinator of Bay Area Legal Services’ Volunteer Lawyers Program in Tampa. Seig now serves as an independent contractor for Bay Area, but worked with the organization for 15 years in its pro bono program. During her stint as pro bono coordinator, the program collaborated with local attorneys, judges, professional associations and local bar sections to create a variety of pro bono projects to provide free legal assistance to indigent clients in the community.
Under Seig’s watch, the program relocated its office to the courthouse in downtown Tampa to encourage a closer working relationship between program staff, judges and court officials and to make the program more accessible to attorneys working downtown who wanted to volunteer.
“The purpose of the pro bono program is to match indigent clients with private attorneys who are willing to donate their time and expertise. With the support from volunteers, we supplement and expand the legal services that Bay Area can provide.” Seig said.
As with most legal aid programs, individuals seeking legal assistance on civil matters can apply to Bay Area for help, Seig said, and if they meet certain eligibility requirements, they may be represented by a staff attorney or a volunteer attorney. But most legal aid organizations operate on limited resources and usually only very low-income families and individuals qualify to receive assistance.
“There is a significant number of people – a ‘gap group’ – who don’t qualify for legal aid, but also can’t afford to hire an attorney,” Seig said. “Legal aid programs have acknowledged this issue and are developing ways to provide more legal assistance to that gap group.”
One such program, staffed and operated by Bay Area, is the Legal Information Center (LIC), a self-help center located at the courthouse that assists individuals who are representing themselves in family, landlord/tenant, and small claims matters, Seig said.
“Pro se litigants can come in to the LIC and talk to our attorney about their civil legal issues,” Seig said. “The attorney can guide them and give them legal information — what forms they need, what type of action they could take, or how to file a petition or make a motion,” Seig said.
In recent years, Bay Area has expanded its services to pro se litigants by providing forms clinics. At the clinics, volunteer attorneys provide assistance in completing court-approved family law forms, Seig said.
“The LIC and the forms clinics have been an effective way for Bay Area to respond to the need for legal assistance for a large group of people who don’t qualify for legal aid,” she said.
Sylvia Walbolt (JD 63), shareholder in Carlton Fields in Tampa, has made pro bono service an integral part of her professional legal career by addressing unequal access to the law for vulnerable members of their communities.
“It is part of what we agree to do when we take our oath of admission,” Walbolt said. “Part of the exchange for the license to practice law is that we use our experience and expertise to help those who would not otherwise have access to the judicial system.”
Walbolt, recipient of the 2010 Pro Bono Publico Award of the American Bar Association Standing Committee on Pro Bono and Public Service, has established and served as the first chair of her firm’s pro bono committee and has represented a diverse group of pro bono clients, ranging from Holocaust survivors to prisoners on death row.
“There can be cases that, in very vital ways, affect the individual’s rights, such as when it involves life or liberty, as with the death penalty cases, or with child custody cases,” Walbolt said.
One of Walbolt’s pro bono clients was a widow of a migrant worker who died in a flash fire because the temporary trailer his employer provided as housing didn’t have a smoke detector. A wrongful-death law suit was brought on the widow’s behalf, but it was summarily denied. Walbolt was called to assist on the appeal, and she and her co-counsel successfully overturned the summary judgment.
“I think that was one of the most satisfying appellate wins of my career. It’s very satisfying to use your legal skills to help someone who otherwise would not have a lawyer, to be the voice of that person in court and to know you’ve made a real difference in their lives,” Walbolt said. “We live in a society in which the judicial system plays an increasing role, and if you don’t have access to the judicial system with the help of a lawyer, you’re just at an incredible disadvantage.”
But while the number of licensed attorneys in the state grows by about 2,500 attorneys annually, the number of pro bono hours has stagnated. Members of The Florida Bar are not required to perform pro bono service, but they are required to report their pro bono efforts. Only about half reported that they had volunteered any of their time to assist pro bono clients, according to a 2008 study by Kelly Carmody & Associates.
To increase pro bono services provided by its membership, The Florida Bar initiated the program One Promise Florida. The simple message of the program is “One Client. One Attorney.” Its goal is to encourage every attorney in Florida to take just one pro bono client. This could significantly “reduce the enormous backlog of cases and improve access to the legal system for all Florida residents,” according to the program’s website. It’s a mission Walbolt supports.
“I’m just besieged with requests from people to help them on a pro bono basis,” Walbolt said. “There is more need than can possibly be supplied. But, there is not one lawyer in the state of Florida who can’t afford to take one pro bono case a year. If we all did that, we still couldn’t quench the need, but we’d go a long way toward satisfying it.”
Inevitably, the tremendous demand for legal aid opens the door to the unauthorized practice of law (UPL), whether the unlicensed individual is attempting to help a friend or take advantage of the unsuspecting. When this happens, the nonlawyers may actually create more legal problems for their clients than they are helping them resolve, said William Schifino Jr. (JD 85), board liaison for the Standing Committee on Unauthorized Practice of Law for The Florida Bar, and shareholder of Williams Schifino Mangione & Steady P.A. in Tampa.
“These individuals may believe they are helping others pursue their legal rights,” Schifino said. “Other times, these motivations may not be so pure. It is often difficult to know where the line is drawn.”
One possible reason for this difficult distinction is that courts have historically been hesitant to define the boundaries of the practice of law, and the case law usually provides only general guidelines.
“So we have to analyze it on a case-by-case basis,” Schifino said. “There are committees set up throughout the state, comprised of lawyers and nonlawyers, which are responsible for vetting complaints that are filed alleging the unlicensed practice of law. And to the extent that they believe UPL has taken place, then those matters can be and are prosecuted.”
In 2009, The Florida Bar saw 658 complaints filed alleging the unlicensed practice of law, 39 of which resulted in litigation.
Once filed, these complaints are investigated by The Florida Bar Unlicensed Practice of Law. The unlicensed practice of law was prohibited in 1949.
“The Bar has a duty to protect the public from incompetent or unethical representation,” said Lori Holcomb, UPL counsel for The Florida Bar. “There is a body of case law that governs what we do. It’s very factually specific. Does it involve the person’s important legal rights? Does it require knowledge and skill of the law greater than that possessed of the average legal citizen? If so, The Bar would likely have a case against the individual for the unlicensed practice of law.”
But Holcomb said there are also areas, within specific guidelines, where the Florida Supreme Court has approved legal assistance. These include a nonlawyer assisting someone in the completion of legal forms approved by the Supreme Court of Florida or representing someone in Florida administrative proceedings, provided the individual stays within the bounds of Florida administrative proceedings rules.
“Oftentimes, what we see is that individuals are paying nonlawyers for assistance that would otherwise be free,” Holcomb said.
In fact, when you go to a nonlawyer, they are most likely using a Florida Supreme Court approved form, Holcomb said.
“Legal aid organizations and pro se assistance centers, for instance, go a long way toward providing that access and assistance. And one of the things The Florida Bar is doing is looking for ways to improve that access,” Holcomb said. “Assistance is out there. The issue, sometimes, is getting the word out.”
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