For what it's worth, here are my dos centavos . . .

December 5, 2011 · In this issue:

James C. Harrington

Director

Texas Civil Rights Project

1405 Montopolis Drive

Austin, TX 78741

www.TexasCivilRightsProject.org

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Tony Mauro
August 03, 2010

Harvard Law School professor Laurence Tribe, now a senior Justice Department counselor, got a standing ovation from the nation's state chief justices last week after challenging them to take immediate steps to improve access to justice for juveniles, the poor and the middle class.

"The problems facing our state judicial systems can only be described as deplorable," said Tribe in an impassioned July 26 speech in Vail, Colorado before the annual conference of chief justices and state court administrators.

Calling on the judges to engage in a form of "judicial activism" - not ideological, but rather, as he put it, the "opposite of passivity" - Tribe laid out specific measures that the chief justices could take to make pro bono and pro se representation easier, as well as to enforce the rights of juveniles and indigents to counsel.

Texas Chief Justice Wallace Jefferson, current president of the Conference of Chief Justices, said Tribe's message was "very well received" by the 47 chief justices in attendance. "I was watching, and we were all taking notes." Jefferson added, "The message he gave was inspirational. As chief justices, we can do no better than to spend our time making sure there is access to the courthouse."

Tribe, a leading liberal constitutional scholar for decades, said he had left the "relatively quiet groves of academe" to try to "fix things" and help make the justice system more humane and just. In his five months on the job as senior counselor to Attorney General Eric Holder Jr. for access to justice, Tribe said, "I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment."

While applauding "the integrity and efficacy of American courts," Tribe said no one should "condone indifference to the early warnings of disintegration to which some of you have called sober attention."

Among the ills Tribe catalogued were: "a system in which the deck is stacked in favor of those who already have the most;" the "punitive urge," which results in over-incarceration matched by inadequate legal assistance for defendants; sharp budget cuts in state courts, which handle 95 percent of all legal cases; and a turning away from public courts in favor of private adjudication for "privileged litigants who can afford it." The last trend, Tribe said, has the unfortunate result that "the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat."

As an illustration of the kind of "good activism" he was advocating, Tribe told about a Philadelphia trial judge, Annette Rizzo, who has ordered that no house foreclosures be judicially approved without some effort at mediation - an action that Tribe said has kept hundreds of families in their homes. Tribe also applauded efforts in Nevada and New York to improve indigent defense.

To guarantee the right of counsel for juveniles guaranteed by the Supreme Court in the 1967 decision In Re Gault, Tribe urged the chief justices to prohibit the judicial acceptance of waivers of the right without the juvenile being advised by a lawyer about the consequences of waiver. "Juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence," Tribe said. And once they have pleaded guilty, juveniles can be tangled up and dragged down by the system and by a criminal record for decades.

Rather than suggesting sweeping reforms and unrealistic budget increases, Tribe also listed three practical changes that could be quickly achievable and would fall under the purview of many state chief justices:

* Make pro bono service by lawyers easier, by adopting rules that allow for "discrete task" representation rather than a full-blown attorney client relationship;

* Relax rules governing lawyer conflicts so more lawyers can serve, and permit lawyers licensed in other states to assist pro bono clients, as is allowed in the District of Columbia.

* Update rules regarding unauthorized practice of law to enable pro se litigants to use technology and non-lawyer help in ministerial tasks that now require lawyers.

Tribe recommended that the jurists follow the lead of states that have created "access to justice" commissions with a mandate to study and advocate for changes that improve legal services. He singled out the commissions in California, Washington state, and Texas for implementing concrete projects that have boosted civil and criminal legal aid programs.

These modest reforms, said Tribe, "demand the leadership that you as state chief justices are uniquely situated, qualified, and authorized to provide." Tribe pledged that if chief justices act, the Obama administration will be "cheering you on."

Texas chief justice Jefferson said all of Tribe's proposals merited consideration. Access-to-justice commissions have been very effective, Jefferson said, and proposals to allow limited representation and to relax conflict rules would help. "Lawyers are plagued with conflicts," he said, and the rules can unnecessarily "stand in the way of representing an individual."

Tony Mauro can be contacted at tmauro@alm.com.
(From the Texas Legal Aid programs' listserve.)

At its meeting on Saturday, January 30, 2010, the LSC board voted unanimously to eliminate the regulatory restriction on LSC grantees claiming, collecting and retaining attorneys' fees, consistent with the change that was made in the 2010 appropriations bill that was signed into law on December 16, 2009.  The board directed the LSC staff to publish an interim final rule, with an opportunity for comment.

The rule, which should be published in the Federal Register early next week, will be effective 30 days from publication.  The interim final rule will permit LSC programs to claim attorneys' fees for all work for which fees are still available, regardless of when the work for which the fees are claimed was done.  LSC will suspend enforcement of the current Part 1642 for all actions that were taken on or after December 16, 2009 to claim, collect or retain attorneys' fees.


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