The International Challenge of Providing Access to Justice: What the U.S. Can Learn from Looking Abroad

Foreign Systems of Access to Justice Explored  England  Germany

Focus Areas: 1.Legal Basis for Providing Equal Access to Justice 2.Funding for Legal Services / Legal Aid 3.Methods for Providing Civil Legal Services

The American Approach: The Legal Basis for Providing Equal Access to Justice U.S. Constitution:   The Sixth Amendment: in criminal prosecutions, the accused shall have the right to the assistance of counsel   The Fourteenth Amendment Due Process Clause Gideon v. Wainwright, 372 U.S   In 1963, The Supreme Court held that the U.S. government must provide counsel to criminal defendants who cannot afford such counsel. 452 U.S. 18 (1981). Lassiter v. Department of Social Services, 452 U.S. 18 (1981).   Due Process requires the appointment of counsel only where denial would prove “fundamentally unfair.”  Thus, States are free to provide counsel to an indigent in some civil cases, but have rarely done so. Fee Shifting Statutes  There are more than 60 Federal fee shifting statutes that allow a prevailing party to receive attorney’s fees  Civil Rights Attorney’s Fee Awards Act, 42 USC § 1988 (1976) – District Courts may award attorney’s fees to prevailing parties in specified civil rights litigation  Americans with Disabilities Act (ADA)

The American Approach: Funding for Legal Services / Legal Aid  Legal Services Corporation (LSC)  Created in 1974  The largest single source of funding for legal aid in the U.S.  Provides grants to local legal services organizations, which hire attorneys to provide civil legal representation for indigents  Interest on Lawyers’ Trust Accounts (IOLTA)  Lawyers are required to place client funds temporarily held in escrow into trust accounts. Any interest accrued on such accounts is used to fund legal services for the poor.  State and Local Governments  Private Lawyer Contributions  Private Foundations  United Ways

The American Approach: Funding for Legal Services / Legal Aid 2003 Comparison (In Millions)  LSC: $298  Other Federal:$78  State and Local Governments:$226  IOLTA:$133  Foundations:$61  Private Lawyer Contributions:$38  United Ways:$22  Other:$47

The American Approach: Methods for Providing Civil Access to Justice  LSC Funded Organizations  Pro Bono Programs:  Over 150,000 private attorneys are registered to participate in pro bono efforts  Over 155 major law firms have pro bono programs that provide service to low-income clients  Contingent Fee Arrangements

Problems with the American System  Lack of Funding  LSC funding peaked in 1979, however, was cut by 1/3 when Ronald Reagan became president  LSC grants are awarded each year through a competitive bidding process that determines whether a program will receive any funding. Thus, many programs will not receive any funding and will be forced to close.  Unmet Legal Needs  According the Findings of Comprehensive Legal Needs Study, published by the American Bar Association in 1994, “47% of low income households reported at least one legal need; among moderate income households the figure was 52%.”  Of those with legal needs, only 29% of low income households turned to the civil justice system, while 39% of moderate income households turned to the civil justice system

The English Approach: The Legal Basis for Providing Equal Access to Justice  Legal Aid Commission (previously known as the Legal Aid Board)  Enacted by Statute in 1989  The Commission combined and consolidated the Legal Aid and Advice Acts of 1929, 1949, 1974, 1979 and 1982  The Acts established a system of providing legal services without cost to low income individuals  Litigants who have an income above a certain level but below a fixed maximum are eligible for more limited assistance based on their income level.  The Commission runs 2 basic schemes:  (1) The Community Legal Service provides advice and representation for people involved in civil cases;  (2) The Criminal Defense Service provides advice and representation for people facing criminal charges

The English Approach: Funding for Legal Services / Legal Aid  The Legal Aid Commission Funding Code:  Stipulates criteria used to determine an applicant’s eligibility for legal aid  Currently, 47% of the general population is eligible for legal aid  Offers a sliding scale for payments based on the party’s income level  Allows a contribution by applicants who are not poor enough for total assistance but would otherwise be unable to handle the full costs of representation  1/3 of the eligible population is liable for contributions  Budget:  Currently approximately £ 1.6 ($2.4) billion.  Of that, about £780 ($1,170) million is spent on civil representation,  Just over £800 ($1,200) million is spent on criminal advice and representation,  £ 220 ($ 330) million is for legal help  Where the Funds Come From:  Money is disbursed from a fund comprised of government appropriations and payments from parties;  The money pays lawyers and court officials for the clients utilizing legal aid

The English Approach: Methods for Providing Access to Justice  In Court Representation  ADR Forums  (1) Definitive Determination:  Imposes a decision and determines issues definitively, such as expert determinations and “rent-a-judge” or “private judging”  The parties can still settle the dispute themselves but if not, then a binding determination will be made which is enforceable through the courts.  (2) Mechanisms Requiring Parties’ Agreement for Resolution of Dispute  Provides the basis to help the parties reach an agreed solution or settlement, such as negotiation or mediation/conciliation  If no agreement is possible, the parties can resort to arbitration or the courts for the determination of their dispute.  (3) Community Mediation  Used to resolve conflicts between persons within the same community, such as Neighborhood Mediation and School Peer Mediation.  (4) E-Mediation  E-mediator.co.uk - an inexpensive online dispute resolution service where the cost of an e-mediator is half the amount parties would have to pay for a face-to- face mediation and uses a secure encrypted system.

The German Approach: The Legal Basis for Providing Equal Access to Justice  The German Federal Constitutional Court:  Explicitly recognized that an indigent party to a civil action has a constitutional right to be represented by an attorney  Statutory Rights:  First enacted a comprehensive statutory right to counsel in civil cases in 1877 (Zivilprozeβordnung)  On January 1, 1981 statutory provisions were enacted for advice and representation (out of court work) (Beratungshilfegesetz)  The Legal Profession Act  Requires the lawyer to accept any assignment to a client supported by legal aid

The German Approach: Funding for Legal Services / Legal Aid  Funding Takes Place on the State Level  The 16 German federal states are responsible for the court system in each state. Therefore, funding does not come out of the federal budget, but from state funds.  Three Main Areas of Funding:  (1) Legal Aid for Court Proceedings  80% of the entire legal aid budget  (2) Criminal Legal Aid  (3) Legal Aid for Advice and Representation  Use of “Basic Fees”  A Statute lists every type of litigation activity in which a lawyer might engage, and for each activity assigns a monetary amount based on a fraction of what is called a "basic fee."  The "basic fee" is set as a percentage of the amount in controversy (the Gegenstandswert). When the amount in controversy is low, the "basic fee" percentage is high and when the amount in controversy is high, the "basic fee" may be less than one percent.

The German Approach: Funding for Legal Services / Legal Aid  Procedure for Obtaining Legal Aid For In Court Representation  Merits and Means Tests:  Means: The applicant must show that she would be unable to pay her own lawyer’s fees because of her personal and economic situation.  Merits: The claim or defense must bear a reasonable chance of success and must not be frivolous or reckless  If the applicant meets the foregoing requirements, the court will appoint a lawyer to represent him.  If the applicant has indicated a preference for a particular lawyer and that lawyer is willing to take the case, the court must honor that choice.  Defendants as well as plaintiffs may partake of this system.  Procedure for Obtaining Legal Aid For Advice and Representation  The applicant has to apply to the local county court and must describes her legal problem and gives details of her means  Her wish to consult a lawyer must not be frivolous  If the court does not give advice on its own, it will issue a certificate which entitles the applicant to consult a lawyer of her choice.

The German Approach: Methods for Providing Access to Justice  The Legal Aid Grant:  If legal aid for court proceedings is granted:  (1) no court fees have to be paid in the course of the proceedings, and  (2) the lawyer assigned to the client cannot demand any payment from his client as all payments to her will be made out of state funds  The lawyer is paid a statutory fee from the state funds  Two-Way Cost Shifting:  A party supported by legal aid who loses her claim is liable for her opponent’s costs. In the event of a loss, only the court fees and the fees of the assisted party’s lawyer are covered by the legal aid grant.

The German Approach: Methods for Providing Access to Justice  Office of the Rechtspfleger  A specialized court officer who replaces a judge in a limited area of legal activity.  Unlike a judge, however, in order to hold the Office a person need not be a licensed attorney. Instead, the person must simply complete six semesters at a trade school or college, consisting of both theoretical and practical training.  Duties:  (1) Must prepare and conclude adversary proceedings, which include those duties that traditionally precede or follow the trial phase of litigation.  (2) Must handle certain legal proceedings that are not adversarial in nature  Benefits to Low and Moderate Income Persons:  (1) Has the power to conduct execution of judgments.  (2) Relieves the German judicial system of administrative constraints, and in turn, the judiciary is more efficient.  (3) Has little chance for discretion because its conduct is controlled by strict regulations.  (4) The costs are much less than those in traditional adversarial proceedings  (5) Are generally more approachable than traditional forums because no attorney is required

What Can the U.S. Learn From the English and German Systems?  Expand Eligibility Requirements  The American system provides assistance only to the truly poor. As a result, most of the working poor are denied representation under the statute and recipients of legal assistance are limited primarily to those who are eligible for Social Security, Supplemental Security Income, or welfare  Implement a Merits & Means Test?  Operate on a Sliding Scale?  Increase ADR Forums?  Community Mediation?  Office of the Rechtspfleger  Increase Competition?  E.g., Competition from Legal Assistants and Paralegals  Prohibit Contingent Fees?