For the few, those chosen few, those band of brothers and sisters, if you've read the two preceding posts on Poverty and Politics, and it seems that more were interested in the latter than the former, this is a continuation of the previous narratives. The first, Poverty, was to introduce the dire need for legal services for underserved persons; the second, Politics, described the challenges and impediments to bringing about change no matter how modest; and now the Law describes the legal challenges for providing legal services, as a matter of right, to indigent civil litigants.
Most of us when confronted with what is obviously a legal problem or threat, will consult an attorney. After the initial meeting, the attorney will tell you what the approximate cost will be for her services, and ask that you give a monetary deposit so work could commence. We might grumble (thus the origin of lawyer "jokes") but we'd get the money. If it's a criminal matter, we'd definitely get the money.
You see, while lawyers provide valuable services, they are a business and like all businesses they need to get paid so they can make their overhead costs with some money left over for themselves. In defense of the traditional bar, operating a law office is expensive. Because they don't move widgets as it were, it is a time consuming enterprise and since time is money....
So when people ask, "why don't lawyers help [name here], he has no money," please be assured that some do. As I note in my book, I once worked for a plate of cookies. But here's the catch, I didn't always work for cookies, I needed to get paid by someone so I could keep the doors open and if able, work for the occasional plate of cookies.
We live in a capitalist economy. If you - the reader - are employed, no matter how much you love your job, you need to be paid. Your mortgage company or landlord insist on it because they expect to be paid. I could elaborate on the multiplier effect on the economy but you probably already know about it.
So here's the issue - what if you can't pay? I don't mean you don't want to, but can't? Then like some modern day version of Blanche Dubois, you live off the kindness of strangers. In this instance, maybe a stranger, here an attorney, will befriend you. But, hey, someone's got to win the lottery.
If it's a criminal action, thanks to a Supreme Court ruling, you can get an appointed attorney through the Public Defender's office. However, if it's a civil matter, then thanks to a subsequent Supreme Court decision, there's nowhere for you to go.
To meet this need most states have established Access To Justice Commissions (ATJC) to try to serve the legal needs of underserved indigent civil litigants. These ATJCs, thanks to grant monies from the American Bar Association, formed organically at the state level. Most states, but not all, have their own iteration of these ATJCs, some more comprehensive than others. There's a good overview in Vol 1, ch 2. of these efforts.
I'd have loved to have written about Rhode Island's ATJC but I can't for as of this writing, August 25, 2020 at 11:52 a.m., no such commission exists. We do know that the ABA in 2013 awarded Rhode Island an $18,000 grant to study the development of an ATJC. We know that such a study was to be completed in 2014. We know that by June 2017 no such ATJC existed (see Vol 1, Preface) and now we know that as of the date and time indicated above, no such commission exists in Rhode Island. Evidently, the plight of poor people appearing unrepresented before a court on issues vital to their lives is not mission critical for the Rhode Island Judiciary.
The poor fare no better in the numerous cases cited in the book. Rather than re-litigate these cases, let me point to some themes that run, or don't run, through the case law:
Due Process - there's no getting around the fact that for most courts, due process is the rosetta stone for determining the treatment of indigent parties. Due process is bifurcated (sometimes - there's a legal debate over this point) into two parts, procedural and substantive. To draw the distinction, procedural is how something is done, substantive is outcome oriented. The triggering of substantive analysis is predicated on whether there is a fundamental or liberty issue at stake in a proceeding. As I write in Vol 2, fundamental and liberty interests are narrowly defined and courts seem reluctant to expand those concepts. Procedural due process is easier, mandating readable documents, computer access to required documents, greater notice requirements, etc. I argue that these procedural requirements, while welcome, are insufficient to meet the real needs of indigent litigants.
Equal Protections - the 14th Amendment to the Constitution guarantees that the law will be applied equally to all people. The easiest example of this concept is Brown v. Board of Topeka, Kansas holding that separate schools for black children and white children were inherently unequal. To a great extent, this was an evidentiary based matter addressing not just school performance but also the harm done to individual black kids, placing on them a "badge of inferiority."
Equal protections analysis has been applied to "suspect classes," generally to racial, ethnic, gender, religious, and sexual orientation cases. Economic status has never been deemed to designate the poor as a "suspect class." The notion of a suspect class hinges on whether members of a specific class are able, through the normal rough and tumble of our democratic processes, defend and advance their interests.
A recent paper argues that it is time for the poor to be labeled a suspect class, thus affording more legal protection to the poor. Since I gave it a prominent place in the book there's no surprise that I agree.
Medieval Law - oddly enough, this is a real thing. I discuss this in some detail but in a number of states, Rhode Island in this instance being one such state, this could bring relief at selected state levels to indigent civil litigants. But this is no answer to any national right to a appointed civil attorney.
Judicial Sameness - every jurisdiction has its version of the informal union of the Bar and Judiciary into an Institution. I refer to this as Institutional Law - a separate entity apart from the broader components of this union, charged with the maintenance and stability of the status quo. This should be no surprise, the law must be stable, predictable, and not given to wide swings. The assurance of this stability is what gives the law its predictability that it will be applied equally to all who appear before the courts. This is a good thing.
However, there is a downside to this. Over time there is a sameness in the leadership of the Institution. The members of this leadership have much in common. They go to the same schools, most have the same backgrounds, many were once or still are politically active, they live in the same or similar communities, participate in the same clubs, and over time share the same world views. They are economically peers. They are still mostly men, but that is changing, albeit slowly.
The danger here is that a kind of informal, perhaps even unconscious "group think" forms making it more difficult for individual members, especially those not in "leadership," to be effective change agents. Change breeds instability, which in turn breeds disruption of the status quo, which in turn threatens predictability. Change, at least intellectual and fundamental change, is to be resisted. Michels would call this the Iron Law of Oligarchy, or Lowi the Iron Law of Decadence.
This is inherently dense stuff. But I tried to make it somewhat more accessible. If you are interested in not only how things work but why, Vol 2 is as good a place as any to start looking for answers. Modesty inhibits me from saying that Vol 1 is also a good place to start, but it doesn't inhibit me by much!
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