August 25, 2017 Dialogue

Increasing Support for Appellate Litigants: The Hawai'i Appellate Pro Bono Program

By Rebecca A. Copeland and Brandon M. Kimura

The principle of access to justice for all underscores every aspect of the justice system. In Hawai'i, collaboration on a host of initiatives to continually improve access to justice is led by Chief Justice Mark E. Recktenwald of the Hawai'i Supreme Court, the Judiciary, the Legislature, the Governor and Executive Branch departments, the Hawai'i State Bar Association and the county bar associations, the Hawai'i Access to Justice Commission, legal services provider organizations, and hundreds of volunteer attorneys.

One key example of this collaboration is Hawaii's ongoing Justice for All Project. With assistance from the National Center for State Courts, and with the support of the Public Welfare Foundation and the Hawai‘i Justice Foundation, the Hawai'i Access to Justice Commission and dozens of stakeholders across Hawai‘i are involved in a comprehensive effort to inventory and assess services, and to create a strategic action plan to increase meaningful access to the civil justice system. The three branches of state government, the legal community, and leaders in other industries are working together to reinforce the tightly-woven support system to meet the full continuum of civil legal needs of underserved persons.

One of the more recent developments from collaboration among the Access to Justice Commission, the Bar, and the Judiciary is the institution of the Hawai'i Appellate Pro Bono Program. The Program supports low-to moderate-income individuals by institutionalizing the opportunity to obtain pro bono counsel in Hawaii's appellate courts. The Program was designed by a diverse and passionate group that considered best practices of similar programs across the country and adapted those processes to the needs of local stakeholders. Through this collaborative design and implementation, the Hawai'i Appellate Pro Bono Program has a solid foundation and shows promise for continued growth.

A Product of Collaboration

The Program began as a pilot in 2015, and the Hawai'i Supreme Court ordered that it be made permanent on April 19, 2017. The Program involves a partnership between Volunteer Legal Services Hawai'i (VLSH) and the Appellate Section of the Hawai'i State Bar Association.

The Program originated from the Hawai'i Access to Justice Commission's Committee on Increasing Pro Bono Legal Services, and was designed over several years by a sub-committee that included key stakeholders. Specifically, the sub-committee included representatives from the Access to Justice Commission, the Hawai'i Supreme Court, the Hawai'i Intermediate Court of Appeals, VLSH, the Appellate Section, and others in the bar. The diversity of perspectives of the sub-committee positioned the Program for success by ensuring consideration of potential issues-lack of resources in light of an expansion of responsibilities, administrative processing tasks, appropriate conflict checking and other vetting, consideration of malpractice insurance and ethical and judicial-conduct issues, an increased need for volunteer attorneys as advocates and mentors, and the need to establish regular lines of communication, among other things. Each member of the sub-committee also committed to the Program as a priority, with each considering their own portfolio of other current and future projects, many of which also pertained to increasing access to justice. This collaborative spirit and group commitment to the Program's successful implementation was integral to the structure of the eventual Program and is key to its ongoing and projected growth.

Designed by Considering Best Practices and Adapting to Local Needs

This sub-committee considered similar programs in other jurisdictions, including Texas and the Ninth Circuit Court of Appeals, and tailored the Program to meet Hawaii’s needs because, of course, what works in one jurisdiction may not work in another.

As examples of necessary tailoring, Hawaii’s Program focuses on the substantive areas of law with the highest rates of pro se filings, and fits seamlessly with the Hawai‘i appellate courts' system for accepting cases.

Currently cases are accepted into the Program at two points while a case is on appeal: 1) after the notice of appeal has been filed (before the Intermediate Court of Appeals, or ICA) and 2) after an Application for Writ of Certiorari has been accepted (by the Hawai'i Supreme Court).

In the ICA, the Program covers pending civil cases before this court in the following substantive areas only: (1) foreclosure, (2) summary possession, (3) employment discrimination, (4) workers compensation, (5) state tax appeals, (6) wrongful termination, (7) unemployment benefits denials, (8) family law (divorce, child custody, child support, and paternity), and (9) probate. These are the types of cases with the highest rates of pro se litigants and, particularly considering the issues at stake, the most likely to benefit from pro bono representation.

At the supreme court, the Project accepts all civil cases and is not limited to the categories accepted by the ICA.

Entrance to the Program begins with the Appellate Clerk, who provides a letter to appellate litigants whom the clerk has identified as pro se. The letter describes the Program and invites applicants to participate. Interested pro se litigants submit a simple application with a nominal application fee to VLSH (applications are also accepted by a liaison for the Appellate Section). VLSH then performs an income verification. Applicants who meet income guidelines are referred to the Appellate Section liaison, who attempts to match the litigant with a volunteer attorney. Specifically, the Appellate Section maintains a listserve of attorneys who have indicated a willingness to consider volunteering for cases accepted into the Program. If the applicant is not eligible due to income or the subject of the lawsuit, or the Program cannot match the applicant with a volunteer attorney, the applicant is informed that participation will not be possible.

It is not necessary for the volunteer attorneys to have appellate experience, and, indeed, the opportunity to gain such experience is an attractive part of the Program for certain attorneys, because one of the Program's objectives is to provide an opportunity for lawyers to obtain appellate experience for their benefit, for the benefit of potential future pro se clients, and for the benefit of the appellate courts. For attorneys lacking appellate experience, the Program has a mentoring component, and the listserve includes experienced appellate lawyers willing to serve as mentors.

The Appellate Section liaison posts to a listserve information about the case, including the trial court's appealable order or judgment and any documents filed in the appeal. When a volunteer attorney accepts a case, VLSH oversees creation of the attorney-client relationship and administratively supports the representation until completion of the matter.

A Solid Foundation for Continued Growth

Since implementation, the Program has successfully placed well over half of the cases which satisfied the Program's entry requirements. Of the three Program cases where appellate decisions have been issued, all three were decided in favor of the Program participant. Other cases accepted into the Program remain pending at the time of this article.

The Appellate Pro Bono Program has been successful in Hawai'i by virtue of a strong partnership among the Hawai'i Judiciary, VLSH, and the Appellate Section, and also due to the willingness of local attorneys to serve as both pro bono counsel and mentors. In Hawai'i, the Program’s pro bono representation at the appellate level increases access to justice at a critical stage. The Program also gives volunteer attorneys more experience, which strengthens appellate practice and assists the courts by improving resulting case law and the justice system overall. In this and other projects, collaboration has successfully led to more robust support for those in need.

Rebecca A. Copeland

Solo Practitioner

Rebecca A. Copeland is a solo practitioner who concentrates her practice in the area of appeals. She maintains an active blog devoted to appeals at www.recordonappeal.com. She is currently serving on the Hawai'i State Bar Association's Board as an O'ahu Director, and she is a member of the Hawai'i Judiciary's Commission on Professionalism and the Committee for Equality and Access to the Courts. She also founded the HSBA Appellate Section and served as the Section's Chair for two years. As a member of the Hawai'i Access to Justice Commission’s Committee on Increasing Pro Bono Legal Services, she Co-Chaired the committee that designed and implemented the Hawai'i Appellate Pro Bono Program.

Brandon M. Kimura

Special Assistant to the Administrative Director, Courts of the Hawai'i State Judiciary

Brandon M. Kimura is the Special Assistant to the Administrative Director of the Courts of the Hawai'i State Judiciary.