While the concept of “access to justice” is familiar—and important—to us, if you were to ask colleagues what it means, the responses might not be in accord.
Some might respond that it means indigents in civil and criminal cases should receive competent counsel from legal aid or a public defender for a fair trial and appeal. Others might respond that it means all of us—poor and rich—should have the opportunity of competent trial attorneys and a fair trial under the rule of law.
Still others, such as Bob Glaves, Esq., executive director of the Chicago Bar Foundation, have a more robust meaning:
A person or entity facing a legal issue i.e., they could benefit from or be hurt by a legal action has timely and affordable access to:
(a) the appropriate level of legal assistance, and
(b) a fair and efficient court or process to resolve disputes
so that they can understand and make decisions about their legal issue; get a fair and cost-effective resolution on the facts and applicable law; and feel like they were heard, were treated fairly, and understood the outcome.
Bob Glaves, What Do We Mean When We Say Access to Justice?, Chi. Bar Found. (Sept. 20, 2018).
Glaves pointed out to me not too long ago that “all lawyers are the trusteeship of the legal system.” It is difficult not to agree with him. However, I suggest that trial lawyers in particular do and should take the lead in safeguarding everyone’s access to justice. This suggestion in no way minimizes the role of the judiciary in protecting access to justice by conducting fair trials, developing guidelines for pro se cases, and more. But the role of trial lawyers is singularly important as we are engaged as counsel to fight for the rights of our clients in the courtroom.
You might ask, How significant, if at all, is the denial of access to justice in our country? After all, we have legal aid and public defenders.
Nevertheless, statistics do reflect that in civil cases, more and more, people cannot afford counsel. They go to court unrepresented and lose. Many of them do not qualify for legal aid. Moreover, many are not impoverished, but still they cannot afford the fees of lawyers or the expenses incurred by counsel who are willing to take their case on contingency but who ask for reimbursement of out-of-pocket costs.
So what can we as trial lawyers do to help? Here are some suggestions.
First, read and consider Rule 6.1 of the ABA’s Model Rules of Professional Conduct:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours pro bono publico legal services per year.
In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, we as lawyers should voluntarily contribute financial support to organizations that provide legal services to people of limited means. If all of us could take seriously, or more seriously as the case may be, our professional responsibilities, we would enhance access to justice.
We should also continue to contribute—or begin to contribute—to legal services at least once a year, as many lawyers and law firms do. If every lawyer contributed via firm or individually, we would be united in helping to ease the problems of lack of access to justice (e.g., enhancing the budgets of state legal aid offices).
We should take on a deserving case on a pro bono basis or work with a legal aid lawyer on a case. The support of the private bar could enhance the person power of legal counsel working for the proper judgment.
We must inculcate in young lawyers the need to support legal services and encourage them to undertake a pro bono case and to contribute money, even if a very small amount, in support of legal services. Introducing young lawyers to the needs of pro bono work will lead to them developing a good attitude with regard to access to justice, as well as an eagerness over the years to help legal services organizations.
All of us should join a bar association and an equal justice committee to initiate projects to aid legal services. These may include social events, lectures, or receptions with proceeds dedicated to legal services. We should support local legislation to initiate a civil Gideon law.
We should take cases and sacrifice fees when necessary. Many potential clients do not qualify for legal services, but they cannot afford the hourly rate. Their case may not satisfy the economic intake requirements of the office. In these instances, consider taking the case on a reduced-fee basis.
In addition, we should make ourselves available to teach at legal services’ in-house CLE programs, as well as familiarize ourselves with entities and programs in our jurisdictions that focus on access to justice. For example, the Maryland Access to Justice Commission “is an independent entity that brings together civil justice partners . . . to break down barriers that prevent all Marylanders from equally accessing the civil justice system.”
Truly, “access to justice” speaks to us through the ages. Consider one little-known lawyer of ancient times who displayed dedication to both access to justice and courage—the Roman advocate Hortensia (50 B.C. – 1 B.C.), daughter of Quintus Hortensius Hortalus, the highly respected trial rival of Cicero. (Note: This section is adapted from Paul Mark Sandler, Greetings from Hortensia, Woman Lawyer of Ancient Rome, Md. Daily Rec. (Aug. 21, 2019).)
As a young woman, Hortensia schooled herself in history and the arts, including law. This was not easy to do. If you think that there are prejudices and difficulties confronting women lawyers in current times, imagine the problems that Hortensia endured.
In 42 B.C., Hortensia argued a case before the leaders of Rome on behalf of wealthy women who were unfairly levied with high taxes. These wealthy women did not have any access to justice.
At the time, Rome was engulfed in civil war. Its leaders—Octavian (later to be the first emperor of Rome, Caesar Augustus), Anthony, and Lepidus—were combating the assassins of Julius Caesar. To fund the war, they seized the property of wealthy citizens and slaughtered many of them by proscription. But, still, funds were insufficient, so they placed a tax on 1,400 of Rome’s most wealthy women.
The women were incensed by the imposition of the tax. They sought counsel among the men qualified to argue before the triumvirate of Rome; none would come to their aid. They then sought representation from Hortensia, who after persuasion acquiesced.
Hortensia led the women on a march to the triumvirate. She was their advocate. Here is what she argued:
As was appropriate for women like ourselves, when addressing a petition to you, we rushed to your women folk. But we did not get the treatment we were entitled to from Fulvia, and had been driven by her into the Forum. You have already stolen from us our fathers and sons and husbands and brothers by your proscriptions, on the grounds that they had wronged you. But if you also steal from us our property, you will set us into a state unworthy of our family and manners. If you claim that you have in any way been wronged by us, as you were by our husbands, proscribe us as you did them. But if we women have not been voted by any of you public enemies, if we did not demolish your houses or destroy your army or lead another army against you, if we have not kept you from public office, or honor, why should we share the penalties if we have no part in the wrongdoing?
Why should we pay taxes when we have no part in public office or our government in general, an evil you have fought over with such disastrous results? Because you say this is a time of war? And when have there not been wars? And when have women paid taxes? Our mothers on one occasion long ago paid taxes, when your whole government was threatened, when the Carthaginians were pressuring you. They gave willingly, not from their land or their fields or their dowry or their households, but from their own jewelry, not under threat or by force, but only as much as they themselves chose. Why are you now so anxious? If there should be a war against the Celts or Parthians, we will not be less eager for our country’s welfare than our mothers. But we will never pay taxes for civil wars, and we will not cooperate with you against each other.
The Histories of Appian: The Civil Wars Book IV, at paras. 32–34 (Loeb Classical Library, 1913).
The leaders were angry with Hortensia. They ordered the lictors to drive her and the women away from the tribunal. However, the lictors were stopped by the shouts of the crowd outside, and the triumvirs postponed the proceedings. On the following day, the triumvirs reduced the number of women to be taxed and the amount.
Appian honored Hortensia, writing: “For by bringing back her father’s eloquence, she brought about the remission of the greater part of the tax. Quintus Hortensius lived again in the female line and breathed through his daughter’s words.” Id.
We learn from Hortensia the importance of courage in sometimes facing fearful odds in providing access to justice on behalf of a client in court.
Paul Mark Sandler is a partner at Shapiro Sher Guinot & Sandler in Baltimore, Maryland.
Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).
