Access to Justice—The Judge's Role
In 1985, shortly after my election to the district court bench, I had an "Access to Justice" experience. I was the examining magistrate at a preliminary examination in which the defendant was charged with the crime of assault with intent to commit murder. The case arose out of a particularly egregious domestic assault. The alleged victim/complainant was sworn in and the preliminary questions were asked and answered. When the critical question arrived, 'Did anything unusual happen that night?' there was a nervous pause while the victim, obviously in anguish over the mixed trauma of testifying against her lover, and reliving the viciousness of her unprovoked beating, stumbled for an answer. After a repeat of the question came the answer, 'No.'
As seen so often in our courtrooms, the familiar scenario played itself out, the repeat of the question, the objections of defense counsel, the request to advise the victim of her right to remain silent, and the threats of felony prosecution of the victim for falsely reporting a felony. The witness found herself very much alone, threatened, and bewildered as she sat in the witness chair directly in the cross hairs of the adversaries. Instead of advising the victim of her fifth amendment rights, I asked her if she could afford to hire a lawyer. She could not, so I ordered that a lawyer be appointed to represent the victim/complainant and that we would continue the preliminary examination the next day.
Even though, back in 1985, we were just ahead of the explosion of split second electronic communication, news in the old courthouse then, as now and forevermore, managed to spread like wildfire. I had barely returned to my chambers when the telephone rang and an excited bailiff informed me that there had been a sighting. The chief judge of the circuit court had left the rarified air of the upper floors and was heading my way. The phone was barely cradled when in swept the white hair and black robe of 'His Honor.'
'What's going on around here? First we have to appoint lawyers for every Tom, Dick, and Harry charged with a crime, and now we're appointing lawyers for victims? What next, shall we appoint a lawyer for every witness, how about a lawyer for the lawyers? What kind of precedent are we setting, where are we going to draw the line?'
This blast was an incarnation to blasts from my past. In my prior life as a lawyer, I had several access to justice experiences with the chief judge. In the eight years prior to my election to the bench, I had been the director of the Kent County Office of the Defender, a private, nonprofit organized defender office that contracted with the county of Kent to represent approximately 60 percent of the indigent felony caseload in the county.
Despite the fact that the chief judge was a truly respected and honorable man, I dreaded that time of year when I crawled to the bargaining table, begging for semi-respectable monies to run an office that represented the accused indigent. Back then, I never knew whether the chief judge was appointed or self-anointed for the task of protecting the triple-A bond status of the county. Unfortunately, on the rare occasions when talks broke down, I would be forced to walk the plank, a trip to the podium in a crowded room encircled by the full Board of County Commissioners, to explain why the criminals who were terrorizing the very voters who placed them in office were deserving of a court-appointed lawyer to be paid for by those very same victims.
The beating was accepted as expected. You could count on one commissioner, a former prosecutor, after patiently waiting until the television crew panned his way, to solemnly decry the sorry state to which we had come. 'You didn't have to have lawyers for every crook in the old days, they came in, admitted their crimes, and matters were easily resolved. It's just another unneeded obstacle to solving the crime problem.' Later, of course, in the quiet of my office, I would receive the occasional supporting call from the sympathetic commissioner. 'We got you something, we know it has to be done, we just couldn't say anything at the time.' In other words, access to justice should not be mentioned out loud.
My dispute with the chief judge in the preliminary exam case was easily resolved. I had to assure him that the levy for the lawyer would come out of the city of Grand Rapids budget, not the county budget. County coffers would be held harmless. The lawyer I appointed to represent the reluctant witness advised the witness as I suspected he would. He counseled his new client saying, 'He told you he was going to kill you, he tried to kill you, it won't be long after you let him off the hook that he will kill you. Next time you won't need me or any lawyer, you'll be dead.' The victim testified the next day. The defendant, with a long track record of domestic abuse, was eventually convicted and sent to prison.
In my opinion, a citizen appeared in court and found herself in dire need of access to justice. This citizen just happened to be a victim. As in most cases, this access was only available by providing the services of an attorney. Only a lawyer could lead her through the abyss of threats of prosecution, pronouncements of constitutional rights, legal alternatives, and counseling that could protect her interests.
Most present discussion of access to justice focuses on the well-documented need for indigent civil litigants. However, valuable lessons can be learned from the long, anguished road to access justice by the indigent criminally accused in our country.
It has obviously helped that the criminally accused had a Constitution and a Bill of Rights as legal blankets surrounding their liberty interests, but even then it wasn't too obvious. The right to assistance of counsel guaranteed by the Sixth Amendment remained a feeble right for the poor for many years. Not until 1938 did an indigent obtain a right to an assigned lawyer in federal prosecutions.1 It was a quarter of a century and more before the Sixth Amendment was interpreted to have the same effect in the far more numerous body of state prosecutions.2 Even now, in misdemeanor cases where jail is not intended, a criminal defendant, although facing substantial penalties involving loss of rights, privileges, and property, has no entitlement to legal counsel. Likewise, the civil litigant, whether plaintiff or defendant, often finds him or herself in our courts facing substantial loss of rights, property, family, employment, or entitlement to damages. On many occasions, the real losses surpass, and are no less egregious, than the liberty interests of the criminally accused.
A discussion of the denial of access to justice must include an analysis of the role and perspective of the judge. The idealized portrait of the judge has been one of the truly impartial arbiter, detached and nonpartisan. The judge is the manager who directs the processes toward the lofty goals of justice. In this country, the procedure the judge oversees is an adversary process, a system where the parties invoke and implement the process. They frame the issues, investigate the evidence, and generally run the show. As for the search for the truth, the judge is generally inert. Evidence not produced by a party is not produced. The 'facts' will be constructed from the materials the parties supply.3
If, against this backdrop, one of the adversarial parties shows up without a lawyer, and without the skills to frame the issues, or to investigate and present the 'right' facts, or make the appropriate legal argument, the judge finds him or herself in a serious dilemma. The true goal of the court, to see that justice is done and begin a serious search for the truth, has become distorted. The impartial arbiter, sitting tall in the high middle ground of neutrality, is staring at an unevenness that impedes the goals of justice. The quest for justice is being fought on one side with a 'hired gun' and on the other with an 'unarmed' party.
If we agree with the Alexandrian metaphor that 'Equality is the mother of justice,' then justice, in that judge's courtroom, has become an orphan. The judge could attempt the troublesome trick of leaning to the underpowered's side in an attempt to even the playing field. Or, the judge could help assure that all parties have access to justice. The simple resolution to the problem is to appoint an attorney for the unrepresented litigant.
Of course, the simple answer is never really so simple. In contrast to the domestic violence victim discussed above, or the indigent criminally accused, there are no constitutional mandates to rely on in civil matters and there are very few public dollars in support. Legal services programs can assist with the most needy, but with continuing funding problems, many needs go unmet. I submit, however, that it is still possible, within some measure, for judges to help meet the needs of the indigent civil litigant. One approach rests on the inherent authority of the court to appoint an attorney.
Rule 6.2 of The Michigan Rules of Professional Conduct (the code of ethics that binds all of us as a profession), states:
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
In the Comment to the rule, it further explains, 'A lawyer may also be subject to appointment by a court to serve unpopular clients or persons unable to afford legal services.'
The rule appears clear. When and if a judge determines that justice demands that a litigant have legal counsel, the judge can appoint a lawyer and the lawyer shall not seek to avoid appointment. Some lawyers, probably those who have been around for a while, remember the rare occasion when a judge plucked them out of the gallery and politely requested that they approach the bench to meet their new client.
The threat of lawyers being subject to appointment by the court to meet the needs of indigent civil litigants is, to put it mildly, sure to raise red flags. Will the nonpracticing lawyer, or the lawyer who is not sure where the courthouse is located, get a call to report to court on an auto repossession case? Will the tax lawyer now passively watch his or her ringing telephone wondering if the local judge is calling to tell them that the time has come to donate their time and talents for a tenant in a landlord/tenant case? Will the collusive practice of appointing 'favorite' lawyers, or the punishing practice of appointing 'out-of-favor' lawyers, ripen?
We must hope that to achieve the measured success alluded to earlier, obvious restraints and practical fairness would be administered by both the courts and lawyers. We already know that judges would not suddenly resort to appointing lawyers for every pro se party who walks through the courtroom door. Over the years, judges have become quite adept at wielding the justice necessary to a particular case despite the lack of an attorney here or there.
Most of the time in my jurisdiction, the lawyer representing one of the parties when the other is unrepresented has taken it upon him or herself to craft resolutions fair to their client but also both considerate and fair to the opposing unrepresented party. When it is not possible to accomplish settlement, these same lawyers understand and often cooperate with the court's obvious efforts to ensure some equality and fairness in seeking resolution. In those cases where the adversarial nature of the process must play itself out, and the judge must fulfill his or her role to see that justice is accomplished; access to justice must occur.
To provide judges with guidance as they encourage pro bono participation and contemplate the use of their authority to appoint counsel to represent the poor, ethics advisory opinion J-7 was released on January 23, 1998. It resolved that:
A sitting Judge may engage in activities designed to promote and encourage attorneys to provide pro bono legal services.
The opinion recognizes the judicial officer's unique position to contribute to the improvement of the law, the legal system, and the administration of justice. It also emphasizes the importance of avoiding the appearance of impropriety that can result from the direct solicitation of attorneys. However, while direct solicitation of lawyers is a concern, the real issue for discussion in relation to judicial involvement is the mandate of our trial courts to see that justice is done.
Our Supreme Court has, in its opinions, repeated this principle. In criminal cases the Court has gone so far as to say that plea agreements reached by the prosecution and the defense may be rejected by the trial court, over the objections of both prosecutor and the defense, if in the trial court's opinion, it is not in the interests of justice.4 The Court stated that a rule compelling acceptance of a defendant's plea '...would not be faithful to the judicial role recognized in Killebrew5 of 'a detached and neutral judicial official'...but would reduce the judge's role to one of merely providing the court's 'rubber stamp' for the defendant's plea....'
If the trial court has the authority to override a settlement in a criminal case, cannot and should not a trial court override an unfair or one-sided settlement or other unfair disposition in a civil case? Are the interests of justice any less important in a civil case? If, in a civil case, a court finds overreaching by a party, or inherent unfairness in the proceedings, or an outcome that embarrasses the cause of justice, does not the court have a duty and responsibility to shun the 'rubber stamp' and correct the injustice? If the miscarriage of justice is the direct result of a denial of access to justice by one party, does not that judge have a responsibility to, in some way, instate a lawyer for the indigent party? The answer lies in the charge of Sir Thomas Moore, 'If the parties will at my hand call for justice, then were it my father stood on the one side, and the devil on the other, his cause being good, the devil should have the right.'6
Judges, no less than attorneys, share in the responsibility to see that advocates are available for that representation. Both judges and attorneys must work with legal services programs to ensure that judges are aware of how to enlist pro bono volunteers who are anxious and willing to step forward and provide legal assistance to unrepresented indigents in need. While Opinion J-7 says that judges 'may participate in pro bono activities,' members of the judiciary should adopt as their personal code that judges have a duty and responsibility to engage in activities that guarantee that there are attorneys to meet the legal needs of the poor and underprivileged of our communities. While judges must avoid appointments that appear coercive or improper, they should be aware of the attorneys in the community who work with established pro bono programs, and know where to turn for representation of those in need.
The effort to meet the exigence of the poor in civil cases should not be one-sided. Judges also have a responsibility to offer their time and talents to developing the framework that supplies access to justice and support for the pro bono lawyers who actually provide equal justice under our law. Judges can provide needed training, education, and monies to support the Bar's efforts to access justice. The court has many tools and processes available to it to ensure that the lawyer representing the pro bono client is spared time, money, and needless effort in accomplishing their representation of their client. Systemic changes can easily be made to streamline pro bono cases, e.g., pro bono cases could have priority on the docket or courthouse parking could be set aside for pro bono attorneys.
A Framework for Success
The red flags, the challenges to fairly address the need for civil representation of low-income clients, can and must be met by the bench and bar. Over the last couple of years, as the organized bar has taken on the valiant effort of ensuring access to justice, much pleading has gone forth for increased responses of the members of the Bar to volunteer their time and donate their monies to the cause. The legal profession has responded by supplementing the work of legal services organizations.
It's now time for the judiciary to add its effort in order to realize its mandates.
As an example of progressive efforts, the Grand Rapids Bar Association has developed a plan for incorporating a Legal Assistance Center within the walls of the new Hall of Justice. The Legal Assistance Center is designed to meet the initial questions of pro se litigants and direct them to the appropriate resources in the community for help. On the spot assessments will be done by trained staff to determine eligibility for legal aid services. The proposal offers a solid stage for an extension into substantive coordination by both bench and bar to accomplish the quest for sufficient pro bono to meet all needs.
There is for all lawyers much benefit in the pro bono cause. There is the recognition that pro bono attorneys are, by training and by principle, the way for any citizen, regardless of their status in life, to find justice. There is, for those who sincerely believe in the law and the principles underlying our profession, the profound satisfaction of ensuring its success as a model of justice worldwide. Pro bono services constructively answer, by valiant deed, the unfairness of much of the criticism of lawyers and reestablish their vitalness in our free society.
1 Johnson v Zerbst, 304 US 458 (1938).
2 Gideon v Wainwright, 372 US 355 (1963).
3 See Marvin E. Frankel, Partisan Justice (New York, 1978), p 43.
4 People v Grove, 455 Mich 439, 458 (1997).
5 People v Killebrew, 416 Mich 439 (1982).
6 W. Roper, The Lyfe of Sir Thomas Moore, Knighte, J. M. Cline ed. 42 (1950).