Texas Supreme Court advisory
Contact: Osler McCarthy, staff attorney/public information
512.463.1441 or click for email
Wednesday, December 7, 2016
COMMISSION RELEASES RECOMMENDATIONS TO ANSWER ‘JUSTICE GAP’ ISSUES
A commission appointed by the Texas Supreme Court has proposed eight recommendations to expand civil legal services for “modest-means” clients in Texas, including specific ways to direct those disqualified for free legal-aid help to organizations and lawyers willing to serve them. The commission also recommends broadening legal-information services now in certain libraries and courthouses to assist people who represent themselves.
The 19-member Texas Commission to Expand Civil Legal Services noted among other findings that more than 80 percent of impoverished litigants nationwide go without legal help in matters involving “basic life needs,” citing evictions, mortgage foreclosures, child custody disputes and child-support proceedings and matters involving debt- collection efforts. It also noted that one in five Americans qualifies for free legal assistance, but legal-aid organizations only can help a fraction of them.
“This is a national problem, and Texas is not spared,” Chief Justice Nathan L. Hecht said. “In a real sense, for basic needs, this is like a health-care system without doctors.”
The commission is headed by former Chief Justice Wallace B. Jefferson. “The Court is devoted to expanding access to justice for all Texans,” Jefferson said. “The commission has strived to further that laudable goal with this report.” In its initial recommendations, the commission proposes that the Court work to ensure:
¶ The Texas Judicial Council and the Office of Court Administration get comprehensive statistics on people who represent themselves in Texas courts and publish those statistics annually.
¶ Creation of a standing committee to maintain accountability for closing the justice gap and to monitor the effectiveness of reform efforts.
¶ The State Bar of Texas, the Texas Access to Justice Commission and local bar associations create “pipelines” of services for modest-means clients turned away from legal-aid assistance but who can afford at least limited legal representation, including means to refer them to lawyers. “The result of these cracks in the system is that people who could afford some representation,” the commission’s report noted, “are either representing themselves or opting out of the judicial system altogether, and those who qualify and apply for services at one organization are left stranded if the organization does not have sufficient resources to help them.”
¶ Adequate financing both for public law libraries and for providing “navigators” in libraries, courthouses and other public spaces to assist people in finding legal help.
¶ Promote technological solutions to closing the justice gap and consider whether lawyer-ethics rules should be changed to eliminate obstacles to innovation. Among such tech innovation and improvements might be expanded lawyer-referral efforts to include what lawyers charge for certain services so modest-means clients get “an accurate estimate” of representation costs before contacting a lawyer and perhaps match clients with licensed attorneys from other areas of the state.
¶ Support and promote existing legal “incubators,” providing supervision and training for lawyers who plan to open their own offices after law-school graduation, and expand such programs.
¶ Consider amending court and ethics rules to clarify issues raised by limited-scope representation, allowing lawyers to help clients with specific tasks like ghost-writing letters or court pleadings when clients would otherwise represent themselves.
¶ Emphasize in future court rules that the civil-justice system be easier for modest-means clients to understand and use.
In its analysis and for its recommendations, the commission drew from the American Bar Association’s recent Report on the Future of Legal Services, a two-year study, and independently explored legal-service programs in other states aimed at people who go without legal help.
The Court created the commission, comprised of legal scholars, judges and lawyers, in November 2015.
“Importantly, the recommendations in this report are a starting point,” the commission said. “The justice gap did not occur overnight, and closing it may prove to be an enduring quest. It will take not only bold action, but also years of experimenting and monitoring to determine reforms that work and that fail, both here and elsewhere.”