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Posted on Nov 4, 2004 in Speeches

Graphic Hawaii State Judiciary

Remarks by the


to the


Thursday, November 4, 2004
11:30 a.m. — 1001 Bishop Steet – Eighth Floor


It is my privilege to be here this afternoon, and I thank Hawai`i Justice Foundation President, Roger Fonseca, and Administrator Robert LeClair for their kind invitation to speak to you today on the subject of access to civil justice. Each of you — either through your association with HJF or by your presence here today — clearly demonstrates your interest in and commitment to helping those without access to justice. In that regard, I believe I may be “preaching to the choir.” However, please indulge me for a few minutes to talk a little about the importance of providing access to civil justice before addressing the question, “Is there a solution?”

Equal justice for all is the cornerstone of democracy and forms the fabric of our society. In order for our justice system to be truly accessible to all, the enforcement of our laws — which governs everything from economic relationships to the most personal and family matters — must be within the grasp of every citizen, not just the wealthy. Without meaningful access, the law simply becomes an unfulfilled promise. Despite all of the efforts to address access to justice issues over the last several decades, the demand for legal services has consistently outweighed the limited resources. Thus, the lack of access to legal services by the poor continues to be a major social problem. Moreover, with the increasing number of immigrants coming to Hawai`i in recent years, the problem of access to justice has been compounded by issues pertaining to language barriers, cultural differences, and difficulties associated with assimilating into the mainstream of American life. These individuals, as well as those with disabilities, are just as vulnerable as the poor in terms of finding access to legal services.

As you will recall, the last in-depth assessment of the civil legal needs of low and moderate income people in Hawai`i — referred to as “The Spandenberg Report,” which was completed in June 1993 — revealed a “serious level of unmet legal needs among both low income families and gap group families,” that is, families whose incomes are too high to qualify for free civil legal services, yet too low to afford market rate legal assistance. The report indicated that only 9.6% of low-income families in Hawai`i receive legal assistance for their civil legal problems. Admittedly, this assessment was done over ten years ago and, perhaps, some may believe another assessment is needed to determine an accurate picture of our current situation. I submit, however, that another assessment will likely tell us what we already know by simply looking at the growing immigrant population in Hawai`i and the increasing number of pro se litigants appearing in our courts at all levels — that is, parties representing themselves because they simply cannot afford to hire an attorney. I firmly believe that another legal needs assessment survey will only corroborate the empirical evidence and lead to only one conclusion — that the problem regarding access to civil justice has gotten worse.

Sadly, low-income and gap group families are not getting the help they need with ordinary, but nonetheless essential legal matters. I am speaking about such fundamental matters as securing promised government benefits, finding housing, getting a divorce, assisting an aging parent, obtaining unemployment insurance or workers’ compensation benefits, handling medical emergencies or serious illnesses, or — worst of all — finding safety and refuge from domestic violence and child, sex, or spouse abuse. The irony, of course, is that those who are disadvantaged and least empowered simply do not have the means to access the very things that might, in some circumstances, turn their situations around or at least improve them.

To quote the Honorable Learned Hand, “If we are to keep our democracy, there must be one commandment: Thou Shalt Not Ration Justice.” Unfortunately, rationing appears to be the cumulative net effect of having a legal and judicial system that is over-burdened and under-funded. Indeed, if we could secure consistent, full funding for our judicial system and for legal services programs, many problems could be solved. But, as you know, the reality of that ever happening in the foreseeable future is slim in light of our still fragile economy and the competing interests of many other types of service programs. We, therefore, continue to look for solutions elsewhere. But, — IS there a solution? My answer is: YES!

Meeting the civil justice needs of poor and vulnerable people is a joint responsibility of both the public and private sectors. Civil equal justice needs must be met by a mix of individuals, institutions, and organizations working together to ensure that justice-system-consumers have access to the kind of legal assistance that is commensurate with the nature and complexity of their legal problem. For some, it may be access to (1) a staffed legal services program, (2) a private attorney willing to render services pro bono, (3) an onsite courthouse facilitator, or (4) a court-provided mediator. For others, it may be a place to access necessary legal information and consumer-friendly forms from the Internet on a computer, such as law libraries, public libraries, and other similar places where free computer access is available. No single component — either within or outside the justice system — can fully address the range of civil justice needs in the community.

The good news is that all of the above services I just mentioned are currently available; the bad news is that the supply of these services is not meeting the escalating demand. With the technological advancements since the issuance of the Spandenberg Report, the Judiciary has made some progress in providing access to basic legal information and consumer-friendly forms. However, for many, there is simply no substitute for the actual legal representation by a licensed attorney. I have no doubt that there are numerous instances of exemplary pro bono service being performed by attorneys in our legal community. The bottom line, however, is that more attorneys need to step up to the plate in regard to dedicating some of their time to pro bono work. The question is: How do we motivate those in the legal profession to do more?

As you know, Hawai`i’s Rules of Professional Conduct, Rule 6.1, sets forth an aspirational — not mandatory — goal of 50 hours of pro bono services per attorney per year, of which 25 hours is intended for legal services to the poor. According to the latest information from the Hawai`i State Bar Association, 1,273 of the 4,382 actively practicing attorneys in its database reported a total of 90,498 pro bono hours as of October 13, 2004, which represents an average of 71 hours per attorney. It should be noted, however, that the number of attorneys reporting pro bono service hours represents only 29% of the Bar. Imagine if each of those 4,382 attorneys performed the minimum aspirational 50 hours of service per year, which is 4.2 hours per month. The pro bono service hours would increase by 242% to 219,100 hours of valuable and much needed service.

Much debate has surrounded the question whether mandatory pro bono requirements should be imposed on attorneys or whether providing incentives would cause more attorneys to provide legal services at no cost, or reduced cost, to those who cannot afford to pay the market rate. Personally, I am disheartened at the idea of having to mandate or provide incentives to attorneys to do that which is an integral part of the profession they’ve chosen, which includes the affirmative obligation of unselfish service to client, to community, and to society.

Every year, I interview a number of law school students interested in a judicial clerkship in my chambers. I begin with the presumption that the candidate possesses the necessary technical skills required of the position based on graduating from an accredited law school with relatively good grades, submission of a decent writing sample, and positive letters of recommendation. Therefore, during the interview process, my focus is on the candidate’s attitude and philosophy regarding professional responsibility and always ask how they believe attorneys can contribute towards enhancing the image of the profession and elevating public trust and confidence in our justice system. The great majority of clerkship-candidates I’ve interviewed cite pro bono service as the definitive solution. Seemingly, most law students understand that the legal profession is a helping profession and that the practice of law is a “calling.” But, for some reason, — once they enter the practice, — something changes. Perhaps, in this day and age where 2000 plus billable hours are expected, if not required, in law firms — and schedules are more demanding than ever, — pro bono service tends to take a back seat to what has become the competitive business of law. Admittedly, providing legal services at little or no cost affects the bottom line. No one knows that better than the Washington, D.C.-based firm of Covington & Burling.

Since 1969, the Covington firm has partnered with its legal aid service provider — the Neighborhood Legal Services Program or NLSP. Under its partnership program, Covington lends two young associates, one paralegal, and one secretary to the NLSP on a full-time basis for rotating six-month periods. Each Covington employee becomes a full-time NLSP employee, working out of their offices alongside regular NLSP staff, handling the entire gamut of cases within its civil legal services program. The partnership program costs the firm nearly $350,000.00 annually; however, senior partner Bingham Leverich — who is also co-chair of the NLSP Board of Directors — is quick to note that the program is based on more than sheer altruism. He states: “While [the] Neighborhood Legal Services Program and their clients have definitely benefitted from this partnership, so has our firm. The work we do with NLSP gives our lawyers courtroom experience and other valuable skills they may not have [had] previously, which becomes an asset for them and for the firm as a whole.”

According to the September 2004 issue of The American Lawyer, Covington’s 35-year-old partnership program with the NLSP has grown from two to TEN rotating associates. In 2003, the rotating associates rendered 6,302 hours in pro bono service! In June 2003, the firm expanded its program, dedicating an additional associate and a paralegal to work at the Children’s Law Center, representing prospective parents hoping to adopt abused children.

The Coca-Cola Company subscribes to a similar philosophy. Although one-third of its 70-U.S. based lawyers in its departments had been engaged in voluntary pro bono work, the company – in 2002 – “unveiled a model in-house pro bono policy and created an oversight committee for free legal work benefitting the community.” The company has partnered with the firm of Hunton & Williams in the “Wills on Wheels” project, preparing wills for seniors and have teamed with Atlanta Legal Aid to help kids with serious problems at school.

Executive Counsel Joel Neuman says, “We pick only projects in which everyone from the file clerk to the General Counsel can participate. It’s part of what we call our corporate promise[.] . . . There’s no question that our emphasis on pro bono projects – both those that we select and those that are near and dear to our attorneys’ own hearts – do make them feel more fulfilled about their job and feel better about the company they work for. In the end, we feel our pro bono emphasis is going to make our lawyers, legal assistants, and support people more energized and do a better job of providing the legal services that we need here.”

A 2001 survey of the American Corporate Counsel Association indicates that major American corporations around the country are stepping forward in record numbers to provide free legal assistance. Survey results of corporate legal departments indicated 40% in-house pro bono participation with another 40% indicating plans to start in-house pro bono programs. Of those reporting active in-house pro bono participation, 83% permit counsel to perform pro bono legal services on company time.

Major drug companies — like Pfizer, Inc., Abbott Laboratories, and Merck & Company — are also at the forefront of corporate America’s growing commitment to utilize its considerable resources to promote civil justice for all. Different companies have found ways to match community needs with their areas of interest: For example – Attorneys from Hilton Hotels Corporation and Southern California Edison provide hundreds of Los Angeles-area families with adoption assistance; Oregon-based Nike Corporation’s in-house counsel and McDonald’s legal staff each have partnered with local legal service programs in their area; and attorneys at Exxon Mobil counsel individuals, staff legal hotlines, answer disaster relief calls, and host clinics encouraging others to provide legal services to the poor. Last year, Microsoft announced a partnership with the ABA to help detained Washington state immigrants seek asylum or other critical assistance in immigration court. Microsoft’s plan includes donating 5,000 hours of legal time and underwriting most of the project’s expenses.

Indeed, corporate leadership, including corporate counsel throughout the nation, are recognizing that promoting and funding pro bono is good for employee morale, helps in recruiting new attorneys, and benefits the communities in which they do business. As observed by Esther Lardent, President and CEO of the Pro Bono Institute at Georgetown University Law Center, who was quoted in a recent article in equalJustice Magazine, entitled “Taking the Pro Bono Challenge”: “Strong pro bono is one of the most effective ways to market a firm to clients and potential recruits.” She went on to explain that, in recent years, major corporations seeking to retain counsel have examined a firm’s pro bono record, and top law students or attorneys seeking other employment opportunities often inquire about a firm’s pro bono policy and commitments before choosing where to work.

The import of the article is that a firm’s proactive pro bono efforts — or lack thereof — speaks volumes about its character, philosophy, commitment, and integrity. As such, pro bono activities DO affect the bottom line — but it can be extremely positive. For those expending monies on marketing, what better marketing tool could there be than the free publicity and positive image garnered by pro bono service?

Although the “corporate citizenship” demonstrated by those major corporations I referred to above, including the work of giant law firms on the mainland, is certainly impressive, I recognize that the size of our local businesses and law firms are significantly smaller. Nevertheless, I believe we can all learn from the collective experiences of our mainland counterparts because no matter the size of your business or the size of your practice, every business and law firm in Hawai`i has some things in common with their mainland counterparts — you are either a client of an attorney or an attorney of a client. In that regard, we can take a lesson from the Atlanta law firm of Kilpatrick Stockton and one of its major clients, Atlanta Bellsouth Corporation. In a joint collaboration between Kilpatrick, Bellsouth, and the Atlanta Legal Aid Society, the “Grandparents Advocacy Project” was born. The project provides assistance to relatives, serving as primary caregivers, to legally adopt their dependents in uncontested adoption proceedings, which opens the doors to a myriad of benefits that make a huge impact on the family’s quality of life.

Clearly, if we are to develop viable and effective plans to provide civil equal justice to poor and vulnerable people, we have to start “thinking outside the box” and develop a fully integrated system to ensure equal justice for all. The key, I submit, is finding a way to tap into the same kind of humanitarian and patriotic spirit engendered by the unfortunate events of September 11 and channel it towards rendering assistance to the poor and vulnerable in our community.

Prior to September 11, while attending University of Hawai`i football games, I would stand up, along with everyone else, for the traditional playing of the our national anthem. While the music played, I would quietly mouth the words — as I can’t carry a tune! — I often noticed others who, although standing, were talking and laughing; some even continued eating, while others stood with baseball caps and hats still on their heads. On those occasions, I remember thinking how sad that our citizens have come to the point where even the most elementary display of respect for our national anthem and American flag — indeed, symbols of our freedom and democracy — are ignored. However, after 9-11, the attitude and mind-set seemed significantly different — most of the men took off their baseball caps and placed them over their hearts and others — men and women alike — placed their hand over their hearts; you could even hear the audience singing the words of the Star Spangled Banner. Indeed, September 11 was a wake-up call to the entire nation about how complacent we had become regarding the freedoms we enjoy and our lack of appreciation for our democratic form of government.

Do we need a similar wake-up call to spur us into action to provide equal justice for all? I submit we’ve already had our “9-11 access to justice” tragedy — it happened over ten years ago when we learned that only 9.6% of low-income families in Hawai`i receive legal assistance for their civil legal problems. Granted, we have made some strides since then; however, we clearly need to do much more.

I commend and applaud the work that the HJF has done and continues to do in promoting and supporting the delivery of legal services for the disadvantaged in our community. We look to your continuing leadership in helping to ensure equal justice for all.

Ladies and gentlemen — you have been a wonderful audience. Thank you for your attention and for having me here today.

This copy is provided as a courtesy. It may not be published, copied, or otherwise reproduced without the written permission of Chief Justice Ronald T.Y. Moon.