Commentary : It Is Time to Make Sure That Everyone Has Access to Justice System

In general, a court order is necessary to obtain police protection from domestic violence. And legal assistance is necessary to obtain a court order. In Orange County, the Victim Witness Assistance Program provides such assistance to victims of domestic violence, who for the most part are women with young children. Of the almost 200 people a month that the program helps, perhaps 1% can afford private attorneys.

Despite its obvious importance to the county, the program was scheduled to end Sept. 30 because of a higher priority need--work with families of murder victims. Recently, after a public outcry, the County Board of Supervisors intervened and funded Victim Witness through April.

To meet more long-term needs, a committee has been formed to raise private funds. In this time of limited public funds, this is probably all the Board of Supervisors could do to sustain the program. The board’s solution, however, requires that Victim Witness compete for a share of the limited charitable dollars available in Orange County. If it fails to compete successfully, there will be no legal assistance for domestic violence victims.

Such an approach would be unthinkable to enforce the laws against prostitution or the sale of dangerous drugs. The “bake sale” approach to fund Victim Witness, however, is regarded as reasonable because domestic violence is regarded as a “civil” program. Many believe such problems are the responsibility of Legal Aid and the private bar. The question is asked, if only 1% of those served by Victim Witness can afford private attorneys, why doesn’t Legal Aid serve the rest?

The answer reflects both the deficiencies and complexity of our legal system. Even if Legal Aid had resources available to provide those additional services, and it does not, it could not help the majority of those served by Victim Witness. The government restricts Legal Aid’s services to those whose income is no more than 125% of the federal poverty standard ($12,112 for a family of three).

Given the harsh consequences to those denied necessary legal assistance, it is understandable if they develop a sense of fear and alienation toward the justice system.

The Legal Aid Society of Orange County, through its referral service, regularly refers both fee-generating matters and “over-income” people to the private bar. In 1987, only 336 (or 6.5%) of the 5,784 people referred could make arrangements to obtain assistance. With more than 100,000 attorneys in the state, why are so few people able to obtain needed legal assistance? In the real world, unlike television, attorneys must meet their expenses and therefore generally refuse cases that are not economically viable (moneymakers).

Although the concept of economic viability is perfectly appropriate for the business world, it is of limited usefulness in the practice of law. It works just fine in contingency-fee cases and for those fortunate few who can afford an attorney’s hourly rate, which may average $150. But it does not assure that those with meritorious claims or defenses obtain access to the justice system. It does not systematically provide a court’s protective orders in matters where such orders are necessary.

Like those with limited incomes, the poor have little chance to obtain legal assistance. In Orange County, for example, there are nine staff attorneys at Legal Aid and the private bar takes about 300 pro bono cases a year. The 1980 census revealed that 194,969 people in the county had incomes meeting the federal poverty standard. In a spectacularly efficient year, Legal Aid and the private bar may together provide in-depth assistance to 2,000 poor people, less than 10% of the need for legal assistance to the poor.

The situation is getting worse. Federal funding for legal services, initially slashed by 25% when President Reagan took office, is subject to Gramm-Rudman budget restrictions. In 1988, funding was frozen; in 1989, legal services is scheduled for a 1% increase. With the cost of providing services increasing at perhaps 5% a year, the availability of legal services for the poor slowly diminishes.

For the poor and those with limited incomes, the justice system is one big Catch-22. Getting through its complexity requires the assistance of an attorney, but the cost of an attorney puts such assistance out of reach.

In Europe, access to the justice system is assured. It is regarded as a fundamental human right. In the United States, the issue is yet to be addressed. I think it is time to provide a realistic way for the people to use their justice system. Through federally funded pilot programs, the private bar has already demonstrated that it can provide services for the poor at 50% or less of the average market rate.

There are cost-effective ways to expand access without using state revenue. To mention a few: voluntary contributions to a “justice security fund” as part of a state bar-sponsored prepaid group plan for emergency legal services, a reallocation and redefinition of allowable court costs, and the interest-earning potential from currently non-interest-bearing real estate escrows. Other funding alternatives exist; all are fairer than denying access to the courts to those who cannot afford the price of justice.

I suggest that the California State Bar, through its Legal Services Section, establish a commission to inventory the unmet need for legal services, recommend simplification where possible and set forth alternatives for raising additional resources. Such a commission could provide a blueprint for a more open and effective justice system.

Until we address the problem of access to the justice system in a comprehensive manner, legal assistance will not be provided to the poor or to those with limited incomes unless they have problems that reach the public spotlight. People should not be forced to beg for justice.