Laurence H. Tribe, Senior Counselor for Access to Justice, Keynote Remarks to the Community Legal Services’ “Breakfast of Champions”

As prepared for delivery.

I would like to thank Community Legal Services and Catherine Carr for inviting me to speak with you, and thanks also to the Philadelphia Trial Lawyers Association for sponsoring this wonderful event.
I must say that it’s a particular honor to be asked here by CLS, which has been advancing the cause of access to justice for some 45 years, and doing it as well as anybody in the field.  I know that your organization has won many national awards for excellence in serving the legal needs of the community’s poor and working class, and that many of your 48 attorneys have also been recognized by local, regional, and national organizations.  I suppose that after almost five decades it’s about time that the United States Justice Department also said thank you for all of the work that you and your supporters in this room do.  So it’s not only my personal thanks but those of the Attorney General that I am here to deliver today.

It’s also a pleasure to be honored together with Representative Kathy Manderino, who has spent her career in public service supporting access to justice, in particular on behalf of victims of domestic violence and low-income women, children, and families.  The State of Pennsylvania is losing a true champion, although I know that your retirement is well-earned and I hope it will be just as well-enjoyed.  I also want to join all of you in recognizing Michael Boni, Anita Santos-Singh, and Johnnie May Coles for their significant contributions to the very important work of the lawyers and advocates gathered here, and to the communities that you serve.

Compared to many of you, I suppose that I am a relative newcomer to the calling of access to justice, at least insofar as it has only recently become a formal part of my job description.  It’s been less than three months since a President I admire hugely, and an Attorney General I respect tremendously, appointed me to lead the administration's new initiative in search of justice, a search that is at the heart of our national identity and that embodies the aspirations both President Obama and Attorney General Holder have repeatedly articulated. 

My suite of offices in the Robert F. Kennedy Building, fondly known as “Main Justice” to those who work in it, isn’t either large or particularly impressive, and my fledgling legal staff is small. But there’s one thing that’s huge about our office: It’s the sign outside my door. It says, simply, “Access to Justice.” People who have visited me there have often paused to have their photographs taken – not with me, mind you, but with the sign on my door. Some, including some state and federal judges and prosecutors and public defenders and leaders of charitable organizations, have openly marveled that there is, at long last, such a sign somewhere in the Justice Department.

Our Initiative is charged with improving the availability and quality of indigent defense; enhancing civil legal representation for those without great wealth, including the middle class as well as the poor; promoting less lawyer-intensive and court-intensive solutions when possible; focusing with special care upon the legal needs of the most vulnerable among us; working with federal, state, and tribal judiciaries in strengthening fair, impartial, and independent adjudication; exchanging information with foreign ministries of justice and judicial systems on our respective efforts to improve access; and encouraging the development of more thoroughly evidence-based solutions to problems in the delivery of legal services.

These are tall orders, as I’m constantly reminded by others (and as I just as constantly remind myself).  Law and justice, of course, are not synonymous.  Law is a means.  Justice is an end.  And, all too often throughout world history and, sadly, our history as well, law has been an instrument not of justice but of injustice.  The law in the United States not so long ago denied freedom, even full personhood, to an entire race of human beings.  For a full half century after the passage of the Fourteenth Amendment, our law denied full citizenship (including the right to vote) to an entire gender – over half the population – and our laws still deny full equality to many of our LGBT brothers and sisters. 

But, as President Obama is fond of saying, we grow.  We learn.  With occasional steps backwards, we manage to evolve.  He is fond of quoting the Constitution’s preamble: “. . in order to form a more perfect Union.”  We have elected a President who is committed to the repeal of “Don’t Ask, Don’t Tell” and of the Defense of Marriage Act.  He has issued a Presidential Memorandum that will allow partners to visit their ill loved ones in hospitals that participate in Medicare and Medicaid.  And he has selected an Attorney General for whom the perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class constitute not just a “problem” but a “crisis.”

I agree with Attorney General Holder that we are indeed in a state of crisis.  Public defenders' offices are underfunded and understaffed – their annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors per lawyer, at least 5 to 6 times the ceilings set by the National Advisory Commission on Criminal Justice.    The situation is no less dire in civil cases, including those that involve life-altering matters like deportation, loss of child custody, and eviction.  Although our Supreme Court has not held that indigents in such proceedings are entitled to be represented by counsel at public expense, no one doubts that those who cannot afford counsel in proceedings touching such momentous matters are at a serious disadvantage.  Thus it will come as no surprise that legally represented immigrants seeking asylum in the U.S. to avoid persecution and torture in their home countries win their claims for asylum at three times the rate of those who are legally unrepresented.  Imagine the plight of unaccompanied children, 8,000 of whom come to this country each year without a parent or guardian to watch over them and are then detained by immigration officials on the way to deportation.  A majority of these kids have no legal assistance at all to help them navigate one of the most complex of all legal labyrinths 

The problems we face aren’t episodic but systemic.  To qualify for federally-funded legal assistance, one must earn no more than 25 percent above the poverty level; more than 50 million Americans qualify by that criterion, but over half of those who qualify and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.

But I won’t belabor statistics or anecdotes at this gathering – you’re as aware as I am of the statistics, and you live the anecdotes every day.  Just know that this is not a crisis that the Obama administration is ignoring. Full as the agenda is, the administration is committed to improving delivery of legal services and increasing access to justice for all. More than its predecessors, this government is committed to making justice an active verb. The president’s budget proposal for Fiscal 2011 includes more funds for legal services at the federal level and proposes to lift some of the restrictions that tie the hands of federally funded legal aid offices.   We’ll all join Ms. Santos-Singh in crossing our fingers that the president’s proposal comes to fruition, a goal toward which my office is working with lawmakers on Capitol Hill.

But, plainly, it’s going to take much more even than that to meet our objective of ensuring access to justice for all of our fellow citizens.  More legal aid lawyers and fewer restrictions on the work they do is certainly a start, but it’s not enough.  We must do better with the resources at our disposal, we must be smarter about how we deploy them, and, most important, we must work together. 

To that end, my staff and I have been meeting with pro bono teams from large law firms, some of which are represented in this room.  I know that your business models are changing, with your clients no longer willing to pay hundreds of dollars per hour for first- and second-year associates.  If they’re smartly designed, pro bono projects can play a large part in providing your young lawyers with more litigation and transactional experience – as well as seats at the table at more of the meetings where important decisions get made.  With that in mind, I am especially pleased to announce to you this morning that, following conversations with our Access to Justice Initiative, Judge Theodore McKee, the Chief Judge of the Third Circuit, has committed to create a standing lawyers’ committee on pro bono, which will promote best practices and acknowledge pro bono accomplishments.  There is a similar committee in the D.C. Circuit that pro bono partners there inform me has played a key role in measurably increasing pro bono participation not only by associates, but also – and this makes a big difference – by  partners.  I hope that you will work with Judge McKee to make the committee a success in this circuit, as well.

I also understand how much you all already do.  This event is a terrific reminder of that.  I know that you give almost $400,000 each year to CLS to make its work possible, and I know that you’re close to maxed out in the number of pro bono hours you can realistically give.  But I hope that this breakfast can serve as a catalyst to our working together to study ways to maximize the effect of the time and money that you so graciously contribute.

For example, many of your partners are gently “urged” into retirement or semi-retirement at an age at which they still have the will to contribute and the experience, expertise, and energy to do it valuably.  Rather than being put out to pasture, these lawyers should be coupled with young associates to form teams that could be detailed to organizations like CLS and Philadelphia Legal Assistance to enhance their capacity to serve the needs of the community.  I understand that collaborations between pro bono lawyers, CLS’s housing unit, and Legal Assistance have already had a positive impact on the successful Philadelphia Mortgage Foreclosure Diversion Pilot Program, and have kept hundreds of families in their homes.   As the legal landscape changes, I sincerely hope that such alliances can grow and prosper to the benefit of the firms and organizations represented in this room and, more important, to the benefit of the individuals in desperate need of your help.

But the last thing I mean to suggest is that representing indigent clients pro bono is the only way (or always even the best way) to gain legal experience or to advance the cause of justice. Justice is a house of many mansions, and its gates of access are to be found in many places. Our Access to Justice Initiative, for example, whose mission includes a search for innovative solutions and unlikely alliances, has found points of entry in such surprising locations as medical clinics and emergency rooms, where over 130 medical-legal partnerships place students supervised by lawyers and other specialists at help desks situated in medical facilities to accept referrals directly from physicians. The mother who brings a severely asthmatic child to a hospital might need medicine for her baby but may need even more urgently a lawyer’s help in dealing with a landlord who won’t exterminate the mites in the carpet. That lawyer could be a CLS lawyer, but it could also be one who, like the lawyer helping with the mediation program, gained relevant experience in condominium conversions or real estate insurance trusts.

Finally, I don’t want to talk about working together and forming synergies without offering the assistance of our Initiative in your efforts.  One area that immediately strikes me as a point of potential collaboration is Pennsylvania’s lack of a statewide access to justice commission.  Twenty-four states and the District of Columbia have such commissions, and many have been successful in improving resources available to programs like CLS that work to serve the legal needs of the poor.  For example, the California Commission on Access to Justice was instrumental in that state’s recently-enacted Sargent Shriver Civil Counsel Act, which beginning next year will establish pilot programs to provide counsel at state expense to indigent civil litigants in cases involving basic human needs like housing and child custody.  

Such statewide commissions have been formed through collaborations between the bar and the bench, and the most effective commissions have strong leadership from both.  I’ve appreciated the privilege of speaking to the very best of the Pennsylvania bar here this morning, and I plan to address the National Conference of State Chief Justices this July in Vail to discuss this issue with that decorated audience.  I know that Chief Justice Ronald Castille has been a supporter of CLS and I look forward to addressing access to justice with him in hopes that all of our efforts can start momentum to bringing a statewide commission to Pennsylvania in the near future.

May that effort be just one of many in which we join to broaden the access routes to the mighty torrent of justice.  My vision is in some ways the opposite of what has been described as the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout.  I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to law are lowered.  The challenge is to do that in difficult times, when so much else competes for all of our attention.  It is a challenge I invite all of you to take up as your own – in a world where, as Martin Luther King once said, the great arc of history bends toward justice.