Justice News

Senior Counselor for Access to Justice, Laurence H. Tribe Speaks at the Washington Council of Lawyers' Summer Pro Bono Forum
Washington, DC
United States
~
Tuesday, June 8, 2010

As prepared for delivery.

Good afternoon. It's an honor to be here, and it’s especially exhilarating to find so many law students congregated in one room. You see, I love my new job here in DC but, as you can imagine, I can’t help missing the classroom.  And so I get especially excited about events like today’s forum where I can both speak about justice and, at the same time, interact with some of my favorite people: bright-eyed, aspiring attorneys. Don’t worry, though: I won’t be cold calling on you today!

I would like to thank Gina Malloy, her staff, and the Washington Council of Lawyers board for inviting me to this wonderful event, which I’m confident will – through the inspiring conversations you’ll have and the panels you’ll attend – leave deep, indelible impressions on each of you. When I consider the Council’s four decades of work to promote public interest law, pro bono service, and social justice in the Washington, DC legal community, I realize there are few more appropriate, or distinguished, forums in the city at which I could be speaking in my new role than this one, and so it’s truly a special honor to be here. I’m very grateful to all of you for joining me and, as always, for your commitment to the crisis we’ve come together this afternoon to confront: access to justice.

Compared to many of you, I suppose 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. In fact, I may share most with the students here, who, after years in the classroom, now find yourselves in a position to help real people interact with the law. But I’d also wager that each of you, while in a library or lecture hall, felt more than once that access to justice was not merely peripheral to your studies – but central. I know I did almost every day of my decades of teaching.

And that's why when a President I admire deeply, and an Attorney General I respect tremendously, asked me to lead the administration's new initiative in search of justice earlier this year, I enthusiastically agreed. The search for justice is at the heart of our national identity, and it embodies the aspirations both President Obama and Attorney General Holder have repeatedly articulated for years – to deliver on our nation’s great promise of justice for every American.

Now, my suite of offices in the Robert F. Kennedy Building across the street, 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 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.

Access to Justice – three simple words, but what, exactly, do they mean? For our Initiative, many things – seven, to be precise: first, improving the availability and quality of indigent defense; second, enhancing civil legal representation for those without great wealth, including the middle class as well as the poor; third, promoting less lawyer-intensive and court-intensive solutions when possible; fourth, focusing with special care upon the legal needs of the most vulnerable among us; fifth, working with federal, state, and tribal judiciaries to strengthen fair, impartial, and independent adjudication; sixth, exchanging information with foreign ministers of justice and judicial systems on our respective efforts to improve access; and, finally, encouraging the development of more thoroughly evidence-based solutions to problems in the delivery of legal services.

That’s a mouthful, I know – but our formal charges boil down, in my view, to one self-evident truth: that “justice for all” cannot be achieved so long as justice is available only to some.

Solving this problem is a tall order – as I’m consistently reminded by others (and as I just as constantly remind myself). Law and justice, after all, are not synonymous.  Law is a means. Justice is an end.  And yet, 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 – more than 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. We are, indeed, in a state of crisis.

Public defender offices are understaffed and underfunded. Their annual caseloads are often 5 to 6 times that of the ceiling set by the National Advisory Commission on Criminal Justice –ranging from 500 to 900 felony cases and over 2,000 misdemeanors per lawyer per year. And 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 to you 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.

And let’s be honest with ourselves: The problems we face aren’t episodic. They are 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.

Don’t worry, I won’t belabor statistics or anecdotes today: the public-interest lawyers among you are as aware as I am of the realities – you live them every day – and for the students here… well, I’m sure you thought your summer would be lecture-free. But know this: the Obama administration is not ignoring this crisis. Full as the agenda is, the administration is committed to improving the delivery of legal services and increasing access to justice for all. More than its predecessors, this government is, in short, 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’re all crossing our fingers that the President’s proposal comes to fruition, a goal toward which my office is working closely with lawmakers on Capitol Hill.

But the truth is that 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. In other words, we need you.

Many of you, I know, are already engaged in terrific pro bono projects or public interest ventures in Washington. Whether through your organizations, your firms, or this council, you provide legal advice at Bread for the City, counsel the poor at the Washington Legal Clinic for the Homeless, dedicate your time to the Whitman-Walker Clinic legal services program for people living with HIV-AIDS in the metropolitan area – I could go on and on. But all of us can still do better with the resources at our disposal. We can be smarter about how we deploy them. And, most important, we can work double time to find new ways to 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 by partners and summer associates in this room. I know that your business models are changing. I know that your clients are no longer willing to pay hundreds of dollars per hour for first- and second-year associates – sorry, guys. But there’s a silver lining to all this: If they are smartly designed, pro bono projects can play a large part in providing young lawyers – like many of you – with more litigation and transactional experience, as well as seats at the table at more of the meetings where important decisions get made.

But to the associates here, I urge you not to wait another day to step up and find ways to engage in pro bono projects – without being asked. The perception, I realize, is that pro bono work can overwhelm you, sapping valuable time and presenting legal questions you feel you are not yet equipped to handle. But the truth is pro bono work can be wonderful training as well as a great service. And you can start small, with only a few hours every Saturday. In that spirit, I hope each of you will consider committing to making tomorrow – June 9, 2010 – the day that you contact your firm’s pro bono coordinator or seek partners at your firm engaged in pro bono work. There’s no reason to wait until they ask you to engage in work that will increase access to justice for those who lack it – justice doesn’t have time to wait.

And don’t stop there. As you consider ideas you hear and discuss this afternoon, commit to a chat this week with your supervisor about other ways your firm can promote pro bono work. For example, many of your firm’s 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 could – and should – be coupled with young associates like you to form teams that could be detailed to organizations like the Washington Council of Lawyers and the city’s aid organizations also represented here. These are the alliances that can grow and prosper to benefit our nation’s capital – and its most desperate citizens – at a time when they need you most.

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 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 one of you.

The key, as in any arena, is not to model yourselves after anyone in your search for how to give back – but, after finding mentors around you and learning from them all you can learn, to summon your best selves and discover what feels to you most worthwhile. But know the time for just thinking is over; it’s time to act. As one of my former – and all-time favorite – students, Samantha Power, said last month at Harvard Law School’s Commencement, the tools you are honing in school and this summer are like scalpels. If you use them incorrectly – that is, unjustly – you can cause bleeding; you can do real harm. But if you use them well, you can end pain, not add to it; you can ease suffering and inspire; you can help, in short, to make “hope and history rhyme,” as Samantha noted the great Irish poet Seamus Heany once said. In her words, “Reason is the tool [your training] has given you, but justice is the cause that must lie within you.”

I could not agree more. And though since taking office, I’ve received almost nothing but supportive messages and e-mails, there is the exception of an occasional email challenging – believe it or not – the constitutionality of having an initiative dedicated to the goal of access to justice. “The Constitution directs the President to ‘see to it that the laws are faithfully executed,’” they say. “Where in the Constitution does it say that anyone is entitled to justice?” “If you’re interested in justice, you should’ve gone to Divinity School, not Law School.”

Now, all of you went to law school – or you’re there right now. Why did you do it? Why did you come to DC? Why are you here today? While I know all the cynical answers, I believe – I know – most of you came with a vision, and burning desire for, justice for all. I want each of you to consider that vision for a moment. I want you to feel it, to see it – and to re-commit to it.

And as you do that, I’ll offer you in closing my own humble vision, which, in some ways, is 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, of course, is to do that in difficult times, when so much else competes for all of our attention.  But it is a challenge, my friends, that I invite all of you – that I ask all of you – to take up as your own – in a world where, as Martin Luther King once said, the great arc of the moral universe bends toward justice.

Component: