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“Do the Right Thing”: Remarks by Acting Senior Counselor for Access to Justice Karen Lash to the Arizona Supreme Court on Law Day


Phoenix, AZ
United States

“Unasserted, unknown, unavailable rights are no rights at all.”  Attorney General Robert F. Kennedy spoke that truth fifty years ago – today -- at a University of Chicago Law School May Day event.  Those who attended one of your recent regional forums heard in Chief Justice Rebecca White Berch’s video message the call to link unasserted rights and poverty, sounding like an echo of that RFK speech where he also declared, “lawyers must bear the responsibility for permitting the growth and continuance of two systems of law--one for the rich, one for the poor.”  We’re here to talk about righting that wrong.

Thank you Kevin for that gracious introduction.  It’s an honor to join this impressive gathering of Arizona’s leading legal professionals.  Long before I joined the Justice Department, I spent eleven years in a law school – not as a remedial student, but as an associate dean, working with top thinkers and theorizers.   Often I’d itch to translate those great academic thoughts about rights and remedies into action.  This meeting – more “do tank” than “think tank” -- does just that.
I’ll start with a few stories about the policy shop where I work -- the US Department of Justice Access to Justice Initiative.  I’ll offer observations about Commission achievements from a national perspective, then regionally, and finish by zooming in on Arizona.  I’ll offer some suggestions, and a challenge to “do the right thing.”
You’re all doing a lot already to help get critical and often life-changing legal aid to Arizonans who can’t afford help.  You’re the experts on what Arizona’s next steps should be.  What I can add is the character defect of being a first-rate noodge, a Yiddish term for kind of a pest, derived from Polish words for fretting and aching, but not quite as irritating as a nudnik.   Some of you have experienced my noodging first hand, for which I’d apologize, were I not a noodge. 
First, some background on our office.  We opened in March, 2010, born of the determination of President Barack Obama and Attorney General Eric Holder to increase access to justice, initially under the leadership of the legendary Professor Laurence Tribe. 

We’ve focused on studying and improving civil legal aid to low-income people and the closely-related crisis in indigent defense.  Two small, manageable tasks for a staff of six.  But even without a grant-making budget or any enforcement authority we’ve discovered that other useful tools came with our little office in the Main building of the Justice Department: a bully pulpit; mechanisms to convene and connect players; opportunities to propose, or comment on rules, regulations, legislation, and positions the Department may take in the Supreme Court or in Congress; and we get a force multipler effect by talking to other DOJ components and federal agencies about considering spending some of their grant dollars to increase access to justice; and we have the ability to inject ATJ perspectives in  the many inter-agency working groups on which we serve.  All these levers combined, it turns out, can nudge – or noodge – us, as a country, closer to the national ideals of justice for all.   I list those tools because they’re pretty much the same ones you could find in an Arizona ATJ Commission toolbox.

A bully pulpit example involves then Senior Counselor Tribe, who in 2010 addressed the Conferences of Chief Justices and State Court Administrators, to highlight the importance of ATJ Commissions, recognizing them as one of the most important justice-related developments in the last decade and noting that the Chief Justices’ leadership makes possible that success.  You already have that kind of strong commitment from your Chief Justice.

In 1993 there were zero Commissions, in 2000 there were three, and in 2010 when Professor Tribe addressed the Conferences there were 22 Commissions -- thanks in large part to the smarts, care and feeding, – and noodging – from the ABA’s Resource Center for Access to Justice Initiatives’ Bob Echols.  But now there are 33 and counting, with 5 having launched just in the last year, this thanks in part to the Public Welfare Foundation’s visionary Mary McClymont, and her partner in catalyzing ATJ Commission’s Sandy Ambrozy from the Kresge Foundation.  Commissions operate from Maine to Hawaii, in states both urban and predominantly rural.   According to the ABA Resource Center’s Meredith McBurney:

  • Of the top ten states with increased revenue over the period 2002-2011 for civil legal aid, all but one had an ATJ Commission.
  • Of the 25 states with increased revenue that beat inflation, 19 had ATJ Commissions.
  • Of the bottom ten states, only one had an ATJ Commission.
  • Of the 25 states that did not beat inflation, only seven had ATJ Commissions.

Because Meredith tells me that this does NOT establish causation, I’ll just say, “res ipsa” and invite you to draw your own conclusions. 

But you just have to look to a few of your border and neighbor states to get examples of clear causation between progress and a Commission.   

In 1999, California, one of the earliest Commissions established and the one I know best as a former member and co-chair with Justice Earl Johnson, had its first big success–-- a $10 million state appropriation for civil legal aid, the first of its kind in California.  When it initially landed on Governor Davis’s desk, he threatened to line-item veto the Fund.  But the California Chamber of Commerce – represented on the Commission -- got heads of major corporations in the state to sign a letter urging him not to.  Legal aid makes for healthy communities, the business leaders explained, which makes for a good business environment.  The Governor did the right thing.  The Commission also played a crucial role in California enacting the groundbreaking Sargent Shriver Civil Counsel Act, establishing civil Gideon pilot projects thoughout the golden state. 

I joined Judge Sarah Singleton, Chair of New Mexico’s ATJ Commission in Indiana, at a planning session very much like this one.  She told the participants that in 2001, New Mexico and Indiana both ranked in the bottom third in civil legal aid revenue per poor person.  Then, fast forwarding to 2009, she showed how New Mexico vaulted up to the top half, while Indiana still had some work to do.  The difference for New Mexico, she said, is the Commission created in 2004, and fruits of the Commission’s revenue raising efforts.  By the way, Indiana’s Commission launched last fall.

The TexasSupreme Court established the Texas ATJ Commission in 2001.  In 2009 that collaboration bore extraordinary fruit when that Commission worked with Chief Justice Wallace Jefferson and then-Associate Justice Harriett O’Neill to increase state funding to compensate for the IOLTA revenue decline.  That imperative made it to breakfast tables across the state when a Dallas Morning News editorial declared that “When the Chief Justice of the Texas Supreme Court says the state's civil legal aid program is near financial collapse, lawmakers need to rescue it.”  Texas increased funding by more than $13 million each of the next two years.  Then in 2011, Chief Justice Jefferson and Justice Nathan Hecht led another successful lobbying effort that channeled  $17.6 million for civil legal aid, and $7.6 million for indigent criminal defense.  Now Chief Justice Hecht credits the institutionalization of a Commission for the bipartisan consensus in the Lone Star State.  

Wyoming is one of the most recent states to demonstrate the major impact of a Commission. Again the State Supreme Court leads the effort.  Launched in 2008 with Associate Justice James Burke and then Chief Justice Marilyn Kite, as members, the Chair -- Justice Burke -- moved the Commission forward at lightening speed.  During 2009, the Commission held statewide hearings, gaining information and publicity about the need for legal aid.  Just 16 months after the Commission was established, Wyoming enacted its first-ever state funding for legal aid through a filing fee surcharge, more than doubling the total amount of funds -- not just state funds, but all funds -- for Wyoming legal aid.

Now to your own front stoop.   Here’s the bad news: The ABA’s Resource Center data shows you had about the same amount of total revenue for civil legal aid in 2011, as you did in 2002.  That’s raw numbers, not adjusted for cost-of -living or inflation.   
But there’s good news too.  The best time to plant an oak tree may be twenty years ago, but the second best time is now. Though an oak is unlikely to take root here, a saguaro would, and Arizonans know how to make the desert bloom. 

Arizona has many bragging rights.  You’ve held regional forums.  You did an impressive Legal Needs study, and calculated the ways legal aid yields concrete in-state economic benefits.  You’re doing what many states only wish they could pull off with an 800-number for statewide intake and triage.  I’m told you’re among the top nationally in raising funds from attorneys, already have a state appropriation and use pro hoc vice funds for civil legal aid.  You’re innovating with librarians, and amending rules to remove obstacles to more pro bono.  You innovate with technology, making sure there are websites in every county and on tribal reservations.  Other assets include Supreme Court leadership committed to equal access to justice, a state bar that imbeds ATJ in its core mission, a trusted bar foundation with nationally recognized leadership, relations with the executive branch like the Department of Economic Security and Attorney General’s office, strong legal aid leadership and staff – including Lillian Johnson, one of the 16 advocates whom President Obama designated a “Champion of Change” and honored at the White House – an appetite for new collaborations, and a righteous anger about a state of affairs where for far too many, rights are unasserted, unknown, and unavailable.  A Commission could allow Arizona’s ATJ community to institutionalize all that experience, expertise and commitment, and to braid together all your efforts to take this work to the next level.  To “live up to your potential,” as the Chief Justice said in her opening remarks.

So what’s left?  One more story about a strategy that’s worked for our office, and may work for a hypothetical Arizona Commission’s to-do list.   

Three weeks ago, thanks to the leadership and commitment to these issues of Associate Attorney General Tony West, he announced at the White House Forum on Advancing Access to Justice, that our office launched the Legal Aid Interagency Roundtable (or LAIR as we like to call it) Toolkit, which I hope you picked up a sampler of on your way in.  LAIR leadership came from the top, with Associate Attorney General West and Tonya Robinson of the White House Domestic Policy Council co-chairing LAIR’s meetings with 17 collaborating Federal partners all working to raise awareness across the federal government about how civil legal aid helps advance a wide range of federal objectives -- by promoting access to health and housing, education and employment, family stability and community well-being.   How adding legal services to the range of social services provided to veterans, or to prevent elder abuse and domestic violence, or to help keep children in school or remove barriers to employment for people with criminal records, can improve outcomes for the many Federal programs designed to support those goals.   

Take the Department of Labor – a LAIR participating agency.  Its job-training grant programs help people with criminal records get jobs and rejoin their communities.  Thanks to LAIR-inspired collaborations, the Department of Labor now encourages grantees that run job-training programs to include legal services.  A man going through the job training who also gets his record expunged, or his revoked driver’s license reinstated so he can drive to the interview and get to work, is much more likely to get and keep a job, and help ensure that the federal funds achieve program goals.  Legal help can make the difference for one man and his family, and over scores of clients and grants, a program’s success. 
In this campaign of conversations across the federal government, we’re identifying other programs where integrating legal aid could maximize program effectiveness. The Department of Education staff heard about the difference advocacy can make to ensure fair application of disciplinary rules, and that a student arrives at school ready to learn thanks to a good breakfast and health care; Health & Human Services Indian Health Services heard about the effectiveness of medical-legal partnerships such as your own DNA’s successful medical-legal partnership with the Federall-funded Shiprock New Mexico Indian Health Center; the Consumer Financial Protection Bureau sees more clearly how legal aid is often the first responder to consumer fraud victims and can help advance Bureau goals.  And so on.  It turns out that most people in America don’t really know what civil legal aid is or why they should care.  They are more likely to think their civil justice problem is just a part of life and don’t realize that there could be a legal solution.  The Federal government, therefore, has a valuable role to play in raising awareness about the role legal aid can play in the success and effectiveness of many Federal programs.  

And, given what we call in Washington DC a “constrained resource environment,” many truly appreciate learning about how civil legal aid can provide substantial economic benefits.  Each prevented injury, or loss of a home, helps families and communities and, in turn, reduces government expenditures in responding to injuries, homelessness, crime, as well as intangible social and personal losses.

Arizona policymakers likewise.  They care about their programs, want to improve outcomes for the people they serve, and worry about spending smart in a “constrained resource environment.”  Many efforts here to prevent homelessness or domestic violence, help foster kids get into permanent families, or people with criminal records land a job and a second chance, might achieve better results with legal services among the supportive services provided.  Now for the noodging part of the program.    
Your Health Services Department develops domestic violence programming and allocates both federal block grants as well as homegrown funds.  Studies show that effective legal representation is the single most important factor in whether victims escape the cycle of violence.  A delegation from your future Commission might explain ways to improve program success by including legal services.  The U.S. Department of Veterans Affairs annual surveys of homeless veterans, shows that four of their top ten UNmet needs involve legal assistance.  Your Commission might make a presentation to Arizona’s Department of Veterans Services staff about how legal aid can help reach their goals.  You get the pattern.  In fact, I understand you’ve already dabbled with this kind of partnership with your Department of Economic Security.  So as you consider a likely robust to-do list of AZ Commission activities – should you launch a Commission – you might consider some LAIR-like strategies.  My offer is if you want to give it a try, I’d be happy to help.

Enough talking.  It’s time to do the right thing.  I’m here to noodge the extraordinary talent and expertise in the room into taking the next steps to launch a Commission. 

As you decide whether to launch, keep in mind JFK’s famous charge to ask what you can do for your country.  Your native son, Senator John McCain instructs “Do not yield. Do not flinch. Stand up.”  Native daughter, Gabby Giffords says “We can do so much more by working together.”  Finally, Cesar Chavez bottom lined it: "--there has to be someone who is willing to do it, who is willing to take whatever risks are required.”  Here the risk is in not doing, in maintaining an unacceptable status quo.

The people in this room can close the justice gap.   Our job, all of us in the profession of protecting and preserving justice, in asserting the rights of the most vulnerable among us, is to fight off cynicism and the temptation to not take risks – and do it with the same strength and ingenuity that we fight injustice.  

It’s a privilege to join you as you consider your next steps, and to support what you are all doing to make rights in Arizona known, asserted and available.

Access to Justice
Updated April 28, 2016