Pro bono attorneys crucial to provide equal access to justice
December 17, 2017
The local Access to Justice Committee and Alpine Legal Services recently recognized 63 attorneys and mediators for doing pro bono work. That work is becoming increasingly more important as more people showing up in courtrooms can't afford attorneys.
This was the first in-person ceremony to recognize the attorneys and other professionals who are donating their time to clients who otherwise would be facing their cases alone, without any legal counsel. That recognition is part of a statewide push to improve access to justice for indigent people.
In recent years, the Colorado Access to Justice Commission has called out a statewide crisis in civil representation for the poor. The commission identified several factors leading to more people who can't afford attorneys, among them were the recent recession, high unemployment, a high number of foreclosures, low interest rates, and federal budget cuts.
"I do think when we had that major recession all of a sudden people are having financial troubles, and they're going to end up in court," said Judge John Neiley, who sits on Garfield County's Access to Justice Committee.
"The flip side to that is that even when the economy is going really strong, you have these issues with people not being able to afford housing. Rents go up, so they're getting squeezed financially on that end.
"With a higher cost of living, particularly in a valley like this, people just struggle more," Neiley said.
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Those financial struggles land more people in court, be it for landlord-tenant issues, getting sued over credit card debt or even divorce, which is often caused by financial trouble.
"People are struggling, and you're already at your wits end financially, which is what drives a lot of people into a divorce setting. If you can't pay the bills, how are you going to hire an attorney?"
Equal access at stake
The Colorado Supreme Court has recognized that justice is not served if the only people who get justice are the ones who can afford it, Neiley added.
"If you can't get your foot in the door, you're probably not getting the justice that you deserve," he said.
Over the last several years Colorado's courts and legal aid organizations, like Alpine Legal Services, have been looking at how to increase access to justice to a larger number of people, said Kimberly Gent, executive director of Alpine Legal Services who also sits on the access committee.
To that end, they've created the local Access to Justice Committees, which each district in the state now has. The judicial districts have created positions like self-represented litigant coordinators to assist parties working through their cases without an attorney. The Colorado Judicial Branch has launched a webpage to streamline access to the various forms that civil parties need. And the access committees have joined organizations like Alpine Legal Services to put on regular events that help people without attorneys.
Alpine Legal Services gets more than 400 calls per month for assistance, Gent said. With its limited staff and funding, they rely on pro bono attorneys to get those clients the help they need.
Pro-bono attorneys working with Alpine Legal Services and the access committee work on several types of general civil cases. Those include family law cases, like custody or divorce, landlord-tenant cases, employment law cases and collections cases.
But the divorce cases are really what drive it, said Neiley.
A most startling figure is that about 90 percent of responding parties in domestic relations civil cases are going without attorneys.
"And that's just scary," he said.
Most of these "DR" cases are divorces or allocation of parental rights. Those DR cases are the great majority of "pro se" cases, or cases without an attorney.
While the court is dealing with the backlog, the role of the judge ends up changing, as well. While the judge is still acting as the umpire in the courtroom, he or she also ends up having to explain procedural rules and walk the parties step by step through the process, Neiley said.
"An attorney is not just an advocate in the courtroom," he said. "One of the overlooked roles that attorneys play is as an advisor. When you have two attorneys who are experienced and can understand a case, it's a lot easier for a case to get resolved."
Attorney Stephanie Bergner, based in Carbondale, started volunteering, giving free 30 minutes consultations in Rifle and Glenwood Springs, with Alpine Legal Services when she started practicing law in the Roaring Fork Valley. Bergner said she looked at it as a way to gain experience with the community's legal experience, since she was just starting her practice in the valley. She now volunteers at Thursday Night Bar, and she's taught classes on how to conduct your own divorce, on identity theft and on how medical directives work.
"Many people find the legal system intimidating or inaccessible, and Alpine fights against those barriers. The work that Alpine does is really important because it gives people from all socioeconomic backgrounds access to legal information and empowers them with the knowledge and ability to manage their own cases," said Bergner. "It also provides access to attorneys when requested or necessary."
Glenwood Springs attorney Erin Richards said that much of her pro bono work has been for domestic violence victims. Though you might not think of a civil case first when you think of domestic violence, Richards says "part of the abuse is financial abuse." An abusive partner may have kicked the victim out, may have been the only income earner or may have held sole control over the bank accounts. "So many of these victims cannot afford an attorney in the time that they most need an attorney," said Richards. "They need an attorney to help them get the whole story in front of the judge because if they do not communicate the right information to the judge, they may not get the protection they need. Or the children being harmed by the other party continue to suffer harm."
"I've also represented people who have mental health and competency issues pro bono after they have been referred to me by Alpine Legal," she said. "Without the guidance of an attorney, many of these people would not know where to start. Also, many people with mental competency issues cannot fill out the paperwork to start cases, or respond to requests for information from the judge properly.
"I volunteer my time because I spent a few months working part-time at Alpine Legal Services and I was able to see first-hand how difficult navigating the court system without an attorney can be," said Richards. "Mostly this is a small way that I can help people who would otherwise not have access to the court system get access."
All licensed attorneys have an ethical and professional obligation to donate 50 hours of pro bono work per year, added Gent.
Attorneys can donate their time in a couple of different ways. First, they can act as attorneys and represent clients for either an entire case or only a specific section of the case. Second, they can donate their time to one of Alpine Legal Services' and Access's regular programs. These are important programs that can get you some face time with an attorney to walk you through your legal issue, regardless of whether you can pay.
They include Thursday Night Bar, where clients can get short legal consultations, how-to seminars on divorce, and a senior law day, which covers such things as learning about grandparents' rights or how to draft a will. Family law days are held twice a year, offering free consultations with attorneys, free parenting classes and help filling out forms.
Some reports have shown that it's seven times more likely a tenant in a landlord dispute will have a favorable outcome if they have an attorney than if they do not, said Gent.
"It makes a substantial difference if you have an attorney to represent you," she said.
One possible fix, which has been a relatively new development, is to allow attorneys to offer "unbundled legal services." Typically, ethical rules require an attorney to stay on a case through its entirety once she or he has entered on that case.
But, as well-meaning as this rule is, it can also hurt clients who can't afford to hire an attorney for their entire case. In response, the Supreme Court has changed its rules to allow attorneys to enter a case on a limited appearance, such as for drafting a separation agreement or representing the client during a particular hearing.
This is another development allowing pro bono attorneys to assist with a case for free without having to donate their time for the life of a case.
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