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The
Supreme Court on December 18th granted the Association's
petition in its entirety as set forth below. On June
14, 2003 the House of the Delegates had unanimously
approved the following recommendation, and the Association
had filed a petition with the Supreme Court of Arkansas
requesting the establishment of the recommended commission.
Recommendation
To Create an Arkansas Access to Justice Commission
Submitted
to the
Arkansas Bar Association
By
Access to Justice Working Group
March 2003
"Equal
justice under law is not only a caption on the façade
of the Supreme Court building. It is perhaps the most
inspiring ideal of our society . . . It is fundamental
that justice should be the same, in substance and
availability, without regard to economic status."
Justice
Lewis Powell, Jr.
U.S. Supreme Court
Equal justice hinges on all Arkansans being
empowered to make their case in a court of law, not
only in criminal cases but also in civil matters.
Most often, people retain an attorney to make their
case for them. Across the nation, however, a growing
number of litigants now choose to represent themselves
in civil matters. While the reasons vary, most represent
themselves because they cannot afford an attorney.
When people with limited income and education face
a corporation or government agency without representation
because they cannot afford an attorney, equal justice
under the law can quickly become an unfulfilled
promise.
Some
16% of Arkansans live below the federal poverty level,
compared to 12.4% nationally. In nine Delta counties,
more than 25% of the population lives in poverty.
One-quarter of Arkansas adults lack a high school
diploma, compared to 20% nationwide. Not only is justice
not served when self-represented litigants are unprepared,
but these individuals also affect the functioning
of the courts. Not surprisingly, the increase in self-represented
litigants is occurring at the same time that funding
for legal services for the poor is declining.
The
National Council of State Courts, the American Judicature
Society, the American Bar Association, the National
Legal Aid and Defender Association and other national
organizations have addressed the causes and consequences
of barriers that impede access as well as strategies
to improve access to justice in the civil legal system.
In response, many states have created a broadly representative
commission or similar entity to coordinate efforts
to improve access to the civil justice system for
poor and near-poor individuals who cannot afford attorneys.
These commissions achieve their goals in part by bringing
together leaders from the judiciary, private bar,
advocacy community, academia, legal services and other
interests who share a commitment to improving access
to the civil legal system as a means to fulfilling
the promise of equal justice under law. Their approaches
range from reinvigorating pro bono programs to generating
new resources for legal services to developing pro
se materials to simplifying court procedures and forms.
National
Studies and State Studies Provide Insight
In
its landmark Comprehensive Legal Needs Study published
in 1994, the American Bar Association found that 38%
of poor households and 43% of near poor households
in the South had one or more legal problems in the
survey year. The most frequently reported legal problems
were housing and real property, personal finance and
consumer issues, family and domestic needs, and employment.
Of these, 37% of poor households and 41% of near poor
households sought help either from the civil justice
system or a non-legal third party while 24% and 23%
respectively reported handling their problem on their
own. Even though the study was conducted nearly a
decade ago, many states have conducted state-level
legal needs studies more recently, most generating
similar results.
A
1999 article published by the American Bar Association,
Standing Committee on the Delivery of Legal Services,
summarized recent research on the frequency of pro
se litigation. A 1991 report from the National Center
for State Courts examined the incidence of representation
in divorce cases in urban jurisdictions. Just 28%
of divorces proceeded with both parties represented
by a lawyer. Frequently cited studies examining the
trend of pro se litigation in domestic relations in
Maricopa County, Arizona found that pro se cases in
which one party proceeded without a lawyer grew from
24% in 1980 to 47% in 1985 and 88% in 1990. A 1996
Maryland study found 57% of pro se litigants surveyed
reported they could not afford a lawyer.
Indicators
Suggest Arkansas' Unmet Need is Substantial
While
there are no comprehensive studies of the unmet civil
legal needs of poor and near poor Arkansans, case
data from Arkansas' two legal services providers suggest
the unmet need is substantial.
• Just 21% of the
12,588 cases Arkansas' two legal services providers
completed in 2002 received
full representation while 71% were given advice and
counsel. While advice met the needs of some, a significant
number would have benefited
from full representation. An additional 3,022 cases
were pending at the end of
the year.
• In addition to
completed cases, Arkansas' legal services providers
had to reject 4,858 cases
in 2002 due to conflicts and other factors. This number
does not include individuals
who call and no case is opened.
• Demand for civil
legal services for the poor is increasing. Arkansas'
legal services providers completed
seven percent more cases in 2002 than 2001. Requests
for assistance are expected to accelerate in 2003
due to the declining economy,
at a time when staff reductions at Arkansas' legal
services providers will make
it difficult to maintain the current level of services.
• Despite the growing
need, the number of cases handled on a pro bono basis
was more or less flat from
2001 to 2002.
• Due to a decline
in Arkansas' share of the national poverty population,
federal funds will decline
in 2003 at the same time that Interest on Lawyers
Trust Accounts (IOLTA) funds
are decreasing. Arkansas' legal services providers
have seen their revenue slashed
nearly 20%, making it necessary to eliminate six
support staff and nine attorney positions in 2003.
The
Process
The
Arkansas Access to Justice Conference brought 118
attorneys, judges and advocates representing Arkansas'
justice community together on March 23, 2001 to identify
challenges to access and develop a consensus about
the most effective institutional vehicle to coordinate
statewide efforts to improve access to justice. The
conference concluded with a call to action to create
a permanent Arkansas Access to Justice Commission.
In response, the Arkansas Bar Association convened
the Access To Justice Working Group, which held its
first meeting in October 2002 (membership list attached).
The Working Group's purpose is to determine if a need
exists for a permanent Arkansas Access to Justice
Commission and, if so, to develop a recommendation
for the governance bodies of the Arkansas Bar Association.
To
this end, the Arkansas Access to Justice Working Group
has met as a body four times since October 2002. In
addition, subcommittees have met in between meetings
to develop work products for review. Through its deliberations,
the Working Group has concluded:
• Fulfilling the
promise of equal justice under law requires an ongoing
process of continually improving
access to the legal system.
• Leaders of the
private bar, the judiciary, advocacy organizations,
legal services and other Arkansans
share a commitment to improving access to justice.
Without a coordinated effort,
however, progress will remain elusive.
• Improving access
to justice hinges on documenting the unmet need in
Arkansas, understanding the
different dimensions of that need, and devising a
long term plan of action,
while demonstrating best practices through pilot projects
and other means.
• Effective and frequent
communication among different interests is fundamental
to progress.
• A permanent Arkansas
Access to Justice Commission is the most effective
forum to bring leaders committed
to improving access to justice together and to
promote coordinated effort.
To
this end, the Access to Justice Working Group recommends
that the Arkansas Bar Association submit a formal
request to the Arkansas Supreme Court to create a
permanent Arkansas Access to Justice Commission with
the mission, goals and structure described below.
MISSION STATEMENT
The
Mission of the Arkansas Access to Justice Commission
is to provide equal access to justice in civil cases
to all Arkansans.
GOALS
Develop an objective and accurate understanding of
the problems Arkansans face in
using our legal system to obtain justice in civil
cases.
Devise a strategic plan for statewide delivery of
civil legal services to all Arkansans.
Review and report on the efficient allocation and
application of the available resources.
Educate the people of Arkansas about the importance
of equal access to justice and
of the problems many Arkansans face in gaining effective
access to our civil
justice system.
Encourage a strong and consistent commitment to providing
equal access to justice
among the leaders of our state.
Suggest innovations that will increase effective access
to the civil justice system for
all Arkansans.
Provide technical and other support to the efforts
of the legislature, courts, and other
government agencies to improve access to justice for
the people of Arkansas.
Develop stable, long-term funding and other resources
to support access to civil justice.
STRUCTURE
The Commission shall consist of fifteen voting members,
appointed as provided herein.
The initial voting members shall draw their initial
terms by lot, so that five
members shall serve a one-year term, five shall serve
a two-year term, and
five shall serve a three-year term. All subsequent
appointments of voting members
shall be for a term of three years. A voting member
may be appointed to
serve no more than three successive three-year terms.
Should any vacancy in the term of a voting member
occur, the appropriate appointing
authority shall appoint a successor voting member
who shall serve the
remainder of the term. Any member whose term shall
expire shall continue
to serve until his or her successor is appointed.
The Arkansas Supreme Court shall appoint five members
of the Commission as follows:
one justice of the Arkansas
Supreme Court,
two circuit judges,
one from a circuit with a total population of more
than 100,000
and one from a circuit with a total population of
less than 100,000,
one full-time district
court judge, and
one representative from
the faculty of the University of Arkansas or University
of
Arkansas at Little Rock Schools of Law.
4. The
Arkansas Bar Association shall appoint five members
of the Commission as
follows:
(a)
the President of the Arkansas Bar Association or his
or her designee,
(b)
one attorney who is either employed as an in-house
corporate counsel or
whose practice is primarily focused on the representation
of corporate clients,
(c)
one non-attorney employed in a full time capacity
as an advocate for the needs
of low income Arkansans,
(d)
two attorneys active in the private practice of law
who have demonstrated
an interest in the provision of pro bono legal services.
The Governor shall be entitled to appoint three members
of the Commission as follows:
(a)
one non-attorney employed in a full time capacity
by a non-profit agency which
is dedicated to providing for the needs of low income
Arkansans,
(b)
one attorney employed in a full time capacity by the
Center for Arkansas Legal
Services or Legal Aid of Arkansas
(c)
one non-attorney representative of the Arkansas State
Chamber of Commerce.
The Speaker of the Arkansas House of Representatives
and the President Pro Tempore
of the Arkansas Senate shall each be entitled to appoint
one member of their
respective chambers to serve as members of the Commission.
Each of the appointing authorities shall coordinate
the appointments to insure that,
at all times, the Commission shall reflect the diverse
ethnic, gender and geographic
communities of the state.
In addition to the voting members set out herein,
the Director of the Center for Arkansas
Legal Services, the Director of Legal Aid of Arkansas,
the Director of the
Arkansas IOLTA Foundation and representatives of legal
clinics at the state's
two law schools appointed by their respective deans
shall serve as ex- officio
members of the Commission.
The Commission shall, by majority vote, elect a Chairperson
from among the voting
members who shall serve a term of one year and who
may be re- elected to
successive terms. Such other officers of the Commission
may be selected, pursuant
to rules established by the Commission.
The Commission may create such committees and appoint
such committee members
as are necessary to facilitate the work of the Commission.
Recommendation
The Access to Justice Working Group recommends that
the Arkansas Bar Association submit a formal request
to the Arkansas Supreme Court to create a permanent
Arkansas Access to Justice Commission with the mission,
goals and structure described above.
Respectfully
submitted,
Charles W. Goldner, Jr.
Chair, Access to Justice Working Group
Access
to Justice Working Group
Nate
Coulter
Attorney
James
D. Gingerich
Administrative Office of the Courts
Charles
W. Goldner, Jr., Chair
UALR School of Law
The
Honorable James R. Hannah
Arkansas Supreme Court
Louis
"Bucky" Jones
Attorney
Chalk
S. Mitchell
Attorney
Michael
W. Mullane
University of Arkansas School of Law
Susie
Pointer
IOLTA Foundation
The
Honorable Willard Proctor
Circuit Judge
The
Honorable Jim D. Spears
Circuit Judge
Carolyn
B. Witherspoon
Attorney
Scott
Holladay
Carelink
Amy
Rossi
Arkansas Advocates for Children & Families
Frank
Sewall
Arkansas Blue Cross and Blue Shield
Ex Officio
Don Hollingsworth
Arkansas Bar Association
Jean
Turner Carter
Center for Arkansas Legal Services
Mona
Teague
Legal Aid of Arkansas
Sandra
Miller
Arkansas Legal Services Partnership
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