Book Recommendation: Rhode’s Access To Justice Discusses Ways to Make Justice More Accessible

Although a short book, only 194 pages, Deborah L. Rhode, in Access to Justice (Oxford Press, 2004) succinctly (1) defines the concept “access to justice; (2) articulates where our legal and judicial systems fail to live up to the concept’s ideals, while at the same time, (3) explains the paradox that while this is the case, namely that a huge number of legal needs of the poor go unmet, many are of the opinion that there are too many lawyers creating too many lawsuits over too seemingly petty things. (4) Rhode proceeds to offer numerous policy suggestions designed at increasing access to our judicial system for those in society without means. One of the most important aspects of the book is the analysis of the concept and ideal “access to justice.” On a superficial level, the concept means that any person with a legal grievance has the right to go into a courthouse and pursue a lawsuit, or defend themselves against allegations. It also means that anyone who is legally defined as indigent may obtain the assistance of counsel when defending themselves in criminal proceedings. Rhode cites a study that says that four-fifths of Americans believe our judicial system is the “best in the world.” Presumably, most or all of them are under the impression that having the legal right to enter the courthouse is tantamount to the ability to engage in a full enforcement of those rights. In fact, elsewhere I have read that only 33% of Americans believe that low-income persons have a difficult time getting legal help with civil matters. As Rhode points out, and is really the point of the book, access to justice is more complicated than one’s legal right to walk into a courtroom and state one’s position to a judge. From a criminal law defendant’s position, it is important that one has access not only to the courtroom, but to the knowledge of what charges are being brought, what evidence exists, what legal options exist for defending, and what plea-bargain (negotiated resolution) options are realistic and appropriate Practically, there are huge hurdles. Court appointed defense lawyers receive only one-eighth of the resources available to prosecutors. Additionally, defense attorneys are often paid a small set amount per case-giving a disincentive for them to sufficiently place their energy and resources in more complicated cases when a volume of cases is required to make a reasonable living. This is even more complicated by the fact that for a defendant to prove malpractice, they would need to prove it is more likely than not they would have won their case but for the poor assistance of counsel, which is near-impossible for someone fully dependent on counsel in the first place. Similarly, outside of the criminal law context, many individuals, have challenges in life that could be resolved legally if they knew their rights under the law. For instance, in my field, employment law, many are unaware when they do and do not have rights to legally challenge decisions made by their employers. Further, even when employees know their rights, the cost of litigation is often too prohibitive unless they sue under a statute that provide for the opportunity to recover attorney fees as part of their recovery (known as fee-shifting), I have also observed that some individuals owning small businesses have very little knowledge of or are confused about their legal rights with respect to those failings to comply with agreements entered into. I suspect this is also the case in many other fields. Rhode specifically mentions several legal needs the often go unmet in low income populations, namely: children with mental disabilities unable to get proper assistance in schools; brain damaged children and elderly citizens on fixed income unable to get medical treatment; impoverished nursing mothers unable to challenge the use of dangerous pesticides near them; important legal and strategic help to women and children who want to leave violently abusive men. More broadly, in 2008, an Access to Justice Commission in the District of Columbia found that 90% of the civil legal needs of the poor go unmet. In 1993, an American Bar Association study found that nationwide, between 70% to 80% of the legal needs of the poor go unmet. In 1991, a study commissioned by the Ohio State Bar Association (along with other state legal associations) found that 83% of their poor’s civil legal needs went unmet. When these problems go unaddressed at first, they become much more expensive and challenging legal problems later. Causes of these problems include under-funded criminal defense attorneys, legal service corporations, procedural hurdles that are extremely complicated for those not highly literate, only 13% of Americans know to when extent there are legal aid organizations available to them, many law firms give a disincentive for their associates to engage in pro bono or low cost services, requiring over-worked lawyers to conduct such work on their own time, if at all. Throughout her book, Rhode suggests ways in which our legal community can address these problems. Suggestions include increasing access to self-help resources in courthouses, altering Rules of Professional Conduct to permit attorneys to strengthen their ability to provide discrete legal services without having to choose between “taking the case” and providing no assistance, and giving the Legal Services Corporations to assist with community organizing and more discretion to take a more varied case load. I anticipate that this book will become a seminal book in the study of the legal community’s obligation to those unable to afford legal assistance. Perhaps it already is. In addition, should I ever teach a law school course in Professional Responsibility, I would be sure to have my students read this text, as it raises the most essential questions concerning our profession’s obligations to those in need. There are a few questions worthy of analysis for which Rhode’s book is a proper starting place, with follow-up analysis required. First, are there additional fields in which fee-shifting should be permitting to make full blown legal representation more possible in those fields? Second, are there specific legal rights and legal information which is so important to one’s ability to function in society that the legal community should assume responsibility for fully educating the public? Third, to what extent should the legal community’s fee methodology be regulated to assure the needs of fair access by the population at large. Regardless of how these questions are answered, they are clearly worth asking.