TBA Law Blog

Posted by: Suzanne Craig Robertson on Dec 22, 2010

Journal Issue Date: Jan 2011

Journal Name: January 2011 - Vol. 47, No. 1

Supreme Court Turns Up the Heat on Access to Justice; Lawyers and Advocates Respond

The Tennessee Supreme Court came right out and acknowledged the elephant in the room in August 2008 when then-Chief Justice Janice Holder admitted publicly that there was a problem — and that the court was going to put significant resources into fixing it. The problem — access to justice for all in our state — had been on the court's and other organizations' radar for years, but this time the court declared that access to justice was to be its number one strategic priority. They decided to put it on the front burner.

The court and anyone else paying attention knew about the "urgent and tremendous civil legal needs gap in Tennessee" since at least 2004 when the Tennessee Alliance of Legal Services (TALS) released its Legal Needs Study.   The evidence was damning: nearly one million low-income Tennesseans qualified for legal aid. At the time, there were about 80 legal service program attorneys in the state to handle their cases.

So when Justice Holder announced the initiative, it was met with cheers from the legal services community as well as from the private bar. "It requires a massive undertaking because it's a massive problem," Holder says. "Of course we had the economic downturn, which confirmed that we were on the right track. We began figuring out [the process], and we let people know we were willing to take extraordinary steps to address it."

"The Tennessee Supreme Court's interest in access to justice is an immediate personal and psychological boost to the legal aid programs in Tennessee," says Neil McBride, general counsel to Legal Services of Middle Tennessee and the Cumberlands. "We are confident that that interest will translate into real help for our clients over the next few years. There is hardly a state in the nation that has the kind of unanimous and active support that our Supreme Court has offered. In most states they are fortunate to have one or two active champions and we feel that we have the whole court."

Within the first few months after Holder announced the initiative, the court had hired a staff member dedicated to access to justice, held five public hearings across the state and formed the Tennessee Access to Justice Commission (the "crown jewel" of the undertaking, Holder calls it).   Less than a year later, on March 15, 2010, the commission, chaired by Nashville lawyer Margaret Behm, unveiled its Strategic Plan.

"I would imagine," Holder says, "that people were waiting to see if we were really going to do something. There are times we take on projects ... we don't necessarily continue on year after year after year."

The Commission's Structure

When Behm was named chair, she says with a laugh, Rule 50 had not been promulgated yet, "so I didn't know what I was getting into. When I looked into how many different areas the court wanted us to [include], and the short time frame " they gave us a year for the first strategic plan " I was wondering what I did get myself into?"

First, she says, they put the work into two areas of thought: "what we were going to ask the court to do and what we planned to do."

Along with Behm as chair, Memphis lawyer George T. "Buck" Lewis was named vice chair, and the 10-member Access to Justice Commission divided responsibilities into seven Advisory Committees: Resources, Technology, Pro Bono, Disability and Language Barriers, Faith-Based, Pro Se/Forms and Education and Public Awareness.

"We created the commission with people who were not necessarily part of the access to justice process," Justice Holder says, "and I hope we have made believers out of them — and empowered them to make committees."

Katie Edge, a member of the commission and former TBA president, says there is a wide range of experience and backgrounds on the committees. "I  thought I knew most of the usual legal aid suspects from my past associations with the TBA and the Legal Aid Society of Middle Tennessee, but I have met many more people, and not just lawyers, who are selflessly giving their time, energy and insights to the Commission's work."

Edge is chair of the Education and Public Awareness Committee, which she points out has members that include librarians, attorneys,  heads of social services organizations, mediators and mediation professionals, non-lawyer professionals, a chancellor, the Commissioner of the Tennessee Department of Financial Institutions, and the executive director of TALS.

The varied make-up of the extensive committee format may be a reason for the momentum and success so far. "It's unprecedented from my point of view," Holder says. "In 14 years I have never participated in anything that had this level of energy." She says she tries to attend as many committee meetings as possible to watch the work in progress, and "quite frankly, to get some of that incredible energy they have."

"All of us who are involved wish that we could spend more time because the work is compelling and with each success, we are inspired to do more," Edge says.  "The reality is that resources are finite " including time. We are lucky to have  wonderful support at the AOC, and they make it possible for the volunteers to do more than we otherwise could."

Behm seems to have reconciled her original qualms as the work has progressed. "The court is like a troubadour sounding the trumpet. It has been out front and incredibly supportive on these issues," Behm says. "It's made me feel like I am making a contribution."

The Goals of the Strategic Plan ...

The Strategic Plan outlines four main goals, which are somewhat vague by themselves, but the projects that have sprung out of them are quite tangible. The goals are:

  • To involve more lawyers and law students in meeting legal needs so that the public is better served.
  • To provide greater educational opportunities and resources for policymakers, self-represented litigants, the community, lawyers, court personnel and others.
  • To make the justice system more user-friendly.
  • To remove barriers to access to justice, including but not limited to disability, language, literacy and geography.

"The court adopted the plan outright," Behm says. "The commission appreciated the support the court gave for our work. Now we are implementing that plan. It's a lot of work with a lot of moving parts."

... and the Projects to Carry Them Out

The court has been active, the Strategic Plan points out, in implementing several "dramatic rule changes" that have been proposed by the Tennessee Bar Association, the Tennessee Bar Foundation, the Tennessee Lawyers' Association for Women, and the Tennessee Association for Justice. [Go to www.tba.org/journal/2010_a2j_rules.html for more details on the rules.] The rules updates include changes that encourage lawyers to do more pro bono as well as report it; allow more types of lawyers in varying stages of their careers to participate; expand continuing legal education credit for service; and make participation in the Interest On Lawyers' Trust Accounts (IOLTA) program mandatory, thereby bringing in more money for the stated purpose of funding access to justice related items.

Mandatory participation in IOLTA: The Tennessee Bar Foundation, which administers the IOLTA funds, has seen a "significant increase" in revenue, according to TBF Immediate Past Chair B. Riney Green, since the revision of Supreme Court Rule 8 and Rules of Professional Conduct 43, which were implemented by the court before the commission was created.

In 2007 the program brought in about $200,000 a month, TBF Executive Director Barri Bernstein says. "By fall 2009, our lowest point was $23,000. We were in the 20s and 30s for many months. Now we are averaging in the $60,000 range."

"It's made a big difference," Green says. "I shudder to think if the rule had not been adopted." He says in addition to responding to record-low interest rates, the move was made to bring Tennessee in line with most other states that already had mandatory programs. "Interest rates are still very low so we are still below the funding level from years ago " so if it hadn't been for the rules change it would be incredibly dire," Green says. "This has brought it up to a more reasonable level."

Bernstein points out that the umbrella of access to justice has many facets, and the IOLTA funds touch them all. "Every grant made by the IOLTA program assists in access to justice," she says, "be it a trained advocate who helps a bewildered domestic violence victim fill out the form for an order of protection; or a nonlawyer who is trained by a CASA program to investigate the placement possibilities for a child removed from a home due to dependency and neglect; or for mediation programs that help resolve disputes outside the courts system, thus allowing more difficult disputes to be handled by the judiciary; and finally by what is more frequently seen as access to justice, which is funds we grant to providers of direct legal assistance to the indigent.   All of those things add to the fabric of assisting people who need to access the justice system, whether it's an actual lawyer or someone trained to provide less technical assistance."

'Emeritus Rule' enables more lawyers to help: In September 2010, the Tennessee Supreme Court adopted Rule 50A establishing a Pro Bono Emeritus Attorney Program to allow lawyers who no longer actively practice law to provide free legal services through approved legal assistance organizations. The rule, designed to increase access to justice for needy individuals in the state, lays out qualifications for participation, a certification process for both lawyers and organizations seeking to participate, and responsibilities of attorneys who are certified. The rule was proposed by the Tennessee Access to Justice Commission and supported by the TBA. Its language is drawn from a number of similar rules that have been adopted in other U.S. jurisdictions. The rule takes effect Jan. 1, 2011.

"Our hope is that senior lawyers can continue to do pro bono work without the costs and constraints associated with keeping their licenses," Buck Lewis says. "[The rule will also benefit]   lawyers who have taken a hiatus from practice of law to do a different type of job or raise children."

Lewis, also chair of the Commission's Pro Bono Committee, was instrumental in leading the TBA in an unprecedented access to justice campaign that significantly increased levels of pro bono interest and participation across the state.

"Perhaps more than any president, Buck gave a single-minded focus and drive to seeing that the bar did all that it could to enable access to justice," TBA Executive Director Allan F. Ramsaur says of Lewis, who was president in 2008-09.

Making the system user-friendly: There are a number of projects that seek to provide greater educational opportunities and resources, make the system user-friendly and remove barriers.   Among them are plain-language forms, guidelines for court clerks who assist pro se litigants, and training librarians to help patrons access legal information via the Internet.

Plain-language forms, written on a 5th-grade reading level, are being created for pro se use. The Order of Protection forms, disseminated by the Administrative Office of the Courts, are already in plain language, Behm reported in a recent commission update. "We anticipate that the court will publish for comment the Commission's proposed divorce forms for couples with no minor children," she writes. "Additionally, the AOC is also pursuing putting the Parenting Plan forms into plain language."
Getting information to people:   A technology initiative grant from the Legal Services Corporation will also help get information out to the public. Working with TALS, West Tennessee Legal Services will create a training program for librarians, a library-specific web portal, and an outreach and public education campaign to go with it.   The grant of $104,000 is for two years.

"Clearly, local libraries are public hubs for information, particularly in more rural communities," says Erik Cole, executive director of TALS. "The legal aid community is pleased to partner with librarians statewide to reach more low-income Tennesseans in need of legal assistance."

"The partnership with TALS and libraries had its genesis from pulling librarians into the subcommittees," Holder says. "I'm very excited about the way people are thinking outside the box." Partners in the project are the Tennessee State Library, the TBA, the Supreme Court and the Access to Justice Commission.

"More and more our public libraries are becoming centers for  information that is distributed over the Internet," Edge says.   "People gather at libraries, and where people gather, we should be providing useful information about where they can get free legal advice."

It's like a personal, electronic legal clinic: Sometime early this year a revolutionary interactive web site " tnjusticeonline.org " will go live. One of the components will be the ability to link lawyers who want to help with people who need legal advice. People will be able to email a basic legal question and they will receive a personal answer.

"We are the first state bar to do this in the country," Buck Lewis says, "so we don't know exactly what we are getting into. But we do know that Legal Services is turning away thousands of eligible clients every month."
The new web site "will eliminate barriers for clients who can't get to a clinic and eliminate barriers for lawyers who want to participate," TBA Access to Justice Coordinator Sarah Hayman says.

Lewis agrees.   "Lawyers can do pro bono at a soccer game, at the doctor's office or wherever they are."

To start the project, Baker, Donelson, Bearman, Caldwell & Berkowitz PC gave $6,000, Microsoft donated use of an email system ("a $50,000 value," Lewis reports) and Dell donated $3,000. Baker Donelson has also provided a sizable in-kind donation: the firm's director of technology, John Green, has led the team in developing the site.

"We are also raising additional funds from companies and foundations," Cole says. "This project will help rural clients and be a nice accompaniment to the library project."

Other parts of the web site will include the ability for lawyers to log in and see how many hours of service they have provided. TALS will file these hours so that lawyers receive CLE credit for their time spent researching and answering questions. "TALS will track client and lawyer usage, which will give us useful data on client need and lawyer participation," Hayman explains.

The Pro Bono Summit:   To keep the momentum, gather new ideas and spread information, the Supreme Court will host a Pro Bono Summit on Jan. 21 in Nashville. Its goal is to "expand exiting pro bono efforts and recruit more lawyers to provide pro bono service," according to a letter to participants from Chief Justice Connie Clark.

"The Summit agenda includes sessions on some of the most important access to justice issues."   The one-day meeting will cover pro bono efforts in law firms, corporate counsel offices and law schools, pro bono services in rural areas, language and disability barriers in the court system, pro bono mediation, partnerships with faith-based and community organizations and ways technology can increase and enhance access to justice efforts.

"It'll be the largest gathering of stakeholders and potential stakeholders in the access to justice process in the state's history because it will include judges, clerks, corporate leaders and bar leaders, and people from access to justice agencies," Lewis says. "I hope we'll recruit new people to be involved and form a consensus what the court needs to prioritize and brainstorm about new ideas."

Where Is All This Leading?

When Margaret Behm attended her first national access to justice coordinators meeting in May 2009, she saw how much needed to be done, but was gratified to see that Tennessee was already ahead of most of the other 24 states with similar commissions.

"They were saying, 'You should try to get at least one Supreme Court justice behind your effort because it will get you more power or credence,'" Behm says. "I began to see what an impact this was going to make on our state because of [the court's] commitment." The main heroes, Behm says, are the members of the court. "They are doing something unprecedented in the U.S. by making this their number one strategic priority without ever taking their foot off the pedal," she says. "We can't take that for granted."

Edge agrees. "The members of the court are the heroes of the effort because without the support of the justices, a focused effort would not be as possible," Edge says. "My sense is that all those who care about equal access to justice have been doing this work steadily and for a long time, but coordinating those efforts, while a massive job, is precisely what it will take to really make an appreciable difference in the lives of those individuals and families who need legal help."

The Access to Justice Commission "was created in the midst of some very impressive work that had been done and is being by a lot of people," Behm says, pointing out the years-long efforts of the Tennessee Bar Association, its Executive director Allan Ramsaur, recent president Buck Lewis, and TALS. "These folks who are so committed to this are committed to working with the commission."

Holder acknowledges it's been a fast couple of years since the court proclaimed its intention to improve access to justice in Tennessee. "It has many moving parts, and they are all moving very quickly," she says "But we haven't invented anything. We are indebted to TALS and the TBA and other bar associations that have been in the forefront of this for years and years. We are not heroes. The heroes are [these groups] and other access to justice organizations across the state that have been laboring for so long and so hard. I am excited we are able to partner with these groups to make a difference.

"I am amazed at the potential it has for real change."

Suzanne Craig Robertson ?SUZANNE CRAIG ROBERTSON is editor of the Tennessee Bar Journal.