Poor people do not have equal access to the court system.
In Frase vs. Barnhard, a 2003 case seeking to create a right to counsel in critical civil cases, a judge on Maryland?s highest court wrote, “[I]t is my belief that there is no judge on this Court that believes in his or her heart or mind that justice is equal between the poor and the rich ? even in the tradition-hallowed halls of our appellate courts.”
For the good of the republic this should be corrected ? and it can be.
All states and the federal government ? eitherby judicial mandate or statuary action-need to recognize and support a right to counsel in civil cases, not just criminal cases. Financially it would be impossible to provide representation in all cases, but feasible guidelines can and must be created.
This in no way means we should end the virtually free access to the civil justice system. Free participation emphasizes the importance of and encourages participation in the system.
Let me explain.
When plaintiffs and defendants engage each other in the civil justice system the only cost is the filing fee that the plaintiff is requested to pay.
That fee may range from as low as $5 for an eviction action to less than $400 in any other matter in any other court in any jurisdiction in the entire country.
These filing fees remain fixed regardless of the respective wealth of the parties or the value of the matter in controversy ? even when the amount in controversy is in the hundreds of thousands of dollars or even hundreds of millions.
Of course, these parties must pay their lawyers, who are trained and licensed to provide the best representation of their client?s position.
And here is the rub: Effective participation in the system of justice requires the assistance of competent counsel, which is usually beyond the financial capacity of a majority of Marylanders (and Americans in general).
Existing pro bono legal services, charitable funding support and meager government appropriations leave 80 percent of those requiring legal assistance without it.
Those who suffer from this lack of access to the civil justice system include the elderly and infirm poor people confined to nursing homes in Maryland.
Their lack of legal assistance (which translates into a denial of access to the civil justice system) can mean eviction from a nursing home, reduced medical and prescription plan coverage, or a financial crisis for the family of the resident.
This can change.
Two years ago, the Maryland state legislature took a step in the right direction.
That body increased the surcharge in civil filing fees (by $3 to $25, depending on the nature of the controversy) and dedicated the funds to support access to civil justice for the poor. In doing so, they reduced the virtual 100 percent subsidy of those citizens of more abundant means.
That?s a win-win approach with much room for future improvement. Such movement will bring us closer to the reality of access to justice for all.
It would be a great day when we get past the fear expressed in the 2001 State of the Judiciary speech by California Court of Appeals Chief Justice Ronald George: “If the motto ?and justice for all? becomes ?and justice for those who can afford it,? we threaten the very underpinnings of our social contract.”
Wilhelm H. Joseph Jr. has served as executive director of the Legal Aid Bureau of Maryland since 1996. Previously he was director of the legal support unit at Legal Services for New York City. A law graduate of the University of Mississippi and Harvard?s JFK School of Government, Joseph is the immediate past chair of the Legal Services Project Committee of the American Bar Association Section of Litigation.
