Laurence H. Tribe, Senior Counselor for Access to Justice, Speaks at theABA Pro Bono Publico Awards Luncheon

As prepared for delivery.

Good afternoon.  It’s an honor for me to be here to address so distinguished and talented an audience.  I’m grateful to Carolyn Lamm for inviting me and for that much too generous introduction.  My staff and I had the good fortune to meet with her shortly after I took office this March, and I look forward to a continuing and fruitful collaboration with her and with the American Bar Association.  Even though this is President Lamm’s last day in office, I know she will continue her tireless work in support of access to justice.  Thanks also to Mike Pratt, Chair of the Standing Committee on Pro Bono and Public Service, and to the members of the Committee who do so much to ensure that the ABA remains a leader in promoting the cause of justice.

It’s impossible to speak of the cause of justice without acknowledging how honored I am that my good friend Justice Ruth Bader Ginsberg is with us today, having just received the ABA’s coveted Medal of Honor in recognition of her lifetime of work on behalf of equal justice under law.  Justice Ginsberg’s legendary career is an inspiration to us all.

And it’s good to see my friend Jo-Ann Wallace of the National Legal Aid and Defender Association.  As most of you know, Jo-Ann is a vitally important partner of the ABA in serving the criminal defense and civil legal services needs of America’s poor and working class, and my office is fortunate to have Jo-Ann and her team as partners in those same efforts. 

I also want to acknowledge John Levi, the Chairman of the Legal Services Corporation Board of Directors.  This spring, I had the privilege of attending the White House swearing-in ceremony for John and the other new members of the LSC Board.  During the meeting that followed, I was floored to learn that we were participating in the first formal get-together between the LSC and the Department of Justice in three decades – a fact that in itself tells you how much the leadership of Attorney General Holder and President Obama have transformed the Justice Department, giving it a mission that expressly reinforces not just law-enforcing goals but justice-seeking aims. 

Law and justice are not synonymous.  Law is a means. Justice is an end.  As we know all too well, law has not always operated to advance the cause of justice.  In American history, as in the history of the world, law has at times served to enslave and oppress, to obfuscate and entrap rather than clarify and liberate.  Defined at its most basic level, the mission of the Access to Justice office that the President and the Attorney General asked me to lead is to release the liberating and equalizing energies latent in our nation’s legal heritage – to help make the lofty rhetoric of “equal justice under law” into everyday, on-the-ground reality, making justice an active verb.

Before I discuss that mission and the vital role that your pro bono efforts can play in its realization, let me say what a particular pleasure it is for me to be with you here in San Francisco. As some of you know, I grew up in this city. My parents were Russian Jews who fled persecution in Eastern Europe and settled in Shanghai, where I was born in 1941.  I came to San Francisco as a young boy, spending most of my childhood here, attending public schools before leaving to attend college when I turned 16.  Having survived the pogroms of Europe and Asia while many others in my family perished, I understand the serendipity of everything that transpired to permit me to stand here before you in the privileged position I now hold – the Senior Counselor for Access to Justice at the U.S. Justice Department. 

But I’m not the only recipient of unearned blessings on this stage or in this audience. All of you in this room have enjoyed varying degrees of good fortune and plain luck – together with lots of hard work, to be sure – that have brought you here today as guardians of the law. 

Not all of the audiences I address in my new role understand as well as you do that, with such unearned good fortune, there comes a considerable responsibility to those less fortunate, a responsibility that has been bravely and ably shouldered by the five recipients of the ABA’s 2010 Pro Bono Publico awards.  These award recipients have done truly remarkable work representing victims of domestic violence, defending individuals on death row, working in veterans’ courts, and serving the needs of our Vietnamese community.  I had the pleasure of meeting those recipients at a reception a few minutes ago and was deeply impressed by their deeds and by what they represent.  As President John F. Kennedy used to express it, these folks live and work by the motto:  Every person can make a difference, so every person should try. And in their trying they succeed; their success is both a truth and a challenge.

And the challenge is a daunting one. Meeting the unmet legal needs of our people will take not just your own best efforts but the best efforts of all those you can persuade and inspire to follow your example. As the Attorney General has repeatedly remarked, ours is a justice system in crisis, both in indigent defense and when it comes to providing adequate civil legal assistance for the poor, the working class, and the struggling middle class: 

• When only the wealthiest among us have their legal needs met, justice will remain an unrealized ideal.

• When a public defender, buried in a mountain of work, has only moments to absorb the facts of a case before standing up to represent her client in court, justice is not alive and well. 

• When poor kids, theoretically entitled to counsel under Gideon and Gault, waive that right without legal advice in a flurry of legal proceedings incomprehensible to them, never understanding the long-term consequences such a decision can have for their opportunity to go to school, get a job, or enter the military, justice remains only a distant hope. 

• When so many people are evicted from their homes or lose custody of their children or are deprived of their ability to seek asylum in this country without the guiding hand of counsel, justice is not a reality. 

Our Supreme Court has not extended the right to counsel at public expense to civil proceedings, even those that touch momentous matters.  But few doubt that having no legal help in navigating proceedings as complex as these leaves anyone at a terrible disadvantage. It will come as no surprise to you that legally represented immigrants seeking asylum in the U.S. to avoid persecution and torture in their home countries win their claims for asylum at three times the rate of those who are unrepresented. And well designed surveys leave no doubt that most people actually believe that poor people do have the right to counsel in such critical proceedings, even though they’re denominated civil rather than criminal.  These findings don’t surprise me.  They shouldn’t surprise any of us.  I think most people have an innate sense of justice.  They understand that a lawyer can make a critical difference, and they certainly believe that justice should be determined by more than one’s pocketbook. 

The problems we face aren’t episodic. They are systemic. Over half of those who qualify for and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.  Many of them have no other option.  They simply become more vulnerable to injustice because they are poor. And many millions more remain vulnerable to the shattering impact of a single event – a home foreclosure, a denial of medical or veteran’s benefits, a denial of help for a sick or troubled child.  These are the millions in our shrinking middle class who face devastation because, for them, the price of justice is too high.

Since its inception this March, my office has been working vigorously with agencies both within and outside the federal government, with law schools and legal clinics, with federal and state courts, with public defenders and prosecutors, with mayors and other elected officials, to remove obstacles to legal help in these varied settings and to help forge partnerships that can make legal assistance more accessible without major new sources of funding.  This isn’t the time or the place for me to detail those efforts, and many of them are in any event not quite ready for prime time presentation, but rest assured that we won’t rest at all until we’ve made sustainable progress in the search for justice, a search that is at the heart of our national identity.

The president’s budget proposal for Fiscal 2011 includes more funds for legal services at the federal level and, most importantly, proposes to lift some of the counterproductive restrictions, including those on class actions, that tie the hands of federally funded legal aid offices. These restrictions currently interfere even with privately funded legal aid efforts, especially in poorer regions of the country.  My office is working with the White House and with lawmakers on the Hill to help achieve the president’s aim of lifting such restrictions.

Two months ago, I spoke to a large assembly of behavioral science researchers at the National Institute of Justice.  There, I evoked the spirit of Benjamin Franklin and talked about how our most scientific Founder revealed the results of his pathbreaking discoveries not for personal gain but for the benefit of his fellow human beings.  Franklin regularly turned down offers of patents and other material rewards for his life’s work and, after his most famous experiment, he turned almost exclusively to public service – to service pro bono publico.  So the values of pro bono work we celebrate here today have a long and distinguished heritage, one woven into the fabric and foundation of our country.

The ABA is a leader in understanding and promoting the importance – the obligation – of public service, in spreading the word and the values that pro bono service is essential to the flourishing of our justice system.  You all know the words of ABA Model Rule 6.1:  “Every lawyer has a professional responsibility to provide legal services to those unable to pay.”  The comments to that rule make clear that it applies to every lawyer, regardless of professional prominence – or professional workload.  Every lawyer.    “Every person can make a difference, so every person should try.”

I wish I could say that the legal profession as a whole has stepped up to the plate as you have. It has not. Stanford Law Professor Deborah Rhode reports that “the American legal profession averages less than half an hour a week and under half a dollar a day in pro bono contributions, little of which goes to the poor.”   But there are some encouraging signs. I’m extremely pleased by the success of last year’s inaugural National Pro Bono Celebration Week, and I hope we can harness the wave of positive energy about the pro bono movement that you’ve set off.   We must seize this moment in time and make use of this opportunity – and your presence here today indicates that you are forging a new and different course and setting a magnificent example. 

My staff and I have been meeting with pro bono teams from law firms, both national and local, many of them represented by lawyers in this room.  We’ve seen how the legal profession’s business models are changing.  With clients no longer willing to pay hundreds of dollars per hour for first- and second-year associates, well designed pro bono projects can play a large part in providing new lawyers with essential litigation and transactional experience, as well as a seat at the table where important decisions are made.   And as you fold such pro bono projects into your firms’ business models, keep in mind the point made to my staff by Steve Scudder, Counsel to the ABA’s Pro Bono Committee: Pro bono projects must be fully resourced in human and not just dollar terms.  They need to become a fully integrated component of the legal services delivery system, not a mere supplement to it.  To be effective, organized pro bono programs need high quality staff – including firm partners – and should be fully engaged with the legal services priorities of their communities.

I know that I’m preaching for the most part to the converted.  I know that many of you, unlike too many of our fellow lawyers around the country, are close to maxed out in the number of pro bono hours you can realistically give.  But I hope that this occasion will serve as a catalyst to our working together to study ways to maximize the effect of the time and money that you so generously contribute.

For example, many of your firm’s partners are gently “urged” into retirement or semi-retirement at an age at which they still have the will, experience, expertise, and energy to contribute greatly. Rather than being put out to pasture, these “lawyers emeritus” could – and should – be coupled with young associates to form teams that can be detailed to legal aid and public defender offices. These are the alliances that can grow and prosper to benefit our nation and its most desperate citizens at a time when they need you most.

Our office, whose mission includes a search for innovative solutions and unlikely alliances, has found points of access to justice in such surprising locations as medical clinics and emergency rooms:  We have found over 130 medical-legal partnerships where students supervised by lawyers and other specialists at help desks situated in medical facilities accept referrals directly from physicians.  The mother who brings a severely asthmatic child to a hospital might need medicine for her baby but may need even more urgently a lawyer’s help in dealing with a landlord who won’t exterminate the mites in the carpet.  That lawyer could be one of you, and thanks to the ABA’s Medical-Legal Partnerships Pro Bono Support Project, it may very well be one of you.

The personal satisfaction of helping people face-to-face and without financial motivation is one that I needn’t extol to this audience. But I would encourage all of you to derive satisfaction as well from the less direct but no less real relief that we bring to others through the avenue of systemic reform.  According to former Montana Chief Justice Karla Gray and Robert Echols, the state support consultant for the ABA Resource Center for Access to Justice Initiatives, “the increasing number of state access to justice commissions has been one of the most striking and consequential justice-related developments of the past decade.”  Twenty-four states and the District of Columbia have such commissions, and many have been successful in promoting best practices and enlarging the pool of resources available to serve the legal needs of the poor. 

For example, the path-breaking California Commission on Access to Justice –a number of whose members I’ll be meeting with tomorrow while I’m in town – played a key role in the recently-enacted Sargent Shriver Civil Counsel Act, which will establish pilot programs beginning next year to provide counsel at state expense to indigent civil litigants in cases involving basic human needs like housing and child custody.  This is a tremendous advance, and one that has the potential to  serve as a model throughout the country.  Such statewide commissions have been formed through collaborations between the bar and the bench; the most effective commissions have strong leadership from both.  The Chief Justice of the Texas Supreme Court reports that, with the help of the Texas Access to Justice Commission, he was able to persuade the Texas State Legislature to increase funding for civil legal services by $20 million, no small feat in these times of strapped budgets.
 
Two weeks ago today, I addressed the National Conference of State Chief Justices. I encouraged the chiefs in states without such commissions to create them, and those in states fortunate enough to have such commissions to nurture them energetically.  I’m pleased to say today that the Conference promptly adopted my recommendation that the 26 states without such commissions create them.

But even if all the lawyers in this room rededicated themselves to pro bono work, and we increased funding for civil legal services five-fold, we still wouldn’t have enough lawyers to meet all the needs of the poor and working class. Many of our fellow citizens will still have to navigate our labyrinthine legal system without the help of any member of the bar. But perhaps this is just the time to see this glass as “half-full.” This may well be the time to take advantage of our new technologies and harness them to pro se litigation. Many innovative programs have taken hold across the country incorporating web-based systems in self-help centers located in courtrooms or elsewhere in the community.  I have no doubt that these projects can be smoothly integrated into existing pro and low bono efforts to optimize the delivery of services to those in need – but I am just as sure that this cannot happen without a serious re-examination of the rules governing the unauthorized practice of law.  As we embrace the myriad new technologies and accompany them with badly needed form simplification, we must promulgate clear rules that govern court staff and non-lawyers in guiding prospective litigants through the process of filling out self-help forms, including those that are interactive. 

But we mustn’t kid ourselves. Many outside this room view lawyers as the problem, believing that they don’t want to see others helping with even the simplest and most straightforward legal issue, because that would cut into their business.  My advice:  Prove them wrong.  Work with your state bar associations to make sure that rules of professional practice more realistically reflect the requirements for meeting people’s desperate need for legal help – help that can come from those with background and training different from our own.  Make it your mission to ensure that justice becomes an on-the-ground, everyday reality for all Americans seeking legal assistance.
And I do mean all Americans.  You have all heard of the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout.  I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to justice are lowered.

The challenge, of course, is to do just that — to use our privileged positions as guardians of the law to lift up the most vulnerable and needy among us – when so much else competes for our attention.  “The road is long,” say the lyrics of one of my favorite songs, “With many a winding turn/ That leads us to who knows where/ Who knows when/ But I’m strong/ Strong enough to carry him/ He ain’t heavy, he’s my brother.”