The International The International Challenge of Providing Challenge of Providing

Access to Justice: Access to Justice: What the U.S. Can Learn What the U.S. Can Learn

from Looking Abroadfrom Looking Abroad

Foreign Systems of Access to Foreign Systems of Access to Justice ExploredJustice Explored

EnglandEngland

GermanyGermany

Focus Areas: Focus Areas:

1.1. Legal Basis for Providing Equal Legal Basis for Providing Equal Access to Justice Access to Justice

2.2. Funding for Legal Services / Legal Funding for Legal Services / Legal AidAid

3.3. Methods for Providing Civil Legal Methods for Providing Civil Legal Services Services

The American Approach: The Legal Basis The American Approach: The Legal Basis

for Providing Equal Access to Justicefor Providing Equal Access to Justice U.S. Constitution: The Sixth Amendment: in criminal prosecutions, the accused shall have the right to the

assistance of counsel The Fourteenth Amendment Due Process Clause

Gideon v. Wainwright, 372 U.S. 335. In 1963, The Supreme Court held that the U.S. government must provide counsel to

criminal defendants who cannot afford such counsel .

Lassiter v. Department of Social Services, 452 U.S. 18 (1981). 452 U.S. 18 (1981). Due Process requires the appointment of counsel only where denial would prove

“fundamentally unfair.” Thus, States are free to provide counsel to an indigent in some civil cases, but have rarely Thus, States are free to provide counsel to an indigent in some civil cases, but have rarely

done so. done so.

Fee Shifting StatutesFee Shifting Statutes There are more than 60 Federal fee shifting statutes that allow a prevailing party to receive There are more than 60 Federal fee shifting statutes that allow a prevailing party to receive

attorney’s feesattorney’s fees Civil Rights Attorney’s Fee Awards Act, 42 USC Civil Rights Attorney’s Fee Awards Act, 42 USC § 1988 § 1988 (1976) – District Courts may award (1976) – District Courts may award

attorney’s fees to prevailing parties in specified civil rights litigation attorney’s fees to prevailing parties in specified civil rights litigation Americans with Disabilities Act (ADA)Americans with Disabilities Act (ADA)

The American Approach: Funding The American Approach: Funding for Legal Services / Legal Aidfor Legal Services / Legal Aid

Legal Services Corporation (LSC)Legal Services Corporation (LSC) Created in 1974 Created in 1974 The largest single source of funding for legal aid in the U.S. The largest single source of funding for legal aid in the U.S. Provides grants to local legal services organizations, which hire attorneys to Provides grants to local legal services organizations, which hire attorneys to

provide civil legal representation for indigents provide civil legal representation for indigents

Interest on Lawyers’ Trust Accounts (IOLTA)Interest on Lawyers’ Trust Accounts (IOLTA) Lawyers are required to place client funds temporarily held in escrow into Lawyers are required to place client funds temporarily held in escrow into

trust accounts. Any interest accrued on such accounts is used to fund legal trust accounts. Any interest accrued on such accounts is used to fund legal services for the poor.services for the poor.

State and Local Governments State and Local Governments Private Lawyer ContributionsPrivate Lawyer Contributions Private FoundationsPrivate Foundations United Ways United Ways

The American Approach: Funding for The American Approach: Funding for Legal Services / Legal Aid Legal Services / Legal Aid

2003 Comparison (In Millions)2003 Comparison (In Millions)

LSC:LSC: $298$298 Other Federal:Other Federal: $78$78 State and Local Governments:State and Local Governments: $226 $226 IOLTA:IOLTA: $133$133 Foundations:Foundations: $61$61 Private Lawyer Contributions:Private Lawyer Contributions: $38$38 United Ways:United Ways: $22$22 Other:Other: $47$47

The American Approach: Methods for The American Approach: Methods for Providing Civil Access to Justice Providing Civil Access to Justice

LSC Funded OrganizationsLSC Funded Organizations Pro Bono Programs:Pro Bono Programs:

Over 150,000 private attorneys are registered Over 150,000 private attorneys are registered to participate in pro bono efforts to participate in pro bono efforts

Over 155 major law firms have pro bono Over 155 major law firms have pro bono programs that provide service to low-income programs that provide service to low-income clients clients

Contingent Fee Arrangements Contingent Fee Arrangements

Problems with the Problems with the American SystemAmerican System

Lack of FundingLack of Funding LSC funding peaked in 1979, however, was cut by 1/3 when LSC funding peaked in 1979, however, was cut by 1/3 when

Ronald Reagan became presidentRonald Reagan became president LSC grants are awarded each year through a competitive bidding LSC grants are awarded each year through a competitive bidding

process that determines whether a program will receive any process that determines whether a program will receive any funding. Thus, many programs will not receive any funding and will funding. Thus, many programs will not receive any funding and will be forced to close. be forced to close.

Unmet Legal Needs Unmet Legal Needs According the According the Findings of Comprehensive Legal Needs StudyFindings of Comprehensive Legal Needs Study, ,

published by the American Bar Association in 1994, “47% of low published by the American Bar Association in 1994, “47% of low income households reported at least one legal need; among income households reported at least one legal need; among moderate income households the figure was 52%.”moderate income households the figure was 52%.”

Of those with legal needs, only 29% of low income households Of those with legal needs, only 29% of low income households turned to the civil justice system, while 39% of moderate income turned to the civil justice system, while 39% of moderate income households turned to the civil justice systemhouseholds turned to the civil justice system

The English Approach: The Legal Basis The English Approach: The Legal Basis for Providing Equal Access to Justicefor Providing Equal Access to Justice

Legal Aid Commission (previously known as Legal Aid Commission (previously known as the Legal Aid Board) the Legal Aid Board) Enacted by Statute in 1989Enacted by Statute in 1989 The Commission combined and consolidated the Legal The Commission combined and consolidated the Legal

Aid and Advice Acts of 1929, 1949, 1974, 1979 and Aid and Advice Acts of 1929, 1949, 1974, 1979 and 19821982 The Acts established a system of providing legal services without cost The Acts established a system of providing legal services without cost

to low income individualsto low income individuals Litigants who have an income above a certain level but below a fixed Litigants who have an income above a certain level but below a fixed

maximum are eligible for more limited assistance based on their maximum are eligible for more limited assistance based on their income level. income level.

The Commission runs 2 basic schemes:The Commission runs 2 basic schemes: (1) The Community Legal Service provides advice and representation (1) The Community Legal Service provides advice and representation

for people involved in civil cases;for people involved in civil cases; (2) The Criminal Defense Service provides advice and representation (2) The Criminal Defense Service provides advice and representation

for people facing criminal charges for people facing criminal charges

The English Approach: Funding for The English Approach: Funding for Legal Services / Legal AidLegal Services / Legal Aid

The Legal Aid Commission Funding Code:The Legal Aid Commission Funding Code: Stipulates criteria used to determine an applicant’s eligibility for Stipulates criteria used to determine an applicant’s eligibility for

legal aid legal aid Currently, 47% of the general population is eligible for legal aidCurrently, 47% of the general population is eligible for legal aid

Offers a sliding scale for payments based on the party’s income Offers a sliding scale for payments based on the party’s income levellevel

Allows a contribution by applicants who are not poor enough for total assistance Allows a contribution by applicants who are not poor enough for total assistance but would otherwise be unable to handle the full costs of representation but would otherwise be unable to handle the full costs of representation

1/3 of the eligible population is liable for contributions 1/3 of the eligible population is liable for contributions Budget:Budget:

Currently approximately £ 1.6 ($2.4) billion. Currently approximately £ 1.6 ($2.4) billion. Of that, about £780 ($1,170) million is spent on civil representation, Of that, about £780 ($1,170) million is spent on civil representation, Just over £800 ($1,200) million is spent on criminal advice and representation,Just over £800 ($1,200) million is spent on criminal advice and representation, £ 220 ($ 330) million is for legal help£ 220 ($ 330) million is for legal help

Where the Funds Come From:Where the Funds Come From: Money is disbursed from a fund comprised of government appropriations and Money is disbursed from a fund comprised of government appropriations and

payments from parties; payments from parties; The money pays lawyers and court officials for the clients utilizing legal aidThe money pays lawyers and court officials for the clients utilizing legal aid

The English Approach: Methods for The English Approach: Methods for Providing Access to Justice Providing Access to Justice

In Court RepresentationIn Court Representation ADR Forums ADR Forums

(1) Definitive Determination: (1) Definitive Determination: Imposes a decision and determines issues definitively, such as expert Imposes a decision and determines issues definitively, such as expert

determinations and “rent-a-judge” or “private judging” determinations and “rent-a-judge” or “private judging” The parties can still settle the dispute themselves but if not, then a binding The parties can still settle the dispute themselves but if not, then a binding

determination will be made which is enforceable through the courts. determination will be made which is enforceable through the courts. (2) Mechanisms Requiring Parties’ Agreement for Resolution of (2) Mechanisms Requiring Parties’ Agreement for Resolution of

DisputeDispute Provides the basis to help the parties reach an agreed solution or settlement, Provides the basis to help the parties reach an agreed solution or settlement,

such as negotiation or mediation/conciliationsuch as negotiation or mediation/conciliation If no agreement is possible, the parties can resort to arbitration or the courts for If no agreement is possible, the parties can resort to arbitration or the courts for

the determination of their dispute. the determination of their dispute. (3) Community Mediation(3) Community Mediation

Used to resolve conflicts between persons within the same community, such as Used to resolve conflicts between persons within the same community, such as Neighborhood Mediation and School Peer Mediation. Neighborhood Mediation and School Peer Mediation.

(4) E-Mediation(4) E-Mediation E-mediator.co.ukE-mediator.co.uk - an inexpensive online dispute resolution service where the - an inexpensive online dispute resolution service where the

cost of an e-mediator is half the amount parties would have to pay for a face-to-cost of an e-mediator is half the amount parties would have to pay for a face-to-face mediation and uses a secure encrypted e-mail system.face mediation and uses a secure encrypted e-mail system.

The German Approach: The Legal Basis The German Approach: The Legal Basis for Providing Equal Access to Justicefor Providing Equal Access to Justice

The German Federal Constitutional Court:The German Federal Constitutional Court: Explicitly recognized that an indigent party to a civil action has a Explicitly recognized that an indigent party to a civil action has a

constitutional right to be represented by an attorney constitutional right to be represented by an attorney

Statutory Rights:Statutory Rights: First enacted a comprehensive statutory right to counsel in civil First enacted a comprehensive statutory right to counsel in civil

cases in 1877 (Zivilprozecases in 1877 (Zivilprozeββordnung)ordnung) On January 1, 1981 statutory provisions were enacted for advice On January 1, 1981 statutory provisions were enacted for advice

and representation (out of court work) (Beratungshilfegesetz) and representation (out of court work) (Beratungshilfegesetz)

The Legal Profession ActThe Legal Profession Act Requires the lawyer to accept any assignment to a client supported Requires the lawyer to accept any assignment to a client supported

by legal aidby legal aid

The German Approach: Funding for The German Approach: Funding for Legal Services / Legal AidLegal Services / Legal Aid

Funding Takes Place on the State LevelFunding Takes Place on the State Level The 16 German federal states are responsible for the court system in each The 16 German federal states are responsible for the court system in each

state. Therefore, funding does not come out of the federal budget, but from state. Therefore, funding does not come out of the federal budget, but from state funds.state funds.

Three Main Areas of Funding:Three Main Areas of Funding: (1) Legal Aid for Court Proceedings(1) Legal Aid for Court Proceedings

80% of the entire legal aid budget 80% of the entire legal aid budget (2) Criminal Legal Aid(2) Criminal Legal Aid (3) Legal Aid for Advice and Representation(3) Legal Aid for Advice and Representation

Use of “Basic Fees”Use of “Basic Fees” A Statute lists every type of litigation activity in which a lawyer might A Statute lists every type of litigation activity in which a lawyer might

engage, and for each activity assigns a monetary amount based on a engage, and for each activity assigns a monetary amount based on a fraction of what is called a "basic fee." fraction of what is called a "basic fee."

The "basic fee" is set as a percentage of the amount in controversy (the The "basic fee" is set as a percentage of the amount in controversy (the GegenstandswertGegenstandswert). When the ). When the amount in controversy iamount in controversy is low, the "basic fee" s low, the "basic fee" percentage is high and when the percentage is high and when the amount in controversy amount in controversy is high, the "basic is high, the "basic fee" may be less than one percent. fee" may be less than one percent.

The German Approach: Funding for The German Approach: Funding for Legal Services / Legal AidLegal Services / Legal Aid

Procedure for Obtaining Legal Aid For In Court Procedure for Obtaining Legal Aid For In Court Representation Representation Merits and Means Tests:Merits and Means Tests:

Means:Means: The applicant must show that she would be unable to pay her own lawyer’s The applicant must show that she would be unable to pay her own lawyer’s fees because of her personal and economic situation. fees because of her personal and economic situation.

MeritsMerits: The claim or defense must bear a reasonable chance of success and must : The claim or defense must bear a reasonable chance of success and must not be frivolous or recklessnot be frivolous or reckless

If the applicant meets the foregoing requirements, the court will If the applicant meets the foregoing requirements, the court will appoint a lawyer to represent him.appoint a lawyer to represent him.

If the applicant has indicated a preference for a particular lawyer and that lawyer is If the applicant has indicated a preference for a particular lawyer and that lawyer is willing to take the case, the court must honor that choice. willing to take the case, the court must honor that choice.

Defendants as well as plaintiffs may partake of this systemDefendants as well as plaintiffs may partake of this system . .

Procedure for Obtaining Legal Aid For Advice and Procedure for Obtaining Legal Aid For Advice and RepresentationRepresentation The applicant has to apply to the local county court and must The applicant has to apply to the local county court and must

describes her legal problem and gives details of her means describes her legal problem and gives details of her means Her wish to consult a lawyer must not be frivolous Her wish to consult a lawyer must not be frivolous

If the court does not give advice on its own, it will issue a certificate If the court does not give advice on its own, it will issue a certificate which entitles the applicant to consult a lawyer of her choice. which entitles the applicant to consult a lawyer of her choice.

The German Approach: Methods for The German Approach: Methods for Providing Access to JusticeProviding Access to Justice

The Legal Aid Grant:The Legal Aid Grant: If legal aid for court proceedings is granted:If legal aid for court proceedings is granted:

(1) no court fees have to be paid in the course of the (1) no court fees have to be paid in the course of the proceedings, and proceedings, and

(2) the lawyer assigned to the client cannot demand any (2) the lawyer assigned to the client cannot demand any payment from his client as all payments to her will be made out payment from his client as all payments to her will be made out of state fundsof state funds

The lawyer is paid a statutory fee from the state fundsThe lawyer is paid a statutory fee from the state funds

Two-Way Cost Shifting:Two-Way Cost Shifting: A party supported by legal aid who loses her claim is A party supported by legal aid who loses her claim is

liable for her opponent’s costs. In the event of a loss, liable for her opponent’s costs. In the event of a loss, only the court fees and the fees of the assisted party’s only the court fees and the fees of the assisted party’s lawyer are covered by the legal aid grant. lawyer are covered by the legal aid grant.

The German Approach: Methods for The German Approach: Methods for Providing Access to Justice Providing Access to Justice

Office of the Rechtspfleger Office of the Rechtspfleger A specialized court officer who replaces a judge in a limited area of A specialized court officer who replaces a judge in a limited area of

legal activity. legal activity. Unlike a judge, however, in order to hold the Office a person need not be a licensed Unlike a judge, however, in order to hold the Office a person need not be a licensed

attorney. Instead, the person must simply complete six semesters at a trade school attorney. Instead, the person must simply complete six semesters at a trade school or college, consisting of both theoretical and practical training.or college, consisting of both theoretical and practical training.

Duties:Duties: (1) Must prepare and conclude adversary proceedings, which include those duties (1) Must prepare and conclude adversary proceedings, which include those duties

that traditionally precede or follow the trial phase of litigation.that traditionally precede or follow the trial phase of litigation. (2) Must handle certain legal proceedings that are not adversarial in nature(2) Must handle certain legal proceedings that are not adversarial in nature

Benefits to Low and Moderate Income Persons:Benefits to Low and Moderate Income Persons: (1) Has the power to conduct execution of judgments.(1) Has the power to conduct execution of judgments. (2) Relieves the German judicial system of administrative constraints, and in turn, (2) Relieves the German judicial system of administrative constraints, and in turn,

the judiciary is more efficient.the judiciary is more efficient. (3) Has little chance for discretion because its conduct is controlled by strict (3) Has little chance for discretion because its conduct is controlled by strict

regulations.regulations. (4) The costs are much less than those in traditional adversarial proceedings(4) The costs are much less than those in traditional adversarial proceedings (5) Are generally more approachable than traditional forums because no attorney is (5) Are generally more approachable than traditional forums because no attorney is

required required

What Can the U.S. Learn From the What Can the U.S. Learn From the English and German Systems?English and German Systems?

Expand Eligibility Requirements Expand Eligibility Requirements The American system provides assistance only to the truly poor. As a result, most of The American system provides assistance only to the truly poor. As a result, most of

the working poor are denied representation under the statute and recipients of legal the working poor are denied representation under the statute and recipients of legal assistance are limited primarily to those who are eligible for Social Security, assistance are limited primarily to those who are eligible for Social Security, Supplemental Security Income, or welfare Supplemental Security Income, or welfare

Implement a Merits & Means Test?Implement a Merits & Means Test?

Operate on a Sliding Scale? Operate on a Sliding Scale?

Increase ADR Forums?Increase ADR Forums? Community Mediation?Community Mediation? Office of the Rechtspfleger Office of the Rechtspfleger

Increase Competition?Increase Competition? E.g., Competition from Legal Assistants and Paralegals E.g., Competition from Legal Assistants and Paralegals

Prohibit Contingent Fees?Prohibit Contingent Fees?