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Access To Justice Commission Update

Private Attorneys Play a Vital Role in Helping Poor Texans
By:  Brian McGivern

Over 5.3 million Texans live in poverty; that is greater than the number of people living in the cities of Houston, Dallas, and San Antonio combined. Among the numerous hurdles they face is inadequate access to the most basic legal services. Much is being done by the state and federal governments to rectify this, but the public resources available to address the problem are already stretched to capacity. Any future improvement in access to legal services in Texas will rely on the pro bono efforts of its attorneys.

The preamble of the Texas Disciplinary Rules of Professional Conduct states:

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession… A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf.

It goes on to say the “provision of free legal services to those unable to pay reasonable fees is a moral obligation of each lawyer as well as the profession generally.” Although the rules do not mandate pro bono representation, they state in unambiguous language the ethical, professional, and moral obligation of every Texas lawyer to perform pro bono legal service.

Why is pro bono service important? Because, without a lawyer, a person has very few rights. When a person’s rights are infringed, his recourse is normally in a court room. However, to succeed in a legal proceeding, a person often must be familiar with arcane points of procedure unknown to the majority of laypeople. Without the assistance of a lawyer, a person is unlikely to vindicate his rights. As the Supreme Court noted in Powell v. Alabama:

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence… He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. 287 U.S. 45, 68-69 (1932).

A person is afforded a lawyer automatically in some areas of the law. When charged with a crime, a person may have an attorney appointed. If a person’s ex-spouse is not honoring a child support order, the attorney general will seek to enforce the order in court on the person's behalf. But what if a person’s landlord illegally evicts him from his home? What if a person’s identity is stolen and debt collectors begin calling him night-and-day about debts he didn’t accrue? What if a person needs a protective order to escape an abusive relationship? These problems may be redressed in a court of law, but a person is unlikely to be successful without representation.

The solution seems obvious: litigants should hire lawyers. However, that solution is unavailable to many. A person earning $10 an hour, working 40 hours a week, 52 weeks a year, will earn $20,800 a year before taxes. It’s hard for a person to foot a $3000-$5000 retainer equivalent to almost 25% of his or her annual income.

What about legal aid? The person in the illustration above would receive no help from that quarter. Legal aid organizations are restricted to assisting the poorest of the poor – a single person does not qualify unless he earns less than $13,538 a year. However, even those individuals are not guaranteed assistance; legal aid organizations only have the personnel to represent a fraction of those who seek their help.

The only feasible near-term solution for improving access to legal services is for more private lawyers to accept pro bono cases. On September 22, 2000, the State Bar of Texas Board of Directors adopted a revised Pro Bono Policy, which recommended that attorneys perform 50 hours of pro bono legal services to the poor each year – which is less than one hour a week. There are more than 80,000 attorneys in Texas. Meeting the suggestion of the Pro Bono Policy would lead to over four million hours of pro bono representation a year.

According to the Bar’s most recent pro bono survey, only 52 percent of Texas lawyers perform any pro bono service at all, but that could change. Accepting pro bono cases not only improves your community, it gives you the opportunity to expand your skill set as an attorney, with the support of mentors and training resources. It also allows attorneys to network with other volunteers who are drawn from all ages and areas of practice. Many of the most prominent leaders of the legal profession are active proponents of public service by the private bar.

Contact your local bar association or legal aid office to learn how you can get involved in your community and become part of the solution.