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News / Articles / Blog

August 11, 2008

New Jersey Lawyer: The Weekly Newspaper

Volume 17; Issue 32

Maurice W. McLaughlin

New Jersey Pro Bono: A Justice Gap and a Bar's Response

Almost ten percent of New Jersey residents live below the poverty line. Nearly half of them face at least one civil legal problem each year. The vast majority face these problems without representation, creating a justice gap between those who can afford counsel and those who cannot.

The state's bar has made considerable efforts to address this need. Indeed, this effort is greater than even ten years ago. However, New Jersey's more than 77,000 admitted attorneys do far too little to address this justice gap.

Membership in the profession of law carries with it an obligation to society and the justice system. By allowing this justice gap to exist, New Jersey's attorneys have failed to meet their obligation.

The Need

There is a severe need for civil legal assistance for low income residents of this state. New Jersey has more than 8,000,000 residents; almost ten percent live below the poverty line. More than 400,000 low income New Jerseyans face at least one new civil legal problem each year. Those most likely to face these problems are those living in rental housing in central cities. More than 80 percent will face these legal problems without representation.

In October 2005, Legal Services of New Jersey (LSNJ) released the results of a study which found the following:

  1. Family dissolutions (divorces) -- of 31,966 resolved cases in court year 2004, 30 percent had pro se (unrepresented) plaintiffs, and 67 percent had unrepresented defendants; 51 percent of these cases resolved by default.
  2. "Special Civil" matters (small civil cases where the claim is for less than $15,000), not including Small Claims Court -- where lawyers generally are not involved -- 95 percent of defendants, who are disproportionately lower income people, were unrepresented for the 246,202 cases resolved in court year 2005; 76 percent went by default.
  3. In landlord-tenant cases -- again disproportionately involving lower income people -- 99 percent of defendants were unrepresented for the 163,733 cases resolved in court year 2005; 43 percent went by default.
  4. Welfare fair hearings (agency proceedings in which low-income people challenge denial, reduction, suspension or termination of welfare) -- 95 percent of the people were unrepresented for the state fiscal year 2004, out of 6,799 cases.

The report accurately, perhaps understatedly, called these statistics "unsettling." The authors concluded --and it seems clear --access to the justice system is based on wealth and income, creating what they referred to as the "justice gap."

Lack of Resources

The need overpowers the funded resources. For example, the study reported that LSNJ and its regional programs received almost 178,000 new requests for help. With limited resources, two-thirds were turned away. One-third of New Jersey's poor live in the area served by Essex-Newark Legal Services, and in 2004 it completely closed all intake for its consumer law unit for 20 business days and its elder law unit for 30 business days because of its inability to meet demand.

Funding is an issue: The current financial crisis has not just hit Wall Street. LSNJ, for example, gets as much as 75 percent of its funding from interest on the funds in attorney trust accounts through Interest on Lawyer Trust Accounts (IOLTA). As the sub-prime mortgage has unfolded and the real estate price bubble burst, real estate deals have come to a grinding halt, meaning attorney trust accounts contain significantly less funds. When funds are in the accounts, they are earning less money because of interest rate cuts. Indeed, revenue was down 20 percent in December 2007 from December 2006. Other providers of legal services to the poor will also feel the cuts, since IOLTA makes grants to many of them, including the New Jersey State Bar Foundation, Volunteer Lawyers for Justice (VLJ), Partners for Women and Justice, Camden Center for Law and Social Justice, Inc., Community Health Law Project and the Hyacinth AIDS Foundation.

Lack of funding also reduces the number of attorneys which can be hired by public interest legal services providers. This happens in two main ways.

First, lack of funding limits the number of positions which can be created. Second, lack of funding limits the salary which can be paid to staff attorneys, which in turn reduces the pool of applicants and causes experienced staff attorneys to leave before they otherwise would.

Many students begin law school with the goal of serving the public good. Financial realities, however, often make it impracticable for them to accept public interest or government employment. The National Association for Law Placement (NALP) tracks attorney salaries. In 2006, NALP published the following results of its research on public sector and public interest salaries.

Years of Experience Civil Legal Services Public Defenders Local Prosecuting Attorneys State Prosecuting Attorneys Public Interest Organizations
Entry-level

$36,000

$43,300

$43,915

$46,374

$40,000

5 years

43,291

54,672

54,500

55,177

52,000

11-15 years

55,000

65,500

72,970

67,712

65,000

For 2006, NALP found the following median starting salary information for private law firms.

Firm Size 2-15 26-50 51-100 101-250 251 or more
Salary

$67,000

$67,000

$85,000

$90,000

$120,000

However, the median salary for firms with more than 500 attorneys is $145,000, while in New York the prevailing salary at such firms was $160,000.

Against this salary background are tuitions, which have risen faster than inflation, and student loan debt. Between 1985 and 2002 median private law school tuition more than tripled, and public law school median tuition more than quadrupled. The percentage of law students who had to borrow during the same period went from 74.8 percent to 84.5 percent, and the median amount borrowed more than doubled. Median law school debt -- excluding undergraduate loans -- was $84,400 as of 2002; by 2000, one in four graduates had borrowed $100,000 or more to pay for their legal education. While there are various programs which assist some public interest and public sector lawyers with their student debt, the programs -- while a step in the right direction -- are no more than a baby step and woefully insufficient to combat the problem.

The combination of student loan debt and disparity in salaries makes it extremely difficult for even the most idealistic law student to choose public service, effectively preventing many from doing so. Even those law students who do ignore their debt and pursue public service are often forced out in two to three years, just when they are beginning to gain valuable experience. In other words, debt drives law school graduates' career decisions and more often than not drives them out of public service or public interest law. The American Bar Association has called this a "disheartening dilemma."

All this combines to starve public interest legal services providers of needed resources, both financial and human, and further separates lawyers from the public service calling of their profession. As a result, lawyers, the legal profession and the public all suffer.

Thus there is the perfect storm of justice gap between the rich and poor litigants; an overwhelming number of low income persons in need of civil legal representation; lack of funding; and a lack of staff attorneys to provide that representation.

A Public Service Obligation

The gap should be filled by the private bar. By virtue of its position in society the legal profession -- thus attorneys as legal professionals --bears a special obligation to provide service in the public interest. Indeed, while the term "profession" has many definitions, some elements are common in all of the definitions: Special learning on a complex subject matter, with a prolonged course of learning; application of that special learning; passing on that special knowledge to future generations in the profession; an established criteria for admission, often including self-regulation; an established code of ethics; members who see the profession as a "calling"; and, finally, a component of service or altruism. As Roscoe Pound put it, a "spirit of public service" is "the essence of the law."

Many, if not most lawyers entered law school with this service component in mind. In the law a person can help people, have the status and intellectual rigor of a professional, and make a decent living to support his family. How many law students were inspired by "To Kill A Mockingbird?" Indeed, if the only reason to go to law school was to make money, our colleagues would have been better off getting a business degree and heading to Wall Street.

The bar has acknowledged this public service component to our profession. For example, the American Bar Association's Model Rule 6.1 provides:

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

  1. Provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
    1. persons of limited means or
    2. charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and
  2. Provide any additional services through:
    1. delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;
    2. delivery of legal services at a substantially reduced fee to persons of limited means; or
    3. participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

While the ABA has recommended the requirement be only moral, not with the force of rule or sanction, it has stressed that it applies to all members of our profession. In its comment on the Rule, the ABA stated:

"Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer."

Since 2004, this position has been codified in New Jersey's Rules of Professional Conduct.

Every lawyer has a professional responsibility to render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

New Jersey's Rule, like the Model Rule, also makes this a moral, not a legal requirement.

Legal Services of New Jersey suggests that lawyers satisfy this obligation by an annual commitment to handling one pro bono case and contributing the equivalent of one billable hour.

The Bar's Response

The Bar has responded, in ways large and small. The New Jersey State Bar Association has a firm commitment to meeting this need, and includes encouraging pro bono in its mission statement: "To promote access to the justice system, fairness in its administration and encourage participation in voluntary pro bono activities." The Association has also made efforts to make pro bono legal services accessible to the public, and lobbied the Supreme Court for rule changes to encourage and facilitate voluntary pro bono.

Law firms have also addressed this need in a variety of ways. Gibbons, for example, sponsors the John J. Gibbons Fellowship in Public Interest & Constitutional Law to "undertake public interest and constitutional law projects and litigation."

Lowenstein Sandler takes an institutional approach. In 2006, 73 percent of the firm's attorneys performed pro bono work totaling nearly 14,000 hours. The firm has a pro bono committee with eleven members, partners and associates, which encourages and supports its attorney's pro bono efforts. Says Committee Chair Robert C. Boneberg, Esq., "One of the things that every new attorney at Lowenstein Sandler learns upon arrival, whether as a member or as an associate, is that the firm and its attorneys are committed to pro bono service."

McCarter & English has appointed Elise D. Collins, Esq. as the first full-time pro bono coordinator in the state. In addition to McCarter attorneys providing significant pro bono services, McCarter attorneys have also developed their own new programs for doing so. For instance, Ms. Collins and William Greenberg have been instrumental in the development of a program assisting reservists returning from active duty in Iraq and Afghanistan, and assisting military veterans in disability appeals.

Individual attorneys have responded to the call as well. Despite the pressures of running a small practice, many solo practitioners and attorneys in small firms have devoted considerable time and effort to providing pro bono services to the needy. For example, John F. Wise, a solo practitioner in South Orange, handled 82 individual bankruptcy cases for VLJ in 2005 and created a bankruptcy clinic for VLJ.

In-house corporate counsel have responded. Merck & Co. of Whitehouse Station has had an established pro bono program since 1994, for which it has been recognized both nationally and New Jersey.

Moreover, attorneys -- from the state's and country's largest firms to solo practitioners -- have donated generously to public interest legal services providers.

In-house counsel with limited license admissions who wish to perform public service legal representation have been aided by the interpretation of R. 1:27-2 to allow them to provide at least limited pro bono through Legal Services. The Supreme Court has promulgated a determination that while in-house counsel were "not required to participate in mandatory pro bono because of the limitations of their license", they were permitted "to volunteer for pro bono work through Legal Services of New Jersey." The NJSBA has requested this be expanded to allow limited license in-house counsel to also be allowed to provide pro bono legal services through "a county or regional pro bono program that has been approved by the Supreme Court" (i.e., an organization which qualifies for the Madden mandatory pro bono exemption), a position also taken by the Association of Corporate Counsel and subsequently endorsed by the Editorial Board of the New Jersey Law Journal.

The New Jersey State Bar Association's Standing Committee on Pro Bono has also undertaken efforts to promote pro bono service, including a conference held at the Law Center on May 7th and an award for individual attorneys and organizations recognizing their significant pro bono services presented at the Association's annual meeting and convention in Atlantic City on May 21-23, 2008.

However, these efforts pale in the face of the overwhelming need. As of 2006, there were 77,434 attorneys admitted to practice in New Jersey. While many of these attorneys actually practice elsewhere, or not at all, there is clearly an extremely large pool of attorneys working in our state. Moreover, the efforts of the bar in New Jersey suffer in comparison to other states. For example, The Association of the Bar of the City of New York has established the City Bar Justice Center, Pro Bono Society and the Cyrus R. Vance Center for International Justice. Clearly, were the attorneys of this state to truly make providing pro bono legal services to indigent litigants a priority, the justice gap would be eliminated or at least greatly reduced.

Thus, while the NJSBA and county bar associations are promoting pro bono service and many individuals and organizations are responding, the response pales in comparison to the need.

Conclusion

The need for legal services for New Jersey's low income residents is profound. However, lack of funding, student debt and the disparity in salaries limit the ability of public interest organizations to meet the need. Notwithstanding these financial obstacles, private sector attorneys and the bar itself have a professional obligation fill this need, help the disadvantaged and close the justice gap. The bar has responded in numerous ways, large and small. The avenues for volunteering are many and readily accessible without even leaving the computer screen on an attorney's desk.

But the response, while improving, is woefully inadequate to meet the need or the bar's obligations.

a. Maurice W. McLaughlin is a founding member of McLaughlin & Nardi, Totowa. He handles a wide range of matters including complex negotiations, litigation and transactions. Maurice leads the firm's litigation practice. Reach him at (973) 890-0004.

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