Indiana Judges Association: Are we ignoring an obvious truth?

“[A]ny person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

–Justice Hugo Black, Gideon v. Wainwright

Fortunately, Clarence Earl Gideon’s hand-written petition for writ of certiorari was sufficient enough to obtain equal access to the legal system in 1963. Fifty-three years later, advocates still seek sufficient resources to ensure due process for indigent criminal defendants. But what about poor Americans who face civil legal problems, such as disability or housing issues, medical bills, or family controversies? They need access to advice and representation, and a courtroom counselor when necessary. Is due process any less of a right when a family faces eviction than when a person faces criminal charges? The legal profession has been trying to answer that question for about 100 years.

The menacing problem of providing meaningful equal access to civil justice is perplexing to judges and lawyers because there is no “civil Gideon.” Unmet indigent legal needs have been estimated or documented in the millions since the early 20th century. That need has never been shown to abate. By the year 2000, most studies consistently found around 80 percent of low-income legal needs went unaddressed. Today, the Legal Service Corp.’s most recent benchmark study still shows less than 20 percent of low-income legal needs are met. Similarly, a 2006 American Bar Association task force cites at least seven state studies finding “only a very small percentage of the legal problems experienced by low-income people (typically one in five or less) [are] addressed with the assistance of a private or legal aid lawyer.” In 2016, the National Center for State Courts released state trial courts data showing three out of four civil cases have at least one unrepresented party. The plethora of research showing unmet indigent legal needs is daunting and shows an alarmingly high amount of unprovided access to the civil legal system for poor Americans. In Indiana, the most recent studies show more than 80 percent of low-income Hoosiers who have a legal problem have no access to a lawyer.

Maybe one person here and there without a lawyer can be considered random or within an acceptable margin, but what about millions of people every year?

Our Indiana Supreme Court faced these challenges in the mid-1990s when it created the Indiana Pro Bono Commission and local pro bono districts. More lawyers volunteered to do pro bono work, more funds were generated through IOLTA, and more needy litigants were helped. But in Indiana, like everywhere else, aggressive pro bono planning and heroic efforts cannot match the multitude of unrepresented people whose bank accounts do not allow paid access to the legal system. This year, renewed work is starting to combine resources and re-energize the search for much-needed solutions. Indiana’s Coalition for Court Access is now studying new directions to stay in the frontline of thinking and planning with the rest of the country, thanks to the Indiana Supreme Court. But without a civil right to counsel, the level of unrepresented citizens in Indiana and other states is simply astonishing.

We as lawyers and judges are the stewards of the American ideal of justice. We cannot afford, and must not abide, a partial system for just some and not all. As we journey through the second century of the modern legal profession, we must dedicate ourselves or suffer long-warned consequences. Legal assistance, according to Theodore Roosevelt, was a “bulwark against … violent revolution.” “Injustice,” said Reginald Heber Smith, “leads directly to contempt for law, disloyalty to the government, and plants the seeds of anarchy.”

So, it is not just charity, but good government that commits us to providing equal access to all Americans. In Indiana alone, there are over 16,000 attorneys. If every Indiana lawyer provides 50 hours of pro bono work a year (the professional standard), the people who are eligible and need advice or representation would be provided with 800,000 hours with a lawyer. Access to justice would become more than just an ideal. And that may continue to preserve the country that our Founding Fathers (and Mothers) dreamed about.•

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.