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Legally Speaking

 

Issue: February, 2009
Author: Rick Lavery

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From the Top

I take great pride in the fact that this issue of the Wyoming Lawyer is dedicated to the Access to Justice effort. Access to Justice is the legal community’s effort to assure, to the fullest extent possible, that civil justice is for everyone. As you read the articles in this issue, you will learn that these efforts have been a passion for many Wyoming lawyers and judges for a very long time. They have worked long and hard to get us to where we are today.

If you have been following the news on the Bar’s website, you know that on December 16, 2008, the Wyoming Supreme Court ordered the creation of the Wyoming Access to Justice Commission. This new commission is a big step toward the creation of a much improved statewide system where everyone has access to quality civil legal advice and services. Yes, there is much more to do, but I like to think that the planets and stars have aligned, that we have turned a corner, and no, I have not consulted with any astronomers or astrologists.

Wyoming lawyers and judges are fortunate to work within a justice system that is self-regulating. Judges and lawyers play a role in the selection of judges and the admission of lawyers to practice in our state. We regulate the practice of law, assure that our respective codes of professional conduct are met and manage the disciplinary process. We also protect the fundamental relationship between judges, lawyers and clients. This right of self-regulation comes with a responsibility. It is up to us to assure that civil justice is available to all. If we don’t understand that professional and moral obligation, who will? This effort is our burden and our challenge. The freedom and liberty we enjoy comes with this price.

It has been my experience that lawyers do more to help the less fortunate than anyone. Volunteer boards around this state are populated with lawyers and judges. We serve in government positions. We are volunteer fire fighters and EMTs. We coach and teach children in our communities.

Today our system of civil justice needs our help too. The number of unrepresented civil litigants is on the rise. Civil pro se litigants are appearing in both our circuit and district courts in rapidly increasing numbers. I imagine that most are family law matters – divorces, modifications of child support or custody, and family violence protection orders. How can we expect our judges, as good as they are, to ferret out issues and make good decisions without the learned and thoughtful pleadings, discovery and trial presentation that good lawyers bring to the courtroom? Bluntly, it’s not fair to the court and it’s not fair to the litigants.

As I have been studying and learning more about this issue, one point in particular stands out and conversely often goes unnoticed by those of us that are trained in the law. When the smallest legal issue confronts our poorest citizens, the impact is often overwhelming and sets a chain of events into motion that can devastate entire families. It could start with something as simple as the inability to pay a bill. Someone might think that avoiding a creditor is the best approach - out of sight, out of mind. We know that doesn’t work; in fact, it usually makes matters worse. That simple piece of advice or assistance might mean the difference between a lawsuit and a work out. The lawsuit and subsequent garnishment could have led to more unpaid bills, repossession, foreclosure, loss of employment, family violence and even divorce. Landlord tenant issues can be devastating and again lead to that downward spiral of more serious legal and social problems.

The creation of the Access to Justice Commission is the first step in the renewed effort to address this important need. The next step is to organize and begin the real work. We know that $600,000 federal dollars do not support a statewide legal services effort. Wyoming Legal Services, Inc., operated on that budget with offices in Cheyenne, Casper and Lander. It’s laughable to think that three law offices could possibly operate on that shoestring budget and be expected to conduct a statewide legal services business. We know that the Legal Services Corporation will eventually fund a new permanent provider in Wyoming, but the money won’t be any better. Given the financial climate in Washington, it could be worse.

We also know that our two law school clinics at the University of Wyoming College of Law do much to assist, but their outreach is limited. Most of their work focuses in the southeast corner of the state. The law students and law school staff that run those clinics, past and present, deserve much of our gratitude, but we must help them reach out further.

We hope that most lawyers do their fair share of pro bono work, but it is hard to tell because it is either unknown or unreported. As a result, it is difficult to demonstrate to other possible funding sources that we are doing all that we can do.

Finally, we know that our Wyoming State Bar Foundation supports these efforts to the fullest extent of its resources, but the resources are meager at best. Sadly, with 2,239 active members, only 230 pay $50.00 to join the Foundation. The list of members is about as low as it has ever been. Only 160 of our members contribute to the Equal Justice Campaign. The total contribution (membership dues and Equal Justice Campaign) was just over $18,000.00 last year. Over the years, the Foundation has made regular grants to both law school clinics and Wyoming Legal Services, Inc.

Wyoming lawyers must do better, and it will be one of the missions of the Access to Justice Commission to develop a strategy to help us do just that. The new legal services provider and the law school clinics are the lynchpin in any strategy, but our continuing role will be to find ways to supplement and assist in those efforts so that we have an effective statewide effort.

We need to be creative and find solutions that do more than simply connect pro bono attorneys with clients. County bar associations can help by instituting regular “Law Night” functions using local attorneys. Last year, the Laramie County Bar Association had a very successful law night, and while sporadic at times, the Uinta County Bar Association has been hosting law nights for a number of years. The Bar office, with the help of the county bars that have already taken the plunge, could develop materials to assist in putting these efforts together.

We could make the pro se packets more varied and more user friendly and help people understand when they should be used. Lawyers with mediation skills might provide pro bono mediation services for small claims cases. We need to think creatively and develop some new ideas for addressing the legal problems that impact the poor citizens of our state. We might think about recommending that filing fees be raised, at least in part, for the purpose of funding legal services.

One area that we can change quickly is the relationship between our membership and the Bar Foundation. Bar foundations exist throughout the country to receive donations from members and non-members alike. Those funds are then used to support the charitable and educational efforts of the Bar. Naturally, the Wyoming State Bar Foundation should be an important player in this Access to Justice effort. The Foundation can only be important if our members recognize the importance of charitable giving for access to justice. I’ve come to believe that members of the Bar should put their charitable giving emphasis on this effort. To be sure, there are many good causes that look to us for our charitable giving, but when considering the relative importance of causes, what stands above the cause of liberty and justice?

One of my favorite speeches is one given by Justice Learned Hand on the occasion of the, “I am an American Day Celebration” in New York’s Central Park. It was given in 1944 as World War II was coming to an end. The speech is often referred to as the “Spirit of Liberty” speech. Justice Hand spoke so eloquently, celebrating our cherished liberty in the face of the terrible tyranny and oppression that had just attempted to impose itself upon the world. He rhetorically asks, what is the spirit of liberty? In part he says, “the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.” It is my hope that we get behind this effort and demonstrate by our effort that the spirit of liberty lives in our civil justice system.

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