A revised code of judicial conduct in Pennsylvania should allow judges to advocate and facilitate pro bono programs for the poor without running afoul of the conduct rules, the chair of the committee reviewing the state’s judicial canons said.
State Superior Court Judge Anne E. Lazarus, speaking during a Philadelphia Bar Association Chancellor’s Forum on the “Civil Justice Gap,” said Tuesday that she was assigned to chair the Pennsylvania judicial task force reviewing the American Bar Association’s Model Code of Judicial Conduct, and one area that the code would address is how judges can work to ensure pro se litigants have lawyers without getting into trouble with the judicial conduct rules. Lazarus’ committee’s recommendations to the state Supreme Court have not yet been issued.
“I don’t mean you have to bend over backward and try a case for a litigant,” Lazarus said.
But litigants who are representing themselves need to know their burden of proof and other key rules, Lazarus said.
For example, that information could be provided by help desks in courthouses, Lazarus said.
The forum was held to highlight a push some civil legal aid lawyers have been making as part of a Philadelphia Bar Association task force to provide “civil Gideon” for litigants facing civil cases that would impact a fundamental aspect of life such as housing or parental rights.
The inspiration for “civil Gideon” is the Gideon v. Wainwright decision, which set out that criminal defendants who are too poor to afford their own attorneys have a constitutional right to have counsel provided by the government.
Fern A. Fisher, deputy chief administrative judge for New York City courts and charged with looking at access-to-justice issues statewide, said that former New York Chief Judge Judith Smith Kaye challenged Fisher as to whether the judiciary really should be developing programs to assist litigants in obtaining legal counsel.
“I said to her,” Fisher said, “‘it’s our responsibility as a court system to provide access to justice. It’s our responsibility as a court system to provide neutral justice,’” and neutral justice cannot be provided if one side is not represented.
One way to provide more legal services for people who can’t afford their own lawyers is to “unbundle” representation so that a lawyer can volunteer to handle a part of a case for, say, a day at a time, Fisher said.
New York has set up unbundled representation for housing and consumer credit cases because those cases are ones in which there is the biggest unmet need for legal representation, Fisher said.
“The judiciary does have a role,” Fisher said. “We have to kind of think outside of the box what our role as judges and administrators should be.”
Pennsylvania Chief Justice Ronald D. Castille attended the forum, saying he was interested in learning about what is being done in New York.
“We really could take an example from New York,” Lazarus said.
State Senator Stewart Greenleaf, R-Montgomery/Bucks, the chairman of the state Senate Judiciary Committee, said that while many legislators are not lawyers and are unsure that their constituents would support providing money for civil legal aid, lawyers and the general public have an innate sense of justice.
Advocates for civil Gideon must not talk just about the need for funding it, but talk about the “human story” of how people who don’t have attorneys in civil cases face injustice, Greenleaf said.
“You win issues in a democracy by convincing and educating the public,” Greenleaf said.
Filing fee surcharges, which were implemented to provide extra funding for both the court system and civil legal aid in the wake of the 2008 financial crisis, should not be allowed to expire and the surcharges should be expanded to apply to traffic citations, Greenleaf said.
Pennsylvania has continued to find new ways to fund civil legal assistance, including cy pres awards leftover from unclaimed class action funds, fees from bar registration, pro hac vice fees from out-of-state attorneys, filing fee surcharges and interest earned on attorney trust accounts, said Louis S. Rulli, a University of Pennsylvania Law School professor and an expert on public interest law.
“Pennsylvania really has been a model,” Rulli said.
One of every two people seeking civil legal aid in Pennsylvania are turned away, said Karen Buck, executive director of the SeniorLAW Center.
When people are turned away, civil legal services lawyers are making life-changing choices between people who they take as clients and people who they reject as clients, Buck said.
“These are choices we just should not have to make in a civilized society,” Buck said.