Pro bono: A call to service

Virginia courts began reopening in May as COVID-19 restrictions eased, and evictions began in some courts but have now been suspended until June 28 under the Supreme Court’s order of June 8. Virginia’s legal aid programs, already unable to meet demand for representation, anticipate a flood of new cases involving eviction, foreclosure, debt collection, unemployment compensation, domestic violence, and access to healthcare from a much larger pool of eligible clients thanks to recent COVID-19-caused layoffs and closures. Thousands of eviction cases are docketed in courts across the Commonwealth. Now like never before, legal aid programs need the help of private attorneys volunteering their time pro bono.

The 2017 Justice Gap Report of the federal Legal Services Corporation found that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help.   Similar Virginia studies in 1991 and 2007 found that 80% of the legal problems of low-income Virginians received no help from an attorney.

A study of Virginia court data in 2018 found that only 1% of cases in General District Court, where most cases, including evictions, are handled, have an attorney on both sides. Only the plaintiff has a lawyer in 54% of cases.  45% of cases have no lawyer on either side.

When a party can’t afford the services of an attorney, the system cannot function properly. A variety of outcome studies in a variety of case types have found that litigants represented by counsel are in general twice as likely to receive a positive outcome as those who are unrepresented.  The gap between outcomes is an error rate because it depends on the absence or presence of an attorney, not upon an impartial weighing of all facts and law

Legal aid programs exist to advise and represent low-income people, but by themselves are not the solution for this justice gap. In Virginia’s general population, there are 358 people per attorney, but in Virginia’s poverty population, there are 4,275 poor people per legal aid attorney. The imbalance in attorneys available for the poverty population compared those available to the general population is caused by insufficient financial support for legal aid; government and private support are not, by a long shot, where they need to be.

High error rates for self-represented litigants, multiplied by an overwhelming level of unmet need, form a crisis in our system of civil justice, and the crisis will worsen now that our nation and our state have such high unemployment. Under current conditions, legal aid cannot come near meeting the most critical civil legal needs of the poor without extensive help from the private bar.

If “Justice for All” is going to be more than an empty phrase at the end of the Pledge of Allegiance, Virginia needs the sustained engagement of every attorney in pro bono assistance. Virginia Rule of Professional Conduct 6.1 establishes the principle that ensuring “Access to Justice” for those unable to pay is a key responsibility of the organized bar. It states:

 “A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.”

Gateways to pro bono in Virginia include JusticeServer.org, an online portal in which legal aid cases needing attorneys across the state are available to be viewed and chosen; Virginia.freelegalanswers.org, enabling pro bono by email; Firms in Service in Richmond, Tidewater and Northern Virginia; the Greater Richmond Bar Foundation at grbf.org; and direct work with one or more of Virginia’s nine legal aid programs. Some independent nonprofits also have pro bono programs focused on the needs of immigrants, cancer victims, domestic violence victims, and those with tax problems. The Pro Bono Council of the Virginia Bar Association has just published a new survey of pro bono needs across the commonwealth at vba.org/page/pro_bono_council. It deserves review by every Virginia lawyer.

How well does Virginia do right now in providing pro bono service? The number of active VSB members reporting pro bono work in a year is less than a third of the national average, but the number of hours each reporting Virginia lawyer provides is about twice the national average. Virginia lawyers excel when they get involved.

I close with an eloquent summary by James Sandman, the former president of the Legal Services Corporation, America’s largest funder of access to justice programs:

Justice is a value as old as the Scriptures.  Deuteronomy commands “justice, justice, shall you pursue.”  Amos prayed that justice might roll down like waters.  Our country’s founders and the framers of our national government emphasized over and over again that justice was their first goal and value.

As said by our nation’s Virginian founders:

• Alexander Hamilton: ‘The first duty of society is justice.”
• Thomas Jefferson: “The most sacred of the duties of government is to do equal and impartial justice to all its citizens.”
• George Washington: “The due administration of justice is the first pillar of good government.”
• James Madison, in Federalist Number 51: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

Our justice system today is failing millions of people who don’t have the means to afford legal assistance.  Our courts are overwhelmed with unrepresented people who try and fail to navigate a system that was created for lawyers.  We can and we must fix this.

David B. Neumeyer is the executive director of the Virginia Legal Aid Society.