Access to Justice.

Vol. 15 No.5 (May 2005), pp.432-438

ACCESS TO JUSTICE, by Deborah L. Rhode. New York: Oxford University Press, 2004. 265pp. Hardback. £18.50 / $29.95. ISBN: 0-19-514347-7.

Reviewed by John Michael Eden, Duke University School of Law, Email: john.eden@law.duke.edu

and John Paul Ryan, The Education, Public Policy, and Marketing Group, Inc. Email: johnpryan@ameritech.net .

Legal reform has been in the news since the 2004 presidential campaign. Republicans inside Congress and out bash attorneys, in part for stirring up too much litigation. Emboldened by their recent success in enacting jurisdiction legislation designed to discourage large awards in class action lawsuits, the critics seek new laws to limit the size of monetary awards to plaintiffs in medical malpractice cases. But this is not the kind of legal reform that Stanford University legal scholar, Deborah Rhode, has in mind in her latest book, ACCESS TO JUSTICE.

Rhode’s interests and critique of the legal system hark back to the early days of “law and society” research in the 1960s, with its focus on poverty law. Her central argument is that the distribution of legal services is severely skewed toward the powerful and wealthy. In Rhode’s view, our nation’s rhetorical commitment to equal justice seems to be a mere façade for the everyday subversion of this principle. She argues that “millions of Americans, including those of moderate income, suffer untold misery because legal protections that are available in principle are inaccessible in practice” (pp.4-5), citing domestic violence victims, elderly medical patients, disabled children, and defrauded consumers in particular. She also contextualizes this problem cross-nationally, by frequently comparing and documenting the much greater expenditures by Britain and other European governments on legal assistance for the poor.

Public perceptions and beliefs about equal justice, in part shaped by the mass media, account for some of the disconnect between the rhetoric and reality of “equal justice,” Rhode argues. Thus, she begins Chapter 2 on “Litigation and its Discontents” with a half dozen examples of apparently “frivolous” lawsuits in the public mind (typically involving individuals or consumers). In her view, this is “argument by anecdote” – a few individual cases and, indeed, ones that her own law students can not agree upon the merits of. She states that the key problems in this area are under-compensated victims, the high costs of litigation (including lawyers’ fees), and an over-reliance on courts fostered by the failures and inactions of legislative and regulatory bodies, rather than too much litigation.

Rhode reserves her sharpest critique for the legal profession itself, the primary audience to which this book is directed. Most of ACCESS TO JUSTICE focuses on the failures of the legal profession to [*433] provide legal assistance for low-income people in civil cases, the inadequacies of indigent criminal defense representation, and the insufficient practice of pro bono work in law schools and the legal workplace.

Legal assistance for the poor is a complicated story, which Rhode ably documents and places in historical context. She points out, for example, that the first legal aid organizations established in the United States in the late 19th century came not from the organized bar but from private (charitable) immigrant and women’s groups in New York and Chicago that were a part of the early Progressive movement. Indeed, she laments that “as late as 1950, only about 9 percent of legal aid funding came from the profession; the majority was from local charities, supplemented by private contributions” (p.60). The ever-changing political and legal challenges facing the Legal Services Corporation, established by Congress in 1974, are examined closely in a chapter on “Locked in and Locked Out: The Legal Needs of Low-Income Communities.” Rhode argues that low funding and case restrictions have greatly limited the effectiveness and impact of federal legal aid. The key underlying controversy that has led to these restrictions centers on whether legal aid should provide help for individual poor people or address the root causes of poverty, a dispute that Rhode analyzes through the lenses of both the political right and left. She recommends increased funding for legal aid from among a variety of options (e.g., increases in court filing fees or bar association dues, required pro bono service, and so on), eliminating restrictions on class action suits, amending legal aid eligibility to include the “near poor,” and encouraging collaboration and coordination between legal aid lawyers and other community service providers to address holistically the needs facing homeless people, battered women, and the unemployed.

Some of Rhode’s most critical analysis focuses upon the current state of representation for the poor in criminal cases. She is critical on three levels: funding and staffing, the quality of representation, and the review by appellate courts. Public defender systems suffer from high caseloads, inadequate budgets for investigators and experts, and pressures not to go to trial. But other systems utilizing court-appointed lawyers or contract bidding systems for indigent defense are much worse, in Rhode’s view. In these systems, it is much more likely that the defense lawyer will lack the background or expertise in criminal matters, or in capital cases in particular, required to prepare an adequate defense, or the financial motivation to do so. As a result, abuses seem commonplace in court-appointed systems, leading Rhode to excoriate the appellate courts that “have upheld convictions where lawyers have failed to do any investigation, cross-examine any witnesses, consult any experts, present any evidence, or even remain awake and sober during the proceedings” (pp.122-123). She also briefly discusses but finds few solutions to the challenges to zealous advocacy arising when criminal defense lawyers of all kinds represent highly unpopular causes or individuals.

Rhode provides an authoritative discussion of pro bono work in law firms and law schools, drawing upon [*434] both secondary sources and her own empirical study of attorneys. To draw a composite picture of the possibilities and realities of pro bono work in legal settings, she surveyed three groups – (1) lawyers who graduated from six law schools having different levels of commitment to pro bono service in the curriculum; (2) individual or law firm recipients of recent ABA awards for pro bono service; and (3) law firms listed by American Lawyer among the top 100 firms in gross revenue and for which data on pro bono service were publicly available. The response rate (28%, or 844 questionnaires) suggests the limits of mail surveys and perhaps the generally low interest in pro bono work. Her survey revealed highly motivated individuals who enjoyed and benefited from pro bono service – particularly, prison suits, death row appeals, political asylum cases, and the like. More frequently though, Rhode found lawyers who either had no desire to do this “extra” work, or who faced significant obstacles in their workplace policies and culture – notably, the “choice to make profits preeminent” (p.170) amidst a climate of escalating attorney salaries and accompanying pressures to achieve the expected level of billable hours. She also examined the pro bono experiences that lawyers reported from law school, finding that required pro bono service in the curriculum did not necessarily lead to positive outcomes in student satisfaction, career aspirations, or a willingness to contribute time later on. Rhode concludes the discussion with an exhaustive list of “best practices,” which law firms and law schools could adopt to close the gap between the promise and the reality of pro bono work.

In her short concluding chapter, “A Roadmap for Reform,” Rhode offers several clusters of approaches to increase equal access to justice. The first approach requires allocating considerably more resources than we currently do to open up the doors of justice to the poor and underserved segments of society. This would include increased federal and state government funding for civil and criminal legal assistance, as well as an expansion of pro bono work by law firms and law schools – most notably, through changes in the rewards and recognition for pro bono programs. Contrary to popular sentiment, Rhode does not believe that increased funding would be cost-prohibitive. She suggests that the required revenues could be raised by imposing new surcharges on lawyers’ gross revenues or new taxes on court filing fees.

The second approach includes an expansion of alternative dispute resolution mechanisms and the delivery of selected, routine legal services by non-lawyers, none of which has been much embraced by the organized bar. Of the innovations that Rhode considers essential, three seem particularly worthy of mention: (1) collaborative problem-solving tribunals that partner with other social service providers; (2) evening hours and community sites for hearings and legal assistance; and (3) personalized multilingual help for pro se litigants. In multilingual states like California, Texas and Florida, these latter reform proposals would surely have a positive impact on minority pro se defendants, since it is these populations that often face difficulties using English-only forms and clearly [*435] communicating the nature of their legal needs to monolingual attorneys.

The third approach would increase the accountability of the legal profession and the legal process, through more rigorous standards for effective representation, more sanctions for frivolous lawsuits, excess fees and ineffective representation, and better judicial and legislative oversight of legal services for the poor. In addition, Rhode also implores the legal academy to spend more time and resources inculcating a sense of justice and fairness in its graduates, an especially pressing concern given that “only 1 percent of surveyed lawyers recall any coverage of pro bono issues in [the courses they took] on professional responsibility [in law school]” (p.192). Although lawyers are not the only source of the problem, Rhode insists that “[e]ven lawyers are often ill-informed about the unmet legal needs of middle and low-income Americans and the strategies necessary to address them” (p.192).

Rhode’s political sensibilities drive the main arguments, recommendations and conclusions of ACCESS TO JUSTICE. She is a political “liberal” who advocates increased government spending on the poor and surcharges on legal services used predominantly by the wealthy. She also supports the eliminating or relaxing of restrictions on the kinds of cases that legal services lawyers can take. Yet she occasionally offers limited support for reforms that “conservative” critics of the legal profession advocate, including reducing excess lawyers’ fees and sanctioning “frivolous” lawsuits. Most of her arguments and calls for reform, however, are directed to the legal profession, including the organized bar, law schools, practicing lawyers, and the courts. In her view the legal profession can take many steps, large and small, to reduce the current gap between the rhetoric and reality of “equal access to justice,” recommendations that she intersperses throughout her analysis.

Political scientists will probably be less comfortable than legal scholars with the style of the book, particularly the relationship between arguments and data/documentation. ACCESS TO JUSTICE is a brief in search of data – albeit, certainly a well-argued brief supported by extensive endnotes. Rhode provides plenty of support for her arguments, but this is not an empirical study. To her credit, she draws upon a wide range of literature, including legal scholarship, bar association studies, government reports, law and society research, and some political science/public law work. But her endnotes – with the diversity of works cited and her commentary – are at times more trenchant and perceptive than the text, where she occasionally lapses into simple rhetoric. Nowhere is this more evident than in Rhode’s discussion of indigent representation in criminal cases. Here, she makes little use of the extensive empirical findings about the system from the political science or criminal justice literatures, instead relying upon anecdotal evidence of individual abuses, mostly in southern states and drawn from newspaper accounts. By contrast, her analysis of pro bono service avoids these pitfalls.

That said, while it would be unfair to characterize Rhode’s central argument as fractured or incomplete, ACCESS TO JUSTICE is unlikely to convince those who remain skeptical that anything [*436] needs to be done to provide the resources to indigent and needy citizens that wealthy citizens already enjoy. This may seem an unfair criticism of a book that is designed to stimulate—not settle—a debate about disparate levels of access to the justice system. This criticism may seem especially unfair from the perspective of the careful reader of Rhode, who could point out that she remains ever cognizant that her suggestions for reform fall short as ready-made, serious policy proposals. To be sure, ACCESS TO JUSTICE is not a set of detailed, one-size-fits-all policy proposals. And it need not be to provide a systematic and compelling treatment of the challenges that indigent and low-income individuals face in the civil and criminal justice systems. However, Rhode’s book is not organized or written in a way that will convince hard-nosed skeptics that our criminal and civil courts ought to be more responsive to the needs of indigent and low-income litigants.

Political theorists and theoretically-oriented law professors will also wonder why Rhode avoided tackling the most direct challenge to the main drift of ACCESS TO JUSTICE – i.e., the one posed by the Chicago School of Law and Economics. If restricted access to the resources necessary to mount an effective defense has had the effect of preventing defendants who are “guilty of something” from being released on “legal technicalities,” why not artificially inflate the costs of legal services (in the criminal context) for everyone—since by hypothesis, wealth is really what allows defendants to end-run the legal system and purchase “justice.” In other words, if there really is an inverse relationship between money and substantive justice, then perhaps expenditures on legal services should be restricted for all defendants, wealthy and poor alike. From this perspective, the constitutional protections inscribed in the Sixth Amendment need not be respected if by ignoring them we can achieve higher conviction rates for guilty criminals.

Rhode does offer some arguments that obliquely bear on this challenge. First, she claims that we already do embrace “equal justice as a social ideal,” despite our practical indifference to the violations this ideal sustains in the real world every day (p.19). Second, in the course of endorsing the idea that strong due process rights are essential to our form of government, Rhode contends that lawyers have a special normative obligation to protect all those who are accused of a serious crime because lawyers have a monopoly over the provision of legal services. Third, on a number of occasions she reaffirms the legitimacy of the Sixth Amendment and its continued importance for the fair and just administration of the law. Each of these claims is suggestive, but unfortunately she never melds them into one cohesive argument. Given that the rights Rhode supports are grounded in the Sixth Amendment, one would think that the critique of the current regime would be accompanied by a more systematic argument predicated on the authoritative text of the Constitution. In our view, Rhode could have more carefully revealed just how hostile the Chicago School is to the guarantees inscribed in the Sixth Amendment.

Finally, we think Rhode has missed an opportunity to influence public discourse about this important topic. While [*437] the book is written in highly academic prose, most of the concerns that serious scholarly critics might have of her proposal go unaddressed. The book’s loose organization and casual sequencing of topics do not lead to the telling of a compelling story. Moreover, ACCESS TO JUSTICE carries with it no subtitle to convey Rhode’s key message about lack of access, and the book’s cover photo (an empty jury box) bears little relationship to the main themes. Criticizing Rhode on these grounds may initially seem trivial, but the book’s very importance for the larger questions of distributive justice and democratic progress, and the sheer difficulty of effecting positive social change in this connection, make the details of Rhode’s case—including matters like organization, tone, and presentation—important enough to deserve scrutiny.

On balance, Rhode has written an important, thoughtful, and well-argued book. For some of the reasons noted above, however, ACCESS TO JUSTICE may not have a significant impact on the normative debate about the availability of adequate legal services for the poor and other underserved groups. This is unfortunate, particularly in light of how clearly Rhode understands the conservative and left critiques of increasing access to legal services. It is also difficult to predict precisely what impact ACCESS TO JUSTICE will have on the development of effective public policy or reforms of the legal profession. On the other hand, Rhode notes that many law schools have considered implementing more aggressive pro bono programs to encourage students to take a more active role in providing legal services for those who most need them. She believes, and rightfully so, that the ABA could encourage the implementation of such programs by requiring law schools to report statistics concerning the public service contributions of their respective student bodies.

One might also recognize the plausibility and appeal of measures to increase accountability among members of the legal profession. However, given the current hostility within the legal academy to traditional forms of normative reasoning about matters of policy, a hostility nurtured in large part by the Chicago School, critics will find it all too easy to contend that monitoring legal-service providers has transaction costs that may indeed outweigh the benefits of providing equal representation for indigent and low-income defendants. As Richard Posner of the 7th Circuit Court of Appeals opines, “If [the lawyers who represent indigent criminal defendants] were much better, either many guilty people would be acquitted or society would have to devote much greater resources to the prosecution of criminal cases. A bare-bones system for defense of indigent criminal defendants may be optimal” (Posner 1999, at pp.163-164).

Rhode calls Judge Posner’s complacency a “due process disaster” (p.125). And she is absolutely right. It is easy to stand with Rhode in condemning attitudes such as these, sentiments that present resignation and smug complicity as if they were the best possible pragmatic reactions to the facts of life in the modern courtroom. Nevertheless, it is also important to realize that Rhode has not adequately challenged – or offered alternatives to – the very complacency that makes our current regime possible. [*438]

REFERENCE:

Posner, Richard A. 1999. THE PROBLEMATICS OF MORAL AND LEGAL THEORY. Cambridge, Mass.: Harvard University Press.

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