Chief Justice Marshall Issues Call for More Resources to Represent the Most Vulnerable

ACCESS TO justice is best secured by — and perhaps requires — a lawyer. In Massachusetts, we provide lawyers free of charge to those accused of a crime if they cannot afford one, through the state-funded public defender system. As a retired Chief Justice of the Massachusetts Supreme Judicial Court, I know that this system — while not perfect — protects the basic rights of those accused of a crime by ensuring that they have access to a competent lawyer.

But there is no similar guarantee of representation for thousands of our most vulnerable residents confronted with non-criminal civil actions in which their most basic rights are also at stake. We do not provide lawyers, for example, to families threatened with wrongful eviction, or to battered women seeking restraining orders, or to senior citizens who challenge the improper denial of Medicare benefits. They are often on their own, left to fend for themselves without legal assistance in a complex adversarial system in which the party with a lawyer has the clear advantage. These impoverished litigants need the help of lawyers just as much as those accused of committing a crime.

While judges and courts have worked hard to establish programs assisting unrepresented civil litigants and making them aware of legal services, based on my experience much more is needed to secure for them the same access to justice that we afford those charged in criminal cases. Not surprisingly, this need has taken on more urgency during the nation’s economic downturn, as more low-income individuals and families seek legal help to avoid being deprived of the basic necessities of life.

Nonprofit legal aid organizations are the most effective supplement to our court-sponsored programs for civil litigants in need. The dedicated lawyers and other professionals of legal aid organizations provide legal counseling to help ensure that low-income citizens at tipping points in their lives are represented in legal proceedings that can determine whether they can stay in their homes or keep their families safe from violence and abuse.

Notwithstanding their obvious importance, legal aid organizations are in serious jeopardy. They depend on some financial support from the state and federal governments, and from donations from private lawyers and other philanthropy. Historically, legal aid organizations have also received substantial funding from interest earned on client funds held by lawyers - for example, a down payment on a home placed in escrow pending a closing.

In Massachusetts, legal aid budgets have been reduced significantly due to deep cuts in state funding and because interest rates on clients’ funds have declined to near zero. This means, for example, that Greater Boston Legal Services, a legal aid organization that served over 15,000 families last year, touching more than 50,000 poor people in Boston and 31 surrounding communities, is now forced to turn away more than 60 percent of eligible clients.

Imagine yourself as the head of a hardworking but poor family facing an unjustifiable foreclosure. What do you think of your chances of preventing such an action without a lawyer? Or, to take an actual case handled recently by Greater Boston Legal Services, suppose you are a low-income senior who just underwent gall bladder surgery. Despite the fact that you had registered for Medicare coverage, medical bills suddenly started pouring in. When they reached $45,000, you called Medicare, only to be told that there was no record of your having signed up for coverage. The Legal Services attorney who took this case collected records and affidavits demonstrating that the client had indeed obtained Medicare coverage.

The result: A judge ruled in the client’s favor, and Medicare paid the overdue medical bills. Without the help of counsel there was virtually no possibility that the client would have prevailed on his own.

There are many other stories like this one - cases in which an indigent client facing a potentially crippling financial matter or domestic problem received a fair hearing because he or she had a lawyer. As a society, we need to ensure that everyone has access to justice. Certainly, the private bar - particularly the many lawyers who earn an extraordinary living practicing law - must help restore depleted legal aid budgets.

I call on all Massachusetts residents, in particular all lawyers, to contribute to their local legal aid organization. Justice depends on it.

Margaret H. Marshall is a retired chief justice of the Massachusetts Supreme Judicial Court.