Bill Text: HI SCR161 | 2012 | Regular Session | Introduced
Bill Title: Access to Justice; Civil Legal Services; Paralegals; Adjunct
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Introduced - Dead) 2012-04-12 - (S) The committee on JDL deferred the measure. [SCR161 Detail]
Download: Hawaii-2012-SCR161-Introduced.html
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THE SENATE |
S.C.R. NO. |
161 |
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TWENTY-SIXTH LEGISLATURE, 2012 |
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STATE OF HAWAII |
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SENATE CONCURRENT
RESOLUTION
Requesting The Judiciary to ensure that the Access to Justice Commission's task force on adjunct providers of legal services includes at least as many non-lawyers as lawyers and representatives of certain groups.
WHEREAS, in a constitutional democracy under the rule of law, public access to the justice system is as critical as public access to the creation and implementation of the laws by the legislative and the executive branches; and
WHEREAS, for many low- or moderate-income people, who make up about a quarter of Hawaii's population, access to civil legal services is essential for meeting basic human needs such as sustenance, shelter, safety, health, and even child custody; and
WHEREAS, it is the policy of the State of Hawaii, as mandated in the Hawaii State Planning Act, and more specifically, section 226-24, Hawaii Revised Statutes, to assure access to, and availability of, legal assistance, consumer protection, and other public services which strive to attain social justice; and
WHEREAS, doing our best to ensure public access to basic civil legal services is an affirmation of the founding democratic ideal of justice for all, a matter of basic empathy, and a foundation for social stability; and
WHEREAS, doing our best to ensure public access to basic civil legal services helps alleviate the economic burden associated with the failure to meet basic human civil legal needs, as demonstrated by a 2006 Wisconsin study Increasing Access to Restraining Orders for Low-Income Victims of Domestic Violence: A Cost-Benefit Analysis of the Proposed Domestic Abuse Grant Program; a 2009 Texas study The Impact of Legal Aid Services on Economic Activity in Texas: An Analysis of Current Efforts and Expansion Potential; and a 2012 Massachusetts study Civil Legal Aid Yields Economic Benefits to Clients and to the Commonwealth: Some Benefits from FY11 Advocacy; and
WHEREAS, according to the 2007 Assessment of Civil Legal Needs and Barriers of Low- and Moderate-Income People in Hawai‘i ("2007 Assessment"), fewer than one in four low- and moderate-income people (22.84 percent) receive help when they have a civil legal need, and subsidized public interest legal service providers serve fewer than one in three (29.33 percent) individuals who contact them for assistance; and
WHEREAS, according to the 2007 Assessment, the areas with the greatest unmet civil legal need for Hawaii's low- and moderate-income people are housing (24 percent), family (23 percent), domestic violence, (8 percent), consumer (7 percent), health (6 percent), public benefits (5 percent), and education (5 percent); and
WHEREAS, the severity of unmet civil legal needs and the funding crisis for public interest legal service organizations in Hawaii have intensified since 2007 during the worst economic downturn in the United States in over seventy years; and
WHEREAS, studies show that failure to address one basic human civil legal need, such as housing, often compounds the legal need – and associated costs for the State – in other areas, such as domestic violence; health, including emergency care, substance abuse, and psychiatric conditions; family, including divorce, juvenile delinquency, and long-term psychological effects on children due to family instability; and education, including absenteeism and low achievement associated with homelessness and dislocation; and
WHEREAS, chronically unmet basic human civil legal needs can be distinguished from commercial civil legal needs and human civil legal needs that may be more discretionary and less basic, such as financial planning, or better served, such as personal injury; and
WHEREAS, many of the specific types of chronically unmet basic human civil legal needs, such as evictions or uncontested divorces, manifest within discrete legal areas governed by relatively stable law and predictable concept and fact patterns; and
WHEREAS, the Judiciary, especially through the Hawaii Access to Justice Commission ("Commission"), has made extraordinary efforts to improve access to justice, notably through creative indigent legal services surcharges and filing fees; funding for subsidized public interest legal service providers; enhanced pro bono lawyer services; enhanced facilitation for pro se claimants; efforts to reduce language barriers; a foreclosure mediation pilot program on the Island of Hawaii; a higher small claims jurisdictional amount; increased awareness of barriers to access to justice; better coordination of legal service providers; and other initiatives; and
WHEREAS, in the Access to Justice Hui's 2007 report titled The Community Wide Action Plan: Ten Action Steps to Increase Access to Justice in Hawai‘i by 2010 ("2007 Community Wide Action Plan"), the Hui recommended that the Judiciary encourage the training and regulation of paralegals and paralegal practice to meet particular types of unmet needs for legal services; and
WHEREAS, the Supreme Court of Hawaii affirmed the Access to Justice Hui's recommendation for training and regulation of paralegals by adopting Rule 21(b)(10) of the Rules of the Supreme Court of the State of Hawaii in 2008, mandating that the Commission endeavor to "increase effective utilization of paralegals and other non-lawyers in the delivery of civil legal services to low-income Hawai‘i residents"; and
WHEREAS, at its March 14, 2011, meeting, the Commission approved the creation of a task force on adjunct providers to examine and develop recommendations to increase the effectiveness of adjunct providers of civil legal services, including paralegals, including the types of unmet need that may be addressed by the adjunct provider, the types of limited practice that may be most effective, and the types of education and regulation that may be required; and
WHEREAS, the benefits to the public from a robust regulated adjunct provider that serves relatively neglected critical and substantive sub-areas of basic need are well known in the medical field, where nurses and paramedics play a prominent role in medical care; and
WHEREAS, a parade of sections of the American Bar Association, consortia, commissions, committees, law journal articles, and books have emphasized the importance of non-lawyer adjunct providers of civil legal services in improving access to civil legal services; and
WHEREAS, the white paper by Deborah L. Rhode and Dmitry Bam entitled A Roadmap to Justice, which was presented at Stanford University's 2008-2009 Roadmap to Justice forum, observed that "[a]lmost all of the scholarly experts and commissions that have studied the issue have recommended increased opportunities for such [non-lawyer] assistance. Almost all of the major decisions by judges and bar associations have ignored those recommendations. The American Bar Association's ("ABA") most recent initiatives in this area have attempted to strengthen enforcement of unauthorized practice prohibitions against lay competitors, and many state and local bars have launched similar efforts. Yet research concerning nonlawyer specialists in other countries and in American administrative tribunals suggests that these individuals are generally at least as qualified as lawyers to provide assistance on routine matters where legal needs are greatest"; and
WHEREAS, studies such as Lawyers and Non-Lawyers at Work by Professor Herbert Kritzer and "Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales," 37 Law & Soc'y Rev. 765 (2003) by Richard Moorhead, et al., have empirically demonstrated the safety and effectiveness of adjunct providers of certain basic human civil legal services; and
WHEREAS, adjunct providers of civil legal services, as employees of subsidized public interest legal service organizations, would be able to deliver substantive basic civil legal services to low-income people without supervision and at lower cost, self-employed regulated adjunct providers would be able to deliver basic civil legal services to moderate-income people at lower cost, and both types of adjunct providers would be effective pro bono providers of legal services; now, therefore,
BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2012, the House of Representatives concurring, that the Judiciary is requested to ensure that the Access to Justice Commission's task force on adjunct providers of legal services includes at least as many non-lawyers as lawyers; and
BE IT FURTHER RESOLVED that the Access to Justice Commission's task force on adjunct providers of legal services is requested to include a representative or representatives from each of the following categories:
(1) Consumer groups and other associations of those with unmet basic human legal needs;
(2) Social service providers familiar with the consequences of unmet basic human civil legal needs;
(3) Evolved regulated adjunct providers, such as nurses and paramedics; and
(4) Offices within the Department of Commerce and Consumer Affairs that are familiar with the regulation of existing specialist adjunct providers of legal services; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Chief Justice of the Supreme Court of Hawaii, Access to Justice Commission, Director of Commerce and Consumer Affairs, President of the Senate, Speaker of the House of Representatives, Chair of the Senate Committee on Judiciary and Labor, and Chair of the House Committee on Judiciary.
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OFFERED BY: |
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Access to Justice; Civil Legal Services; Paralegals; Adjunct
