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Bar News - April 17, 2009

President’s Perspective: Access to Justice Commission Steps Up to the Challenge


Ellen L. Arnold
In 2007, the NH Supreme Court created an Access to Justice Commission, comprised of a cross-section of leaders from government, nonprofit groups, and the Bar to look at ways to improve access to the courts for all citizens. Since that time, it has quietly begun work in several areas.

At the March 11 meeting of the Access to Justice Commission, family law practitioners shared compelling stories about the impact that lack of funding and understaffing in the court system is having on the ability of our courts to provide justice for New Hampshire citizens. Their stories poignantly illustrate the anguish and economic suffering of families waiting months for court orders regarding custody and support. As a result, some families struggled through the holidays without knowing where their children would live and how bills would get paid. Particularly in family law matters where emotions are high and consequences are long-lasting, families continue to live in stressful, frequently abusive situations as they face foreclosure on their homes because necessary hearings and orders are not scheduled or issued. The inability of the system to provide resolution and relief for families is causing increased violence, homelessness, and a perpetuation of often dysfunctional and certainly unhealthy living conditions.

As described by Commission member and Manchester attorney Jon Ross, the situation is just "wrong." Citizens are affected by the lack of funding, staff, judges, and technology in our third branch of government. And while the Governor’s budget proposes the filling of judicial positions, it is clear that the system needs additional Court staff as much as anything. Court staff is currently being asked to do more and is working with a dedication that still cannot close the gap between what needs to get done and the number of hours in a day. What results is a failure of due process, which in many instances, causes irreversible harm which is both financial and emotional.

The lack of court funding is mirrored by the lack of money for the provision of legal services for the poor. As most of you know, one critical component of funding for legal services is derived through the interest on IOLTA accounts. This year, interest on IOLTA accounts is down close to 60 percent. The Commission on Access to Justice stressed the need to be creative in terms of raising additional funds for the provision of legal services. In that regard, the commission is recommending to the New Hampshire Supreme Court that it adopt a mandatory IOLTA program. Such programs have been implemented throughout the country. Although participation in New Hampshire’s IOLTA program is high, approximately 90 percent, there is anecdotal evidence that a mandatory program can increase the number of accounts included in the program and, correspondingly, increase the interest earned for legal services programs.

The Commission discussed the public policy considerations for a mandatory IOLTA program and concluded that because the funds committed to an IOLTA account are not personal funds of the individual attorney and are used to provide legal services for the poor, there is a legitimate basis to support the adoption of the mandatory program. The Commission will refer this recommendation to the Supreme Court which, through its rules process, will likely consider a proposed mandatory IOLTA rule, thus allowing for comment and input by members of the Association.

The Commission is promoting a theme of unity for all branches of our government to work together in order to address the needs of our citizenry and meet our constitutional obligations. Members noted also that while sufficient funding for the judicial branch is crucial, it is also important that state funding for legal services – currently included in the governor’s proposed budget – not be sacrificed, either. In this challenging time, it is fortunate to have such a talented and diverse group providing a singular focus on access to justice, one of the most significant issues confronting our profession and our state.

The New Hampshire Access to Justice Commission was established by the Supreme Court in 2007 to improve citizen access to the courts and civil legal services. The Commission maintains a website to provide users with quick links to legal service providers, a self-help center, and easy–to- read information about the state courts. The website also functions as a resource center for legal professionals who want to learn more about what other states are doing to make the justice system accessible and affordable for all citizens—and how they can contribute. The 42-member Commission is co-chaired by NH Supreme Court Justice James E. Duggan and Chief Justice Steven J. McAuliffe of the U.S. District Court in Concord.

Ellen L. Arnold, the 2008-2009 NHBA President, is associate general counsel of Dartmouth College. She is a member of the Access to Justice Commission.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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