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Bar News - July 20, 2016

Access to Justice: NH’s Citizens in Crisis

Hon. Edwin W. Kelly

If access to justice is defined as unlocking the doors to our state’s courts every morning and allowing more than 100,000 citizens to enter without legal representation in some of life’s most impactful cases, then New Hampshire would rank at the top of the nation’s states in providing access to justice.

However, if that term is defined as providing a system of justice in which citizens who come to our courts seeking justice have access to legal advice and representation, such that they are able to make informed decisions in the many difficult cases in which they are involved, then New Hampshire is correctly listed as 29th out of the 50 states in overall access to justice and 33rd out of 50 in number of legal aid attorneys per 10,000 living in poverty. Those rankings were compiled by the National Center for Access to Justice in its annual Justice Index.

Here are some numbers that make the case for our current poor national ranking. In 2015:

  • In 67 percent of marital cases filed, neither party was represented by counsel;
  • In 85 percent of marital cases filed, at least one party was unrepresented by counsel
  • 95 percent of all small claim defendants were unrepresented by counsel
  • 97 percent of all tenants in landlord/tenant cases were unrepresented
  • 89 percent of domestic violence plaintiffs were unrepresented
  • 96 percent of stalking plaintiffs were unrepresented

The number of unrepresented litigants in just the cases noted above was more than 100,000 in 2015. New Hampshire can do better.

To be sure, NH Legal Assistance, LARC and the Pro Bono Referral Program at the NH Bar Association provide invaluable service to those who qualify for those services, as do such other programs of the Bar as the Domestic Violence Emergency (DOVE) Project and the NHBA Lawyer Referral Service, which do not have financial qualifiers to receive services. However, even with the great work being done by those groups, they were able to serve only a fraction of the citizens who appeared before our courts without counsel in 2015.

I have been a proud member of our Bar since 1979 and a judge for the past 30 years. I have looked into the eyes of people living only on Social Security as they struggle to understand the concept of exempt income and assets, or the grandparents who try to navigate our guardianship process to obtain guardianship over a grandchild whose parent is opiate-addicted and unable to care for the child, or the young couple with children who are divorcing and simply don’t have enough money to feed their children in separate homes, much less to hire a lawyer to assist them through one of life’s most wrenching emotional experiences. As much as my heart, or that of any of our judges and staff, goes out to those individuals who are coming to us seeking the help of our justice system, there are severe limitations on what we can do as a court, by ourselves.

As new lawyers, each of us took an oath to uphold the constitution and laws of our state. I believe that implicit in that oath is the further obligation to assure that our system of justice is open, available to all and fair. Integral to the guarantee of access to justice is that it be grounded in the ability of our citizens to understand the rights and obligations they have under the law, so they can make the informed decisions they will be called upon to make, many of which will impact them and their families for the rest of their lives.

What is it we can do as lawyers and judges? We can each commit to offer the benefit of the training and experience we have been gifted to receive to those who are unable to afford lawyers. I believe this is the responsibility of all members of the bar, whether privately or publicly employed and including each member of the judiciary of the state. For those of us who can, we should be volunteering through Pro Bono, DOVE and any other program either sponsored by the Bar or any other organization in the state to offer information, advice and legal representation. For those of us who cannot offer direct services, we should be volunteering to speak publicly to community and other groups of citizens on topics in which we do have expertise or committing to assist the cause of Access to Justice in some other meaningful way.

As a system of justice – and I am not referring to the court system; I am referring to all of us as sworn members of the Bar and officers of the court – we can do a better job of creating opportunities for ourselves and our colleagues to provide the sort of help our citizens need. Those opportunities ought to be varied, easy to access and capable of performance well within the 30-hour aspirational goal of public service called for by Rule 6.1 of the Professional Code of Conduct.

Our Bar has a rich history as significant contributors to our communities and unparalleled proponents of an accessible and fair justice system. Often called upon to devote time to civic responsibilities, our Bar has always answered the call. As the head of the trial court in which nine out of every 10 cases in the court system are filed, I can tell you there is a crisis in providing genuine access to justice in New Hampshire. It is time, once again, for our bench and bar to come together and answer the call to our profession to safeguard citizen access.

The NH Supreme Court’s Access to Justice Commission, under the leadership of Chief Judge Joseph Laplante of the US District Court and longtime Bar member Richard Uchida, have worked tirelessly to pull together a list of proposed initiatives that promise, over the next 18-24 months, to improve the access to justice our citizens currently have by providing opportunities for reasonable volunteerism.

If we take our oaths seriously, it is not an option, in my view, to accept the number of people who currently use the justice system with inadequate, if any, legal and procedural information, advice and assistance. Not everyone can or will be able or willing to commit 30 hours of service to the public each year, each for his or her own reason. However, if the Judicial Branch, the NH Bar Association and a significant number of our colleagues commit to implementing as many of the initiatives as possible in the projected timeframe, I have no doubt we will have made immense strides toward a system of justice that is fairer, more responsive to the needs of our fellow citizens and which more fully represents the long history of New Hampshire lawyers as community lawyers and contributors.

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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