July 2008 Nevada Lawyer

ACCESS TO JUSTICE COMMISSION

IF NOT YOU, THEN WHO?

THE POWER OF ONE: BUILDING SOLUTIONS ONE PERSON, ONE DOLLAR AND ONE IDEA AT A TIME.

BY KRISTINA MARZEC, DIRECTOR, ACCESS TO JUSTICE COMMISSION

“I asked a U.S. Marshall what to do to prevent my ex-husband from continuing to repeatedly violate temporary protective orders and terrorize me and my children. He said to buy a gun.”

– Nevada Civil Legal Needs Assessment participant, Reno

Nevadans are a compassionate and giving group. I am always impressed by the unfailingly generous community response in times of crisis, from natural disasters to local tragedies. When Hurricane Katrina struck, Nevada lawyers opened their doors and hearts to colleagues displaced by the disaster. If a family’s house burns down and the news tells us about it, Nevadans step up.

When it comes to civil access to the justice system, our house is on fire. We need that news report to give us the details, enabling us to view the crisis with clarity and to identify meaningful ways to help. Accordingly, the 2008 Civil Legal Needs Assessment was commissioned by the Board of Governors and the Nevada Supreme Court Access to Justice Commission to do just that: give us the news. Show us the fire. Define a specific and clear plan of action.

The needs assessment will be finalized and published later this summer and posted to the State Bar of Nevada website. This study and those like it around the country have one common goal: “Show me the need, so I can show you the money.” These studies are critical to providing detailed, geographically specific empirical proof of the paucity of resources, human and financial, relative to overwhelming unmet needs.

In a recent president’s column, immediate past President Nancy Allf proffered a great quote by James Frick; “Don’t tell me where your priorities are. Show me where you spend your money and I’ll tell you what they are.” For legal service providers, the reverse is true: we must justify the needs to support increased funding and resources.

The dedicated public service lawyers and legal professionals working at Clark County Legal Services, Carson and Rural Elder Law Attorneys Program, City of Las Vegas Senior Law Project, Nevada Legal Services, Washoe Legal Services, Volunteer Assistants for Rural Nevadans and the Boyd Law School Clinical Studies program do a tremendous job of providing civil services to indigent and low-income Nevadans on a daily basis. The family law self-help centers in Las Vegas and Washoe, ably led by Amber Candelaria and Beth Cannon-Lynch, respectively, assist hundreds of people per week. Unfortunately, all these professionals are fighting the equivalent of a forest fire with buckets and garden hoses.

The needs assessment is replete with statistics and analysis that will be reviewed in greater detail in a later issue of Nevada Lawyer after the assessment is finalized and published later this summer, so I will not go into great detail here. A few preliminary findings of the assessment to consider:¹

The total attorneys by county and ratios of persons per attorney resource:

** Ratio of the combined area of Carson City and the Balance of State is 5,256 persons per legal service attorneys.

Private practice lawyers are a critical component in the community solution. For the past two years, on average, 2,400 lawyers per year self-reported that they provided direct legal service. Every month Nevada Lawyer publishes a list of private attorneys who have taken pro bono cases from a legal service provider. Do you read those names? I would ask that each month when you read the attorney discipline reports, flip over and read those pro bono names. Peer recognition matters.

Relationship building, recognition of pro bono lawyers, loan forgiveness and better compensation and benefits for public service lawyers, improving technology in the courts and increasing self-help centers are all part of the solution. Ultimately, however, we must raise money to support all Access to Justice efforts.

Over the past few years, only about 115 attorneys per year elected to participate in the $500 state bar dues check-off (in lieu of hours) to support pro bono legal service providers. That number increased by a mere five (5) lawyers from 2006 to 2007. The Access to Justice Commission and the Nevada Law Foundation are meeting with large and multi-state law firms to continue discussions addressing how the commission can work with those firms to encourage and promote pro bono participation and funding.

SCR 217 was amended effective May 1, 2008, to convert Nevada’s IOLTA requirements from opt-out to mandatory. In a fiscal environment where the federal interest rates are extremely low, our legal service providers are scrambling for funding and facing the very real concern of budget deficits. As such, the increased funds generated in this first year following conversion to mandatory IOLTA may likely not equate to a net gain. Our legal service providers have to turn away people every day who don’t income qualify. They have long waiting lists in all service areas for those who do qualify. It is not feasible to ask these organizations to hopefully rely on forecasted, potential funds as a fix. It will take time for the actual numbers to come in and provide a clearer picture of the bottom line result from the conversion. That data will be compiled by the Nevada Law Foundation and reported publicly as it becomes available.

An extremely lucrative potential for future revenue is increasing IOLTA interest. The Nevada Law Foundation is working closely with the Access to Justice Commission and ABA IOLTA consultants on an immediate goal for this year to find the best mechanism to improve the IOLTA interest rates in Nevada.

There are a number of procedural options for achieving higher interest rates, which essentially amount to modernizing IOLTA banking to capture current business paradigms. The model is a move away from treating IOLTA as a charity and toward standing for no less than treatment equal to NOW checking accounts available to consumers with comparable daily balances.

The ABA identifies four generally accepted options for achieving comparability:

1. Create an investment product, such as repurchase agreements (REPOS) or a Government Money Market Fund, where the banks can make a profit on IOLTA funds through those vehicles.

2. Give financial institutions the option to pay the higher interest rate that would be available under a REPO or Government Money Market Fund on an existing account ("emulate" the comparable rate).

3. Benchmarking: approximate what the rate (net of reasonable services charges and fees) would be on average in this market, represented as a percentage of the federal funds target rate. The average benchmark rate found in comparability rules nationally is about 60 percent of the federal funds target rate.

4. Negotiated rate. Not rule based. Focus on equitable treatment approach through negotiations (treat like other similarly-situated non-IOLTA accounts). Pair with a recognition program for banks which voluntarily exceed the compliance level.

The commission will be closely studying all the available options to increase IOLTA interest rates and seeking input through various venues.

These are very stressful financial times for all of us. It’s a tough time to ask for more. But just as the ocean is comprised of individual drops of water, every little bit you can offerdoes indeed help. Every hour, every case, every clinic class, every dollar joins with those before it and cumulatively makes a huge impact on people who sorely need your help.

New Hampshire Supreme Court Chief Justice John Broderick Jr. recently addressed a gathering of access to justice leaders from around the country about the national crisis we have in civil access.² He pondered how we as a society would react if, upon arriving at an emergency room with severe stomach pain and no insurance, the accepted response was to direct you to a wall of “do-it-yourself” surgery kits, complete with color illustrations and a pre-packed set of surgical tools. He opined that we wouldn’t find this acceptable practice in medicine, yet it is routine for people to attempt to negotiate complicated legal matters involving life-altering issues.

How many times have you said, “If I don’t do it myself, it won’t get done?”

If not you, then who? Legal triage simply isn’t enough. Let’s work together to find solutions for Nevada.

Kristina Marzec, a certified paralegal, is the new Director for the Nevada Supreme Court's Access to Justice Commission.  Prior to that, she served for over a decade in the Office of Bar Counsel working in a variety of practice areas, including rule change intiatives, attorney discipline, unauthorized practice of law, lawyer advertising, and outside litigation.      

AJC FOOTNOTES

¹ The Needs Assessment and related materials will be posted as they are finalized to http://www.nvbar.org/Committees/AccessToJusticeCommittee.htm

² Justice Broderick’s prepared comments: http://www.abanet.org/legalservices/sclaid/atjresourcecenter/downloads/Broderick_ATJ_Speech.pdf