Tag Archives: Access to Justice

Diversity Conference Statement on Disability Pride Month

Those with disabilities have recently observed Disability Pride month in July. On July 26, 1990, the Americans With Disabilities Act became law. The changes it has brought about in the ensuing three decades have done much to make Americans acknowledge and work together to overcome things that discriminate against the disabled, whether they be physical barriers or work conditions lacking appropriate accommodations.

The Diversity Conference celebrates the attorneys, litigants, consumers of legal services – indeed, everyone – no matter where they may fall in the range of abilities.  Our mission statement expressly includes those with disabilities, stating:

“The Diversity Conference (DC) was established in 2010 to bring together Virginia State Bar members interested in promoting diversity and inclusion in the legal profession and in ensuring that Virginia meets the legal needs of an increasingly diverse population. Diversity refers to, among other things, race, age, ethnicity, gender, religion, education, disability, socioeconomic status, and sexual orientation. The DC recognizes the inherent worth and dignity of all people and offers opportunities to serve the profession and the public through various programs and educational sessions.”

We celebrate your pride month with you.

Equal Justice and Legal Services for the Poor: An Elusive Goal

by: Alexander Hewes[1]

        “Equal justice under law is not merely a caption on the facade of the Supreme Court         building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 

– Lewis Powell, Jr., U.S. Supreme Court Justice

The National History:

        Organized civil legal aid for impoverished citizens in America can be traced to the end and immediate aftermath of the Civil War. The Freedmen’s Bureau, first known as the Bureau of Refugees, Freedmen and Abandoned Lands, was established by an act of Congress on March 3, 1865, two months before Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Court House.  It was intended to help millions of former black slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau established schools and offered legal assistance, while also providing food, housing and medical aid.

        The first legal aid society, a private charitable program, was established by lawyers in New York City in 1876 as the Legal Aid Society of New York. Its initial purpose was to defend the rights of German immigrants who could not afford to hire a lawyer. In 1890, a large donation from the Rockefeller Family allowed the organization to expand the reach of its services to include individuals from every background.

        In the following decades, the legal aid movement spread in the urban centers of the United States and, by 1965, virtually every major city had some kind of program. At that time, there were nearly 300 organizations employing over 400 full-time lawyers. Yet, there was no national program. Many legal aid programs were private corporations. Others were sponsored by bar associations, relying heavily on the donated time of lawyers. Some were part of governmental units, usually municipalities. Some were part of other social agencies.

        The federal Legal Services Program began in the Office of Economic Opportunity in 1965, as part of President Lyndon Johnson’s War on Poverty. The OEO created a structure that was based on the civil legal aid model and on demonstration projects that had been operating in New Haven, New York, Boston and Washington, D.C., funded by the Ford Foundation in the early 1960s.  Yet the development and progress of Federal legal assistance programs for the poor has been uneven with differing levels of resistance unrelated to the underlying need to provide services.

        They shared some common characteristics.  First, the resources were impossibly inadequate.   With limited resources and a high number of eligible clients, legal aid generally gave perfunctory service to a high volume of clients.  Going to court was rare.  Appeals were even more rare.  Legal aid had little effect on those it was intended to serve and the client population as a whole.

        As it developed, the federal Legal Services Program took cues from the pioneering work of the NAACP and its legacy of fighting legal battles to win social justice for African Americans that began in 1909.  The architects of the federal legal services program realized that the law could be used as an instrument for orderly and constructive social change as a supplement to what was being achieved by lawyers for the civil rights and civil liberties movements.  

        Clint Bamberger, the first director of the Legal Services Program, told the annual meeting of the National Legal Aid and Defender Association in 1965 that “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of [the] OEO program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty.”

        A year later, Bamberger told the National Conference of Bar Presidents: “We cannot be content with the creation of systems of rendering free legal assistance to all the people who need but cannot afford a lawyer’s advice. This program must contribute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope and ambition.”

        Although many legal aid clients received public assistance prior to the mid-1960’s, no effort had been made to challenge questionable policies adopted by agencies providing such assistance – i.e., no “welfare law” had been developed. Similarly, what became known “housing law,” “consumer law,” “health law,” and the like did not exist.

Virginia’s History

        Virginia’s history of providing legal services to the poor followed an organizational path parallel to national history.  Before 1964, the majority of the legal needs of the poor were addressed by volunteer lawyers or private charitable organizations without state or national coordination.

        As early as 1906, the then-named Associated Charities of Richmond (became the Family Service Society and then Family Lifeline) had a legal department whose mission was to enforce the laws for the protection of women and children.[2]  Local bar associations also maintained legal aid programs, but these were all-volunteer and only provided a fraction of what was needed to address the legal needs of the indigent.  

        Before 1964, the only bar association in Virginia with a formal pro bono program was the Arlington Bar Association which has operated a pro bono referral program since the early 1950s.  The population density in that County generated enough foot traffic to make the program practical but the same demographics obviously did not exist in many parts of the Commonwealth and the rural poor were particularly short-changed on legal services.  This was a likely reason for the shortage of formal pro bono programs before the 1960s.

        Funded by the OEO, at least seven legal services organizations in Virginia were established in the late 1960s and early 1970s.  Yet the organized delivery of legal services to the indigent in Virginia was not a top-down development initiative by the Office of Economic Opportunity or Legal Services Corporation.  The Commonwealth’s first legal aid organization, the Legal Aid Society of Eastern Virginia, was established after the Norfolk Bar Association  applied to the OEO for a grant in 1996 which it used to establish what was then called Tidewater Legal Aid.  A separate example of a ground-up initiative came with the establishment of what is now the Legal Aid Justice Center (LAJC).  The forerunner to this organization was rooted in a pro bono partnership between University of Virginia law students and local attorneys who came together to attempt to meet the unmet legal aids of low income citizens in the area.  They formed Charlottesville-Albemarle Legal Aid, which became a formalized legal aid program in 1967.

        In addition, the time period from 1964 to 1982 also saw the emergence of the first clinical education programs at Virginia law schools.  Although the principal motivating factor behind this development was the students’ need for real-world experience, the clinics had the collateral benefit of providing legal services to indigent clients.  The first such program was the Alderson Legal Assistance Program established in 1968 at Washington and Lee School of Law, which provided legal services to female inmates at the Alderson Federal Correctional Institution (now the Alderson Federal Prison Camp).  The second legal clinic in Virginia was organized by John Levy at William and Mary School of Law in 1976.

        Despite these early initiatives, a 1991 Virginia State Bar and Virginia Bar Association Joint Committee to Study Legal Services in Virginia discovered that 84 percent of the Commonwealth’s poor lacked the benefit of counsel when confronted with a serious legal problem.   Since the mid 1990’s dozens of Virginia law firms have committed resources to the development of programs encouraging and promoting pro bono support, from fully integrated internal projects to fellowships and internships, as well as collaborations with outside groups, bar associations and law schools.

Virginia Current Day.

        Today, there is a plethora of alternative delivery systems for legal services to the poor that are either sponsored, or recognized by the VSB.  The VSB regularly updates its lists of regional and statewide programs that have been approved as official Qualified Legal Services Providers, as well as contact information for their pro bono coordinators. 

        The VSB website also links to the “JusticeServer” which was developed in collaboration with the Greater Richmond Bar Foundation, the Legal Aid Justice Center and Central Virginia Legal Aid Society to leverage the latest technology in providing pro bono legal services to low income clients.  This all-inclusive, state-wide case management and referral system enables private attorneys to accept and work on pro bono cases from their own computers. Each attorney can create a confidential profile, view pro bono opportunities available in their practice area and location, and find the resources to assist with handling the legal matter.

        Also, the VSB provides free webinar pro bono training and the Virginia CLE offers free content for attorneys dedicated to filling the justice gap by providing pro bono representation to their fellow Virginians.  Separately, the VSB maintains a list of Military & Veteran Pro Bono Projects intended to serve veterans.

The Continuing Shortfall

        With this history of accomplishment, it is disheartening to note that when Governor Ralph Northam recognized October 2019 as Pro Bono Month, he reported that more than 80 percent of the civil legal needs of the poor in Virginia go unmet and that one in eight Virginians were then eligible for free legal services from Virginia’s legal aid programs.   It is certain that there is a disparate impact on the rural poor who have even more limited transportation and communication options.  It is clear that much more needs to be done.  Expanded broadband coverage and internet access, coupled with an ethically-guided use of artificial intelligence programs can provide some relief but infrastructure and formal organizations can take things just so far.  Just as Virginia’s history of innovative local leadership has depended on the voluntary efforts of lawyers in each community, so too the still unmet needs of the indigent require more effort from lawyers capable of providing those needed services.

        The VSB’s Rule 6.1 of the Rules of Professional Conduct creates an aspirational goal that Virginia lawyers take professional time – at least 2 percent per year – to do pro bono publico legal services.   With an attorney that generates 1800 billable hours per year, that amounts to a total of 36 hours; hardly a burden.

        While a greater effort is required it is worth pointing out that the needs of the poor should not be used to fuel political agendas of any kind.  If we are going to come close to the standard described by Justice Powell, quoted above, it will require the cooperation of all and a unity of purpose.


[1] Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; with prior service in private practice and on the Staff of the United States Senate Committee on Banking, Housing and Urban Affairs.  He is an author and lecturer on various legal issues and is currently in private practice in Winchester, Virginia, also serving as a member of the Invictus Editorial Board.

[2] Mary Frances Shelburne, A Brief History of the Family Service Society of Richmond, Virginia, WILLIAM & MARY, 1932, ret. 14 Dec. 2017.

A.I. Will Augment Access to Legal Services for the Needy

We all think of this robot as A.I., however, it is so much more.

By: Alexander Hewes, Esq.

        The Virginia State Bar’s (VSB) Diversity Conference Mission Statement includes, “…ensuring that Virginians changing legal needs are met.”  Unfortunately, the legal needs of the majority of Virginia’s citizenry are not being met at all.  Neither will the volunteer efforts of the legal profession and a handful of legal clinics, no matter how well meaning, suffice to meet those needs.

        However, the expanding use of Artificial Intelligence (A.I.) in the legal arena offers opportunities to provide badly needed legal services to the many forgotten Virginians, well within the ethical confines of the VSB.  The spread of the Covid-19 virus has brought the need for expanded broadband coverage into sharper focus and, on a more hopeful note, may enhance the efforts already underway to bring rural Virginians closer to achieving equal access to justice.

The Legal Void

        In 2017, Virginia’s population with access to broadband reportedly remained at 96% and continued to rank within the top ten nationally in average connection speed, average peak connection speed and broadband adoption.  Yet, according to the 2015 FCC rural broadband report, approximately 64% of Virginia’s rural population lacked access to broadband (approximately 714,000 Virginians).  

        This gap in services to the rural population in Virginia is taking place alongside the explosion in data collection and the use of social media with A.I. applications multiplying exponentially. The numbers are mind-boggling. The percentage of adults in the United States who use social media increased from 5% in 2005 to 79% in 2019.

        Over the last two years alone, 90 percent of the data in the world was generated. The advances in the telecom sector, supplemented by the dramatic increases in processing capabilities, along with innovations in the field of software engineering, open new avenues to provide legal services to Virginia’s forgotten citizenry. A.I. is such a vehicle.

A.I.’s Impact on Legal Services

        A.I., generally referred to as cognitive computing, has been employed by the legal profession for some time.  As a few examples denote:

  • Natural-language searching in online legal research;  
  • Voice recognition technology for dictation and in court rooms; and
  • Predictive coding in e-discovery for scanning millions of documents in search of key phrases.

        The future holds promise for expanded applications of A.I. such as “outcome forecasting” (predicting outcomes of administrative and litigation proceedings based on analyses of historical data) and the use of chatbots (automated voice messaging) intended to supplement the attorney-client communications necessary for an effective representation.

         A.I. could also allow for access by clients to administrative and litigation-related filings.  The implications are also significant for extending the reach of legal services geographically, though dependent on the continued expansion of broadband coverage.

Ethical Concerns Related to A.I.

        As a starting point, it is important for attorneys to remain familiar with the relevant Virginia State Bar Rules of Professional Conduct (“Rules”), plus the Comments that follow each, along with certain Legal Ethics Opinions (LEO).  Beyond the Rules, there are additional ethical concerns that should be considered with respect to the use of A.I.

        Rule 1.1 Competence: Requires competent representation of a client based on having and providing the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

        Comment [6] to the Rule: To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology

        LEO 1872, approved by the Virginia Supreme Court on October 2, 2019, cites all of the relevant Rules and LEOs.  Collectively, they offer useful guidance on lawyer/client communications based partly or exclusively on the use of secure Internet portals, emails, or other electronic messaging.  Addressed in the context of utilizing a “virtual office”, the central point stresses the importance of the substantive information transmitted to clients under the circumstances, not the method of communication.  

        In addition to Rule 1.1, this LEO also cites the related and applicable Rules, namely, 1.6(a) and (d), Confidentiality of Information; 5.1(a) and (b), Responsibilities of Partners and Supervisory Lawyers; 5.3(a) and (b), Responsibilities Regarding Nonlawyer Assistants; and 7.1 Communications Concerning a Lawyer’s Services.

        Other relevant LEOs cited, and worth reviewing, are 1600, Aiding Unauthorized Practice of Law – Nonlawyer Personnel – Misconduct:  Level of Direct Supervision of Nonlawyer Personnel Required, 1791, Ethics of Email and Telephone Communications, 1818, Whether the Client’s File May Contain Only Electronic Documents; and 1850, Outsourcing Legal Services.

WHAT A.I. PORTENDS

        The algorithms that form the backbone of A.I. can have built in unintentional biases because of the neutrality of the data and the way it is being analyzed.  For example, using a commercial software application for screening prospective employees, entering certain criteria, could exclude certain minorities and other protected classes.

         Equally important, there are State and Federal privacy laws that come into play, particularly those dealing with patient healthcare and financial records.  Many of these laws provide for both civil and criminal sanctions in the event that they are breached.

        Nevertheless, A.I represents the future as data grows along with processing speeds and broadband coverage expands to rural and other poorly served population centers of Virginia.  The potential to extend the coverage of needed legal services for all Virginians through A.I. is real; with guidance from the VSB, A.I. can accomplish that task well within the ethical confines of the profession.

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Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; and an author/lecturer on IT and related legal issues. He is currently in private practice in Winchester, Virginia; and a member of the Invictus Editorial Board.