Welcome to the access to justice issue of the Michigan Bar Journal. I can’t think of a better topic for the Journal’s centennial edition. Facilitating justice has always been the singular purpose of our profession and in modern times, we have been working under an explicit ethical obligation to promote access to justice for all who need it. In case you needed a reminder, this issue makes clear how far we still must go, despite centuries of effort.
The good news is that there is reason to believe we may have arrived at a breakthrough moment. Rapidly developing technology offers ways to provide elements of legal services “to scale;” that is, more affordably. And the pandemic that has so profoundly and comprehensively disrupted, well … everything has freed up our imaginations to see new pathways to meaningful and universal access to justice. More good news: our history gives us plenty of reason to believe Michigan is exceptionally well positioned to take advantage of this moment.
THE STRONG MICHIGAN INFRASTRUCTURE
Michigan has long been a national leader in access to justice. I know of no other state that has been able to build a stronger network of partnerships regarding access to justice initiatives. In 1935, the state created the strongest possible infrastructure for access to justice work by incorporating the State Bar of Michigan into the justice system: the Supreme Court would set the rules and oversee regulatory operations, and the State Bar would advance attorneys’ ethical obligations and the practice of law.
The creation of the Michigan State Bar Foundation (MSBF) by bar leaders in 1987 sharpened Michigan’s focus on access to justice. The article, “IOLTA: An Opportunity to Increase Access to Justice,” by Jennifer Bentley and Edward H. Pappas, explains how interest on lawyers’ trust accounts, one of MSBF’s essential tools, continues to play an essential role in advancing access to justice and how you can help. The addition of the State Planning Body in 2001 supported statewide coordination and reinforced Michigan’s partnerships to grow access to justice.
Here is how Michigan’s recent history positions us for this breakthrough moment:
1995: The SBM Access to Justice Task Force work led to the development of the Access to Justice Campaign, a collaborative fundraising campaign administered by the Michigan State Bar Foundation to increase resources for civil legal aid and promote Legal Services Corporation funding and pilot projects that helped to establish the statewide Counsel and Advocacy Law Line.
2009: The broad scope of the State Bar Judicial Crossroads Task Force opened the door to seeding advancements on several fronts related to access to justice including problem-solving courts, language access, indigent defense reform, and statewide self-help initiatives.
2010: Building on the Judicial Crossroads Task Force work, Chief Justice Marilyn Kelly formed a Solutions on Self-Help (SOS) Task Force to promote centralization, coordination, and quality of support for self-represented litigants.
2012: The Michigan Legal Help (MLH) Program, developed through the work of the SOS Task Force, launched. MLH has grown in proficiency and impact with the support of the Michigan Supreme Court, State Bar, and Michigan State Bar Foundation and now has a well-earned national recognition for excellence.
2014: With more than 150 participants actively involved in committees and workgroups, the 21st Century Practice Task Force inspired access to justice initiatives throughout the state including online dispute resolution, modest means programming for the State Bar lawyer referral service, and limited scope representation. Check out “Limited-Scope Practice in Michigan: Tales from the Field” by Angela Tripp and Krenissa D. Hicks for a bootson-the-ground view of a new paradigm for serving clients and expanding access.
2019: Because of prior partnerships and successful collaborations already in place, the Supreme Court had a core group of knowledgeable stakeholders ready to help lead the way when the Court formed the Justice for All Task Force anchored by the State Bar, the Michigan State Bar Foundation, and the Michigan Legal Help program.
2020: With an aspirational goal of achieving 100% access to justice, the Justice for All Task Force report concluded that the goal could only be met when everyone has access to meaningful and effective help navigating and resolving their civil legal needs through a continuum of appropriate services. To achieve this, the report recommended adequate resources at every step of the process and a legal system that is clear and easily navigable regardless of whether one is represented by a lawyer.
2021: In January, the Supreme Court approved the task force’s recommendation to create a standing Justice for All Commission designed to build upon the work of the earlier task forces. Its signature enhancement is broader community and public outreach and participation. Don’t miss “Justice for All Commission Embraces Goal of 100% Access to Civil Justice System” from commission co-chairs Justice Brian Zahra and MLH Director Angela Tripp to understand the latest important development in Michigan’s access to justice.
TECHNOLOGY AS AN ACCESS ACCELERATOR
Legal aid organizations and pro bono volunteers provide a necessary and important service to thousands of households each year. Yet millions still go to court unrepresented and need assistance. The surest way to expand access to justice without sacrificing quality is driving down the cost of legal services while maintaining regulatory vigilance. Kimberly Paulson’s article, “Technology: The Future of Access to Justice,” shows us some of the ways in which technology is already being used to make legal services more affordable, convenient, and accessible while helping us envision further advancements. And we’re more ready than ever. Our need to conduct court business safely during a pandemic has forced judges and lawyers into a previously unimaginable familiarity with technology that allows us to conduct business remotely. Without the pandemic, we would still be gently (and anxiously) investigating legal tech. But here we are, like it or not, all of us Zoom experts. (“Sorry, what was that? You’re on mute.”)
This is the moment to embrace and expand the breakthrough advantages that technology brings to the legal system in lower costs, access, and convenience while actively monitoring, managing, mitigating, and, in some cases, eliminating the downsides. I am grateful to the State Bar of Michigan for its thoughtful and ongoing engagement in this work. It is critical to the continued mission to build upon Michigan’s robust history as a leader in access to justice. I am grateful to the members of our Lessons Learned Committee and the many others who have responded to the committee’s report.
THANKS TO THE PANDEMIC
The access to justice lessons we are learning from living through a pandemic are certainly not all about technology. The legal profession has long been tagged — not entirely unfairly — as stalwart defenders of the status quo, whatever the status quo happens to be. We come by this honestly; after all, we are trained to look first to precedent to determine what to do. But when faced with a crisis that has literally made the status quo impossible, we have stepped up. “Responding to the COVID-19 Eviction Crisis: The Large-Scale Development of Eviction Diversion Programs in Michigan” by Karen Merrill Tjapkes and Ashley Lowe is one example of what a coordinated response looked like.
There’s much to be improved, including how to apply rapidly developing technology to court operations and the delivery of legal services, and lots to learn to make those changes work best for the public. But here’s what we know: we’re never going back to pre-pandemic business as usual.
Together, let’s seize this moment.