Meet Our Members: A Q & A with Professor Douglas Colbert on Access to Justice

Professor Douglas Colbert

Meet Our Members: A Q & A with Professor Douglas Colbert on Access to Justice

Interview by Olympia Duhart

Professor Douglas Colbert is the Jacob A. France Research Professor of Law at the University of Maryland School of Law. He joined the faculty at Maryland in 1994 after directing the criminal justice clinic and teaching civil rights at Hofstra Law School and visiting at Northeastern and Utah Law Schools. In addition to teaching the Access to Justice criminal defense clinic, Professor Colbert also teaches Criminal Law, Constitutional Law, International Human Rights, and Race and Criminal Justice.

Professor Colbert has written extensively about professional responsibility, indigents’ right to counsel, the Thirteenth Amendment, race discrimination in jury selection, affirmative action, police misconduct, politically sensitive trials, and legal scholarship. His latest scholarly activities focus on the profession’s ethical responsibility to meet its public citizen/pro bono responsibility to ensure access to counsel for people who cannot afford a lawyer, and on reforming states’ criminal justice system to guarantee counsel at the bail stage.

Currently, Professor Colbert serves as the co-chair of SALT’s Access to Justice Committee, along with Pamela Bridgewater (American).  We spoke to him about the Committee’s efforts to encourage law professors to engage students more deliberately about a lawyer’s ethical pro bono responsibilities as a “public citizen having a special responsibility to the quality of justice” and to educate students about the legal system’s deficiencies in denying most people access to justice.

Q:        Access to Justice – what does that mean, exactly?

A:         What access to justice means today is the profession and every lawyer meeting its ethical responsibility as a public citizen, a term that has evolved over the past century and that now is reflected in the Model Rules of Professional Conduct.   Our legal system faces a critical crisis; litigants typically represent themselves when appearing in civil proceedings where they may lose a home or custody of a child or be deported.  We need not stretch the meaning of access to justice but only follow the Model Rules language. Rule 6.1, for instance, clearly says that every lawyer has a responsibility to represent people who cannot afford a lawyer.

Q.          What are the major obstacles to access to justice?

A:         I can think of two reasons that are interrelated.  First, too few lawyers are fulfilling their pro bono duty.  Many rely on the fact that there are no discipline consequences if you fail to meet your ethical obligation.  And second, too few professors are teaching about a lawyer’s core value of public service and bringing the Model Rules to their classes.

It has taken almost 100 years since the first Canons of Ethics in 1908 but now there is a recognized pro bono duty for lawyers practicing in States that have adopted the Model Rules. The first sentence of the Preamble tells every lawyer – including law professors – that he and she is a member of a profession that acknowledges a special responsibility to the quality of justice. The preamble goes on in paragraph six to tell us what it means when you are a member of a profession and a public citizen. We are charged with identifying deficiencies in the legal system – the civil and criminal justice system – – which the Model Rules tells us are places where the “poor and those not so poor” are unable to afford counsel.  Every lawyer is required to identify and give attention to fixing an existing deficiency.  Surely none is more important than denying people access to counsel to the 4 out of 5 poor, and 3 out of 5 middle class, people, who currently represent themselves.

Q:        Does lack of legal representation really impact a litigant’s access to justice?

Absolutely.  Your chance of gaining the full justice you are entitled is close to nil without proper representation and having a strong advocate at your side. Without a lawyer, it is almost certain that a litigant will not be able to assert effectively his/her legal claims and defenses.  Denying people a lawyer when important human rights are at stake leaves litigants having little confidence in our legal system’s impartiality and fairness.

Q:        What types of issues diminish the focus on access to justice among law schools?

A:         Too many law professors and lawyers accept the status quo in legal education, which usually translates to seeing professional responsibility as another subject taught by some other colleague and as having little relevance to the courses they teach.  We want to encourage colleagues to bring people’s reality of not having counsel into their classes and to connect it to a lawyer’s ethical role of making access to justice a priority.  We think both stand-up and clinical faculty can be doing more to teach through the Model Rules and inform students taking substantive and procedural courses about what takes place in housing, family, immigration and criminal courts where people usually self-represent.  Predictably, the results will be contrary to what litigants feel ought to have occurred.  The Model Rules express a collective concern within the profession that our legal system needs immediate attention when most poor, employed and middle-class litigants cannot afford a lawyer’s fees and are left without an advocate.

Q:        Who is responsible for raising awareness about access to justice issues?

A:         In the first instance, we who teach assume the critical first role in preparing students to enter the profession and inculcating the value of pro bono and public service.  During law school and upon entering the profession, practicing lawyers will take over this role and reinforce access to justice responsibilities.  Within the academy, law professors share the ethical responsibility; it should not fall upon ethics or clinical professors but should be reinforced in the classes we teach.  Faculty should look for ways to inform students about the access to counsel crisis. I see it as an important part of our professional responsibility to make our students aware of a lawyer’s special duty to the quality of justice.  We ought to encourage each other to make access to justice and a lawyer’s public citizen obligations a priority in what we do as teachers and as members of the profession.

Q:         Do you integrate access to justice themes into your teaching?

A: I have made changes in my stand-up classes and in the criminal law clinic I teach which I renamed Access to Justice.  The first step begins by educating ourselves about the Model Rules and thinking where we might include access issues in our course material.  We then can offer our example to colleagues and see what ideas they have for adding this piece of reality to the assigned readings.  I also have arranged to give a presentation to my law school colleagues at the beginning of the new school year.  I also have engaged in scholarship where I address clinical faculty’s potential for providing leadership and for collaborating with non-clinical colleagues. I also have begun to speak publicly, including AALS and SALT’s sponsored conference held at Golden Gate University School of Law on Vulnerable Communities.

Q:        Can law professors and law students really make a difference?

A:         Absolutely. More than 5,000 law students volunteered and traveled to Louisiana and Mississippi the first 18 months after Hurricane Katrina to lend their legal services to people in need of advocacy in civil proceedings and to assist public defenders in criminal cases.  Working with volunteer lawyers, the students’ work helped residents begin the path toward recovery and to obtain basic necessities.

Q:        What can each of us do?

A:         Make the teaching of the lawyer as public citizen a priority. Find a place to include the Model Rules and the crisis in representation somewhere in your course syllabus.  As whether you are currently telling students that they have a special responsibility to justice and if not, add it to the conversation. Most law professors and students do not appreciate how dire the situation is. Those who know often are too accepting.  Clinical courses should include law reform and the Preamble’s language.  SALT and non-SALT members who teach the same subjects should brainstorm and identify places in the course syllabus where a lawyer’s ethical duty of pro bono fits into the material.  Talk about the lawyer’s special responsibility in class and the likelihood of a more just outcome when people have legal representation.  Shatter the silence of the profession’s acceptance of the status quo.