Berks County Bar Association The Berks Barrister Summer 2020 - 30

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Closing Argument

DUE PROCESS OR MERE PROCESS?
B

efore being quarantined, I was on a
roll volunteering to represent tenants
facing eviction.
	A landlord had failed to appear at the
appointed time for a hearing. Motion to
dismiss granted! The landlord immediately
refiles but without giving the statutorily
required 10-day notice. Motion to dismiss
granted!
	In front of another Magisterial District
Judge, the landlord calls the judge's office to
report he is running late and will be there
by 12:15, when the office will be closed.
The judge asks for my position. I move to
dismiss the complaint. Granted!
	I was feeling rather good about this
success on behalf of my indigent clients.
Then it hits me-did achieving such success
require an advocate who had passed the bar
exam? After all, I have yet to see another
private attorney represent a tenant in court.
I pondered: is the legal profession doing
all that it can for tenants, by recognizing
different skill sets for different advocacy
roles?
	The 2019 winter issue of the American
Academy of Arts & Sciences' Daedalus
magazine is a 192-page edition devoted
to the topic of "Access to Justice." Its
introduction notes: "...in housing court,
more than 90 percent of tenants facing
eviction have no lawyer, while more than
90 percent of the landlords do." Matthew
Desmond, in his book Evicted, writes
that, when a tenant is not provided legal
assistance in housing court, "due process
has been replaced by mere process: pushing
cases through." How can our profession
improve "due process" in housing court?	
In order to do so, we need to think
outside the box. The American Bar
Association's Center of Innovation is on
to something. It drafted Resolution 115,
which "encourages U.S. jurisdictions to
consider regulatory innovations that have
the potential to improve the accessibility,
affordability, and quality of civil legal
services, while also ensuring necessary and
appropriate protections that best serve
clients and the public..." Data would
be collected both before and after such
innovation to determine its success.

30 | Berks Barrister

By Donald F. Smith, Jr., Esquire
	At the urging of the Pennsylvania
Bar Association's Unauthorized Practice
of Law Committee, the PBA's Board
of Governors, meeting on January 29,
2020, agreed to oppose the Resolution,
thus, establishing the Association's policy
position. Nevertheless, the Resolution
passed overwhelmingly in the ABA's House
of Delegates on February 17. The UPL
Committee had viewed the Resolution
as endorsing "experimentation with
nonlawyers offering legal services."
I watched a video of the 30-minute
debate in the House of Delegates; actually,

it was not much of a debate. No one rose
to speak against the proposal. In view of
the eloquent speeches in support of the
resolution, delegates from Pennsylvania
must have been too embarrassed to argue
for maintaining the status quo.
	Henry Greenberg, President of the
New York State Bar Association, was
particularly moving. "Access to justice
is in a crisis dimension," he proclaimed.
Resolution 115 is "not just the right thing,
the moral thing for our clients and our
profession, it is the smart thing to do." He
pleaded that bar associations be a leader in
solving the crisis.
	Berks is a leader with our pro bono
program. Unfortunately, it is not enough.
In the same Daedalus issue, an article
posits: "There is no question that the
profession is falling short in the provision
of legal services to poor and low-income
people...Even if all lawyers were entirely
devoted to addressing the justice gap with
some portion of their time, the depth and
breadth of the gap make it unlikely that the

profession could address it on its own."
	The journalist Lincoln Caplan suggests
in his Daedalus essay: "The purpose of
access to justice is to ensure that people
disadvantaged economically are not
disadvantaged legally. That entails: ...
deregulating some legal services, so
consumers have access to more assistance
and more advocacy from nonlawyer
problem-solvers;..." Now, with the
pandemic, the number of disadvantaged has
grown, and once the eviction moratorium is
lifted, the need for due process will be even
greater.
	So, I propose developing a limited,
experimental program with nonlawyers as
Housing Advocates to represent tenants
in MDJ court. Under Pa.R.C.P.D.J. 207
nonlawyers are permitted to represent
landlords. Why not make a similar
arrangement for tenants? Such focused
advocates, trained extensively on landlordtenant law and procedure, may then
serve under the auspices of legal service
organizations, with special funding
from the Pennsylvania courts during the
experimental period. Given Pennsylvania
Supreme Court Chief Justice Thomas G.
Saylor's past, strong support for access to
justice, I believe he will lend a thoughtful
ear.
	In opposing experimentation, the
UPL Committee wrote: "Low-income
individuals ...should not be subjected to
substandard legal service because of their
income level." The Committee's suggested
remedy: limited scope of representation
by attorneys. We already have that option
in Berks, and it is not transcending the
justice gap in housing court. Instead, the
state Supreme Court can set standards for
certifying Housing Advocates.
	The concluding thought in Daedalus
comes from the Honorable Nathan L.
Hecht, President of the Conference of
Chief Justices. He writes: "Justice for only
those who can afford it is neither justice for
all nor justice at all."
	Achieving justice for all demands
changing the status quo.

Donald F. Smith Jr. is Executive Director
Emeritus of the Berks County Bar Association.
http://www.berksbar.org
Berks County Bar Association The Berks Barrister Summer 2020

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