Special Joint Courts of Justice Subcommittees

July 1, 1997, Richmond

During the 1997 Session, SJR 295 requested a study of alternative means of ensuring that attorneys fulfill their ethical obligations to provide legal services for the poor; HJR 474 requested a study of the process by which decisions of the juvenile courts are appealed; and HJR 594 requested a joint subcommittee to study the effects of divorce, particularly no-fault divorce, on the economic well being of the divorcing spouses and their children. Each of these resolutions failed, but upon request of the Speaker of the House or the Senate Rules Committee, the chairmen of the House and Senate Committees for Courts of Justice agreed to study the issues raised. Although the issues are clearly separate, because the membership of the committees is the same, it was agreed that one meeting would be held. On July 1 the committee convened for the purpose of initiating these three separate studies.

Pro Bono Legal Services

The number of people seeking to represent themselves in court is growing. This may be due to the high cost of lawyers, the lack of coordinated pro bono legal services, or simply a desire to control one's own destiny. This change, however, has imposed greater pressure on the court system to maintain efficiency and equity. The director of judicial planning for the Supreme Court of Virginia provided the committee with an overview of a pilot project recommended by the Judicial Council creating a district court services center for pro se litigants. The project is designed to help litigants who are representing themselves by providing them with information and assistance on the court system and how it relates to their particular case, user-friendly forms and instructions, referral to appropriate alternative dispute resolution services, and on-site assistance by staff or pro bono attorneys. Further information on the program and its costs will be presented at the next meeting of the committee.

The Virginia Code of Professional Responsibility imposes upon lawyers the obligation to "assist the legal profession in fulfilling its duty to make legal counsel available and [to] render pro bono publico legal services" (Canon 2, Virginia Code of Professional Responsibility). Senator Gartlan expressed concern that lawyers are not fulfilling this obligation. Lawyers are granted the exclusive right to represent others in the courts of the Commonwealth. Along with this right comes a duty to ensure that all persons needing a lawyer are afforded access to one. However, there is currently no mechanism in place to ensure that this ethical duty is being met. Senator Gartlan noted that the American Bar Association is moving in the direction of a "play or pay" pro bono system because of the lack of broad participation by the private bar in pro bono activities. Under such a system, lawyers who fail to meet uniform standards for annual individual pro bono services would have to pay into a fund to be used for publicly supported legal services.

The committee unanimously agreed that more could and should be done. To ensure an immediate response to the problem, staff was asked to prepare a letter to the State Bar encouraging efforts to increase participation of the private bar in pro bono activities. The bar currently asks new attorneys to complete a form indicating their willingness to participate in various pro bono functions. The committee recommends that the bar annually provide this or a similar form to every licensed attorney in the state as a reminder of the obligation and the alternative means available to fulfill the obligation. It was suggested that the form be circulated annually with the bill for mandatory bar dues or with the statement of mandatory continuing legal education (CLE) hours. Additionally, CLE programs should place greater emphasis on the pro bono obligation and alternative means of meeting the obligation. The committee also believes that every licensed attorney should submit an annual statement to the State Bar indicating the number of hours spent on pro bono legal services to allow a more realistic assessment of the degree to which attorneys are currently meeting this ethical obligation.

Finally, the committee agreed to prepare a resolution calling for an in-depth study by the State Bar of alternative means for ensuring compliance. At the next meeting, the committee will review both the letter and resolution and make their final recommendations.

De Novo Appeals

HJR 474 was recommended by the Boyd-Graves Conference of the Virginia Bar Association. The request for a study grew out of concerns over the confusion and delays caused by the current de novo appeals process, which requires a re-trial of a case appealed from the juvenile court to the circuit court. Several representatives of the bar were quick to remind the committee that these concerns were the impetus for creation of the family court system. Both the Virginia State Bar and the Virginia Bar Association are on record as supporting the creation of a family court. However, to date, funding has not been provided by the General Assembly.

Senator Norment has for several years introduced a bill to provide an alternative to the family court system as a solution for the problem. His bill would allow for removal of child custody, support and visitation cases from the juvenile court to the circuit court with a direct appeal provided from the circuit court to the Court of Appeals (see e.g., SB 1101, 1997). Members of the bar expressed concern that the procedures specified in the bill would be too complicated for the litigants, many of whom who represent themselves in these types of cases. Alternatives such as direct appeal from the juvenile court to the Court of Appeals or a final appeal from juvenile court to the circuit court were discussed, and several problems with each solution were noted. The juvenile courts are not courts of record. Additional burdens would be placed not only on the litigants but also on the juvenile court clerks. It was agreed that further exploration of these issues is needed to formulate viable alternative solutions.

The Supreme Court has been working on a calendar management and delay reduction program for the juvenile courts. The committee was encouraged by reports that the program is working in the pilot jurisdictions where it is being tested.

Divorce

Following recently published documents linking divorce to reduced economic stability, Delegate McDonnell introduced a resolution to study the effects of no-fault divorce, particularly the effects on children. Many representatives of the bar expressed concern over the idea that no-fault divorce would be eliminated. It was noted that fault-based divorces are more costly, both financially and emotionally. Because there has been no in-depth study of the effects of no-fault divorce in Virginia, the committee agreed to authorize staff to make preliminary inquiries to determine whether such an economic analysis could be done based upon publicly available data and if so, who would be the appropriate person or group to conduct the study and at what cost.

The committee chairmen also agreed to take a closer look at HB 2131, which would authorize the courts to grant rehabilitative alimony for a discreet period of time upon divorce in certain circumstances. Representatives of the State Bar Committee, which recommended the bill, will be available at the committee's next meeting in September to discuss the study and specific provisions of the bill.