access to justice lady justice scales

An Arizona Access to Justice Statewide Forum was held in Phoenix, May 1, 2014.

Law Day may be celebrated numerous ways. Legal advice may be offered; educational seminars may be staged. Or the yawning gap between aspiration and reality may be highlighted.

The third approach was selected on Thursday, May 1, at a statewide forum hosted by the Arizona Foundation for Legal Services & Education and the Arizona Supreme Court. For a variety of reasons, it was an inspired choice. And given the realistic topic of discussion, it also turned out to be a surprisingly inspiring morning.

To begin at the end: Vice Chief Justice Scott Bales announced the formation of a new Access to Justice Commission, which will be headed by Court of appeals Judge Larry Winthrop.

Justice Bales said that there have been significant successes in Arizona’s goal of increased access. But this new commission will recognize current challenges, and “It will help to focus and achieve tailored plans for success.” As an example of a possible success, he pointed to a renewed focus on a tax credit to assist the working poor.

“If just half of all Arizona’s attorneys contributed to it,” Justice Bales said, “that would amount to $2 million.”

Arizona Vice Chief Justice Scott Bales, May 1, 2014.

Arizona Vice Chief Justice Scott Bales, May 1, 2014.

He said that the Arizona Supreme Court is renewing its commitment to access issues, and its soon-to-be-released strategic plan will move that goal to be the Court’s primary strategic aim.

He recalled the way students begin their day, and reminded a packed room at the Court, “It’s not reciting the Pledge of Allegiance that defines us as Americans; it’s the progress we’ve made to achieve its ideals.”

Those ideals can be difficult to reach, Chief Justice Rebecca Berch said.

Despite significant innovations in Arizona, “Access to justice is an area in which we are not living up to our potential. It is always painful to examine areas in which you’re not as good as you should be. But it’s helpful.”

The Chief Justice then described the substantial barriers to achieving fuller access to justice: poverty, limited-English proficiency, and huge numbers of self-represented litigants.

Arizona Chief Justice Rebecca White Berch, May 1, 2014.

Arizona Chief Justice Rebecca White Berch, May 1, 2014.

Statistics for all three challenges are sobering:

  • The child poverty rate in Arizona is 27 percent.
  • The senior poverty rate is 13 percent.
  • Despite Arizona lawyers giving hundreds of thousands of hours of pro bono legal help (ranked sixth in the nation), the unmet need is staggering.
  • The percentage of pro se litigants rose from 24 percent in 1980 to 88 percent in 1990. Justice Berch said the number could be in the 90 percent range now.

In response, Arizona has nurtured the growth of various solutions, including self-help centers, specialty courts, attorney volunteerism, and a transparent judicial merit-selection system.

The Law Day keynote was delivered by Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

She reminded attendees that legal aid can be “critical and life-changing.”

Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

Quoting Robert F. Kennedy, she said, “Unasserted, unknown and unavailable rights are no rights at all.” A crucial development in shifting access to those rights, she said, is the formation of access to justice commissions across the country—from zero in 1993 to 33 of them today, “five in the last year.”

Reflecting on Justice Berch’s remarks, Lash said, “Arizona is doing what many states only wish they could pull off.” She admired “a State Bar that embeds access to justice in its core mission,” as well as the Court’s “appetite for new collaborations and a righteous anger” about enduring poverty.

The forum also included a panel discussion about sustainable and repeatable best practices that make justice more available. Moderated by Kelly McCullough, the panel was comprised of Gregg Maxon (veterans courts), Anthony Young (volunteer lawyer partnerships), Barbara Howe (state libraries), and Carol Mitchell (video remote interpretation project).

We will continue to track the launch of the new commission. If you have particular questions or suggestions about best practices that should be covered, write to me at

Utah Attorney General John Swallow

Utah Attorney General John Swallow

Recent developments have not been good for the Utah Attorney General, John Swallow. As a news story this month says:

“The U.S. Department of Justice Public Integrity Section is investigating Swallow, as are the Salt Lake County district attorney and the Davis County attorney, both related to his dealings with indicted and imprisoned Utah businessmen.”

And on July 3, the Utah House of Representatives made “an unprecedented move” by creating a special committee to investigate the elected official.

As the Deseret News reports, “A nine-member panel with subpoena power and the ability to interview witnesses now has the authority to launch an investigation into embattled Attorney General John Swallow.”

That panel needs a Special Counsel. That’s where you may come in.

Here is the opening language from the Utah Legislature’s RFP, indicating its search for the counsel has begun:

“Utah’s Office of Legislative Research and General Counsel has issued a Request For Proposals seeking an individual, a group of individuals, or a firm to provide legal services to a Special Investigative Committee, created by the Utah House of Representatives, to investigate and make findings in relation to allegations of misconduct made against Utah’s attorney general, John Swallow.”

Utah Office of Legislative Research and General CounselThe 22-page RFP may be viewed here.

The RFP response deadline is July 25.

Be sure to jump to the last attachment, which is a letter explaining the process. It is signed by John Fellows, general counsel for the Utah Legislature.

After the long RFP, his to-the-point letter is appreciated. Here is part of what Fellows says:

“As general counsel for the Legislature … I seek a person to collaborate with me in staffing and advising the committee chair and its members. I intend that the person hired will undertake significant responsibility for planning, supervising, and presenting the investigative work of the committee. Participation in, or assistance with, litigation may also be required—if necessary—to enforce and defend the actions of the Committee, the Utah House, or the Legislature.”

“Fundamentally, I am looking for someone who has experience in complex civil or criminal investigations and has experience marshaling and presenting evidence in a narrative fashion to a judge, jury, or committee. That person should have, or hire, a group of attorneys or support staff to help accomplish the assignment.”

“The person selected, and any support staff, should also have good political instincts and be able to work diplomatically with legislators.”

Interested? The official RFP contact is:

Thomas R. Vaughn

Associate General Counsel

Office of Legislative Research & General Counsel

Utah State Capitol Complex

House Building, Suite W210

P.O. Box 145210

Salt Lake City, Utah 84114-5210

Inquiries go to

I’ve got to add, based on the past few years in Arizona, I’m thinking there may be some good special counsel candidates here.

I base that on the number of comments sent my way from lawyers who were armchair-litigating the Andrew Thomas hearings. Many days, I would get suggestions from lawyers who had watched the previous day’s proceedings. They would recommend—to me—alternative strategies the prosecutor could adopt.

Always, I would recommend that the attorneys contact the prosecutor if they have an idea (I’m sure he would have loved that). Of course, Thomas was disbarred, so special counsel John Gleason must have been doing something right.

So here’s another high-level opportunity to get to the bottom of a brouhaha. Have at it. And if you get the job, please keep calling me (really!); I appreciate the insights.

Just more than a month after U.S. Attorney Dennis Burke re-asserted his position that prosecution on Indian land is a priority, we can see significant movement on the topic.

It may have been the U.S. Department of Justice in Washington that made wide-ranging legislative proposals, but they have the fingerprints of western states’ prosecutors all over it. And that’s a great thing.

As an article describes it, the changes would “stiffen federal sentences for certain domestic violence crimes in Indian Country and expand tribes’ authority to enforce protection orders against non-Indians living on reservations.”

I’ve written more than once about the crisis confronting law-abiding people on Indian land. And this article reiterates that crimes have reached “epidemic rates”:

“One-third of all American Indian women will be raped in their lifetime, and nearly three of five have been assaulted by their partner, the Justice Department says. In addition, murder rates are 10 times higher than the national average for Native women.”

The proposed changes would be considered in congressional reauthorization of the Violence Against Women Act. Among them would be an expansion of federal jurisdiction over crimes committed on the reservation. The change would mean “sentences more in line with those faced by defendants in state courts who commit the same crimes, and give prosecutors better tools for deterring the offenses.”

Proposals also would allow tribal courts to enforce protection orders against non-Indians, no matter where the order originates.

If enacted, the VAWA amendments would take effect in two years.

We’ll follow the story as it develops. But this is a noteworthy step in stemming the epidemic.