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by Kris Olson  

As it celebrates its 20th anniversary, the Access to Justice Commission continues to take its marching orders from the late Supreme Judicial Court Chief Justice Ralph D. Gants, who served as co-chair of the second iteration of the commission from 2010 to 2015.

In his 2019 State of the Judiciary speech, Gants said, “Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.”

To current co-chair Superior Court Judge Valerie Yarashus, that means the commission should be working towards supporting a “continuum of services.” In some instances, it can help shepherd millions of dollars to civil legal aid organizations who provide full representation to clients. But it also has and will continue to create avenues for attorneys to do pro bono work and buttress efforts to improve access to justice for self-represented litigants like the eight court service centers it urged the Trial Court Department to create.

For many Massachusetts attorneys, their annual reminder of the Access to Justice Commission’s existence comes when they renew their bar dues. On the form, they are asked whether they want to opt in to paying an additional voluntary fee of $51 to be used “in the administration of justice and provision of civil legal services to those who cannot afford them.” If they opt out, that information remains confidential.

On average, about 35 percent of attorneys choose to pay the fee, according to Deborah M. Silva, who became the Access to Justice Commission’s new director in December. Since the amendment to SJC Rule 4:03 creating the Access to Justice Fee took effect on Sept. 1, 2010, it has raised $7.2 million.

“We’re thrilled to have that additional funding that didn’t exist before, but of course we’d love to have more,” Silva says.

In addition to the Access to Justice Fee, a couple of other mechanisms serve as revenue sources for legal aid. Cy pres awards, which are generated when there is a residual in a class action settlement fund after reasonable efforts have been made to find the appropriate recipients, have generated about $10.8 million for legal aid since 2012. Pro hac vice fees paid by lawyers licensed in other jurisdictions with business in Massachusetts’ courts have raised about $3.3 million in the same span.

The funds are divided among the Massachusetts Legal Assistance Corporation, the Boston Bar Foundation and the Massachusetts Bar Foundation, each of which has its own criteria for determining the recipients of grants.

The Boston Bar Foundation recently held one of its three 2025 meetings to assess more than 60 applicants in its current grant cycle, says BBF president Megan N. Gates.

“As someone who practices corporate and securities law in my day job, it’s nice to be able to have a window into legal aid and what is done by these terrific organizations in the city and around the city,” she says.

In addition to collecting and disbursing funding, the Access to Justice Commission has several other initiatives, including a Fellows Program co-founded by Mintz members Martha J. Koster and Susan M. Finegan. Through the Fellows Program, retired attorneys provide pro bono services to legal aid agencies and other non-profits.

On average, fellows devote between 10 and 20 hours per week to their projects and commit to work for one academic year, from September through June, though most continue to collaborate with their partner organizations on expanded or new projects after their initial year. The Fellows Program has served as a model for similar programs in other states.

Koster herself has been a longtime fellow working on behalf of asylum seekers and detained immigrants with the PAIR Project, while retired Appeals Court Judge Cynthia J. Cohen has worked on several projects, including one that Silva says is “particularly close to my heart”: the elimination of cell phone bans in courthouses.

The commission had identified the bans as putting self-represented litigants at a distinct disadvantage, given that attorneys can bring their devices into the courtroom. Litigants unaware of bans until they arrive at the courthouse might hide their phones in the bushes or pay money they could ill afford to have people watch them.

“Even that small amount of money to pay for that is significant for them and resulted in hardships,” Silva says.

A decade ago, there was a nationwide movement to strive for 100 percent access to counsel in civil cases, “which is a big, lofty goal that we are far, far from,” says commission co-chair Marijane Benner Browne.

But Massachusetts received a $100,000 grant to pull together a strategic action plan to move closer to that goal.

“It was an enormous accomplishment because it brought stakeholders together from across the access-to-justice community to think about these issues,” Benner Browne says.

Consumer debt, housing and family law were the three areas of specific focus, but attention was also paid to the whole legal aid ecosystem, with the court service centers Benner Browne’s favorite of the ideas that emerged.

Members of the legal community have long been aware of the high rates of self-representation, particularly in the Housing and Probate & Family courts, Yarashus notes. But the most recent data shows that, across all the trial departments, over half of litigants are self-represented in civil cases.

“That has major implications for the courts and for resources, and it affects cases with attorneys, because, frankly, it often takes longer to deal with self-represented litigants in order to be fair to all parties,” Yarashus says.

At the beginning of the pandemic in 2020, there were 134,000 cases with self-represented litigants, which “everybody thought was going to be a high-water mark,” she says.

The number did fall dramatically in 2021, to a little under 87,000 cases. But the count has been rising consistently every year since then. In 2024, the last year for which there is data, there were 153,000 pro se cases, exceeding 2020’s presumed apex.

“The gold standard is really full representation for everyone, regardless of their income or background, and so that’s what we’re working towards,” Yarashus says.

But with the enormity of the need, all parts of the continuum of service will come into play, she says.

Taking on pro bono work is the best way that attorneys can help the court system as a whole function and function fairly, Yarashus adds.

“It will also have an indirect benefit to attorneys, because the more efficient we can be in the courts, then the more efficiently we can get to all cases, whether they have a lawyer or not,” she says.

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Read the original story on the Massachusetts Lawyers Weekly website.