Earl Johnson Jr. oral history, 2017

Focuses on the second half of his career. This is the second of two oral histories with him.

Oral history details

Storyteller: Earl Johnson, Jr.
Interviewer: Houseman, Alan
Date of interview: Dec 8, 2017
Where relates to: California, International, and National
Topics: Access to justice
Law type: Civil
Collection: NEJL
Georgetown Law Library link (possible video): http://aspace.ll.georgetown.edu/public/repositories/2/archival_objects/362
Length: 0:55:12

Full text of transcript

Download PDF: Transcript

Consortium for the National Equal Justice Library
Oral History Collection
Interview with Earl Johnson
Conducted by Alan Houseman
December 8, 2017

Alan Houseman: This is an oral history of Earl Johnson. The interviewer is Alan Houseman for the National Equal Justice Library. The oral history took place on Friday, December 8, 2017 in Washington, D.C.

Alan Houseman: This is an update on an earlier oral history and we are going to cover activities and developments in Earl’s life since the last oral history. Let me begin by asking you, Earl, just to update your life from 2004, briefly. Then I’m going to come back and ask a number of questions about it. Since 2004, several things have changed. You’ve retired. Just do a brief update. Then we’re going to come back and ask a number of questions about a number of things.

Earl Johnson: Well, in 2007 I did retire from the court. But I continued my activities related to legal aid and access to justice. I remained on the Access to Justice Commission, still am on the Access to Justice Commission in California. Also, in 2010, I was appointed to be the chair of the implementation committee for the Sargent Shriver pilot project in California, which I can talk about later. And I continued to be active in the International Legal Aid Group, the ILAG, going to all of their meetings and otherwise participating in their work. I’m trying to think what else.

Alan Houseman: The ABA President’s Commission on ABA Access to Justice in 2005-2006.

Earl Johnson: Oh, right. And it 2008, I was appointed to the ABA Standing Committee on Legal Aid and Indigent Defense (SCLAID).

Alan Houseman: Right to counsel, yes.

Earl Johnson: Yes, that’s right. And I remained very active on the right to counsel issue. In fact, starting immediately after I retired from the court in late 2007, I joined the National Coalition for a Civil Right to Counsel. I’ve remained on the steering committee of that to the current day.

Alan Houseman: You also wrote a book.

Earl Johnson: I did write a book. I forgot.

Alan Houseman: We’ll come back to all of these.

Earl Johnson: Right. I did write a three volume history of civil legal aid in the United States, which took me six years. I thought it was going to take two. It took six years of full-time research and writing. That was my primary activity after I left the court. In fact, it’s the reason I left the court. I was hoping somebody else would undertake that momentous task. Nobody had. I tried to do a bit of getting started on it when I was on the court and the workload on the court made it impossible. Plus, it made impossible to make all the research visits and that sort of thing I needed to make. I decided to retire, I had full retirement so I could afford to do it. Anybody else that was going to do it would have to have a big grant from some foundation of hundreds of thousands of dollars to sustain themselves for the time they were researching and writing. I had independent income, so I could devote full time to it.

Alan Houseman: Great, let’s go back and talk about some of the activities that you mentioned. Explain what the International Legal Aid Group is — ILAG as you and I call it.

Earl Johnson: Right.

Alan Houseman: What it does, why it’s important, and what we can learn in the United States from its activities.

Earl Johnson: Right. The International Legal Aid Group was started in 1992 by some European scholars who were interested in and devoting time to research on legal aid and access to justice issues. I had heard about it. They hold a conference every other year where they bring in not only the scholars, but the policymakers from the various countries around the world. The purpose is to have an exchange between the policymakers and the researchers. The policymakers learn what research occurred in the last couple years. The researchers learn what the issues are that policymakers are facing that might be worth researching. It’s that kind of exchange. Anyway, in 1999 they held it in Vancouver and they invited me to come. I’ve been going to them every other year ever since.

Earl Johnson: It’s invaluable. I learn so much about what was happening in the rest of the world on legal aid, Many Americans seem to think that we have legal aid, and the rest of the world doesn’t or has minimal legal aid. In fact, it turns out that many of the European countries in particular invest substantially more, anywhere from 3 to 10 times as much, in civil legal aid as we do. But you also learn about different ways of delivering legal aid. You find mixed systems of various kinds where they have salaried lawyers, and they also have compensated private counsel to do certain kinds of cases. That was eye opening to me, and the way they finance it and where they get the money and all that.

Earl Johnson: A lot of these countries do much more research on legal aid than we do in the United States. I mean, talking about sophisticated sociological research, there’s a lot to learn. Lots of things that they have studied and tested that we haven’t or they’ve done it in a more sophisticated way. Legal needs studies have now been in 20 some countries. Many of them are much more sophisticated than any of the legal aid studies we’ve done here. They get into not only what the needs are, but how people respond when they have needs.

Earl Johnson: One of the interesting things was the very sophisticated one done in England in 2010 and 2012. For me, it was very interesting because they had a right to counsel in civil cases in England at the time. But when they did the legal need study, they found a lot of people did not take advantage of the right to counsel, and did not use a lawyer anyway. There’s a difference between legal need and effective demand. There are a lot of other costs of being involved in litigation besides the cost of the lawyer. Poor people have to take time off from work if they have work. Or, they have to find childcare or pay for childcare. There’s a lot of those kinds of expenses and also there is often a psychological cost. When we are trying to calculate how much it would cost to have a right to counsel it is substantially less than it would be if you were trying to meet the total legal need in the sense of how many people said they have a problem that a lawyer could help with.

Earl Johnson: Those kinds of research that have been done in other countries are helpful in trying to make decisions about things in the United States. There also are models they have used, and some of the rights they have created. They have a right to counsel by legislation, or in many countries the European court on human rights has declared a right to counsel in civil cases under the fair hearing guarantee of the European Convention on Human Rights and Fundamental Freedoms. Having those kinds of models and examples and standards elsewhere in the world that we can try to measure up to is very helpful.

Alan Houseman: I want to turn next to the Access to Justice Commission in California. Aside from the Shriver pilots, what is its current role and some of the accomplishments since we last talked in 2002? We’ll get to Shriver next.

Earl Johnson: We’ve done a series of reports and taken action in several different ways. The language access issue has been really important in California. We have seven million people in our state that do not speak English at home, or can’t really communicate in English. We did a language access study and made all kinds of recommendations. Slowly but surely those recommendations are being realized. We’re getting closer and closer to having a right to an interpreter in civil cases as we do in criminal cases in California. And that’s despite the fact that the Supreme Court, maybe a decade or two ago, said there was no right to an interpreter in civil cases. Nevertheless, there’s been a real movement in the direction of actually creating such a right.

Earl Johnson: California and our access commission have been path breakers and taken a national leadership role in self-help assistance. We have self-help assistance facilities in every courthouse in California. We have also begun focusing on administrative agencies, where so much of the law related to low income people takes place. Benefits, employment issues — a lot of those kinds of things happen there. We did an administrative agency report with recommendations for best practices in and by administrative agencies.

Earl Johnson: We obtained a grant and ran some incubator projects. You know what incubator projects are? That’s where they are trying to help young lawyers develop their own practices focused on low and moderate income people, particularly moderate income. The lower middle class and so forth. They actually provide them with advice, provide them with an office, provide them with a lot of support for the first couple of years, while they’re getting started in the practice.

Earl Johnson: We also have focused attention on rural areas. Although a lot of our population is in metropolitan areas, we have a huge amount of space in the deserts etc. There are problems with delivering legal aid to people in those rural areas where there are very few lawyers, courthouses are a long ways apart, etc. We have promoted having pro bono lawyers at law firms in downtown Los Angeles or San Francisco or Sacramento connect with clients in the rural areas via video conferencing and the like, and providing advice. We’ve actually begun trying to get the courts and administrative agencies to use video conferencing so that people can actually make appearances. We had a rural taskforce and a rural taskforce report making all kinds of recommendations. As I say, we’re implementing a number of those.

Earl Johnson: Let’s see if there’s any other things that we have done particularly. I mean, the Sargent Shriver project emerged from work of the commission, and the right to counsel committee of the commission.

Alan Houseman: Explain the project, the Shriver project. What it was, was it evaluated, and what the results of that evaluation were. Explain what’s happening now to the Shriver project.

Earl Johnson: As a preliminary to that I have to explain some other things I was involved in. I chaired the right to counsel committee of the access commission. In 2004 we completed a two year process to produce a model act. It’s called the state access to justice act or the state access act. It was a comprehensive act that as a target would work through all the problems one would have to address if one were going to actually set up a right to equal justice. It’s not a right to counsel as such. It’s a right to counsel when needed, but also a right to equal justice in the sense you have a right, not just the opportunity, but the right to the level of assistance required to give you equal justice. In the rare situation where self-help assistance would be enough, you would have a right to self assistance. Where limited legal assistance was sufficient, you would have a right to that. Where a non-lawyer advocate could provide equal justice, you would have a right to that. Then the basic thing was you have a right to counsel in all the situations where you would need counsel. We wrote this act, it’s quite lengthy with a lot of commentary and all that. We completed that in 2004.

Earl Johnson: Then in 2006, I was asked to be senior advisor to the presidential commission on access to justice that the ABA President Mike Greco set up. In that capacity I was a member of the three member drafting committee. We drafted the recommendation and also the supporting report that the commission then managed to get the ABA House of Delegates to approve. It’s the one that says governments should provide counsel as a matter of right in all cases involving basic human needs. Then it lists housing, etc as being basic human needs. A month later, that was approved at the ABA meeting in August 2006. A month later, in September 2006, the California Conference of Delegates passed a similar resolution.

Alan Houseman: The California Bar, right?

Earl Johnson: Yeah, it’s out of the California Bar, but it’s the delegates from all the local Bar associations. It’s three or four hundred people. They passed a similar resolution which the Chief Justice, then Ron George, read and told a newspaper reporter that he thought it was a very good idea. He became interested in this and he put into his budget money for some pilot programs to implement such an idea.

Earl Johnson: The first go around it didn’t pass the legislature. But the next time, the chair of the assembly judiciary committee was a former legal services lawyer, Mike Feuer. He’s now the City Attorney of Los Angeles. Anyway, he took that on as his cause, to get that passed the second time around. He came up with a solution to what would be the main objection, which is, “Where’s the money going to come from?” He created some new court fees on judgments, nothing at the front end, but at the back end, and very minor. Very small ones. But enough to generate about $11 million a year.

Earl Johnson: That was the financing for these projects. And it came into existence. As I say, I was asked to be the chair of what was called the implementation committee of the California Judicial Council for that set of pilots. By 2011, we had 20 different programs apply. To apply you had to have a legal services program that would be the main recipient. But they had to be in partnership with the court in that area. They were really joint projects of the court and of a legal services agency. And that legal services agency could contract with other legal services programs to provide some of the services. That’s the basic scheme. We had 20 such partnerships apply. We made eight grants to a wide variety of cities from Los Angeles and San Diego to Bakersfield and Marysville and Yolo County — from places with 30,000 people to places with four million.

Earl Johnson: Since these were pilot projects they also had an evaluation component. We hired an outside firm to do that. One that had performed many evaluations in the legal area — NPC Research. Each project received a three year grant. The legislation authorized two such three year sequences of grants. Essentially what we did the second round was refund the first round of grantees. Recently, about a year ago, we persuaded the legislature to remove the sunset which had said this was going to be a six year project. Now we just made another third round of grants, mainly with existing programs, but also an additional pilot project in Fresno.

Earl Johnson: We learned some interesting things from the evaluation. There was only one project, San Diego, that said it could provide full representation in every housing case that came to them given the number of eviction cases and amount of resources being supplied. They did provide full representation to all. But as I would have suspected from that research I mentioned in Great Britain, San Diego did not get every evictee coming to them asking for them to provide representation. Less than 50% of the people that were threatened with eviction actually went to the program, even though the program was prepared to provide representation in every case. That was one of the interesting findings.

Earl Johnson: Another interesting finding to me was how much the substantive law of a given jurisdiction influences how much success you’re going to have keeping people in their homes. Compared to New York City or Boston, where other studies have been done, California has a very poor landlord tenant law from the tenant’s perspective. It’s very pro landlord law. We did not have as much success by any means in keeping people in their homes as New York has reported and as has Boston.

Earl Johnson: We get five times better results than those who didn’t get representation. But that’s because we got 5% and they got 1% actually staying in the home. What we did have a great deal of success with was negotiating settlements that were more favorable in terms of the financial situation, in terms of credit, in terms of the ability of the person to actually at some point rent a new place. In fact, this showed a year later. We interviewed people a year later, after they had gone through the court process. A year later, over 70% of people that were represented were in new and safe housing. Less than a third of the people who didn’t have representation were in housing a year later.

Earl Johnson: I’m trying to think of some of the other things we found. The other main type of case where we found representation matters were high conflict family law cases, child custody cases, in which one party was asking for sole physical custody. Again, the settlements were much better and they were much more sustainable. Only one out of every 10 settlements were challenged or requested for a change in the following years. But three out of every 10 of those with no representation — if they managed to settle — were asking for a new order a few years out. Those are the main things I can think of that came out of it. A much higher rate of settlements than if they didn’t have representation. And much more favorable settlement terms.

Alan Houseman: Go back a little bit to the ABA. You were the author and reporter for the 2006 resolution that the ABA adopted. In 2010, there was another effort which you, I think, led or were involved with, as was I. You more than I. Around the model statute. So explain that.

Earl Johnson: Right. This time there was not a presidential commission involved, but I was on SCLAID and we formed an ABA right to counsel working group, which included representatives from most of the major sections of the ABA. That group sponsored this model act and the principles for implementation of a right to counsel. Twin documents, twin resolutions, and I served on the three member drafting committee for the Model Act, but only reviewed the other resolutions.

Earl Johnson: There was a lot in the model act for which the starting point was the model act that the access for justice commission in California had produced six years earlier.

Earl Johnson: We put together that act. Since we had most of the major ABA sections involved, there was no difficulty in getting support in the ABA. It passed unanimously in the ABA House of Delegates just as the original resolution in 2006 had.

Alan Houseman: The 2005-2006 commission made one other recommendation to the House of Delegates with a report which passed. It was a set of what was called 10 Principles for a State Legal Aid System. I don’t know if you remember it, I was the reporter, the person for that, you’re the person for the right to counsel. I don’t know if you went, maybe I just said enough there.

Earl Johnson: That one I wasn’t involved in. I remember it. But I was not involved in either the drafting or the politics of it or anything. It was a separate endeavor.

Alan Houseman: Yeah, you had two things going on. You talked a bit about the Access to Justice Commission in California. We just went through its terrific accomplishments. I think the answer to this question is pretty obvious, but do you think access to justice commissions are a key player in expanding access to justice in civil legal aid?

Earl Johnson: I think there are access to justice commissions and then there are access to justice commissions. In most states, the chief justice, or at least the top of the judiciary has played the major role in founding the access commission. The main thing that they have going for them is that they have managed to get judicial support combined with the Bar so to speak. The California Commission was started by the Bar initially. But from the very beginning the goal was to get as many other interest groups — courts and government bodies, but also powerful constituencies like business and labor — involved in the commission. And that’s one thing that’s made ours quite effective. A lot of the others are very helpful. But broadening the base beyond the legal arms of government is very important.

Earl Johnson: From the beginning we’ve had the general counsel of the California Chamber of Commerce as a member of the commission. We’ve had senior citizens. We’ve had the League of Women Voters. We’ve had the trial bar, which is a very active in Sacramento. They spend millions of dollars on their particular issues there. But they’re a voice for us, too. Anyway, those were critical when we were trying to get something like the Shriver Act through. To have the general counsel of the Chamber of Commerce calling the governor and saying sign that bill. Or calling a legislator and say vote for that bill, and so forth. That’s the model of access commission I think is most effective. It’s proved to be pretty effective in a lot of other places too, with or without that kind of added element beyond the judiciary and the Bar.

Alan Houseman: Earlier you discussed that you wrote your three volume history of civil legal aid in part because there was nobody else writing it. First let’s get the title and everything down, and then discuss what you tried to accomplish and what you learned from that.

Earl Johnson: The name of the book is “To Establish Justice For All: The Past and Future of Civil Legal Aid in the United States.” I learned many things that I didn’t know when I researched the book. One of the things I learned was a lot of early history that I didn’t know. I learned that the chair of the founding committee, who also became the first president of the first legal aid society in the United States in New York, was a Mister Edward Salomon. He had been the governor of Wisconsin before he moved to New York. He became a major figure in the German American community there. He was the guy who started the first legal aid society in the United States. I had no idea about his existence even before beginning my research on the early history.

Earl Johnson: I found out a lot of things that were happening inside the Legal Services Corporation during the years when it was the Reagan-selected board that I would not have known otherwise. I interviewed several people that told me what was happening there at those times. The core group of Reagan people within the board had once a week private meetings to plot strategy. The rest of the members of the staff were uninvolved with that. They were advertised as prayer meetings. Whether they were doing any praying there nobody knows, because nobody else was invited there and I wasn’t able to interview anybody who was praying a prayer. I learned the details of many events that I hadn’t known before. I picked up a great deal of information from the interviews I did with former presidents, and board chairs, and other staff members, and so forth.

Alan Houseman: Good. Well, the next set of topics are what we left out of the last oral history back somewhere in 2002. What is your vision for the future of civil legal aid and maybe a broader access to justice agenda? What do you think should happen? What is the role of self-help centers, full legal services programs, programs dedicated to providing full service in cases that need it, the right to counsel movement, un-bundling notions, notions about non lawyers (not very developed, but couple of pilot projects going on), and pro bono? You mentioned earlier something that your California commission and several others have been involved in. How do you see, and what is your vision for, the future of civil legal aid and civil access to justice more broadly?

Earl Johnson: Well, what I would like to see is one thing. What I think will happen is a very different thing.

Alan Houseman: Start with what you’d like to see.

Earl Johnson: Right. Well, what I would like to see is more or less what we put in that model act in 2004, what we call the state equal access act. I actually published it as an appendix to an article I wrote for the Fordham Journal in 2010. So at least it’s somewhere so people can look at it.

Earl Johnson: Essentially, it is a right to equal justice. I mean a right — not some people get it and some people don’t — but a right to equal justice. With it comes a spectrum of services depending on what is sufficient to provide equal justice in that particular problem or case that they have. Recognize it’s not just in the courts, but also in administrative agencies and the like. It’s full representation where full representation is needed. It is a lay advocate in those forums where lay advocates are sufficient. It is limited representation where that’s appropriate. But altogether, a comprehensive right to equal justice — and hopefully an enforceable right.

Alan Houseman: Where do you see the role of pro bono in that?

Earl Johnson: Pro bono is a step in that direction. But I do not look upon it being a necessary part in my ideal world. There are a lot of things that pro bono can do that have nothing to do with representation of low income people in the problems that low income people have. In my ideal world, there would no necessity for pro bono. So, pro bono can worry about the environment. They can worry about a lot of the other major issues that can use pro bono help. In the meantime, on the way, as much pro bono as we can generate to fill the huge yawning gaps we currently have.

Alan Houseman: What do you think the reality of, what do you think will happen in reality over the next three years?

Earl Johnson: If we survive the current president, you mean.

Alan Houseman: Yes, if we survive the current president.

Earl Johnson: Well, I think in some states it may be feasible to considerably increase the support for legal services. In California we may be able to make some major steps in that direction assuming we don’t have to use all the extra resources we get from the state to fill the gap created if LSC disappears. It’s going to be very much a state by state strategy for the next several years, with some states moving ahead fairly far. New York City is certainly providing a wonderful example for how in one place you can make some big steps. They have their right to counsel in housing cases in the city. They’re funding it with a huge amount of money. It’s something that we hope to replicate in some city in California, San Francisco being the primary target for that. Or the city where it seems most feasible to have it happen. Those kinds of things are the direction that things will go for the next few years. Piecemeal. Here a state, there a city, but moving in the direction I hope we will end up in the not too distant future.

Alan Houseman: In this vision, what do you see as the role of technology, information technology, and more broadly technology, new apps, mobile? There are all kinds of issues that are being tossed around and ideas that are being floated.

Earl Johnson: Technology can be very helpful in many ways. Video conferencing for the rural areas, for example, is very good. There are a lot of steps having to do with intake that can be done effectively through technology. There are, however, some developments that I have some reservations about such as online dispute resolution. I’m concerned about it in relation to low income people. It’s being experimented with in the Netherlands, The Rechtwizer 2.0 is a system where, if two people have a divorce situation, they can go online and essentially each put in their side of the case. They can negotiate between themselves online. If that doesn’t work out, they can have a third person try to mediate it online. If the mediation doesn’t work, they can actually have a third person decider that will decide the case for them, online. They will never have gone to a courtroom, never met with a lawyer.

Earl Johnson: That’s Rechtwizer 2.0. Interestingly enough, it was developed in the Netherlands, I recently heard that they have actually abandoned it in the Netherlands and I’m going to find out more about that.

Alan Houseman: Right. There was a recent article about this. First time I had heard of it.

Earl Johnson: Right. But meantime, British Columbia has started an online dispute resolution system for all small claims cases. It’s for a whole range of kinds of cases — consumer cases, all that — for any case under, I think it’s $15,000 or so in value. And it is basically the same model, except that Rechtwizer 2.0 was an optional system. Nobody had to use it. They could go to court. They could use any other way of dealing with their problem. But this one is mandatory. The only safety valve is, if it actually goes to a third person decider and you disagree with the decision, you can then obtain a trial de novo in an actual court before an actual judge. I’m concerned particularly about cases in such a system where it’s a low income person against an institutional litigant, like a debt collection case would be, or like a consumer case might very well be. The institution is going to be represented either by a lawyer (I mean the lawyer is going to be doing the input shall we say and the negotiations and all that), or at least by some specialist non lawyer who will know all about the law and the process. By the time he’s done his 10th such case, he will be an expert at manipulating the system, just about as good as a lawyer would be. I fear inequality in both the process and in the results in such a system.

Earl Johnson: I actually interviewed the person in charge of the one in British Columbia. We were going on vacation there, in Vancouver. I went and talked to the person who was in charge, the week before it actually started, before they actually implemented it. They’d been doing tests for two years before that. I plan on following that one closely, and at some point writing either a favorable or unfavorable or neutral report about it, depending on what I find after it’s actually has some experience under its belt.

Earl Johnson: But when you say technology, there are a lot of things that are very useful in technology. I can see technology playing a major role in all litigation, e-filing and all that. It’s coming one way or the other. But I’m concerned about online dispute resolution and its effects on low income people if that particular very advanced form of technology is implemented in the U.S.

Alan Houseman: We’ve covered most of what I wanted to cover. Do you had any final thoughts, any final ideas that you wanted to put into this oral history? Or something we forgot to cover.

Earl Johnson: Well, I’m looking forward to the day when legal service programs can devote more of their efforts to the kind of systemic advocacy that we tried to encourage when we were running the OEO legal services program. And when the Legal Services Corporation was also promoting that kind of thing. Except for programs like the Western Center on Law and Poverty, and a few of the other centers like it that survived, there’s not very much of that going on anymore. And I think that, that’s the highest and best use of lawyers’ time in this. Access to justice can be access to injustice if the laws are unfair. Because all you can do is get to the court and then lose. That’s something I would very much like to see change in the future. I would like to see the substance of the law be fair as well as the process of the law being fair.

Alan Houseman: Thank you very much.