Richard Tate oral history, 2015

Lawyer in private practice. Texas Access to Justice Foundation, Chairman, Board of Directors (1997-present). Helped lead increased funding to civil legal aid in TX.

Oral history details

Storyteller: Richard Tate
Interviewer: Houseman, Alan
Date of interview: May 7, 2015
Where relates to: Texas
Topics: Access to justice, Access to justice commissions, Civil legal aid: State Funding, IOLTA, and Veterans
Law type: Civil
Collection: CNEJL
Georgetown Law Library link (possible video): http://aspace.ll.georgetown.edu/public/repositories/2/archival_objects/408
Length: 0:37:15

Full text of transcript

Download PDF: Transcript

Consortium for the National Equal Justice Library
Oral History Collection
Interview with Richard Tate
Conducted by Alan Houseman
May 7, 2017

Alan Houseman:
This is an interview with Richard Tate who is a private attorney, but very active and chair of the Texas Access to Justice Foundation. It’s being conducted by Alan Houseman for the National Equal Justice Library. I think I’ll call you Dick. Is that OK?

Richard Tate:
That’s fine. Most people do.

Alan Houseman:
Could you give us a little of your background? Where you grew up, where you went to college and law school and a little bit of your legal history, your employment history?

Richard Tate:
Sure. Born and reared in Gastonia, North Carolina. It was what was affectionately in those days known as a mill village. Textiles was the center of the economy and the center of society in the sense that you were born in a house that your parents bought from the mill. You learned to swim and played at the park that was sponsored by the mill. You went to movies on a Friday night that were shown by the mill on the outdoor. aa traditional mill village. I attended high school of course in that city and was fortunate enough to go on to college.

Richard Tate:
I chose a small school in South Texas called Pan American University for the simple reason that I wanted to play basketball in college and North Carolina is a pretty good basketball state and I wasn’t good enough to play for those schools in North Carolina. I came down to Texas, but it was a great move for me because I went there four years, got a BA in government and then was fortunate enough to be admitted to the LBJ School of Public Affairs to get my master’s in public affairs. I went on from there to work for two years in the administration of Governor Briscoe. Then I chose to go back to law school.

Richard Tate:
I went to the University of Houston Law School, finished there in 1979 and went to work at first in a very fine law firm in Houston called Liddell, Sapp, Zivley and Brown that historically was associated with the Jesse Jones and Texas Commerce Bank interests. That firm is now known as a Locke Lord, having merged with a number of larger firms throughout the country. But I practiced there about four years and went into the personal injury practice with three good friends of mine. Then in 1985 I met and married my current wife and moved to Richmond, Texas temporarily. I’ve been there temporarily now for 30 years. I enjoy a very blessed and challenging practice in a smaller area than Houston, but fortunately, I have the same quality of work and the same opportunities that I would have there. So from a practice standpoint we have a nine person law firm in Richmond.

Richard Tate:
In 1993, I was reading the Bar Journal during lunch one day and saw that the Supreme Court was looking for the volunteers to serve on various commissions. Some were obviously committees and commissions that were going to study changes to the rules of procedure or various changes to various bar related functions. But the one that caught my eye was what then was called the Texas Equal Access to Justice Foundation. It caught my eye because, having grown up in a mill village and having grown up in North Carolina, and gone to high school in the 1967-68 time frame, equality was something that weighed heavy on my mind from time to time. Having been fortunate enough to be a member of the first integrated basketball team to win the state championship in North Carolina, there were challenges that my friends and I faced throughout those years that stuck with me. Also, perhaps part of the mill village mentality is that you have a little chip on your shoulder and you think that justice isn’t always available to those that live on your side of the tracks. Candidly speaking, those things sort of stuck with me my whole life.

Richard Tate:
So just when I read about the foundation, it just struck home with me. Fortunately at the time, chief justice Tom Phillips was chief justice of the Supreme Court and he had actually performed a marriage ceremony for my wife and I. So we knew him and I wrote him and expressed my interest in serving on the commission. He called me back. I keep saying commission. It’s the foundation, and there is a difference. It’s the foundation. I wrote him and expressed my interest in serving on the foundation and he called back and I think I was appointed in the summer of 1993. First meeting was September of 1993 and been here ever since.

Alan Houseman:
I just finished an interview with Betty. I know a little bit about the foundation, but in your view, what does the foundation do and how important it is to the future of access to justice in Texas?

Richard Tate:
Oh, I think it’s absolutely critical. What we do is we administer what is now a significant body of funds to the various providers of legal assistance throughout the state, for lack of a better word. These are essentially poverty law firms. They are populated by lawyers, many of whom are some of the best lawyers I’ve ever seen in my life. They could easily earn multiples of what they earn in their practice, out in private practice. But they’ve chosen to devote themselves to the provision of legal services to those who are deserving that just are simply not able to afford them. When you think in that perspective, you think about the fact that you’re involved in an organization that helps ensure the continuation of funds and then effectively administers those funds to allow that work to continue. I would just say that our foundation in that capacity alone is just absolutely critical to the future of access to justice in Texas.

Alan Houseman:
Describe some of the struggles you’ve had with IOLTA funding, particularly in the last five or six years and how the foundation has responded to that.

Richard Tate:
Well, the struggles have by no means been limited to last five or six years. When I started in ’93 we handed out that year $9.3 million in grants and that was $9.3 million that was realized almost exclusively from interest on lawyers’ trust accounts. IOLTA, the pure IOLTA program. It was the pure IOLTA program that was functioning without the benefit of a feature that later became known as the comparability program. So at that point in time, IOLTA funds were yielding over $9 million for grants in Texas. Still far too little, but $9 million, nevertheless. Well, in 1995, grants dropped to about right at $7 million. By 1998 they were down to $3 million. That’s pure IOLTA revenue.

Richard Tate:
Obviously you see the decline there alone, all fostered by just a declining federal funds rate, declining prime rate, declining interest rates in general. That yielded the just mathematical challenge in and of itself. That combined with an ever increasing poverty population in Texas just made the challenge all the more difficult and important. Then in 1994, our IOLTA funds dropped about $2 million. We were sued by the Washington Legal Foundation in federal court challenging the constitutionality of the IOLTA program as a taking without just compensation.

Richard Tate:
That case wound its way through the federal courts for nine years. It went to the Supreme Court of the United States twice, was ultimately decided in connection with or in conjunction with, a case at the Washington Legal Foundation also filed against the Legal Foundation of Washington, which was the Washington IOLTA program. Because of the mechanics of the Supreme Court docket, their case was argued before our case was argued and to our good fortune, the Legal Foundation of Washington or the Washington IOLTA program prevailed. Thus we prevailed. After a nine year journey through the courts, IOLTA was held to be constitutional. That was nine years of a challenge in and of itself. That combined with just declining interest rates made the job of Betty’s predecessor very difficult as they went to work every morning. Ttt made our job very difficult as we met and tried to address the problems in Texas.

Richard Tate:
Under the leadership of Frank Newton, who was the second chair of the foundation, we approached the ’95 legislature and we began to float the idea of trying to engender the interest of the legislature in providing some help to us. We did not get what we wanted out of the ’95 legislature, but fortunately in 1997, we had engendered enough interest and had begun to educate legislators. In 1997 what was called the Basic Civil Legal Services Program was approved by what had become a very attuned Texas legislature, and we’ve been indebted to the legislature for their demonstrated commitment to access to justice and the increasing commitment that they’ve shown over the years. With the Basic Civil Legal Services Program, which was essentially a filing fee add-on program. Various fees were charged at the various levels of courts throughout the state, collected, remitted to the comptroller, and allocated to us.

Richard Tate:
We were able to begin to replace some of those funds that we had lost from interest rates, but only some. I mean we were down from $9 million to I think at one point we held our breath and were just above $3 million in IOLTA funds. The BCLS program came in and began to restore some of those funds to us, but nowhere near where we had been. Also keep in mind that we had an ever increasing poverty population in Texas.

Richard Tate:
I think along about 2005 — I’ve got a little time table here because sometimes these dates get a little mixed up in my mind — we went to the Supreme Court with the suggestion that we institute in Texas what was called a Comparability Program. I may have my date off a year one way or the other. We approached the court with the idea that the court encourage Texas law firms and Texas lawyers to deposit their IOLTA funds into banks that were willing to pay a comparable rate. A comparable rate was just simply saying, pay us the same thing you pay a business deposit, which is similarly deposited overnight or short term. In other words, we’re not asking for more favorable treatment than anybody else. We’re just asking for comparable treatment.

Richard Tate:
The Texas Supreme Court under then Chief Justice Jefferson adopted comparability, passed a resolution encouraging Texas law firms to do so. With the incredible work, day and night, of Betty Torres in contacting all the banks and encouraging the banks to get on board, the comparability program was an enormous success and promised to yield in excess of $20 million in IOLTA to funds. Again, it was just simply pay us what you pay a business deposit of the same amount for the same length of time. That came in the 2006-2007 time frame I believe. Unfortunately, just as we got into it, interest rates cratered at the federal level and we only enjoyed comparability for about one year, maybe a year and a half. Then we were faced with a situation wherein instead of enjoying a comparable rate of slightly over 5% on our deposits, we were looking at, if we were lucky, between 0.25 and 0.5 percent, basically a quarter of a percent interest.

Richard Tate:
So again we were in a significant crisis mode. It was at that time that the Supreme Court of Texas took a bold and admirable leadership role with the legislature. Through the good work of the Supreme Court and some very, very interested members of the Texas Senate, we were able to achieve what no one believed we could achieve and what IOLTA programs from around the country are still in awe of. We were able to achieve an appropriation of general revenue to replace the funds that had been lost by the collapse of the federal interest rate. Again, we are indebted to the Texas legislature for recognizing the need, acknowledging the need, and realizing, in the words of Chief Justices Jefferson and Heck, that the issue that we were facing was not a Democrat issue. It was not a Republican issue. It was a justice issue.

Richard Tate:
Through the combination of key legislators and the leadership of our Supreme Court, we achieved a general revenue appropriation in the neighborhood of $8.5 million a year, I believe, each year of the two year biennium, for a total of about $17 million. We have maintained that approximate general revenue appropriation every session since then, but we weren’t finished.

Richard Tate:
We couldn’t be finished because of what was happening in the economy. Those that needed our services, our service population, was growing ever rapidly. So we couldn’t just sit and say, “Hey, look what we’ve done.” Now we were proud of what we’ve done. Frankly what we accomplished caught the eye of other IOLTA programs, of other Supreme Courts, and unfortunately for Justice Heck, made him a speaker in great demand for various equal justice conferences and ABA conferences, just simply because they wanted to know how he’d done it. But we couldn’t rest at that point in time.

Richard Tate:
So our next legislative effort was to deal with what was called the Crime Victims Legal Assistance Program and it was an effort where under the leadership of then-Attorney General Cornyn, we were able to achieve an appropriation of some of the funds that the attorney general general collected under the Crime Victims Program where the convicted criminal would in fact pay some reparations or there would be legal assistance payments made and some of those funds were collected in the attorney general’s office. Well, the Attorney General — first General Cornyn and then General Abbott — worked with us to appropriate about $2.5 million per each year of the biennium for total of about $5 million for the biennium, which is a program that we’ve kept in place.

Richard Tate:
Again as the economy suffered some problems and as again with things like hurricanes Katrina and Ike and the impact that those had upon our service population, and then with the returning veterans, our service population was ever growing. We had to look again for innovative ways to bridge the justice gap as it’s known. So we went back to the legislature and achieved the passage two sessions ago of what was called the Chief Justice Jack Pope Act, signed into law by Governor Perry. It was a mechanism that allowed various civil legal penalties that were collected by the attorney general to be devoted to access to justice. That bill originally had a cap of $10 million and this year, one of the things we’re asking the legislature to do is raise that cap to $50 million. It’s not a funding of $50 million. It’s just that it allows us to collect up to $50 million in the event those funds should be available from the Attorney General’s office.

Richard Tate:
We’ve had two or three other legislative victories over time due in large part, again to the continued leadership of the Texas Supreme Court and the involvement of the Texas Access to Justice Commission. I know you’ll talk with others about the history of the commission, but the legislative effort has been one led by the Texas Access to Justice Commission. We’ve been a part of here with the foundation, and the efforts of the commission have been incredible. It’s just been a situation where everybody recognizing a common need pulled together with no one seeking to get recognition for what they were doing, but everybody seeking to address the problem and address the problem the way it should.

Alan Houseman:
I’m interested, why do you think the Texas Supreme Court became so engaged in this and has played such as remarkable leadership role?

Richard Tate:
Well …

Alan Houseman:
In the legislature, and a number of things you just described.

Richard Tate:
Well, I simply would say it’s been the leadership on the court and the justices, the personalities of the justices themselves. I remember hearing in this very room back when Chief Justice Phillips was still chief justice. Of course, Justice Heck was on the court. I think our liaison to the court at that point in time was Justice Hankinson, Justice O’Neil, who subsequently became our liaison, was on the court. Justice [Enik?], I believe may have still been on the court, but I wouldn’t want to try to name all nine members and miss one …

Alan Houseman:
Right, right.

Richard Tate:
But I remember that hearing well and it was a hearing at which it was convened by Chief Justice Phillips and the court for the purpose of gathering information on the problem as it existed at that point in Texas. It was an eye opening hearing. This room was filled. There were some incredible speakers. There were clients, there were lawyers who had toiled in the fields for years. I mean there was an array of people that addressed the court that day and I saw nothing but an absolute voracious appetite by the court to gather the information and attack the problem. I think it had to do with, again, with the leadership of Chief Justice Phillips at the time, the attitude he had always shown toward the access to justice. I think it had to do with the personal philosophies and consciousesis of the members of the court. I think we just have some people who served on this court who are good to the core and intend to address that problem and have always intended to address that problem.

Richard Tate:
Once you have Chief Justice Phillips, Chief Justice Jefferson, Chief Justice Heck stepping up and saying to Democrats and Republicans alike, this is an issue that we can’t allow to continue to exist in Texas without doing our very best to approach it. I mean it is very difficult for one to mount a contradictory argument.

Alan Houseman:
You mentioned a minute ago or several minutes ago, obviously, the IOLTA cases. Talk about your personal involvement in those cases.

Richard Tate:
The IOLTA litigation was filed in 1994 which was just over a year after I joined the board. Being a trial lawyer by trade, then chairman Frank Newton asked me to serve on a three person committee that was to serve as liaisons with our pro bono counsel. Our lead pro bono counsel at the time was Darryl Jordan, who then was with the law firm of Hughes and Luce in Dallas. We also had pro bono counsel interestingly from Boston. Rich Johnson was from a prominent Boston law firm and I’m sorry, the name of the firm is just not coming to mind right now. They asked to second chair the case along with Darryl Jordan and volunteered a significant amount of time.

Richard Tate:
We had a great legal team that tried the case. There were some lawyers in Austin at the time of the first litigation who were very actively involved as well. Again, I apologize if I don’t remember all the names of those who were actively involved, but my role throughout the first litigation was simply to sort of be a part of the oversight committee and strategize with our counsel.

Richard Tate:
We tried the case of course, and we won at the trial court level. Ultimately we found ourselves in the Supreme Court the first time around and on the question of whether or not there was an interest to be taken, not whether or not there was a taking, but whether or not there was an interest to be taken, or whether or not there could be a taking. Once, it was whether or not there was an interest and once it was whether or not there was a taking, and I may have them in reverse order as to which question was decided which time.

Richard Tate:
But we went to the Supreme Court the first time around and we lost. The case was remanded to the trial court. By the second trial, I had become chair of the foundation. So I continued to serve on that strategy committee, but my role was a little different. At that point in time I was chair of the foundation and was a named party in the litigation. I obviously attended the second trial here in front of Judge Alan in Austin. We had a great presentation put on by our trial team. Again, we won. However we went to the Fifth Circuit and then found ourselves again in the US Supreme Court.

Richard Tate:
At the same time, the challenge in the State of Washington had progressed to the Supreme Court. Because of the briefing schedules, their case was argued before ours. But the second time through I was board chair and I guess my decision making role was a little more the second time through, obviously consulting with the board, and consulting with our counsel, not that there was ever any great strategic decision to be made.

Alan Houseman:
Well, let me ask, from your position in the foundation, what do you see as the challenges for access to justice, civil legal aid in Texas in your future?

Richard Tate:
Well, obviously the challenge will always be that of adequate financing to address an overwhelming need. The challenge of finances, the challenge of budget, the challenge of appropriations, the challenge of coming up with innovative programs that will yield those finances is always going to be a great challenge. But the ability to meet that challenge or the success of that challenge will always be a function of our ability to educate the legal community, the business community, the legislature, the social services organizations on the need.

Richard Tate:
Eight or 10 years ago, there certainly was not a great public outcry, or there wasn’t great public contention being paid to the needs of veterans who are returning from the Middle East and Afghanistan and returning from active service and those who had already returned in the first Iraq War. Through the efforts of state bar president Terry Tottenham, through the efforts of the Texas Access to Justice Commission and our foundation, there were veterans initiatives put in place that lifted the legal needs of veterans to the forefront. It has been a unifying emphasis. I mean it has been recognized by all the stakeholders and the access to justice community and all the people who ought to be stakeholders in the access to justice community as an incredible need. So much so that every year the commission sponsors a gala here in Austin that year in, year out raises about $400,000 specifically for veterans grants that come to the foundation. We administer those along with some other veterans funds that we have available. So just the education on that issue alone has made a significant impact over the last six years.

Richard Tate:
We have to continue to educate on the needs of minor children who are in this country without parents and we have to make sure that they have that due process of law is provided to them, that they have the legal services that they deserve. We have to continue to educate about the needs of victims of domestic abuse. We have to continue to educate about the needs of the elderly. That and particularly, housing needs, the needs of those who are not being properly treated with respect to various benefits to which they are entitled. We have to just continually educate about the needs of those who are less fortunate and those who are currently qualifying for benefits.


END