holding that declaratory judgment action seeking to compel creation of mandatory pro bono program did not create a justiciable controversy because supreme court, not trial court, had exclusive authority to regulate legal profession
How later courts described this case
- holding that declaratory judgment action seeking to compel creation of mandatory pro bono program did not create a justiciable controversy because supreme court, not trial court, had exclusive authority to regulate legal profession
- stating that, “for a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought”
- stating that, for a 2 controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought
Written by the judges who cited it.
The opinion
GONZALEZ, Justice,
concurring.
This ease presents significant issues of public policy. Respondents seek a court declaration that indigent citizens of our State are entitled to free legal services in civil cases. They also seek an injunction that would require the State Bar of Texas to implement a program mandating pro bono legal services from all attorneys licensed to practice law in Texas. 1 For the reasons stated in the majority opinion, I' agree with the trial court and this Court that this case does not present a justiciable controversy within the trial court’s jurisdiction. I thus concur in the judgment.
I write separately because I disagree with the Court prolonging resolution of the mandatory pro bono issue by placing the matter “on the Court’s administrative agenda for further consideration.” 891 S.W.2d at 247. This procedure is unnecessary, and it gives Respondents false hope that a majority of the Court is seriously considering implementing such a sweeping change in the practice of law in Texas. As for the invitation for interested parties to submit more briefs to the Court, I think that any information which anyone gives the Court will merely duplicate what we already have for determining the merits of Respondents’ request. The issue of how to provide legal services for the indigent is a problem in our society that has been -widely debated and studied. More hearings, briefs, or argument before us will be of little utility.
Mandating any program for legal services to the poor is a political question, over which this Court in its administrative capacity and the Legislature would have jurisdiction. However, in my opinion, any attempt to draft and implement such a program would unnecessarily divert the Court from its primary business of adjudicating disputes. The Legislature is better suited to undertake the activities necessary for drafting and implementing a program to provide indigents legal services. Different program options, as well as them legal and constitutional ramifications, will need to be considered. Since the problem of access to legal services faces society as a whole, the burden of resolving it does not solely rest on the legal profession.
I acknowledge that a very real problem exists for individuals who seek legal representation but lack the financial resources to retain counsel. Studies clearly document that our poor citizens need greater access to legal services. See, e.g., Committee on Legal SERVICES TO THE POOR IN CIVIL MATTERS, State Bar of Texas, Report on Mandatory Pro Bono (1991); State Bar of Texas et al„ Legal Needs of the Poor Assessment Project (1991). This need led the Court to create the Texas Equal Access to Justice foundation in 1984 to administer the volun *248 tary IOLTA (Interest on Lawyers’ Trust' Accounts) program. 2 See Texas Equal Aocess to JustiCE PROGRAM §§ 1-9 (effective May 19, 1994), reprinted in Tex.Gov’t Code, tit. 2, subtit. G app. (State Bar Rules art. XI, §§ 1-9). In December, 1988, we signed an order that made the IOLTA program mandatory. Id. (amended December 13, 1988). We took this action under our authority to regulate the practice of law.
Realistically, the Court has progressed as far as it can to extend legal services to the poor. A mandatory pro bono program is quite different from the IOLTA program. This Court lacks the resources and/or the political will to attempt further resolution of the profound problem of providing legal services for indigent citizens. I would tell Respondents frankly that we are not going to order mandatory pro bono. The Legislature is better suited to tackle this social problem.
. Respondents deny that they are seeking a mandatory pro bono program, but they do not suggest any other method of providing legal services to the indigent.
. The IOLTA foundation administers a program wherein lawyers convert their non-interest bearing trust accounts to interest bearing accounts. Financial institutions remit all interest earned on IOLTA accounts to the IOLTA foundation. The foundation in turn channels money to organizations that deliver civil legal services to the poor. Since inception of the mandatory IOLTA program, the foundation has distributed approximately $42 million to assist people unable to afford an attorney in civil actions.