Ch 12 Opportunities for Legal Aid

Opportunities for Legal Aid

It is clear that alternative structures offer a real and meaningful opportunity for legal aid: the opportunity to provide free legal services without the allocation of public funds.

Few (if, indeed, anyone) would claim that legal aid is sufficiently funded. To the contrary, many assert, and assert on a repeated basis, that legal aid is woefully underfunded. Two noteworthy examples include:

1)         The Conference of Chief Justices (CCJ): This organization, founded in 1949, brings together the highest judicial officer of each state, as well as of the District of Columbia and certain territories. It is governed by a Board of Directors, it works through a variety of standing, temporary and special committees, and it often works in close collaboration with the Conference of State Court Administrators (COSCA). The principal output of the CCJ is Resolutions proposed by a specific committee and adopted by the CCJ as a whole, often jointly with the COSCA.[1]

Between 2002 and 2015, the CCJ adopted no less than eight resolutions calling for increased funding of legal aid. Most of these resolutions call specifically upon the US Congress to provide greater funding to the Legal Services Corporation;[2] others call upon the members of the CCJ to do more on a state level to attract greater funding for legal aid.[3]

In addition to the no less than eight resolutions, in March 2012 the CCJ and the COSCA jointly issued and shared with Congress a Position Paper entitled “The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators.”[4] In this 7-page paper, the CCJ and the COSCA explain to Congress the importance of equal justice, the extent of the “justice gap” in the US, the importance of legal aid for meeting that gap, and, as a consequence, the importance of adequate funding for legal aid. The paper concludes with an appeal to Congress for increased funding for legal aid.

2)        The ABA: Near the top of the page of its website entitled “Civil Legal Services,” the ABA states:

Adequate funding for the federal Legal Services Corporation is one of the ABA’s highest legislative priorities.

The ABA strongly supports a significant funding increase for the Legal Services Corporation. ABA advocacy seeks to gain or reinforce Congressional Members’ support for LSC, to get their signature on a letter in support of LSC’s funding increase and to keep them involved on behalf of LSC funding throughout the appropriations process.[5]

On another page of its website, entitled “Civil Legal Aid Funding,” the ABA states:

Financial resource limitations remain one of the largest barriers preventing civil legal aid providers, even with their pro bono allies, from addressing the needs of low-income client communities.[6]

The ABA has created a “Resource Center for Access to Justice Initiatives.” The home page for the Center states that the Center’s “two main focuses” are “supporting the growth and development of state-based Access to Justice Commissions,” and “collecting and analyzing data on the various sources of funding for civil legal aid.”[7]

The Center has developed a 2-page document entitled “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid” (ABA Best Practice Document). The document lists and describes “best practices” for a state’s highest court to follow in seeking to attract greater funding for legal aid, including:

  • “Create a high‐powered [Access to Justice (ATJ)] commission… ATJ commissions have been instrumental in obtaining or increasing state funding,”
  • “Speak and write publicly on behalf of the funding,”
  • “Call for and/or host hearings,”
  • “Visit with legislators,”
  • “Find funding sources. Helping campaign leadership and legislators identify the most appropriate sources of state funding for legal aid,” and
  • “Administer the funds.” [8]

The ABA Best Practice Document provides examples from the states of Texas, New York and Wyoming, as follows:

 Example of Texas:

The Role of the Supreme Court: Funding for basic civil legal services is included in the supreme court’s budget, and the court actively advocates for additional funding. There is a bipartisan consensus on this key principle: that providing assistance for those who cannot afford a lawyer is a critical part of the justice system and essential to the integrity of the rule of law. The chief justice and individual members of the court play a public role, making the case for legal aid funding by giving speeches, visiting with individual legislators, meeting with newspaper editorial boards and authoring op‐ed pieces.

The Result: In 2013, Texas legal aid programs received approximately $20.8 million in funds through appropriations and court fees and fines, almost 300 percent more than the $5.4 million received 10 years ago.

Example of New York:

The Role of the Chief Judge: The current chief judge, when he was appointed in 2009, made increasing funding for civil legal aid a priority. He created the Task Force to Expand Access to Civil Legal Services, which includes leaders from the bench, bar, law schools, and legal aid, as well as legislators and representatives of unions, corporations, foundations and the medical community. He conducts annual public hearings to assess the unmet civil legal aid needs throughout the state. The task force prepares an annual report, based on the hearings and other research, which the chief judge then uses to make his case to the legislature and the governor.

The Result: New York’s state funding has increased more than any other state over the past 12 years, going from $4.6 million in 2003 to $85 million for 2015.

Example of Wyoming:

The Role of the Supreme Court: An ATJ commission was established by the court in 2008. The chief justice designated an associate justice to chair the commission, and he worked tirelessly to lead the effort to document the need for civil legal aid and then find additional funding. Community meetings were held throughout the state, gathering documentation of the unmet need. The commission took responsibility for both leading the campaign and doing the hard day‐to‐day work to get the legislation passed and signed by the governor.

The result: Wyoming obtained its first‐ever state funding, through a filing fee surcharge, in 2010. It generates about $1,250,000 annually, making Wyoming fifth in the country in terms of state dollars per poor person, and more than doubling the total amount of funding available for civil legal aid in the state.[9]

Indeed, the CCJ was sufficiently impressed with the ABA Best Practice Document that one of the most recent of its eight resolutions mentioned above was to encourage its members (as well as the members of the COSCA) to consider it “as a worthy guide for their own endeavors to obtain increased funding for civil legal services.”[10]

Given the severity of the unmet need for legal services in the US (discussed in detail in part III), it is difficult to find fault with these and the many other calls that are repeatedly made for greater public funding for legal aid. At the same time, these calls are remarkable in the way that they focus nearly exclusively on the allocation of greater public funds, by the US Congress and/or by state legislatures. These calls seem to be premised upon the (for the most part) unstated assumption that the only possible source of funding for legal aid, or, at least the only potentially adequate source, is public funds. (Other sources of funding, such as Interest on Lawyers Trust Accounts [IOLTA], of course exist, and private donations are certainly encouraged and accepted, but there is no pretense of the adequacy of these other sources). On the basis of this unstated assumption, neither the CCJ nor the ABA (nor nearly any other individual or organization that calls for greater funding for legal aid) suggests or even appears to have considered the potential of alternative structures as a viable complement to increased public funding.

This failure is puzzling, for two reasons.

The first reason is that as desirable as increased public funding is, it can never come close to being enough. As discussed in detail in Part III, today total public spending for the Legal Services Corporation and other legal aid, combined with charitable donations for legal aid, is about $3.7 billion per year,[11] whereas Professor Gillian Hadfield’s research estimates that $50 billion per year would be required to secure one hour of legal assistance for households with unmet dispute-related needs.[12] An increase in public funding for legal aid by $46.3 billion — not just once but on an annual basis — would, at a minimum (taking inspiration from the ABA Best Practice Document), require highly intensive, non-stop, long-term lobbying efforts at the federal level as well as at the level of each and every one of the 50 states, the District of Columbia and the territories. And it still would not be enough.

The second reason is that other options for funding legal aid exist — options that do not require the allocation of public funds and that, at the same time, are sustainable and scalable.

An evident example are the Australian “sister” corporations Salvos Legal and Salvos Legal Humanitarian, both wholly owned by the Salvation Army. As described in detail in Part I, Salvos Legal is a commercial and property law practice that serves corporate clients. Salvos Legal Humanitarian is a law firm that provides services to the “disadvantaged and marginalized” in a variety of areas, including family law, housing, migration and refugee matters, debt and criminal law. The services of Salvos Legal Humanitarian are offered free of charge; the firm has a staff of lawyers whose salaries are paid from the income, less expenses, of Salvos Legal. Salvos Legal Humanitarian receives no government funding, nor any funding from the Salvation Army — it is funded from the income earned by Salvos Legal, which serves its corporate clients on a paid basis. As also noted in Part I, at the time this book went to press, Salvos Legal Humanitarian had provided free legal services for approximately 16,000 matters across its 16 offices in eastern Australia.[13] In addition to the number of awards that Salvos Legal and Salvos Legal Humanitarian have won (as detailed in Part I), Luke Geary, the Managing Partner of both firms, was listed in Pro Bono Australia’s impact25, which recognizes the social sector’s most influential people of 2015. Pro Bono Australia described Luke Geary as having “managed to create a self-sufficient law firm that helps some of the most needy people in the community.” In doing so, Pro Bono Australia continued, “he has changed the face of the funding of pro bono legal services in Australia.”[14] There is just one thing that prevents The Salvation Army, and, indeed, any other charitable organization that is so inclined, from creating comparable structures in the US — that is the regulations that restrict nonlawyer ownership and control of law firms.

Another example is the website Road Traffic Representation (RTR), operated by the UK-based ABS Legalmatters Limited. Also described in detail in Part I, RTR provides an automated online legal advice service for road traffic offenses. After posing the user, accused of a traffic offense, a series of questions, the service assesses whether the authorities have followed the proper procedure (and thus whether any procedural or technical objections can be raised) and makes a diagnosis both of the likely penalties the client will face if convicted and of any defenses that may be asserted. The service provides that information to the user free of charge — payment is requested only if the user requests additional assistance either in the form of a phone call with a solicitor or in-person representation in court.

Additional examples, perhaps less evident but no less compelling, can be found in Felice Batlan’s book Women and Justice for the Poor: A History of Legal Aid, 1863-1945.[15] As discussed in Part I, this book details how, over a period of decades in the late 19th and early 20th centuries, a number of women’s social services organizations in the United States provided free legal services to the poor. They did this sometimes with the assistance of professional lawyers, but, in most cases, with “lay” lawyers — that is, with women who did not have a formal legal education and were not admitted to the bar but who did have extensive legal knowledge and experience. In either case, the services were provided free of charge (as well, in many cases, in combination with other, nonlegal services, such as help to find employment, housing or clothing) yet also without any allocation of public funding.

Today women’s social services organizations no longer play the role in society that they once did. That does not mean, however, that the types of legal issues that they dealt with or the types of causes that they championed have disappeared. To the contrary, they are still very much alive and championed in a large variety of community organizations and advocacy groups that seek to help poor and disadvantaged persons with respect to housing, labor conditions, domestic violence,… While these organizations of course provide information to their members and constituents, to the extent that information is legal in nature, and certainly to the extent it is tailored for any specific individual or case, the organizations enter a gray area where their activities could be characterized as the unauthorized practice of law. There is just one thing that prevents these organizations from providing to their members and constituents the legal aid that they so desperately need — and doing so without public funding — that is the regulations that restrict nonlawyer ownership and control of law firms.

Lifting such regulations in order to allow community organizations to provide legal services to their members and constituents, and, in particular, to the poor and disadvantaged, is one of the first recommendations that was made by the Commission on Legal Empowerment of the Poor. This independent international organization, hosted by the United Nations Development Programme, was established in 2005 as the “first global initiative to focus on the link between exclusion, poverty, and the law.”[16] The Commission was co-chaired by Madeleine Albright, former US Secretary of State and Hernando de Soto, Peruvian economist and founder of the Institute for Liberty and Democracy, and its members were made of up policy makers and practitioners from around the world, including:

  • Anthony Kennedy,[17] US Supreme Court Justice,
  • Lawrence Summers, former President of Harvard University and former US Secretary of the Treasury,
  • Mary Robinson, former President of Ireland and former United Nations Commissioner for Human Rights,
  • Fernando Henrique Cardoso, former President of Brazil and former president of the Club of Madrid, and
  • Lloyd Axelworthy, former Minister of Foreign Affairs of Canada.[18]

During a period of three years, the members of the Commission and other contributors for its five working groups conducted 22 national consultation processes with representatives from local governments, academia, civil society, and grassroots movements.[19] In 2008, the Commission published its two-volume report entitled Making the Law Work for Everyone.

The report of the first working group “Access to Justice and Rule of Law” contains a number of observations and recommendations with respect to “reforms to the law and justice sector that will provide poor people with the institutional environment, the protections, and the incentives they need to realise their full capabilities and reap the maximum potential return of their existing assets.”[20] Among other topics, those observations and recommendations address the unauthorized practice of law, as well as community based organizations and advocacy groups.

On the topic of the unauthorized practice of law, the working group writes:

[A] potential problem [in the supply of legal services] may arise when countries adopt stringent ‘unauthorised practice of law’ rules — that is, when countries mandate that certain legal services can only be offered by certain legal professionals, such as licensed attorneys…While these restrictions may arise from the purist of motives — such as the desire to maintain minimum quality standards and to protect consumers from exploitation — they often have the effect of conferring a monopoly on a particular set of legal service providers. This drives up the price of legal services to the disadvantage of consumers in general and poor consumers in particular….

There is a small but growing body of empirical research — most of it, admittedly, conducted in rich countries — that indicates that nonlawyers (especially paralegals) and lay people can perform a variety of ‘legal’ services as effectively as lawyers, and that market mechanisms and less intrusive regulation can be effective in protecting consumers from exploitation. This evidence, though suggestive rather than conclusive, indicates that liberalisation of the market for legal services — in the form of weakening restrictions on who can provide particular legal services — is likely to improve access to justice for the poor substantially, while imposing relatively few costs on society so long as alternative quality-control institutions are in place.

A major attraction of [this reform strategy] is that, compared to many other legal reform strategies, it may require fewer government or donor expenditures, at least in the medium- to long-term. Instead of compensating for a market distortion through continuous payments to individuals, the liberalisation strategy focuses on curing a market distortion through a change in the regulatory scheme.[21]

On the topic of community based organizations and advocacy groups, the working group writes:

The use of local community-based organizations [can be expanded to allow individuals to pool their risks, as a form of emergency legal insurance]. For example, labor unions can — and often do — provide legal services on behalf of their members…Tenants’ associations can provide emergency legal assistance to contest evictions; similarly, while landlords’ associations can offer emergency legal assistance to take action against unruly or destructive tenants. The advantage of relying on small community-based representative groups to provide emergency legal insurance is that these groups may be able to better monitor and police their members and to apportion insurance costs in proportion to risk.[22]

In sum, no matter how intensive or extensive any lobbying efforts for increased public funding for legal aid may be over any period of time, they will never lead to an allocation of funding at a level sufficient to close the justice gap in the US. At the same time, the Australian sister corporations Salvos Legal and Salvos Legal Humanitarian and the UK-based website Road Traffic Representation provide compelling present-day examples of how legal aid (free legal services) can be provided without public funding. In addition, Felice Batlan’s book, Women and Justice for the Poor: A History of Legal Aid, 1863-1945, provides a multitude of equally compelling examples from the past of how community organizations can provide free legal services without public funding — examples that remain fully relevant today. Finally, a global initiative hosted by the United Nations and led by high profile policymakers, including US Supreme Court Justice Anthony Kennedy, has recommended the liberalization of the regulation of legal services in order to allow nonlawyers and community-based organizations and advocacy groups to provide legal services to the poor, stating that “it is likely to improve access to justice for the poor substantially while imposing relatively few costs on society,” and that a “major attraction” of such liberalization is that it may require “fewer government or donor expenditures.”[23]

In short, it is clear that alternative structures offer a real and meaningful opportunity for legal aid: the opportunity to provide free legal services without the allocation of public funds. What is less clear is why the CCJ, the ABA and other organizations continue to focus so much of their limited attention and resources on seeking increased public funding — and call on others to do the same — rather than devoting some of that attention and resource to changing the regulations in order to allow for alternative means of providing legal aid and, as a consequence, to also allow for alternative means of funding.

 Stories

Luke Geary, Managing Partner, Salvos Legal and Salvos Legal Humanitarian: Geary explains how Salvos Legal Humanitarian provides free legal services in Australia without funding from either the government or The Salvation Army.

Martin Langan, Founder, Road Traffic Representation: Langan describes how Road Traffic Representation’s automated system provides to persons charged with a traffic offense a certain amount of free legal services. Langan also describes how RTR’s system can be adapted for use in other areas, notably family law.

Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law: Batlan describes how for decades in the later 19th and early 20th centuries women’s social services provided legal aid without government funding.

Notes

[1] See generally, “Conference of Chief Justices,” Conference of Chief Justices, accessed August 27, 2015, http://ccj.ncsc.org/.

[2] “Resolution 9: In Support of Continued Funding for the Legal Services Corporation Commensurate with Its Vital Role in the Administration of Justice,” January 24, 2002, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/01242002-Support-Continued-Funding-Legal-Services-Corporation-Administration-Justice.ashx; “Resolution 11: In Support of Increased Federal Funding For the Legal Services Corporation,” August, 2009, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08012009-In-Support-of-Increased-Federal-Funding-For-the-Legal-Services-Corporation.ashx; “Resolution 9: In Support of the Federal Funding Legal Services Corporation,” August 3, 2011, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08032011-In-Support-of-the-Federal-Funding-Legal-Services-Corporation.ashx; “Resolution 1: In Support of Continued Federal Funding for the Legal Services Corporation,” February 1, 2012, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/02012012-In-Support-of-Continued-Federal-Funding-for-the-Legal-Services-Corporation.ashx; “Resolution 1: In Support of Continued Federal Funding for the Legal Services Corporation,” July 25, 2012, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252012-In-Support-of-Continued-Federal-Funding-for-the-Legal-Services-Corporation.ashx; “Resolution 7: Reaffirming the Critical Importance of Adequate Funding of the Legal Services Corporation,” 2015, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Reaffirming-Critical-Importance-Adequate-Funding-Legal-Services-Corporation.ashx;

[3] “Resolution 7: In Support of State Supreme Court Leadership in Increasing Funding for Civil Legal Assistance,” July 28, 2010, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07282010-In-Support-of-State-Supreme-Court-Leadership-in-Increasing-Funding-for-Civil-Legal.ashx; “Resolution 4: In Support of the Statement of Best Practices for State Funding of Civil Legal Aid Prepared by the ABA Resource Center for Access to Justice Initiatives,” 2015, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Support-Statement-Best-Practices-State-Funding-Civil-Legal-Aid.ashx.

[4] Conference of Chief Justices and Conference of State Court Administrators, “The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators,”  2012, http://www.ncsc.org/~/media/Files/PDF/Services%20and%20Experts/Government%20Relations/Final%20CCJCOSCA%20white%20paperonLSCFunding33012CleanVersion1%20w%20resolution.

[5] “Civil Legal Services,” American Bar Association, accessed December 30, 2015, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/civil_legal_services.html.

[6] “Civil Legal Aid Funding,” American Bar Association, accessed December 30, 2015, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/resources—information-on-civil-legal-aid-funding.html.

[7] “Resource Center for Access to Justice Initiatives,” American Bar Association, accessed May 21, 2016, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice.html.

[8] ABA Resource Center for Access to Justice Initiatives, “Supreme Court Leadership on State Legislative Funding for Civil Legal Aid,” July 15, 2015, 1, http://www.americanbar.org/content/dam/aba/images/legal_aid_indigent_defendants/ls_SC%20Best%20Practices.pdf.

[9] Ibid., 2.

[10] “Resolution 4: In Support of the Statement of Best Practices for State Funding of Civil Legal Aid Prepared by the ABA Resource Center for Access to Justice Initiatives,” 2015, 2, http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/07252015-Support-Statement-Best-Practices-State-Funding-Civil-Legal-Aid.ashx.

[11] Hadfield, “The Cost of Law,” 45.

[12] Ibid. See also Hadfield and Rhode, “How to Regulate Legal Services,” 3-4.

[13] Salvos Legal maintains an online counter of the number of matters for which is has provided free legal assistance since 2010: https://slh.salvoslegal.com.au/counter.

[14] “Luke Geary,” Pro Bono Australia Impact25, accessed December 30, 2015, http://www.pbaimpact.com/#!luke-geary-/oinwt.

[15] Batlan, Women and Justice for the Poor.

[16] Commission on Legal Empowerment of the Poor (CLEP), Making the Law Work for Everyone, Volume I: Report of the Commission on Legal Empowerment of the Poor (New Jersey: Toppan Printing Company America, 2008), 16, https://www.unicef.org/ceecis/Making_the_law_work_for_everyone.pdf.

[17] Interestingly, Justice Kennedy later authored the US Supreme Court’s 2015 decision North Carolina Board of Dental Examiners v. FTC, described in part I.

[18]Ibid., v-vi.

[19]Ibid., 2.

[20] Commission on Legal Empowerment of the Poor (CLEP), Making the Law Work for Everyone, Volume II: Working Group Reports (New Jersey: Toppan Printing Company America, 2008), 2, http://www.undp.org/content/dam/aplaws/publication/en/publications/democratic-governance/legal-empowerment/reports-of-the-commission-on-legal-empowerment-of-the-poor/making-the-law-work-for-everyone—vol-ii—english-only/making_the_law_work_II.pdf.

[21] Ibid., 29-30.

[22] Ibid., 33.

[23] Ibid., 30.

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