Support for Civil Legal Aid Is Nonpartisan Because Legal Aid Works.

The Trump Administration sent its Fiscal Year 2018 budget proposal to Congress on May The Big 40!23rd.  The proposal calls for the defunding of the Legal Services Corporation (the current appropriation of which amounts to one ten-thousandth of total federal spending).  Granted, presidential budget proposals are opening gambits in the budget negotiation process, and as such reach toward the extremes.  From there, as the actual business of producing a budget gets done the numbers, in normal times and circumstances, tend to settle more reasonably.

But at this time and in these unique political circumstances I remain alarmed that the president proposes destroying a program that works so well, and so efficiently, in making sure Americans can access their own justice system.

The president’s LSC-defunding proposal is completely at odds with well-informed views from just about every corner of the legal community.  Here’s a sampling – including elected Republicans and Democrats, conservatives and liberals and moderates – of those standing up for LSC.  In their own words, they explain how important LSC’s work is to:

  1. serving our country’s veterans, elders and families by giving them a fair shake in the courts
  2. making sure the court systems are unclogged and running smoothly
  3. partnering with the private sector to ensure that non-government support and attorney volunteerism are part of the solution.

LSC Transcends Partisanship Because It Works.

Is LSC worth the 1/10,000th of federal spending that is devoted to it today?  Is there a return on this investment of our tax dollars?  Good questions, both.  The answer, coming from those best positioned to know, is an emphatic “yes.”

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Where Do Skadden Fellows Come From?

By “classic legal academy” measurements, the Skadden Fellowship is the most prestigious postgraduate conduit into legal public-interest work.  Skadden Fellows marry academic excellence with remarkable track records of gaining practical public-interest work experience during law school.  I don’t think the “classic legal academy” metric (GPA, law review, elite school, etc.) is the best way to identify and cultivate the next generation of public interest lawyers – it certainly isn’t the only way.  (And thank goodness because I went to the Harvard of North Broad Street.  Temple.  I’m a proud Owl.)  Nonetheless Skadden Fellows are extraordinary achievers with extraordinary commitment and ambition to make change for people who are marginalized and vulnerable.  Skadden Fellows are kick-arse in this way.

A few years ago when I worked with NALP, I loosely kept tabs on the incoming classes of Skadden Fellows.  It’s helpful for law school administrators to see which schools consistently succeed in producing Skadden Fellows – yes/yes, it’s a lot of Harvard/Yale, but many more schools too – and also to learn more about the kinds of projects the Fellows propose and where in the U.S. they work.  The other day I revisited the Skadden Fellowship numbers – props to the Skadden Foundation for making the information available and for running such a clean website – to see what’s been going on.  So here’s 5 fellowship classes worth of numbers and one thought that occurred to me.

This is the “where the Fellows come from” post – i.e. which law schools.  I’ll follow up at some point soon with a “where the Fellows go to” post – i.e. their placements, by location and type of placement organization.  But again, the fellowship website is informative and worth a look…

Where they come from (the basics and the details and a quick analysis)…

The Basics

  • Class of 2012: 28 Fellows from 16 law schools
  • Class of 2013: 29 Fellows from 16 law schools
  • Class of 2014: 28 Fellows from 16 law schools
  • Class of 2015: 28 Fellows from 16 law schools
  • Class of 2016: 27 Fellows from 14 law schools

Hello, consistency.  But the picture fragments a little bit upon a closer look…

The Details

Skadden-Fellow-School-Breakdown-2012-2016 (PDF link).

Skadden Fellows by Law School – 2012-2016
2016 2015 2014 2013 2012
Harvard 5 6 6 6 6
Yale 4 4 7 3 2
U. Michigan 4 1
U. Pennsylvania 1 3 1 1 2
Stanford 3 2 2 3
Georgetown 1 1 1 2 1
Columbia 2 1 1 2 2
NYU 1 2 1 4 2
UCLA 1 2 1 1
U. Chicago 1 1 1 1
Michigan State 1 1
U. Washington 1
Boston College 1
UC Irvine 1 1
Washington & Lee 1
Vanderbilt 1 1 1
U. Illinois 1
Berkeley 1 2
CUNY 1
Rutgers- Camden 1
DePaul 1 1
U. Maryland 1
U. Miami 1
Duke 1
U. Virginia 1
Tulane 1
U. Denver 1
John Marshall (IL) 1
Northeastern 1 1
Chicago-Kent 1
Villanova 1
Loyola Los Angeles 1
American 1 1
Suffolk 1
U. Connecticut
Washington U. (St. Louis) 1

The Analysis

My analysis in seven words:  Whither the bottom half of Tier One?  “Tier One” is language connected to the infamous US News & World Report law school rankings.  The Tier One schools are those ranked 1-50.  Tier One’s bottom half – ranked 25-50 – is highly competitive but far from Ivy.  In the Skadden Fellowship Class of 2015 exactly one school ranked between 25-50 (by current USNWR rankings) graduated a Skadden Fellow: UC Irvine.  In the Class of 2016 no schools in the bottom half of Tier One are graduating a Skadden Fellow.

I wonder if a “diamond in the rough” phenomenon exists.  Obviously the super-elite law schools are going to produce Skadden Fellows.  But what ab0ut the Fellows who don’t come from, say, Top-25 schools?

The lower Tier One schools (25-50) are academically rigorous and draw high achievers.  I bet they have bunches of students who could be viable Skadden Fellowship candidates.  Lower-ranked schools, by contrast, may have that one Skadden candidate who immediately stands out from her peers.  An all-star.  A diamond.  So I wonder, with what I grant is some conjecture, but based on numbers and experience and instinct: how many Skadden Fellows could be found at schools living in that 25-50 echelon?

Fee-for-service Online Education for Self-Represented Litigants (in Canada)

Canada_flag_map.svgI’m surprised more of this hasn’t emerged already in both the US and Canada: pay a fee, get an online tutorial on how to represent yourself in a particular legal case/forum/process.  From Canadian Lawyer:

“Human rights lawyer Amer Mushtaq is trying to streamline access to justice for self-representing litigants going through the Ontario small claims court system with an online course he has developed.

Individuals hoping to represent themselves in a dispute — whether they are filing or responding to a claim — can take the $199 online course prior to filing or attending trial in order to understand the complex process. The video guide is broken up into steps with PowerPoint slideshow presentation addressing key issues self-representing litigants tend to face.

After looking deeper into the issue last year, Mushtaq was surprised to learn that very little help was available online for the average individual.

‘I found really nothing. There is some information from the Ministry of Attorney General, which gives you some guidance about what to do in small claims court, but nothing concrete,’ he says.”

***

There is, in fact, support already in place for…Ontario-ites? Ontarians?…people from Ontario, and Canadians elsewhere.  The National Self-Represented Litigants Project focuses squarely on easing access-to-justice for SRLs, and maintains a fairly robust resource library.  Nonetheless, I’d figured it was a matter of time before this large market for SRL support got more commoditized, especially if the offerings are very particular in terms of court, case type, and jurisdiction.

The “Civil Justice Gap” and Middle-Income Folks

Don't Mess. (credit: Wikimedia Commons)
Don’t Mess. (credit: Wikimedia Commons)

In the Great Recession’s wake, as the entire legal industry has been compelled to re-evaluate how and how much it charges for lawyers, a great deal of attention has gone to potential clients who are “moderate” or “modest” (or sometimes the more familiar “middle”) income.  These folks live above the poverty line and don’t financially qualify for civil legal aid, but they still don’t have the kind of disposable income or savings to afford lawyers at their regular rates.

With the above as backdrop, I’m interested for two reasons in the Texas Supreme Court’s creation of the Texas Commission to Expand Legal Services, which is “charged to explore means to bring more affordable legal services to small businesses and people who cannot qualify for legal aid [because they are over income-eligibility guidelines].” That language comes from a Texas Supreme Court announcement entitled “Court Establishes ‘Justice Gap’ Commission To Find Ways to Expand Civil Legal Services.”  (Emphasis mine)

Texas Tribune coverage of the commission launch begins, “A large number of Texans — mostly middle class — fall into a “justice gap” where they aren’t poor enough to receive free legal aid provided to indigents but can’t afford basic legal services on their own….” (Emphasis mine)

Two Thoughts:

First, I’m not surprised that the Texas Supreme Court is tackling a hugely important question about how middle-income folks can (or can’t) participate in the marketplace for legal services.  This particular marketplace is not the same as the ones for cars or electronics or heavy appliances.  Access to quality legal help keeps families out of poverty, in employment, and clear of crippling legal jeopardy.  As the Supreme Court has shown with the already-established Texas Access to Justice Commission (which focuses on the poorer legal aid client population), it does not simply throw commissions at problems.  These commissions identify and implement meaningful solutions.  So, once again, big props to Chief Justice Hecht and his Supreme Court colleagues for their action and leadership in opening wider the justice system’s gates.

Second, while it’s good to open gates, it may not be good to open gaps.  I notice here a broadening of how “justice gap” is used (and not coincidentally a broadening of the gap itself).  The term “civil justice gap,” has long been employed to highlight the reality that the poorest and most vulnerable persons have tremendous difficulty accessing legal services.  For instance:

But as we’re focusing more on the legal-access plight of moderate/middle-income folks, are we going to, without realizing, expand the “justice gap’s” width and effectively conflate the low- and middle-income populations?  (The language noted above out of Texas isn’t the first I’ve seen in which the middle class is tossed into the justice gap.)  Our efforts to help both of these cohorts are well-intended and important.  And they both experience legal-access barriers.  So, am I just being pedantic?

I don’t think I am.  The “justice gap” concept has served a purpose in advocating for the poorest among us.  It allows us to better identify, define, and understand an amorphous segment of the population that faces significant, some times insurmountable, barriers to accessing the legal marketplace.  The kinds and degrees of those barriers will vary depending on whom we focus on as part of this segment.  And while lines certainly blur on the socio-economic spectrum, I believe it’s important to separate the poorest and most vulnerable (“low-income” is my shorthand here) from the middle income.

Low-income people are living in or just barely above a state of poverty.  The barriers they face in getting meaningful legal help will be different, often in kind and always in degree, from what middle-income folks will face.  The solutions we tailor should be different based on the differences in barriers.  Thus we should observe some separation of the low-income and middle-income populations at all stages in the process: identifying the populations, identifying the barriers they face, and knocking down those barriers.

Also, if the “justice gap” metaphor is ever used in reference only to middle-income folks, it necessarily will imply that low-income folks haven’t fallen into a gap at all – they are able to get legal help because, after all, they are eligible for free legal aid.  Imagine the irony of attention shifting away from the plight of low-income client populations because of the re-purposing of a term created to highlight the plight of low-income client populations.

Equal Justice Journal – October 5, 2015

Happy Monday, Access to Justice Enthusiasts!  Yesterday NPR played in the background while I searched online for help diagnosing a problem with my Subaru.  Hooray, I am a stereotype!  I was also fortunate to hear a Marketplace Weekend story, “Behind New York’s Right to Shelter Policy,” which recounted a late 1970s pro bono case brought by a young Big Law lawyer.  The case, Callahan v. Carey, resulted not just in establishing a legal right to shelter, but to improvements in the NYC shelter system.  Worth a listen.

The ATJ and legal aid news in very, very short:

  • Montana Legal Services Assoc. gets its own beer as a 50th b-day gift
  • Cash-strapped CT legal aid programs prop up their state-support arm
  • N. Carolina ATJ Commissioner calls for state legal aid funding boost
  • Alabama State Bar president calls for more legal aid funding, too
  • in GA, poor legal aid funding widens a literal justice gap: rural/urban
  • DC’s high court offers support for the fee-shifting “Laffey Matrix”
  • praise for the Pro Bono Institute in boosting corporate counsel pro bono
  • check-in on WA’s Limited License Legal Technician (LLLT) program
  • Pres. Obama creates Legal Aid Interagency Roundtable (LAIR)
  • TX high court hears case on qualifying for in forma pauperis fee waivers
  • Annual statewide report shows modest pro bono growth in TN
  • LSC announces 15 Pro Bono Innovation Fund grant awardees
  • FL ATJ Commission experiments with tech solutions to boost ATJ

The summaries:

  • 10.4.15 – To celebrate its 50th anniversary, [Montana Legal Services Association] partnered with the Crowley Fleck law firm and Blackfoot River Brewing to brew a beer with a portion of proceeds going to MLSA. This is the fourth beer brewed as part of Blackfoot’s community partnership program, and in September MLSA and Crowley Fleck attorney Dan McLean helped brew the German style alt lager.  (Helena Independent Record)
  • 10.2.15 – the Connecticut Law Tribune on the Nutmeg State’s legal aid funding picture.  The statewide legal-aid support office, the Legal Assistance Resource Center, was due to shut down for lack of funding.  It’s gotten a temporary reprieve, yet 4 of its 7 staffers were just laid off.  The state’s 3 legal aid direct-service providers are still reeling in the Great Recession’s wake.  A law passed “to raise court fees, with the extra revenues targeted for legal aid” has not met expectations.   The higher fees had been projected to raise $6.4 million in the first half of 2015, but they actually raised about $5.5 million.”
  • 10.1.15 – North Carolina’s Equal Access to Justice Commission member Kirk Warner argues that “The recently adopted state budget does not restore the over $2.7 million in legal aid state funding lost since 2008….  Legal aid is not only cost-effective, it also preserves the basic human needs of North Carolina’s most at-risk citizens – children, seniors, disabled veterans and our poor. Resources are at the heart of access to justice, and we need to make funding for legal aid a priority.”  (The News & Observer)

    • Related: a 9/29 Winston-Salem Journal article, “Legal Aid struggling with cuts to budget,” covers significant layoffs at Legal Aid of North Carolina due to state/federal funding losses, and notes that state funding for NC’s civil legal aid community has fallen fro $5.8m to $2.8m since 2008.  (Winston-Salem Journal)
  • 10.1.15 – Alabama State Bar president Lee H. Copeland emphasizes not just pro bono work but legal aid funding: “Nearly 900,000 Alabamians live in poverty and the child poverty rate is a staggering 27 percent.  One in four low-income people in Alabama experienced a civil legal problem last year….  A recent study conducted by Community Services Analysis LLC found that for every dollar invested in civil legal aid in Alabama, the state receives more than $8 in short- and long-term economic impact.”  And there are only 60 civil legal aid lawyers in Alabama.  So there sure is investment to do.
  • 9.30.15 – in the Atlanta Journal-Constitution, Georgia Legal Services Program director Phyllis Holmen highlights “the importance of civil legal aid in the fight against poverty. A quarter of Georgia’s population is eligible for legal assistance, yet lawyers outside Atlanta are scarce, as 70 percent work [there]. This gap makes funding legal aid critical to rural Georgians’ ability to seek justice….  [Yet federal] funding has failed to keep up with inflation even as poverty grows. Since it was first funded by Congress in 1976, funding for legal aid through Legal Services has been cut by more than half.”
  • 9.28.15 – legal-fee awards, granted when a party wins a case in which the winning side is entitled to payment of reasonable fees by the losing side, are important legal-aid revenue streams.  Good news out of DC, where the District’s local high court looked favorably on the prevailing federal fee-shifting standard – the so-called Laffey Matrix – governing how legal fees are awarded to legal aid providers in federal litigation.  This decision of course has direct value as precedent only in DC-based litigation, but it’s still good to have some additional judicial support.  (Blog post from Legal Aid Society of DC)
  • 9.28.15 – a Metropolitan Corporate Counsel opinion piece triumphs the rise in pro bono performed by corporate legal departments, and includes high-level praise for Pro Bono Institute founder Esther Lardent’s role in making pro bono an important part of in-house and law firm practices.
  • 9.27.15 – the Associated Press checks in on Washington State’s Limited License Legal Technician program.  The article notes that the LLLT program could have huge upside for low- and middle-income clients unable to afford lawyers, but also highlights LLLT’s slowness out of the gates.  There are only three LLLTs now, and the requirements for paralegals to achieve LLLT status under present rules are burdensome.  Nonetheless other states have moved to create similar programs.  Here’s more detail.
  • 9.24.15 – President Obama formally established, via memorandum, the White House Legal Aid Interagency Roundtable (LAIR).  LAIR had functioned as a joint DOJ/White House project for a few years, but the Obama action gives LAIR more institutional grounding and specific policy direction.  Generally, LAIR’s mission involves 1) promoting best practices in how federal agencies work with/through civil legal aid providers to achieve federal anti-poverty goals, and 2) allowing the myriad federal agencies which do anti-poverty work to talk to one another about legal aid’s role.  More details here on what LAIR will look like going forward.
    • ATJ blogger Richard Zorza sees this LAIR action, along with a recent Conference of Chief Justices (or “CCJ”, which comprises the top judges in the states) resolution supporting civil ATJ, as two big pieces “in the national Mosaic of vision, leadership and coordination” on ATJ work.
  • 9.23.15 – “When and how local clerks can make poor plaintiffs pay court fees to get divorced will be argued [ed. note: the case has now been argued] before the Texas Supreme Court with both sides hoping the justices provide clarity on the contentious issue.  Six plaintiffs [had sued a] local district court clerk for charging them court fees even after they filed affidavits of their indigent status — also known as “pauper petitions” — when they filed for divorce. But the clerk says final divorce decrees require that each party pay its share of the court costs.”  (Texas Tribune)
  • 9.22.15 – “[A report] by the Tennessee Supreme Court’s Access to Justice Commission shows that the number of hours of pro bono service volunteered by attorneys in Tennessee went up by nearly 3,000 hours in the last reporting year.  Although fewer attorneys reported performing pro bono work, those that did reported an average of more than 78 hours in one year, an increase of nearly 6 percent.  Forty-one percent of the 17,980 Tennessee attorneys reported participating in pro bono activity….  The report relies on data collected in 2014 for work done in 2013.”  (Associated Press. Here’s the actual pro bono report.)
  • 9.18.15 – “The Legal Services Corporation announced today that 15 legal aid organizations will receive grants to support innovations in pro bono legal services for low-income clients.  Many of the projects will use technology to connect low-income populations to resources and services, while others aim to increase efficiency and effectiveness through partnerships with law schools, community organizations, and in-house corporate attorneys.”  (LSC media release)
    • I confess that one project stirred my Irony Meter.  Legal Services NYC got a grant “to address student debt issues for low-income individuals.”  This is a worthy project and a smart use of funds.  But one wonders how many lawyers offering advice to student-debt-ridden clients won’t also be taking it.
  • 9.15.15 – a look at the Florida Commission on Access to Civil Justice’s work on using technology to improve ATJ.  The Commission is either exploring or launching: “a database of programs across the state and the country that provide better access to the courts”, “a statewide web-based lawyer referral service that would help match attorneys with clients”, a kiosk system through which people may access court forms/info and perhaps video-conference with judges, and an “eBay-inspired automation system, which would help people draft wills and fill out divorce and other forms that don’t necessarily require an attorney.”  (Daily Business Review)

Music!  Some cat named Hozier has been all the music-industry rage of late.  I don’t know his music well, but a song like “Someone New” justifies the raging.

Legal Aid Memory Lane: How New York’s “Right to Shelter” Policy Came to Be

A nice, brief story on the public radio program “Marketplace Weekend” about a Big Law lawyer500px-I_Love_New_York.svg who made big change via a late-1970s pro bono case:

“As New Yorkers face rising rents and stagnant wages, the city has seen a spike in homelessness. Around 60,000 New Yorkers currently live in municipal shelters. They are guaranteed a “Right to Shelter” that stems from an unprecedented 35-year-old lawsuit.

In 1979, Robert Hayes, a 26-year-old newly minted securities and anti-trust litigator with the white-shoe firm of Sullivan & Cromwell brought a class-action lawsuit on behalf of homeless New Yorkers. Hayes was a lawyer who had retained a habit from his days as a young journalist: He chatted with people he met on the street…

In December 1979, with winter looming, a judge found for Hayes and ordered the city to make shelters available. To Hayes, it was a win with an asterisk. He knew that many of the city shelters were crowded, dirty and violent. He went back to court, calling witnesses who could testify to the inhumane conditions of the city shelters. The testimony of a young Catholic worker named David Beseda was so powerful, Hayes and Hopper remembered, that once the judge had heard it, they were certain the case had been won.

“That afternoon, the city freaked out and came to the bargaining table, and we started negotiating a consent decree,” Hayes said.

The win affirmed the Right to Shelter. The decree came too late for the plaintiff, Robert Callahan. His died sleeping on the streets in lower Manhattan before it was signed. His death, said Hayes, was attributed to natural causes.

Hayes went on to co-found the Coalition for the Homeless with Hopper and Ellen Baxter. He knows Callahan v. Carey was a big win, but said he also felt a sense of failure. Youthful optimism had convinced him he’d see the end of homelessness, but he said the 60,000 New Yorkers currently living in shelters prove he came up short.

 

Washington State’s Unique Non-lawyer Practice Initiative: Licensing Requirements too Burdensome?

The Associated Press checks in on Washington State’s Limited License Legal Technician program.  The article notes that the LLLT program could have huge upside for low- and middle-income clients unable to afford lawyers, but also highlights LLLT’s slowness out of the gates.  The AP reports that  there is now only one licensed LLLT.  This info could be dated as the WA State Bar lists three LLLTs – an increase yet not a deluge.  And importantly, the requirements for paralegals to achieve LLLT status under present rules are burdensome:

The legal techs must complete 3,000 hours of work as a paralegal, 45 hours of core curriculum through an American Bar Association-approved legal program, and a family law course offered through the University of Washington Law School. The standards are so stringent in part because many lawyers in the state long opposed the creation of the legal tech program, fearing it would create second-class legal advice for poorer residents.

 

This is an interesting dilemma for non-lawyer practice proponents: in order to make the LLLT program more palatable to its opponents, has it been made too burdensome to attract paralegals who would otherwise seek LLLT status?  The medical community, via nurse practitioners and physician assistants, seems to have more finely stratified the professional ranks.  May anything be learned from the evolution of those models?  I don’t know the detailed history but I’d bet dollars to donuts that at some point there were a lot of physicians opposed to the movement.

Further reading: The Washington State Bar Association (WSBA) has detailed info on how LLLT works.  LLLT came about as the product of a Washington Supreme Court practice rule, and the Court then “appointed a 13-member Limited License Legal Technician Board to develop and administer the license program with administrative support from the WSBA.”

As for non-lawyer practice activity outside of the Evergreen State, the AP article reports that at least seven other states – CA, CO, FL, MN, NM, OR, and UT – have “taken steps toward launching similar programs.”  The article didn’t capture activity in NY, the momentum for which began with a 2013 NYC Bar report advocating for limited nonlawyer practice.  Richard Zorza has tracked more recent, state-level activity to legislatively advance the initiative.