I look forward to this annual offering from Lake Superior State University. From LSSU’s media release: “The tradition created by the late W. T. Rabe, former public relations director at Lake Superior State University, is now in its fifth decade. Compilers hope this year’s list will be so popular that it will break the Internet. ‘Overused words and phrases are ‘problematic’ for thousands of Queen’s English ‘stakeholders,’” said an LSSU spokesperson while ‘vaping’ an e-cigarette during a ‘presser.’ Once something is banished, there’s no ‘walking it back;’ that’s our ‘secret sauce,’ and there’s no ‘price point’ for that’.”
Here’s the 2016 list, including such insults the English language as, “stakeholder” (I’ve used it), “vape” (“vaping” has always struck me as a 1990s trend that was 20 years late in the arriving; it’s easy for me to envision flannel-clad folk vaping at Internet Cafes with that Marcy Playground song on in the background), and “price point” (this one’s been wearing out it’s welcome for at least 5 years; happy to see it go).
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)
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.
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
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)
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.
“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 theCoalition 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.
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.
Key points, both in terms of the policy goals which drove LAIR’s creation, and how LAIR is to function:
POLICY: “Equal access to justice helps individuals and families receive health services, housing, education, and employment; enhances family stability and public safety; and secures the public’s faith in the American justice system. Equal access to justice also advances the missions of an array of Federal programs, particularly those designed to lift Americans out of poverty or to keep them securely in the middle class.”
POLICY: “By encouraging Federal departments and agencies to collaborate, share best practices, and consider the impact of legal services on the success of their programs, the Federal Government can enhance access to justice in our communities.” This is an important point. Between the programmatic work that federal entities perform on anti-poverty efforts, and the grant funds they distribute to non-government entities, the federal government – as a whole – is a key anti-poverty actor. The devil is in the words “as a whole.” Different federal entities don’t always succeed in coordinating their efforts. So LAIR, as a communication conduit, can improve efficiency while keeping focused on legal aid’s role.
FUNCTION: “The Attorney General and the Director of the Domestic Policy Council, or their designees, shall serve as the Co-Chairs of LAIR.” In addition to DOJ, 18 other federal agencies/entities will appoint a LAIR representative. On top of that, LAIR “shall invite the participation” of the Legal Services Corporation and some other federal entities.
FUNCTION: The DOJ’s Access to Justice Initiative will staff LAIR. Indeed LAIR had started as a DOJ/ATJ and White House collaboration in the first place, and in April 2014 LAIR rolled out an online Toolkit which “identif[ies] for both legal service providers and Federal agencies the program areas where [legal aid’s] work can add the most value, including by listing examples from across the Federal Government of grants and activities that engage civil legal aid.”
FUNCTION: LAIR’s specific mission charges are in Section 4 of the Memorandum. They include “advanc[ing] relevant evidence-based research, data collection, and analysis of civil legal aid and indigent defense.” This of course doesn’t say the feds will fund research, but one can hope that with the scale/scope of envisioned federal LAIR involvement, some of the federal entities with research expertise could play a role furthering efforts to identify the most effective ways to use legal aid and other ATJ tools to achieve broader-based access to civil justice.
Greetings and Happy Monday, ATJ Enthusiasts! I’d been posting these digests every other Monday, but I’m returning to a weekly schedule to keep their length more manageable. They were turning into tomes, and I feel strongly about keeping your Mondays tome-free. I care about you.
This is something of a Gulf States Edition, with a handful of offerings from Florida, Louisiana, and Texas. Two items for your consideration, then the ATJ news:
8.8.15 – “FOR decades, policy makers have treated poverty as a sign of helplessness and ineptitude. The worse off the neighborhood — the higher the rate of poverty, crime, and juvenile delinquency — the less influence it would have over its future. Social service agencies conducted ‘needs assessments’ rather than asking residents what would strengthen their community…. To improve poor neighborhoods, the people who live there must have a hand in deciding their own fate. That approach works well in Houston…” Continue reading this New York Times op-ed to learn about Neighborhood Centers.
8.4.15 – “About 50,000 vets are homeless in America. In 2009, then-Veterans Affairs Secretary Eric Shinseki declared that all of them would have housing by this year. At the time, even inside the VA that goal was considered aspirational at best. But last year, cities across the country said it was looking achievable. New Orleans was the first to declare, in January, that the city had done it. (Jump to the bottom to see how your state stacks up.)” (NPR Morning Edition)
Okay, the ATJ news in very, very short:
Specialty license plates as a legal aid fundraiser(?)
Loyola Law (NOLA) incubator to make big expansion
Pro Bono Institute highlights reports on legal aid’s economic benefits
In DE, new legal aid director prefers “health law” firm branding over “poverty law”
ABA rejects proposal to allow pay for law student externships
LSC president Jim Sandman interview with Bloomberg
U.S. Congressman Kennedy visits MA legal aid, offers thoughts on justice gap
ABA’s Dialogue magazine looks at legal-aid leadership transition, funding in AR, etc.
Woody Guthrie music!
8.7.15 – as Florida’s legal community debates whether bar dues should be upped in order to fund civil legal aid, here’s a…novel…proposal from Florida Bar member who opposes a dues hike: “My proposal is that the Bar apply for a specialty license plate with annual proceeds of $25 per tag going to a legal-access fund…. There are more than 18 million registered vehicles in the state of Florida…. Lawyers could buy the tag if they wished, and no doubt many would. But so could millions of nonlawyers.” (Orlando Sentinel op-ed)
8.7.15 – in NOLA, Loyola Law’s practice-incubator program got a ~$120,000 cash infusion: “With the generous support of the Womacs’ gift, the Incubator Program will now run as a two-year experience for program attorneys. The Womacs’ gift extends the length of the program, provides the stipends to program attorneys for their pro bono work, and supports the two year Incubator Program for the next three years.” (Loyola media release)
8.3.15 – in Delaware, Community Legal Aid Society’s new exec. director, Daniel Atkins, is hoping that some re-branding will pay funding dividends: “[H]e plans to look for more funding options, such as civil filing fee add-ons or leftover money in class action suits…. Atkins hopes to find alternative partnerships and funding sources by reframing the work CLASI does. Instead of considering itself a poverty law firm, it will start to consider itself a health law firm. This is because many of the issues the firm addresses, such as domestic violence and homelessness, impact people’s health.” [Emphasis mine] (Delaware Online/The News Journal)
8.3.15 – “Law students won’t be allowed to receive both pay and academic credit for externships this year after all. The [ABA’s] Council of the Section of Legal Education and Admissions to the Bar on Friday declined to eliminate its ban on such arrangements, citing vociferous opposition from clinical law professors.” A lot of voices were heard during the debate. Equal Justice Works, for instance, supported lifting the ban, as did the ABA’s Law Student Division. The Clinical Legal Education Association, however, strongly opposed making the change. (National Law Journal)
7.31.15 – LSC President Jim Sandman was interviewed by Bloomberg last month. Sandman cited inadequate legal aid funding as the main problem in trying to narrow the justice gap. Also: ” We need more and better [DIY] resources, particularly online. We need to relax regulatory barriers that impede competent paraprofessionals in assisting people who can’t afford counsel. We need to simplify the legal system to make it more user-friendly for people who don’t have counsel. The system is far more complicated than it needs to be, especially in areas of law affecting the necessities of life for people who can’t afford a lawyer.” (Bloomberg BNA)
7.28.15 – forgot to put this one in last week’s edition: U.S. Rep. Joseph Kennedy III, whose been a strong voice in support of civil ATJ, visited a Massachusetts civil legal aid office. He identified two causes of the civil justice gap: “drastically cut” LSC funding and laws that seem great on the legislative drafting block not working well for vulnerable people in those laws’ actual implementation.” (Taunton Gazette)
Music! A few years ago Woody Guthrie’s daughter reopened his archives in Okemah, Oklahoma, allowing in a handful of songwriters to dig up old, unpublished Guthrie material and bring it to life. Four fellows – Jay Farrar of the band Son Volt, Jim James of My Morning Jacket, Will Johnson of Centro-matic, and Anders Parker of Varnaline – formed a sort of ad hoc band called New Multitudes. They released an album, the songs of which contain Guthrie lyrics that the New Multitudes folks put to music. Here’s a Farrar offering, “Careless Reckless Love.”