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A New Era for Civil Legal Aid

Although there is no constitutional right to a lawyer in civil cases, the consequences of not being represented in a child custody dispute or when health benefits are being denied can be enormous, plunging people who are already economically vulnerable further into poverty. That’s why the Legal Services Corporation (LSC) was created in 1974 – mainly to provide legal help so that low-income people could have a better chance against some of the everyday obstacles that often prevent them from moving up the economic ladder.

Now, 40 years later, the civil legal aid movement has made great strides, but it continues to face enormous challenges.

“Every day across America, victims of domestic violence seeking protection, veterans trying to avoid homelessness, and consumers facing wrongful evictions or foreclosures are forced to navigate the legal system alone because they can’t afford a lawyer,” said LSC President James Sandman in observing the 40th anniversary. “LSC’s funding of high-quality legal services for low-income people helps assure fairness in our legal system, and it’s never been more needed, or more important, than it is today.”

State and national studies show that more than 63 million Americans qualify for LSC-funded civil legal assistance, yet about 80 percent of the serious legal needs of low-income Americans go unmet.

While LSC is the nation’s largest single provider of legal aid services, it has had to cope with significant decreases in funding. In fact, federal dollars for LSC are down by 16 percent since 2011. Another major source of funds is the state-based Interest on Lawyers Trust Accounts (IOLTA). But money generated by these accounts to provide legal aid grants decreased by a staggering 62 percent from a peak in 2008 to 2012 – with no likelihood, at least not anytime soon, of higher interest rates that would make more IOLTA funds available.

As a result of this funding crisis, civil legal aid advocates have been actively seeking new and better ways to deliver services, using technology and other innovations.

“Forty years ago, the model was assumed to be providing everyone with a lawyer who didn’t have a lawyer,” Sandman recently told The National Law Journal. “As people have realized that we don’t have the resources to do that, the model has evolved to the point where…there are now a variety of additional ways to provide assistance to people who would otherwise get no assistance at all.”

Since 2011, the Public Welfare Foundation has supported a special initiative on civil legal aid, investing a total of nearly $4 million to date. The Kresge Foundation has partnered with Public Welfare on several grants, and both foundations have tried to spur broader philanthropic investment in civil legal aid.

Among the most important pieces of the civil legal aid infrastructure are state-based Access to Justice Commissions, which bring together many stakeholders, including the bar, courts, legal aid providers, law schools, and other justice system participants, as well as new partners in health care, business and other fields. The most effective commissions have been able to mobilize creative and energetic leaders who have credibility and connections within the legal community and beyond in order to raise the visibility of access-to-justice issues, develop approaches to address them, and successfully implement their plans.

With help from Public Welfare and Kresge, the total number of active commissions increased from 26 in early 2012 to 34 as of August, 2014 – with at least two more coming on board by the end of 2014. Commissions have also undertaken innovative models that have been funded in 14 states.

Several such states have been able to reach out to more people with civil legal aid issues through creative online programs. For example, North Carolina’s ATJ commission recently launched a website with state-specific legal resources and referral information that helps link veterans – a vulnerable population that often needs help obtaining benefits – to pro bono attorneys who specialize in representing them.

Other ATJ commissions are reaching out to form new partnerships with health care providers, social workers and others who can help address the broader needs of clients. Maine’s commission has launched a coalition that includes legal aid providers, libraries and pro bono attorneys. So far, a network of 60 libraries has become the point of access for legal assistance and information. At “Lawyers in Libraries” events held on Law Day in both 2013 and 2014, approximately 800 clients were able to consult with pro bono attorneys.

In recent years, the thoughtful attention of top judges has elevated the importance of ATJ commissions and, more broadly, access to justice issues. Eric Washington, chief judge of the District of Columbia Court of Appeals and a past president of the Conference of Chief Justices of the U.S., has been a tireless advocate for adequate funding of civil legal aid, which has helped the District’s ATJ commission provide attorneys to more clients in landlord-tenant disputes and in child support cases. Similarly, the Texas Supreme Court, led by Chief Justice Nathan Hecht, has made it clear to the State Legislature that legal aid funding is equally important as direct funding for the courts.

As Chief Justice Hecht has written, “The result 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.”

Because many people faced with civil legal cases have no hope of being able to afford a lawyer, one new model that could help bridge the gap enables greater assistance from individuals without a law degree.

In 2012, the Washington State Supreme Court approved the Limited License Legal Technician program, which will allow people without law degrees who meet certain educational requirements to advise and assist clients in approved practice areas of law. The program will begin taking applicants in 2015 for the first approved practice area, which is family law.

Earlier this year, New York’s Chief Judge Jonathan Lippman, a prominent leader on access to justice issues, announced a new “Court Navigator” program to use specially trained and supervised advocates to provide information and to help unrepresented litigants complete necessary forms required in Housing Court cases in Brooklyn and consumer debt cases in the Bronx and Brooklyn. Most significantly, the Navigators are able to accompany unrepresented litigants into the courtroom. And, while they cannot address the court on their own, they can respond if the judge asks them specific, factual questions.

These two innovative models will be evaluated – and the findings will be shared broadly – under a new, joint project of the American Bar Foundation and the National Center for State Courts, funded by Public Welfare.

Clearly, a key component of expanding effective model programs is to share information nationwide – to the legal aid community, to consumers of legal aid, and to the public at large. To that end, four foundations to date – Public Welfare, Kresge, JPB and Ford – have pooled resources in support of a newly launched communications hub, called Voices for Civil Justice.

A national public opinion study of civil legal aid conducted in 2013 found broad support for the basic principle that all Americans should have access to legal representation or help in civil matters, regardless of financial status. But the study also showed that civil legal aid is largely invisible to the public.

Martha Bergmark, a longtime leader in the field, heads the hub, which aims to make the public more aware of important civil legal aid developments across the country. It is training spokespersons and seeks to generate media attention. For example, a recent column in The New York Times examined partnerships between health professionals and civil legal aid lawyers that tackle the health consequences, such as childhood asthma, of legal violations by landlords who don’t want to provide proper services, like air conditioning, to their low-income tenants.  

Mary McClymont, president of the Public Welfare Foundation, spoke to the need for the hub: “Although civil legal aid touches at the core of many Americans’ basic existence, too many people are simply unaware of its connection to a neighbor’s foreclosure or child custody fight as well as broader issues such as education reform or community development. That’s why we want this communications hub to help elevate civil legal aid and underscore its importance to the public.”

The more broadly information can be circulated about civil legal aid, the better its value can be understood. In turn, the more public and private funding that can be generated, the more likely that the gap between supply and demand can be eliminated.

ABOUT THE PUBLIC WELFARE FOUNDATION

The Public Welfare Foundation supports efforts to advance justice and opportunity for people in need. These efforts honor the Foundation’s core values of racial equity, economic well-being, and fundamental fairness for all. The Foundation looks for strategic points where its funds can make a significant difference and improve lives through policy change and system reform. For more information, visit www.publicwelfare.org. Follow the Foundation on Twitter or on Facebook.

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