Too Many Lawyers? Not for the Poor
If you are charged with a serious criminal offense and you are poor, the U.S. Supreme Court has ruled that you are entitled to have a lawyer. But if you are losing your home due to foreclosure, or waging a child custody battle, you are likely to have to fend for yourself.
Although having a lawyer in these civil cases has not been recognized as a Constitutional right, the need for legal representation has long been considered vitally important. It is especially important for people at or near the poverty line ($23,050 a year in 2012 for a family of four) who cannot afford a lawyer and whose basic survival depends on being able to stay in a home, keep custody of a child, secure their Medicaid or food stamps or protect themselves against domestic violence and abuse.
Without legal help, even relatively minor disputes can escalate into dire situations, tearing families apart or sending them further into poverty.
That’s why the Legal Services Corporation (LSC) was created by Congress in 1974. LSC is the single largest funder of civil legal aid and operates as an independent nonprofit corporation that promotes equal access to justice. It provides support for legal aid lawyers in 135 offices to give high-quality assistance to low-income Americans. These individuals represent the diversity of America – by race, ethnicity, gender, age, as well as rural and urban locations.
As documented on its website www.lsc.gov, LSC helps people like “Jonathan”, who was concerned about black mold growing underneath the ceiling tiles and carpet of his rented mobile home in Maryland. He contacted the Lower Shore Office of the Maryland Legal Aid Bureau when the mold started to affect the breathing of his young, asthmatic son, causing Jonathan to send his son temporarily to the home of a relative while he tried to convince the landlord to address the situation.
When the landlord refused, a staff attorney and a paralegal with the Maryland Legal Aid Bureau conducted an investigation and found that the mobile home was improperly insulated, causing excess condensation inside. They took the landlord to court, seeking a 50 percent reduction in Jonathan’s $100-a-week rent.
The judge went even further, ordering a 100 percent reduction in rent until the home was certified mold-free by a testing lab and reducing the amount Jonathan had to repay the landlord for rent withheld while the case was pending.
In another case, “Debra” was raising four children aged five to nine by herself when her estranged husband, who had a history of abusive behavior, charged her with abusing the children. Despite his false allegations, he obtained a protection order against Debra and an order granting him temporary custody of the children.
A day before the court hearing, Debra contacted Southern Minnesota Regional Legal Services (SMRLS). One of the attorneys was able to get documentary evidence from a domestic abuse shelter disproving the allegations. The judge found the evidence persuasive, dismissed the protection order and returned Debra’s children to her.
Imagine if Jonathan and Debra had not been able to obtain help from legal services attorneys, while Jonathan’s landlord and Debra’s estranged husband had been represented. That is a growing concern as the gap between the need for legal help in civil cases and the availability of lawyers has grown enormously.
The number of people in poverty has increased to 46.2 million in recent years, yet since 2011, federal funding for LSC has decreased by 17 percent. Since at least 2005, LSC reports that for every client who receives service, one eligible applicant is turned away for lack of adequate resources.
Many other civil legal aid offices exist that do not even have access to federal funding and must rely on private or state and local sources that are also dwindling. Indeed, the state-based legal aid funding known as IOLTA, which uses the interest on lawyers’ trust accounts to provide civil legal help to low-income people, has seen that interest income decline, as of 2011, by about 75 percent since its high point in 2007. It has seen grants for legal services decline by 51 percent during that period.
Little wonder that studies have found that less than 20 percent of legal problems faced by the poor were addressed with the help of a private lawyer or legal aid staff attorney. That should cause grave concern in a country that prides itself on equal access to justice.
But while the availability of civil legal services is far from adequate, this is a time of opportunity as technology and other innovations are leading to some new solutions to increase access to justice for the poor. In some jurisdictions, streamlined court procedures, simpler forms, online help like TurboTax or self-help centers are allowing more people to represent themselves. And volunteer assistance is more readily available.
There are also prominent new allies for legal aid. For example, more than two dozen states and the District of Columbia have created Access to Justice Commissions. These commissions are developing strategic plans for statewide legal services delivery systems; expanding access to the courts for those who cannot afford an attorney; identifying and assessing current and future civil legal needs of low-income people; and trying to increase financial resources available for civil legal services as well as ensure efficient use of existing resources.
The Public Welfare Foundation is supporting such efforts through a special time-limited initiative. To date, the grant recipients are:
- American Bar Association Fund for Justice and Education to expand the number and the programmatic focus of Access to Justice Commissions and help them share best practices and innovations in different states;
- National Center on State Courts, to help strengthen the role of state judges and courts in expanding access to civil legal services for low-income people;
- Legal Services Corporation to strengthen its data collection and reporting system;
- National Legal Aid and Defender Association to help civil legal aid offices find new resources and to identify and promote innovative service models to increase access to civil legal services for the poor;
- National Center for Access to Justice and Equal Justice Works to promote more pro bono assistance among law students and the Pro Bono Institute to develop assessment tools for use in pro bono work;
- Public Justice Center to house the National Right to Counsel Coalition to advance access to legal counsel.
“At a time of continuing economic fragility, each of us needs to consider how we can make the situation better for low-income people who need civil legal aid,” says Public Welfare Foundation president Mary McClymont. “The good news is that there are so many new opportunities to help address the problem.”
Next issue: What private funders can do.
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 and system reform that results in transformative change. For more information, visit www.publicwelfare.org. Follow the Foundation on Twitter or on Facebook.