Achieving Equal Access to Civil Justice

[Part 2 of the series on the 40th anniversary of the Legal Services Corporation]

By Alan Houseman

We are continuing our blog on the War on Poverty and the Federal Legal Services Program
with an emphasis on 40 years of federal legal services under the Legal Services Corporation (LSC). This series will examine each of the fundamental objectives for LSC set out in the Statement of Purpose of the LSC Act. Here we will focus on the objective: to ensure “equal access” to our system of justice “for individuals who seek redress of grievances.”

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The current civil legal assistance system is a locally based system of independent staff-based service providers, supplemented by pro bono programs, law school clinical programs and self-help programs. Funding comes to the providers from a variety of sources; less than one-third comes from federal sources, and over one-third comes from state sources. Between 1965 and 1985, civil legal assistance was funded primarily by LSC and other federal funding sources. Over the last two decades, there has been increased state funding and involvement of state-based funders in the overall operation of the civil legal aid system. Since 1996, LSC and state funders have been moving from a locally-based legal services delivery system toward establishing a more comprehensive, coordinated, and integrated statewide system for the delivery of civil legal aid to low-income people.

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LSC logo 5 years of progress, 1974-1979. LSC Annual Report 1979.

The major accomplishment of LSC, certainly during its first five years, was the expansion of the federal legal services program from a predominantly urban program to one that provides legal assistance throughout the United States and in most U.S. territories. In 1975, LSC inherited a program that was funded at $71.5 million annually. By 1981, the LSC budget had grown to $321.3 million. Most of this money went into creating new programs and expanding old ones. Based on the 1970 census figures, in 1975 there were 11.7 million out of 29 million poor people who had access to no program and 8.1 million who had access only to programs that were inadequately funded. By 1981, LSC funded 325 programs, operated in 1450 neighborhood and rural offices throughout the 50 state, and the District of Columbia, Puerto Rico the Virgin Islands, Micronesia and Guam. Poor people in every county of the United States had access to a legal services program. While perhaps not full 100% access, substantial access had been achieved.

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Hillary Rodham, Chairman of the Board, Preface to the LSC Annual Report, 1979, 5.

Expansion was not without substantial difficulty. In many parts of the country, expansion was received with initial hostility by some local bar associations and others. Soon, members of Congress complained about which entities were being funded and why. For example, LSC decided to create a new program for central Virginia instead of funding the Lynchburg Legal Aid Society, which then complained to Representative Caldwell Butler, a member of the House subcommittee with jurisdiction over LSC and a key supporter of LSC among House Republicans. These initial problems were overcome and the program developed throughout the country. Moreover, initially, LSC did not have adequate staff to engage in expansion and carry out other essential tasks, nor did LSC have technical assistance and essential materials available for new and expansion programs. This changed by 1979. In the end and whatever the difficulties, expansion was a massive and successful undertaking. Since 1981, LSC has been unable to obtain funding sufficient to maintain the level of access achieved then and has lost considerable ground because of the three significant budget reductions (of 1982, 1996 and 2012) and the inability to even keep with up inflation when funding was increasing. While non-LSC funding has grown considerable and now exceeds LSC funding in terms of the overall system, it has been concentrated in the Northeast, Mid-Atlantic, Midwest and Northwest states. Uneven resources have led to substantially uneven access, particularly the South, Southwest and Rocky Mountain states.

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LSC Annual Report, 1981, dealing with a year of “extraordinary challenge.” NEJL.

Thus, there is a huge gap between the actual legal needs of low-income people and the capacity of the civil legal assistance system to meet those needs, as well as severe inequality in funding among states. This “justice gap” was most recently demonstrated by LSC in a report updated in 2009 entitled, “Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans.” The two key findings were (1) for every client who actually received service from an LSC grantee, one eligible applicant was turned away; and (2) less than 20 percent of the legal needs of low-income Americans were being met. The study also identified the number of legal aid lawyers in both LSC and non-LSC funded programs, and compared that number to the total number of attorneys providing personal legal services to the general population. The study determined that, at best, there is one legal aid attorney for every 6,415 low-income persons. In contrast, the ratio of attorneys delivering personal legal services to the general population is approximately one for every 429 persons, or fourteen times more.

Equal access cannot be achieved without additional funding. While federal funding remains essential, because civil legal assistance is a federal responsibility, federal funding is not likely to fill the huge gaps between needs for assistance and capacity of the system to meet that need. In part this is because of limitations on domestic federal spending generally and, in part, because the political leadership of the US remains divided about whether there should be a federal program, and, if there should be one, how it should be structured. Since the budget gridlock and political situation may not change over the next several years, one fundamental lesson for the future is this: growth in the civil legal assistance system will come primarily from state and local sources.

Achieving equal access will also require new methods of delivery and new approaches to support and training and the development of a comprehensive, integrated statewide system of delivery. That has begun in most states and in some states is substantially developed. The elements of this comprehensive, integrated state system discussed below were set out in August of 2006 by the American Bar Association in Principles of a State System for the Delivery of Civil Legal Aid (hereafter Principles). NLADA developed a similar set of principles.

First, state systems for the delivery of civil legal aid must provide services to the low-income and vulnerable populations in the state, including those with distinct, unique, or disproportionately experienced legal needs. As a corollary, no vulnerable population or specific group that has experienced disparate treatment should be institutionally excluded from receiving legal assistance.

Second, state systems for the delivery of civil legal aid must provide a full range of services in all forums. A full range of services includes information about legal rights and responsibilities; options for services; outreach and community legal education; legal advice and brief services; support and assistance for individuals capable of representing themselves; representation in negotiation and alternative dispute resolution; transactional assistance; representation in administrative and judicial proceedings; extended representation in complex litigation, in class actions, and on systemic issues; and representation before state and local legislative and administrative bodies that make laws or policies affecting low-income and vulnerable people.

Third, state systems for the delivery of civil legal aid must provide services of high quality in an effective and cost efficient manner to help low-income persons and others who cannot afford counsel meet their legal needs.

Fourth, state systems for the delivery of civil legal aid must provide services in sufficient quantity to meet the need by seeking and making the most effective use of financial, volunteer, and in-kind resources dedicated to those services.

Fifth, state systems for the delivery of civil legal aid must fully engage all entities and individuals involved in the provision of those services, and they must be central to the effective administration of justice in the state.

Sixth, state systems for the delivery of civil legal aid must make services fully accessible and uniformly available throughout the state. The ability of low-income and vulnerable people to obtain civil legal assistance should not depend on where that person resides in the state.

Seventh, state systems for the delivery of civil legal aid must engage with clients and populations eligible for civil legal aid services in planning and in obtaining meaningful information about their legal needs; and they must treat clients, applicants, and those receiving services with dignity and respect.

Eighth, state systems for the delivery of civil legal aid must engage and involve the judiciary and court personnel in reforming their rules, procedures, and services to expand and facilitate access to justice. The judiciary should ensure that the courts are inclusive, respectful of differences, and culturally competent. It should also make sure that they are accessible to and responsive to the needs of all residents, including low-income and vulnerable populations and those facing financial, physical, and other barriers to access.

Ninth, state systems for the delivery of civil legal aid must be supported by an organized bar and judiciary that are providing leadership and participating with legal aid providers, law schools, the executive and legislative branches of government, the private sector, and other appropriate stakeholders in ongoing and coordinated efforts to support and facilitate access to justice for all.

Tenth, state systems for the delivery of civil legal aid must engage in statewide planning and oversight of the system for the delivery of civil legal aid to coordinate and support the delivery of services and to achieve the nine principles set forth above.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

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