Legal Aid Articles
From the Chair...
The Chair of the Standing Committee on Legal Aid and Indigent Defendants discusses current issues and events
From the Chair.
by Doreen Dodson
Chair, Standing Committee on Legal Aid and Indigent Defendants
On April 1, 1998, I had the honor to testify before the House Appropriations Subcommittee on Commerce, Justice and State, the Judiciary and Related Agencies on behalf of the American Bar Association regarding funding for the Legal Services Corporation (LSC). I relayed the ABA position that the subcommittee should restore LSC funding to its FY 1995 pre-sequestration level of $415 million, and not less than $340 million, the amount that the Corporation and the Administration requested. The ABA believes that a return to this funding level is justified for a number of reasons, including:
- LSC has implemented sweeping changes as mandated by the 104th and 105th Congresses to address various Congressional concerns.
- New leadership at the Corporation should be given the chance, and adequate funding, to demonstrate that the program is making good faith efforts to address the legal needs of the poor within Congressional strictures.
- Even with LSC's current funding, additional funding from a variety of sources including IOLTA (Interest on Lawyers' Trust Account) programs, and the enormous contribution of pro bono or volunteer services, only 20 percent of the legal needs of the poor are being met.
Subcommittee Chairman Harold Rogers commented, following my testimony, that "it is audacious for the ABA to come in here to request $415 million." He said that private attorneys today are not doing as much as he did when he practiced law by providing a greater amount of free legal services to the poor. He stated, "If we had lawyers today who had a sense of the profession, they would represent poor people without a fee." Unfortunately, he did not give me an opportunity to respond to his remarks.
Shortly thereafter, I wrote to Chairman Rogers on behalf of the ABA, stating that we believe the organized bar has long recognized its responsibility, as principal steward of the justice system, to ensure the legal needs of the poor are met. The private bar alone, however, cannot fulfill the national responsibility of providing equal access to justice for all Americans.
We are very proud that the legal profession leads all others in the contribution of free professional services. Since my testimony, recently released 1996 statistics show that more than 222,872 lawyers across the country participate in organized pro bono programs and give enormous amounts of free legal services to the poor every year. This figure compares to 153,789 lawyers participating in organized programs in 1995. We expect organized pro bono participation to continue to increase. In addition, countless numbers of lawyers provide services in their communities outside these formal programs.
Lawyers also contribute significant amounts of money to support legal services for the poor--through their participation in bar association-supported IOLTA programs, through private bar campaigns and through many other mechanisms.
We believe that the federal contribution of LSC funding leverages an enormous amount of human and financial resources to help meet the legal needs of the poor. But without the core federal support, which funds client intake and referral systems, helps train lawyers in private practice to handle pro bono cases in areas of law outside their usual expertise, and stimulates the contribution of other funding, non-LSC resources would be less abundant and utilized less effectively. In many instances, they simply would not exist.
Can private resources be increased? Of course. Can they replace federal dollars? No. Surveys in most states demonstrate that about 20 percent of the poor's legal needs are being met. In Chairman Rogers' home state of Kentucky, a 1993 survey conducted by the University of Louisville Center for Urban and Economic Research showed that 68 percent of the poor's legal needs are not being met. Yet Kentucky lawyers already generously contribute to pro bono legal services.
The Legal Services Corporation is the federal government's contribution to a national public-private partnership aimed at fulfilling the first enumerated purpose of our government in the Preamble of the United States Constitution: "to establish justice." Without adequate funding for the LSC, the principle of a just society will remain merely an illusion for many Americans.
Over the last six to 12 months, bar and legal services leaders in many states have initiated new efforts to study and suggest improvements for the system for delivering legal services to the poor. The LSC's requirement that each of its grantees submit a report by October 1, 1998 examining what steps should be taken in their states to further develop a comprehensive, integrated statewide delivery system has given further impetus to these efforts.
We believe that the organized bar, and individual private lawyers, can make critical contributions to this state planning process by:
- assisting in finding new ways that private lawyers can participate in the delivery of legal services to the poor
- developing new funding sources to supplement LSC funding
- working to expand the system to include programs that can offer poor clients services beyond those permitted for LSC grantees
- assisting in guiding various components/delivery models toward a more integrated system.
We continue to make technical assistance on state planning available to all through the State Planning Assistance Network (SPAN). A new edition of the SPAN Update will be available in August 1998, compiling up-to-date information on state planning activities and developments in each jurisdiction. I hope that our efforts will help you to participate in the planning efforts underway in your state and that you will let me know if there are other ways in which the Standing Committee on Legal Aid and Indigent Defendants can assist your state's efforts to provide equal justice for all.
ABA and NLADA Announce 1998 Harrison Tweed Award Recipients
The ABA and the National Legal Aid and Defender Association have announced that 1998 Harrison Tweed Award will be conferred upon the State Bar of Michigan; the Forsyth County, North Carolina Bar Association; and the Dallas, Texas Bar Association.
Named for an outstanding leader in the promotion of free legal services to the poor, the Harrison Tweed Award was created in 1956 to recognize the extraordinary achievements of state and local bar associations that develop or significantly expand projects or programs to increase access to civil legal service to poor persons or criminal defense services to indigents.
State Bar of Michigan
The State Bar of Michigan has made a broad, institutional commitment to pursuing equal access to justice as a major organizational goal. It has allocated very significant financial and staff resources to support a wide range of activities in pursuit of that goal.
The State Bar joined, in 1995, with Michigan legal services programs and the Michigan State Bar Foundation to begin a thorough "state planning" process to develop the Michigan Plan, a road map for modifying Michigan structures and systems for continuing to meet the legal needs of the poor following federal cutbacks and restrictions.
The Plan called for the creation of an Access to Justice for All Task Force comprised of bar officers, representatives of the Michigan State Bar Foundation and legal services programs. The Task Force promptly launched impressive initiatives to:
- assist legal services providers in obtaining and utilizing technology to the fullest extent so as to serve even more poor clients,
- explore innovations in service delivery, self-help and client education, and
- expand pro bono systems to take on important legal work that Legal Services Corporation-funded programs are prohibited from doing.
To provide a strong signal regarding the importance of this bar effort, the State Bar of Michigan created a new Access to Justice Department, lead by a senior management-level Associate Executive Director for Access to Justice. To assure that the Task Force's efforts would have necessary staff support and that the development campaign would be successful, the State Bar allocated substantial resources to create ten new professional and support positions within that department.
By working closely with Michigan legal services programs and the Michigan State Bar Foundation, the State Bar of Michigan has put in place an exemplary, broad-based and ambitious program to address the challenges to providing equal justice for all within the state's borders. It has made equal access to justice the bar's top priority, committing significant funding, a sizable department of professional staff, and the time and expertise of its executive director and an array of top leaders in a comprehensive set of programs to improve legal services for Michigan's poor.
Forsyth County Bar Association (NC)
The Forsyth County Bar Association collaborated with the Legal Aid Society of Northwest North Carolina and the Wake Forest University School of Law to launch an innovative program: The Domestic Violence Advocacy Center (DVAC). The Center involves lawyers, law students and undergraduate students who work together to provide swift service to victims of domestic violence. The program is structured to use the skills and time of each type of participant in the most efficient manner. Students perform initial intake and counseling. Volunteer lawyers obtain a preliminary protective order and work with law students to prepare for and represent the client at the hearing ten days later. The case is then transferred to the Legal Aid Society for any necessary follow up.
By joining several strategic partners in a carefully structured program, the Forsyth County Bar Association has vastly increased the number of clients assisted and has improved the success rates in obtaining protective orders. Before the program was instituted, judges--faced with incomplete or inadequate information at hearings--were reluctant to award custody or exclusive possession of the home in domestic violence cases. Without those remedies, about two-thirds of the battered spouses returned to live in abusive homes. Following the implementation of this program, battered spouses in Forsyth County have become much more likely to separate from their batterers and to begin life anew. In fact, in 1997, the success rate was 75 percent.
The bar played a key role in creating the DVAC program. Each of the last three presidents has fully participated, donating time and expertise to assist program clients. The bar has actively recruited its members' participation in this and other pro bono programs. In 1997 it achieved an overall participation rate in its pro bono activities of 63 percent of the eligible bar membership. By its creative efforts in program design, and with the impressive commitment of its members, the Forsyth County Bar has significantly improved equal access to justice for the poor in the Winston- Salem area.
Dallas Bar Association (TX)
The Dallas Bar Association joined with Legal Services of North Texas on January 1, 1997 to launch an innovative, jointly-funded and staffed program to expand equal access to justice in the Dallas area.
The "Dallas Volunteer Attorney Program" (DVAP) was born out of the Dallas Bar's and Legal Services' mutual recognition that there was an overwhelming need to increase the availability of legal services to the poor in North Texas. With that need in mind, the Bar hosted a series of brainstorming sessions between the two organizations, seeking ways to work together more effectively to avoid overlap and competition for financial and volunteer resources.
Ultimately, these discussions lead the two organizations to enter into an alliance that combined their formerly separate volunteer attorney programs into a new program drawing upon the unique strengths of each sponsor. Unlike many other joint efforts where either the bar or the legal services provider serves only as a nominal co-sponsor of a program that the other party actually operates, the DVAP is a true partnership or joint venture. It is the responsibility of both the Bar and Legal Services.
The new alliance is working very well. During its first year of operation, the program has served an impressive number of clients, offering advice and brief service, representation and litigation services. In addition to direct advice and representation, the DVAP has continued to offer four specialized clinics, implemented a new SSI for Kids Project and offered new training programs in law firms. At the same time, the Dallas Bar Association joined with Legal Services of Northern Texas to undertake a fundraising "Campaign for Equal Access," which produced gifts to support DVAP in excess of $200,000.
By finding a way to bridge institutional boundaries and begin a new and effective joint venture, while at the same time continuing a high level of volunteer participation in and financial support for legal services by its membership, the Dallas Bar Association has demonstrated an exceptional commitment to expanding equal access to justice in North Texas.
ABA Donates Computers to Louisiana and Wisconsin Legal Services Programs
Legal service providers in Louisiana and Wisconsin are among the first groups to receive a shipment of computers from the American Bar Association. This nationwide project places donated computers from law firms that are upgrading their systems with legal service offices may have inadequate or no computer systems.
The ABA has shipped 11 computers to Southeast Louisiana Legal Services in Hammond and six computers to Southwest Louisiana Legal Services in Lake Charles. In addition, Legal Action of Wisconsin, Inc., in Milwaukee, received 21 computers.
Legal service groups provide representation in non-criminal actions to those who cannot afford to be represented by a lawyer.
The donation program is a project of three ABA entities: the Standing Committee on Legal Aid and Indigent Defendants, the Section of Litigation and the Section of Business Law. The project collects working computers that law firms are replacing and donates them to legal services providers. The Open Society Institute of New York will provide the funding for the administration of the project, called the "Technology Exchange Project."
Firms are asked to donate equipment that is in good working order and that is capable of using Windows 3.11. The Technology Exchange Project will match donors with needy legal aid programs, and will assist in arranging the packing and delivery of donated equipment.
The ABA will donate about 400 of its used computers during the next two years after it begins an upgrade process this spring. The computers being shipped to Wisconsin are part of the ABA donation.
If a firm does not have equipment to donate but wishes to participate in the project, it can volunteer the time of its information services staff to serve as technical support for legal services programs. The project will maintain a clearinghouse listing firms willing to offer either telephone or occasional on-site technical support.
Firms wishing to participate or seeking information should contact the project coordinator: Meredith McBurney, ABA Technology Exchange Project, 1459 Clayton, Denver, Colo. 80206, phone: 303/329-8091, fax: 303/329-0362, e-mail: MM8091@aol.com.
Corel Corporation Joins in ABA Technology Exchange Program
The Corel Corporation, makers of WordPerfect Suite software, has agreed to contribute software to accompany used computers donated through the ABA's "Technology Exchange Project for Legal Services." Corel's generous donation will include software with a retail value of $100,000. Recipients of donated computers will be able to choose between WordPerfect 7 for Windows 3.1, WordPerfect 7 Suite Legal Edition for Windows 3.1 and WordPerfect 8 Suite Legal Edition for Windows 95/98.
Corel WordPerfect 7 is the Windows 3.1 version of the most widely-used word processor in the legal community. WordPerfect Suite 7 Legal Edition includes the word processor, the Quattro Pro spreadsheet, the Paradox database, the Presentations package and a number of legal- specific enhancements including document assembly software, a dictionary with legal terms and abbreviations and other features. Corel WordPerfect Suite 8 Legal Edition contains the most recent version these applications. It is a Windows 95 office suite that includes 32-bit versions of the applications offered in the version 7 suite, but adds Dragon NaturallySpeaking tm voice- recognition software as well as special forms for pleadings and other legal documents.
Corel will contribute 400 copies of the software, to be distributed to recipients of computers donated through the Technology Exchange Project.
Doreen Dodson, Chair of the Standing Committee on Legal Aid and Indigent Defendants -- which asked Corel to join in this effort -- said, "We are very grateful to the Corel Corporation for the generous support it is demonstrating for the legal services community through this donation. We believe that Corel's software, combined with the hardware we will be distributing, will help many local legal aid and pro bono programs to serve their clients more effectively."
House Subcommittee Would Cut LSC's Funding in Half for FY 99
by Julie Strandlie
More than two months behind in its work for passing a budget for FY 99, Congress is beginning to make some progress toward passing a budget resolution and enacting appropriations bills for FY 99. The week of June 22, 1998 both the House and Senate finally began to address funding for the Legal Services Corporation (LSC) for FY 99.
On June 24, 1998, the House Appropriations Subcommittee on Commerce, Justice, State (CJS) marked up its spending bill and approved only $141 million for LSC for FY 99. The full House Appropriations Committee is expected to mark up the bill on July 15. On June 25, 1998, the Senate Appropriations Committee marked up its version of the CJS bill. The Committee followed the Senate Subcommittee's recommendation and approved $300 million for LSC, a 6 percent increase over FY 98 funding.
LSC's current appropriation is $283 million. For FY 99, the Administration and the Corporation have requested $340 million. Earlier this year, both the Corporation's leadership and Doreen Dodson, chair of the ABA's Standing Committee on Legal Aid and Indigent Defendants, testified before the House Appropriations Subcommittee on Commerce, Justice, State (CJS) and urged Congress to fund LSC at no less than $340 million. On June 22, 1998, ABA President Jerome J. Shestack wrote the chair of the House and Senate CJS Appropriations Subcommittees and reiterated the importance of funding LSC at this level.
LSC enjoys bipartisan support in Congress. A vocal minority, backed by the House Leadership, however, continues to attempt to eliminate LSC. LSC's supporters are working with Congressional leaders to restore funding to $283 million. The ABA encourages you to work with your boards of directors and local bar leaders to communicate with your Congressional representatives to demonstrate the importance of local legal services programs and advocate for increased funding for LSC. If you would like more information on the status of funding for LSC and the ABA's LSC grassroots advocacy program, please contact Julie Strandlie at 202/662-1764.
Julie Strandlie is the new Director of ABA Grassroots Operations. Originally from Wisconsin via Florida, Julie moved to D.C. after graduating from the University of Florida with a degree in political science. Over the past 15 years, she worked on Capitol Hill and for large and smaller law firms, concentrating on legislative advocacy. While at the law firm Patton Boggs & Blow, Julie attended Georgetown University Law Center, graduating in 1991. Most recently, she had a law practice while serving as Washington Representative for the University of Florida.
LSC Restrictions Upheld in Legal Aid Society of Hawaii v. LSC
Editor's note: This article is reprinted with permission from the May 21, 1998, edition of the Project Advisory Group Update, Volume XXI, No. 9.
In May, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously affirmed a lower court's ruling that Legal Services Corporation (LSC) regulations restricting use of non-LSC funds do not violate the First Amendment rights of free speech and association.
In January 1997, five legal services programs, a client group, private funders and two individual legal services attorneys filed suit in the U.S. District Court for the District of Hawaii ( Legal Aid Society of Hawaii, et al. v. Legal Services Corporation, Civil Action No. 97-00032 ACK) ("LASH"). The LASH case challenged the application of Congressionally-imposed restrictions and the LSC regulations implementing those restrictions on the recipients' non-LSC funds. On February 14, 1997, the District Court granted, in part, the plaintiffs' motion for a preliminary injunction. The District Court's order enjoined LSC from enforcing certain of the restrictions with respect to the recipient's use of non-LSC funds, holding that these restrictions implicated the plaintiffs' First Amendment rights and that the plaintiffs had a fair likelihood of succeeding on the merits when the case went to trial. ( LASH v. LSC, 961 F. Supp. 1402 (D. HI. 1997)).
The District Court's opinion relied heavily on its analysis of the Corporation's regulations and policies in light of the standards announced in the Supreme Court's decision in Rust v. Sullivan, 500 U.S. 173 (1991), upholding HHS regulations that required an organization receiving Title X family planning funds to physically and financially separate out the project supported by those funds from the organization's abortion related activities. The Supreme Court held that the Title X regulations provided recipients with adequate alternative avenues for the expression of First amendment rights. In contrast, the court in the LASH case found that LSC's regulations were overly restrictive and provided no adequate alternative means for the plaintiff recipients to exercise their First Amendment rights.
In an effort both to meet the Constitutional concerns expressed by the judge in LASH and to preserve the statutory framework constructed by the Congress, LSC revised Part 1610 and the interrelated organizations policy. The new Part 1610 permitted recipients to transfer non-LSC funds to outside entities without regard to the restrictions, so long as the recipient and the other entity met a set of "program integrity" standards that were modeled on the HHS standards approved by the Supreme Court in Rust. The new rule also abandoned the interrelated organizations policy, permitting a recipient to create an affiliated entity, with the same or overlapping board of directors as the recipient, that was permitted to engage in restricted activity as long as the relationship between the recipient and the affiliate met the program integrity standards.
Subsequent to the adoption of the revised Part 1610, both the plaintiffs and the defendants filed motions for summary judgment, which the court heard on July 28, 1997. On August 1, 1997, the court issued a new opinion which denied the plaintiffs' motion for summary judgement, granted LSC's motion for summary judgement and dissolved the preliminary injunction. ( LASH v. LSC, 981 F. Supp. 1288 (D. HI. 1997)). The plaintiffs appealed the denial of their summary judgement motion to the Ninth Circuit, which heard the case on March 13, 1998.
On May 18, 1998, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously affirmed the ruling of the U.S. District Court in Hawaii, holding that under the current version of Part 1610 of the LSC regulations, the application of the LSC restrictions to a recipient's non-LSC funds does not, on its face, violate the plaintiffs' First Amendment rights of free speech and association. Retired Supreme Court Justice Byron White, sitting by designation, wrote the opinion for the panel.
Justice White's opinion rejected the plaintiff's arguments that the LSC "program integrity rules" in Part 1610 could be distinguished from the Title X rules upheld by the Supreme Court in Rust v. Sullivan, upon which they were modeled. Plaintiffs had argued that the LSC rules were flawed because they applied to the entire recipient, rather than to merely a program of a recipient as was true under Rust, but Justice White rejected the distinction, concluding that the difference was only one of terminology, not of substance. Plaintiffs had also argued that the rules should fail because they required a recipient to set up a separate legal entity to engage in restricted work, rather than merely separating out a program run by the same recipient, which was permissible under the rules tested in Rust. However, Justice White held that this requirement did not impose an unconstitutional burden on the exercise of the plaintiffs' First Amendment rights.
Justice White also rejected plaintiffs' argument that the restrictions are subject to heightened Constitutional scrutiny because LSC is a program designed to encourage private speech, unlike Title X programs which are established to transmit specific information. Instead, the opinion held that, like Title X, the LSC program is designed to provide limited professional services to indigent clients, not to create a forum for the free expression of ideas. Since the case was brought as a facial challenge to the restrictions, Justice White refused to speculate on whether there might be situations where LSC might apply the rules in a manner that could raise new Constitutional questions.
The opinion addressed the equal protection and due process arguments that the plaintiffs had raised in their appeal by finding that the client organization which was a plaintiff had no standing to raise those issues on behalf of its members, because there was nothing in the record to suggest that any individual member of the organization had been injured by the restrictions and had standing.
On a related matter, on March 20, 1998, the Second Circuit heard arguments in the appeal of the Velazquez v. LSC case. Velazquez was a class action brought in the Eastern District of New York against the Legal Services Corporation by a former client of Legal Services of New York (LSNY), along with several client groups, a former LSC recipient, several former and current LSNY attorneys and a number of state and local legislative officials broadly challenging the LSC restrictions. On December 22, 1997, the District Court denied the plaintiffs' motion for a preliminary injunction, concluding that the plaintiffs had failed to establish that their constitutional challenge was likely to succeed on the merits. To date, the Court of Appeals for the Second Circuit has not issued any ruling in the Velazquez case.
SCLAID News & NotesStatewide, State-Funded Indigent Defense System in Mississippi
Editor's note: This is an edited version of an article that first appeared in The Spangenberg Report, Vol. IV, Issue 2. For more information about The Spangenberg Report call 617/969-3820.
On April 21, 1998, the Governor of Mississippi signed into law the Mississippi Statewide Public Defender Act of 1998. The new law calls for the creation of a statewide commission on indigent defense, the position of Executive Director and the office of District Defender in all circuit districts to provide Mississippi with a statewide, state-funded system that provides representation to indigent defendants in all proceedings of felony cases.
This is the fifth consecutive year in which a bill calling for a statewide public defender system has been introduced in the Mississippi legislature. With passage of the Mississippi Statewide Public Defender Act of 1998, the number of states that provide no funds for indigent defense services drops to just three: Idaho, Pennsylvania and South Dakota.
Previously, counties in the state provide all funds for indigent defense. Each county selected its own type of indigent defense delivery system, and as a cost containment strategy, most used a part-time contract public defender model. Under this system, the county contracted with private attorneys to provide representation to an unlimited, and often an unrealistically high, number of indigent defendants each year, often without investigatory, expert witness or support staff assistance.
The Public Defender Act replaces this system with a full-time, statewide, state-funded felony case public defender system that is modeled on Mississippi's existing District Attorney system. Counties may elect to supplement the system's funds to assume their continuing responsibility to provide counsel to indigents in misdemeanor and juvenile delinquency cases.
The Commission's primary responsibilities will be to appoint an Executive Director of the Statewide Public Defender System and to establish, implement and enforce policies and standards for a comprehensive and effective public defender system throughout the state of Mississippi.
NAPIL Announces an Expanded Fellowship Program for Public Service Lawyers
The National Association for Public Interest Law (NAPIL) has announced that financier/philanthropist George Soros is providing a multimillion-dollar matching grant to encourage law firms and corporations to provide underserved communities with greater access to legal representation. The Open Society Institute, Soros' benevolent foundation, and its Program on Law and Society, is making the grant.
NAPIL reports that more than 75 law firms and corporations nationwide already have responded to the challenge by agreeing to co-fund public service fellowships. Major law firm sponsors include Cravath, Swaine & Moore; Sullivan & Cromwell; Arnold & Porter; Simpson Thacher & Bartlett; Davis Polk & Wardwell; Latham & Watkins; and Wilson; Sonsini, Goodrich & Rosati. Major corporate sponsors include Ford Motor Co., AT&T and Mobil.
NAPIL has developed the nation's largest legal fellowship program, putting scores of public service lawyers to work on behalf of an increasing number of Americans in need of legal assistance. With this new initiative, NAPIL's Equal Justice fellowship program, which supported 14 new fellowships for law graduates last year, will fund 70 Fellows across the United States in 1998.
Each two-year fellowship provides salary, full loan repayment assistance, a national training program, and support and assistance from NAPIL. Over the next two years, these Equal Justice Fellows will build on the initial successes of earlier Fellows to create effective strategies to meet some of the nation's greatest challenges, including homelessness, access to health care, domestic violence, community development, discrimination in housing and employment, and children's health and welfare issues.
"According to ABA studies, there are millions of people who lack access to any legal representation even when they face legal problems associated with the most basic necessities-- food, housing, health care, education, protection of their children," said ABA President-Elect Philip Anderson at a press briefing announcing the expanded program. Mr. Anderson went on to say, "The greatest issues of our time are the dignity of humanity, the search for justice, and how a civilized society in the closing days of the 20th Century defines the former and pursues the latter. By this matching grant and similar initiatives, Mr. Soros is promoting a compassionate definition of human dignity and ensuring a vigorous pursuit of justice for those who may have little else in this life. Those who will benefit can maintain their dignity and may taste the fruit of justice, and for that, we are profoundly grateful."
For more information about this program, contact NAPIL at 202/466-3686.
New York Updates
Legal Services Funding Crisis
In a surprise move, New York Governor George Pataki vetoed $750 million in general revenue appropriations, including approximately $7 million for the provision of civil legal services to the poor in New York. Many groups, including the New York State Bar Association, have been forcefully advocating for the restoration of the legal services funding, but so far to no avail.
$40 Million Fund for Civil Legal Services Recommended
A blue-ribbon group of business leaders and lawyers has issued a report in New York calling for creation of a special $40 million fund to support provision of legal services for the poor in the state. New York Chief Judge Judith S. Kaye appointed the panel, the Legal Services Project, late last year to "determine how society can best support legal services."
The report states, "We are unanimous in the view that the provision of civil legal services for poor persons is a fundamental obligation of government which should, if necessary, be satisfied through allocation of general state revenues."
The report goes on, however, to consider a variety of methods to generate funds without burdening general revenues. It proposes the creation of an "Access to Justice Fund," and concludes that "The State should fund the Access to Justice Fund through a dedicated revenue stream of $40 million from the State Abandoned Property Fund. A modernization of the 55-year- old Abandoned Property Law...should result in substantial new revenues flowing to the Abandoned Property Fund."
Specific changes to the Abandoned Property Law are recommended to:
- enlarge the types of property that escheat to this fund
- shorten the time before abandoned property is paid into the fund
- strengthen the enforcement of the law.
As a first alternative to the abandoned property approach, the report suggests transferring those surpluses into the Access to Justice Fund. As a last resort if those approaches fail to produce sufficient revenue, a majority of the members of the Legal Services Project suggest that funds may be generated through imposition of a motion fee, or through increases in either the Housing Court filing fees or the attorney registration fee.
Judge Kaye has endorsed the Project's core proposal. It is expected that the Assembly will incorporate the proposal into a bill to provide legal services funding, to be considered at an upcoming session of the legislature.
For further information or to receive a copy of the report, contact Tony Cassino, Director, New York State Bar Association Department of Pro Bono Affairs at 518/487-5640.
SCLAID Proposes New ABA Policy on Indigent Defense Standards
Through its efforts to improve state systems for providing defender services to indigent persons accused of crimes, the Committee has found that the quality of many indigent defense systems has been greatly improved through enforcement of locally-adopted and adapted minimum standards and guidelines for operation of state and local indigent defense systems. Standards help to assure that defendants' constitutional rights are respected, reduce the likelihood of error in proceedings, diminish the number of appeals and ultimately enhance the efficiency and effectiveness of the criminal justice process.
Standards and guidelines pertaining to attorney eligibility, caseloads, conflict of interest, indigency screening, attorney performance and administration of indigent defense systems have been adopted in a number of jurisdictions by state and local legislation; state supreme court rule; national, state and local public defender organizations; indigent defense commissions and other entities. These standards and guidelines were adapted to local conditions but were greatly influenced by standards and guidelines developed over the past quarter century--mainly by the American Bar Association.
Because standards have been such an important tool for improving or establishing high- quality systems, the Committee will seek adoption of ABA policy encouraging use of standards. A policy proposal has been filed for consideration by the ABA's policy-making House of Delegates at the ABA Annual Meeting in August 1998. The policy recommendation urges jurisdictions to adopt standards for indigent defense systems, using widely-available models to prepare such standards. The recommendation also urges courts, state, territorial and local bar associations to support the development and adoption of such standards, and suggests that funding for indigent defense systems be awarded contingent upon compliance with such standards. For further information, contact Terry Brooks at 312/988-5747 or by e-mail: firstname.lastname@example.org
The views expressed in Dialogue are those of the authors and do not necessarily represent the policies of the American Bar Association. The contents of this magazine have not been approved by the ABA House of Delegates and do not constitute ABA policy. © 2001 American Bar Association ISSN 1092-2164