Judicare Family Law Project:
Helping the Courts and Leveraging Resources in Maryland
A single mother was fighting to get custody of her two children but didn't have the funds to hire an attorney. She never married the father who was subject to a protective order and incarcerated for violence during the relationship. The children witnessed the domestic violence and required therapy. The father was represented by an attorney who filed for joint physical and legal custody or open and reasonable visitation. The mother was afraid of him; although she was a good witness when prepared, she needed the help of an attorney to keep her focused on the proper issues when she was on the stand. With funds from the newly revived Judicare program, a private reduced-fee attorney was hired to help this mother get custody of her two children. The attorney was able to convince the court that joint legal or physical custody was neither proper nor in the best interests of the children. He also argued that supervised visitation was appropriate given the children had not seen their father in three years, coupled with their witnessing the domestic violence and the therapy needed as a result. The court ordered one-day-a-week supervised visitation with a review in six months.
Although the above scenario is a fairly routine case for a family law attorney, a self-represented litigant would likely get lost navigating the court process and have trouble achieving these results. Without proper representation, complex cases like this one place an undue burden on members of the bench and the state's entire judicial system. A program in Maryland, which helps low income families obtain representation, has proven successful over the past decade.
In Maryland, the critical need to assure low-income litigants of appropriate representation in divorce, custody, visitation and other contested family law matters is being met by the Judicare Family Law Project, as a part of the continuum of legal services in the state. The program has been successful in providing representation in often difficult, complex, time-intensive cases, which are usually beyond the resources of existing legal services providers and pro bono attorneys. Judicare's support of skilled legal counsel in family representation provides clients with access to justice, helps reduce burdens on the courts and leverages staff and pro bono lawyers for other legal needs.
About Judicare and Its History
"Judicare" is a term coined for a legal services program similar to Medicaid and Medicare. It supports representation provided by private attorneys paid on a fee-for-service basis through government funds. In Maryland, the program was run successfully in the 1970s to the early 1980s by a state agency using federal funding under Title 20 of the Social Security Act. Title 20 reimbursed private attorneys throughout the state at a reduced fee to handle a variety of legal problems for low-income clients.1 In the early 1980s, the state drastically reduced funding for Judicare and stopped the funding in 1990. In the late 1990s, statewide public hearings uncovered a gap in litigation services, especially in contested family law issues. This gap developed because these issues were not being addressed by existing legal services programs and pro bono attorneys. Soon after, the Administrative Office of the Courts (AOC) and the Maryland Legal Services Corporation (MLSC) launched a Judicare-type program for complex contested child custody representation. In 2007, a report by the state bar2 on the history and potential revival of Judicare and a report by the courts3 on the growth of self-represented litigants led to the expansion of the covered services to other contested family law matters.
How Judicare Works Today
Today, Judicare in Maryland operates through grants funded by AOC and MLSC to seven organizations that are experienced in operating pro bono referral services and have established pro bono panels. The grants cover attorney compensation for a set number of contested family law cases with a cap of $1,600 per case (20 hours at $80 per hour) plus some costs to administer the program. Attorneys can receive additional Judicare payments if they meet certain pro bono requirements.4 To qualify for Judicare services, clients must have income no more than 50% of the Maryland median family income (approximately $51,000 for a family of four), which is over 220% of the federal poverty guidelines.
Judicare attorneys are members of a panel of lawyers. These lawyers are guaranteed compensation, support of litigation expenses, malpractice insurance and mentoring support, if needed. In order to be a panel member, attorneys must meet three criteria: 1) he/she must be licensed in Maryland; 2) he/she must have two to three years of family law experience or be supervised or mentored by an experienced family law attorney; and 3) he/she must be in good standing and free of disciplinary action by the courts or Attorney Grievance Commission.
The Judicare administering programs (MLSC grantees) work with the local courts, bar and social services agencies to identify clients with contested family law matters and private attorneys to handle Judicare referrals. They screen the clients, recruit attorneys, document the disposition of cases, handle compensation and report results to MLSC. Most Judicare programs require attorneys to take one or more pro bono cases (usually in another area of the law) as a condition of receiving a referral. Attorneys are obligated to continue the case until closed, even if doing so exceeds the maximum Judicare payment.
Measuring Judicare Results
In early 2008, Judicare representation was extended to all contested family law matters, as a two-year "pilot project" designed to test a reduced-fee model for provision of legal services in custody, divorce, visitation and other contested family law matters. Nine MLSC grantees administered the pilot serving 13 of the state's 24 jurisdictions. At the end of the pilot, the AOC conducted an evaluation with the help of researchers at two local universities, and based on the results, MLSC and the AOC expanded Judicare services to all jurisdictions in the state. The researchers evaluated the ease of use of the Judicare program for clients and attorneys, the efficacy of the Judicare structure, the clients' and attorneys' opinions of the Judicare program, and any variations of the program in jurisdictions.5 MLSC prepared a supplement to the evaluation showing the tremendous unmet need for legal representation among low-income individuals facing contested family law matters and detailing case services data since the inception of the Judicare pilot project.6
The court's evaluation study, which used surveys, interviews and focus groups, showed the majority of clients were satisfied with the program. They expressed appreciation for being heard and having someone advocate on their behalf. Judicare attorneys admitted to the complicated, time-consuming nature of the cases. Although they often met with difficult clients, they were happy with their experience and would recommend the program to their colleagues. These lawyers were motivated to help others, give back to the community and develop professionally. Grantees administering the program praised the Judicare model but noted the challenge to increase the pool of attorneys willing to take these difficult and time-consuming cases. These grantees indicated that they would like Judicare reimbursement extended to other types of cases, particularly in rural areas because of the shortage of attorneys.
MLSC supplemented the AOC evaluation with case services data. From 2008 through 2011, Judicare attorneys in Maryland handled nearly 3,000 contested family cases and spent over 37,000 hours helping litigants that would otherwise be unrepresented in court. The average cost per case was about $1,200. At least 6,000 Judicare hours were provided at no cost, leveraging over one million dollars of free legal services to low-income Marylanders.7 Approximately 2,200 pro bono cases were referred as a result of the Judicare project.
Access to lawyers for contested family law cases is critical for litigants to achieve just outcomes and equally important for the judicial system and society as a whole.
Since the revival of Judicare in Maryland, litigants who would have otherwise been unrepresented received expert legal representation by private attorneys compensated at significantly reduced fees. Furthermore, Judicare leverages the resources of legal services providers and the private bar. In addition it engages local bar associations, pro bono committees and family courts to work together to help fill the gap of access to justice for unrepresented low-income clients.
Other Judicare benefits include a lessening of the burden that self-represented litigants impose on Maryland's courts and an improvement of the administration of justice. Without this successful program, Maryland's families engaged in contested family law matters would have no other viable resource.
Harriet Robinson is deputy director of the Maryland Legal Services Corporation, which was established by the Maryland General Assembly in 1982 to receive and distribute funds to nonprofit organizations that provide civil legal assistance to low-income persons. MLSC is principally funded by Interest on Lawyer Trust Accounts (IOLTA) and surcharges on court filing fees. Reports referenced in this article are available at http://mlsc.org/grants/judicare-family-law-project.
Final Report and Recommendations on the Potential Use of Private Lawyers, Michael Millemann, University of Maryland School of Law for Maryland State Bar Association Section Council on Delivery of Legal Services and the Administrative Office of the Courts, May 2007.
3 Clearing a Path to Justice: A Report of the Maryland Judiciary Work Group on Self-Representation in the Maryland Courts, Maryland Judiciary, August 2007.
4 MLSC administers a "supplemental fund," which pays up to 10 additional hours for every hour over 25 hours that the attorney spends on the case (thus five hours must be pro bono and the total cap is $2,400).
5 Evaluation of the Judicare Family Law Pilot Program, Administrative Office of the Courts, April 2011.
6 Judicare Family Law Pilot Project: Evaluation Supplement, Maryland Legal Services Corporation, March 2011.
7 The AOC Evaluation Report (Note 5) noted that the average fee charged by Judicare attorneys in non-Judicare cases is $220.