GPSolo Magazine - April/May 2006
Justice for All: Promise or Reality?
As children, we all learned and most of us recited daily one of the fundamental ideals upon which this republic was founded: “liberty and justice for all.” Indeed, the work of the American Bar Association is summed up quite succinctly in these simple but powerful words: “Defending Liberty, Pursuing Justice.” Former Supreme Court Justice Lewis Powell Jr. (a former ABA President) said that “equal justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status” (emphasis supplied).
Tragically, our great nation is failing miserably to fulfill its promise of justice for all.
My objectives for this column are twofold: First, in keeping with GP|Solo’s theme of Celebrating America’s Main Street Lawyer, I wish to recognize, salute, and commend all legal aid lawyers throughout this country—an incredibly talented group of professionals dedicated to public service and to the provision of the highest quality legal services to the poorest and most defenseless members of our society. Thanks to each of you and your unwavering commitment to the pursuit of justice. Second, I wish to bring to the reader’s attention our collective critical national failure to meet the legal needs of a vast segment of our citizenry.
Recently, the Legal Services Corporation (a private, nonprofit corporation established by Congress in 1974 to provide low-income Americans with access to high-quality legal assistance in civil matters) completed its first comprehensive study of the unmet civil legal needs of low-income Americans and issued a report, “Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans” ( www.lsc.gov/press/pr_detail_T7_R6.php). Most significantly, the study reports that for each person who received legal assistance from an LSC-funded program, at least one eligible client was turned away owing to lack of resources. The report further concludes that at least 80 percent of the civil legal needs of low-income Americans are not being met.
Eight percent would be unacceptable. Eighty percent in a nation founded upon the principles of “liberty and justice for all” constitutes a shocking and profound national failure.
More than 43 million Americans qualify for LSC assistance, which is limited to people and families with incomes below 125 percent of the poverty line. Based on the current poverty line, the top income amount for LSC aid to an individual is $12,249.99, and for a family of four it is $24,999.99. The report, unanimously approved by LSC’s Board of Directors in October 2005, found that a doubling of federal and non-federal support of LSC grantees would be necessary just to serve the individuals and families who were eligible for and seeking assistance from LSC-funded programs. The report also concluded that there is but one legal services attorney for every 6,861 low-income persons. By contrast, the ratio of attorneys delivering civil legal assistance to the general population is approximately one for every 525 persons or, stated another way, 13 times more.
Compounding the severity of this crisis, the analysis for the report was concluded in August 2005 and thus does not include the impact of the devastation wrought by last fall’s disastrous coastal weather. LSC President Helaine M. Barnett says that “none of the data in the report reflects the increased need for legal assistance that will result from the impact of Hurricanes Katrina and Rita by a greatly expanded client-eligible population, not only in the states where the hurricanes struck, but across the nation where evacuees have been relocated. A disaster of this magnitude highlights the critical need for civil legal assistance.”
LSC-funded programs do not deal with trivial or in-consequential matters. They address the most basic and critical civil legal needs of the poor. The overwhelming majority, more than 73 percent, of LSC clients are women, most of them mothers with children. Family law matters, such as securing restraining orders in cases of domestic violence, comprise 38.1 percent of legal aid cases. Other major issues involve housing (24.3 percent), income maintenance (12.6 percent), and consumer matters (11.9 percent). More than half of LSC clients are racial or ethnic minorities.
The legal problems faced by those living in poverty can have serious, long-term consequences for children, and, as a result, for society as a whole. Without legal help, the poor find themselves unarmed in judicial and administrative systems where they face foreclosure on their homes or the loss of income or benefits, or otherwise find themselves unable to seek relief that only a court can give, such as a protective order or child support.
The work these talented legal aid lawyers do is simply remarkable. For instance, in my home state of Oklahoma, in 2004 only 9 percent of the cases closed were resolved through litigation or through an administrative hearing. Incredibly, each Oklahoma legal aid case that was closed cost an average of only $353 at a per-hour cost of only $32. Most lawyers and law offices I know won’t open a file for $353, much less see the case through to successful resolution.
Nationally, LSC programs closed some 935,793 cases in 2003, and they closed 901,067 cases in 2004. Most legal services cases are resolved rapidly and out of court through legal advice, a referral, a letter, or a phone call. Litigation is seen by LSC lawyers as a solution of last resort. In 2003 less than 14 percent of the closed cases were resolved through litigation, and in 2004 the percentage dropped to just over than 10 percent. In addition to actual cases, LSC lawyers or programs annually handle about another 4 million “matters,” which include community legal education sessions, online assistance, and the staffing of courthouse help desks.
For their remarkable abilities, resourcefulness, and talent, legal aid lawyers are among the most poorly compensated members of the legal profession. They certainly don’t become legal aid lawyers for the money. The average starting salary for a lawyer at an LSC-funded program is $37,500. After five years, the median salary grows to $40,000, and after 11 to 15 years it is $51,927. The average LSC staff attorney’s salary is $45,000. According to the ABA’s 2003 survey “Lifting the Burden,” the average educational debt for today’s law school graduates exceeds $80,000.
Meanwhile, the “2004 Public Sector and Public Interest Attorney Salary Report” issued by the National Association for Law Placement reveals that the median salary for fifth-year associates in private practice is $82,063 for firms of 2 to 25 attorneys; $90,421 for firms of 26 to 50 attorneys; $97,000 for firms of 51 to 100 attorneys; $102,000 for firms of 101 to 250 attorneys; and $115,750 for firms of 251 to 500 attorneys.
Notwithstanding this well-documented crisis in the delivery of legal services, and the resulting justice gap, the administration in Washington recently dealt a blow to LSC, urging Congress to reduce LSC’s funding to $310.86 million in fiscal year 2007—a decrease of more than $18 million from the previous year’s appropriation and more than $100 million short of the $411.8 million that LSC says it needs and has requested for fiscal year 2007. LSC has urged Congress in its budget submission that “a significant increase in the FY 2007 appropriation for civil legal assistance to the poor is critical [to] . . . help fulfill the nation’s goal of securing equal justice for all.”
LSC President Barnett says, “the proposed LSC budget, which would increase funding for the delivery of basic legal services by 20 percent, represents a necessary first step towards . . . meeting our nation’s goal of equal justice for all.” LSC Board Chairman Frank B. Strickland says, “LSC recognizes the fiscal constraints facing Congress. However, we hope Congress will conclude that turning away over 50 percent of eligible individuals who need legal assistance is an unacceptable situation.”
The ABA is and has been a strong advocate for legal aid lawyers and LSC. The Association is on record in support of LSC and the necessity for adequate funding and resources to provide those in poverty with high-quality legal services. The ABA is on record opposing attempts to diminish justice for poor people by reducing federal, state, and local funding for legal services programs and has previously called upon bar associations and lawyers to exert strong leadership and aggressive advocacy to preserve existing funding for legal services and to identify, pursue, and implement creative initiatives that will result in new funding mechanisms for legal services providers. The Association also supports educational loan repayment assistance and forgiveness programs.
It is not my intent to criticize the administration or to engage in partisan political posturing but rather to bring these facts and issues to your attention. Liberty and justice are not partisan issues. They are precious fundamental rights. As lawyers, we each have an obligation to become better informed about the justice gap in America and the current unmet civil legal needs of Americans living in poverty. As guardians of liberty, we must each heed our Association’s challenge to exert strong leadership and vigorous advocacy to preserve existing funding for legal services. We must also identify, pursue, and implement creative initiatives that will result in new funding mechanisms for legal services providers to ensure that “liberty and justice for all” becomes not just an ideal, but a promise fulfilled.