In 1996, the Orange County (CA) Bar Association Modest Means Program was the recipient of the Louis M. Brown Award. In 2000, the ABA Standing Committee on Lawyer Referral and Information Service surveyed LRIS programs and compiled a report on Developing a Modest Means Panel. The issues set out here come from that material.
- What is a Modest Means Panel?
- Why have a Modest Means Panel?
- What's involved in a Modest Means Panel?
- Who should I contact for more information?
A Modest Means Panel is a facet of a lawyer referral and information service that is specially structured to improve the availability of lawyers to those of moderate income. Although they go by various names, such as "reduced fee panel," "middle income program," and "alternative payment panel," the ABA Lawyer Referral Directory identifies approximately 90 such programs.
While some programs provide modest means services for a wide range of legal fields, others focus on a few areas such as bankruptcy, housing, criminal defense and will drafting. Some modest means programs are available in only one or two areas, most commonly family law.
Why have a Modest Means Panel?
According to a paper outlining the Orange County program, "Bar associations, to effectively serve average consumers, must regularly reassess the public's legal needs and financial abilities and then position lawyers to reach those clients wherever they may be on the slippery slopes of the American economy." Simple put, too many people cannot afford the full price of the legal services they need, yet they can afford to pay something less. Reducing fees for eligible clients broadens access, while it creates more business for participating lawyers.
The mission statement of the Orange County program is to "meet the overwhelming need for access to the justice system by those Orange County residents with low and fixed income where access to legal aid and pro bono assistance is not possible, and household resources are insufficient to pay prevailing hourly rates for legal services."
The purpose of the Hawaii State Bar Association Gap Group Program is to "make legal services accessible to those who need them, cannot afford them, and are not being served adequately by existing legal service providers."
The Middlesex (NJ) County Bar Association indicates the purpose of its Reduced Fee Program is "to extend the Middlesex County Bar Association's Lawyer Referral Service to people who do not qualify for free legal assistance from the Middlesex County Legal Services Corporation or other no cost legal services, BUT who cannot afford to pay attorneys fees at rates which would ordinarily be charged. The Reduced Fee Panel is also designed to make opportunities available to member attorneys to provide a public service by rendering legal services to persons who could not otherwise afford to receive such services."
What's involved in a Modest Means Panel?
The Orange County program has set up a Checklist for Success. It suggests the creation of a committee with appointees made by the bar president and representing local bars, legal aid, government and educational institutions, public interest groups, and representatives from LRIS. The checklist then suggests establishing subcommittees for issues such as:
- Fee schedules for panel lawyers;
- Client qualifications;
- Lawyer participation on the panel (recruitment);
- Lawyer qualifications for participation.
Modest means panels frequently have:
- an hourly cap on fees,
- a set hourly fee,
- a sliding fee scale,
- an agreement that the lawyer will charge less than his or her hourly fee, and/or
- set flat fees for specified services.
Those programs that cap hourly fees sometimes have a reduced cost for the initial interview and generally set the caps between $40 and $100 per hour. Those with set hourly fees generally set them at $40 or $50 per hour. A few programs cap the hourly rate according to the size of the household and the client's income. Other programs give the lawyers more discretion in setting fees, and some ask the participating lawyers to charge no more than half their regular hourly fee.
Programs also frequently cap retainers. Retainer caps range from $175 to $1,000, but are generally $500 or less and often vary according to the type of service provided. For example, the Middlesex (NJ) County Bar Association sets retainer caps for 16 different legal services.
Some programs offer specific services on a flat fee. Usually panels offer a limited number of services at a set flat fee, such as will preparation and bankruptcy. The Philadelphia Bar Association includes 17 matters that are offered at set flat fees, plus costs.
Income eligibility for potential clients is usually determined as a percentage of the federal poverty guidelines. Legal aid generally provides legal services to those who are below 125 percent of the poverty guidelines. The guidelines take into consideration household income and the number of people in the household. They also vary from one jurisdiction to another. Modest Means panels typically accept clients with incomes that range from 125 percent of the poverty guidelines to 200 percent, although a few programs are slightly lower and a few are higher.
Some Modest Means programs also look at assets or liquid assets when setting income eligibility. A few programs have developed a matrix that adjusts the eligible income according to the level of liquid assets. The New Hampshire Bar Association's Reduced Fee Referral Service adds its sliding fee scale to this matrix. For example, a family of four must have liquid assets of no more than $5,500. If its annual household income is below $10,938, then the legal service is provided at no more than $30 per hour. If the annual income is less than $20,875, the fees can go up to $40 per hour, and so on up to an annual income of $43,750 and an hourly rate of $60.
In almost all programs, the lawyer referral intake personnel will determine whether the caller is income eligible for the Modest Means Program. This is sometimes, but rarely, left to the lawyer who receives the referral.
Issues involving the participation of lawyers in Modest Means Panels include recruitment, criteria for participation and benefits of participation.
It is essential for LRIS programs to maintain a balanced number of lawyers on their panels in general. If you have too many lawyers, they do not get enough referrals. If you have too few, they may be overburdened by the intake process and free or low cost consultations. This problem is acute for Modest Means Panels, where the fee per case is almost certainly less than for general referrals. Therefore, recruitment of participating lawyers must be done with some precision. Most bars use the same recruitment tools for participation in the Modest Means Panel as they do for the LRIS in general. They use brochures, letters and in some instances, direct appeals. Frequently, recruitment stresses the opportunity for the lawyer to provide service to those who cannot otherwise afford to pursue their legal matters with the help of a lawyer. While it is generally not an appeal for pro bono work, it is an appeal for public service.
Modest Means Panels frequently roll their criteria for participation into the general criteria of serving in the bar's lawyer referral program. The criteria generally includes:
- Being a member of the bar in good standing;
- Maintaining malpractice insurance, sometimes at a requisite level, e.g. $100,000; and
- Achieving a level of experience, both generally and within the fields of specific subject matter, such as family law, estate planning or criminal defense.
Some panels also require lawyers to be free from adverse disciplinary findings, demonstrate a level of training and/or undergo peer review or recommendations as thresholds for participation. A few programs give lawyers the opportunity to participate only in the LRIS Modest Means Panel, without the obligation of participating in the general referral service. These lawyers generally still have the same requirements. However, a Modest Means Program may provide malpractice insurance for the lawyers who limit their participation in this way.
Most Modest Means Programs often provide participating lawyers with incentives that are not available in the general LRIS panels. Most LRIS programs charge lawyers a small fee to be listed on a panel, including separate fees for any specialty panels the service provides. However, most programs waive the panel participation fee for a lawyer's involvement in a modest means panel. Likewise, most programs require lawyers to provide the LRIS a percentage of fees collected from referred cases. However, the fee division is frequently waived for referrals from modest means programs. Programs that do not waive the percentage fee often provide a dollar-level exemption or reduce the percentage overall. For example, for a modest means referral, a program may require the lawyer to contribute a percentage on fees above $400 for a particular case, instead of on the entire fee. As noted, some programs provide lawyers with malpractice insurance for their modest means cases.
In addition to these direct benefits, lawyers who participate in modest means programs also get more cases. For some lawyers, this provides an opportunity to expand their practice into areas that they have not served before. Some LRIS programs include a mentoring program that gives these lawyers a resource to better understand the operations and issues of cases in these new areas.
Who should I contact for more information?
If you are involved in a LRIS program that could benefit by starting or restructuring a Modest Means Panel, the following contacts can help provide more information:
- Orange County Bar Association Modest Means Program: 949/440-6747
- Oregon State Bar Association Lawyer Referral Service: 503/684-3763