Investing in justice: How bar foundations can help stop a legal aid crisis

Volume 32 Number 5

By

Bob Glaves has been the executive director of The Chicago Bar Foundation since October 1999, prior to which he practiced law at a midsized law firm in Chicago for nine years. He was the 2006-07 president of the National Confer-ence of Bar Foundations.

Throughout the country, there is a crisis that has been brewing in our justice system that threatens to boil over if it is not addressed now. Civil legal aid programs that already are forced to turn away more than half of those in need of their help due to a lack of sufficient resources increasingly are losing their core assets the attorneys who have dedicated their careers to legal aid because these attorneys simply can’t afford not to leave due to financial pressures.

Left unchecked, it’s a crisis that soon will have drastic consequences not just for our legal aid system, but for our entire justice system and the people who depend on it most.

Bar foundations in Illinois and several other states already have started to tackle this crisis head on, and many others are in the process of considering action on this front as well. This article will discuss the nature of the problem, how it developed, the conse-quences if it is not addressed, and why it is in the best interest of all funders of legal aid especially bar foundations to take af-firmative steps to end this crisis.

As some jurisdictions already are proving, this crisis is eminently solvable, and taking the actions necessary to do so is a solid investment in our justice system.

The problem

Like many bar foundations around the country, the ultimate objective of the Chicago Bar Foundation is to ensure ac-cess to justice for everyone in our community, particularly the low-income and disadvantaged Chicagoans who most need the protections of our civil legal system. In carrying out our mission, the CBF understands that strong legal aid organiza-tions are an integral component of ensuring equal access to justice, and that the core assets of strong legal aid organiza-tions are the outstanding attorneys who have chosen to dedicate their careers to this cause. In recent years, a growing crisis has developed in Chicago as our legal aid attorneys, particularly the newer lawyers coming into this work, increas-ingly are being forced to leave as the combination of inadequate salaries and skyrocketing law school debt makes it eco-nomically untenable for them to pursue these careers.

This problem, unfortunately, is not unique to Chicago. Like a number of other bar foundations around the country, the CBF initially began to address the problem several years ago by providing loan repayment assistance to newer attorneys struggling under the weight of heavy law school debt. While this assistance has been very helpful and continues to be an integral part of the ultimate solution, it recently has become clear that loan repayment assistance alone is not going to be sufficient to head off this crisis; the inordinately low salaries typically paid to legal aid attorneys are an even bigger prob-lem.

This problem of inadequate legal aid salaries was recognized elsewhere in the country in recent years as well, and in the state of New Hampshire and the city of Philadelphia, key stakeholders started taking steps to do something about it. (See John Tobin, “Urgent Memo to Ourselves: Legal Services is not the Peace Corps [Addressing the Salary Chasm Now],” MIE Journal, Spring 2003, p. 5; Catherine C. Carr, “Fairness and Justice in Setting Legal Services Attorney Sala-ries: Finding the Will to Get There,” MIE Journal, Summer 2007, p. 20; and Tobin, “How to Break Out of the Low Salary Trap A Step by Step Approach,” MIE Journal, Summer 2007, p. 25 all available at www.m-i-e.org).

With this backdrop, the CBF and the Illinois Coalition for Equal Justice decided to do a formal study of recruitment and retention of legal aid attorneys, which was released in November 2006 (see “A look at the legal aid crisis in Illinois,” right, for a summary and key findings). The study confirmed that we have a crisis on our hands: Legal aid salaries here lag well behind comparable public service positions; almost half of Illinois’ legal aid attorneys plan to leave in the next three years, primarily due to financial pressures; and left unchecked, there will be devastating consequences for our already overburdened civil legal aid system.

The Florida Bar Foundation and the National Legal Aid and Defender Association recently completed similar studies that reached disturbingly similar conclusions, and underscore that it’s time to act now to head off this crisis. (See The Quest for the Best: Attorney Recruitment and Retention Challenges for Florida Civil Legal Aid, available at www.flabarfndn.org; and It’s the Salaries, Stupid! ... And Much More: The Developing Crisis in the Delivery of Legal Aid, available at www.nlada.org/Civil/Civil_Sections/Loan_Repayment_Pensions.)

 

It wasn’t always like this

While many people have become resigned to the expectation that “this is just the way it is in legal aid,” it wasn’t always like this, and there’s no reason that it should be.

At the time when most civil legal aid programs around the country were launched, in the 1970s and early 1980s, the compensation paid to the lawyers who chose to pursue these careers was comparable to similar public service positions such as state’s attorneys and public defenders. While lawyers who chose this path knew they were making a financial sacrifice compared with what they could earn in private practice, they were able to pursue a career in legal aid and still buy a house, raise a family, and have a typical middle-class standard of living. With a reasonable expectation of modest financial security, a dedicated corps of outstanding attorneys made long-term commitments to careers in legal aid and continue to be the backbone of the civil legal aid system in our country today.

As this dedicated group of lawyers is now reaching retirement or nearing the end of their careers, that reasonable ex-pectation of financial security they began their careers with gradually has been eroded for those who would follow in their footsteps. What happened? Four basic factors have conspired to slowly but surely lead us to the crisis we find ourselves in today.

First, throughout the country over the past 25 years, legal aid programs have gone through some tumultuous times in obtain-ing funding for their work, with flat funding and often substantial cutbacks from major funders more the norm than the exception during this time. As a result, legal aid programs often would forgo raises for their attorneys and other staff in an attempt to avoid cutting staff in the face of overwhelming client demands.

Second, given the overwhelming need for their services, a common mentality in legal aid programs and many other nonprof-its is that when times are good and new funding becomes available, new money should be used to hire more people so the programs can try to serve more of the unmet need. While in many ways this is a noble attitude, it often leads to important pro-gram investments being neglected. In the present context, that typically has meant that in the years when their funding pros-pects improved, legal aid programs did not make up for the raises their attorneys had to forgo in the lean funding times.

Third, funders of legal aid including many bar foundations often have exacerbated the above problems by conditioning grants for legal aid organizations on their using it for new programs or increased services. This often has made it difficult or impossible for those legal aid programs wanting to address these issues to invest in their attorneys and other critical capacity needs when they obtain new funding.

While it happened very gradually, the combination of the above three factors has led to a point where legal aid salaries are substantially below what even comparable public service positions are paying. In Chicago, for example, median legal aid sala-ries in 2006 had fallen to a point where they were 40 percent lower than the salaries paid to local public defenders. At the same time, the cost of law school education has skyrocketed. According to a recent analysis by NALP (www.nalp.org), legal aid sala-ries nationally over the past 10 years not only haven’t kept pace with their public service counterparts, they haven’t even kept pace with inflation. At the same time, the average cost of attending law school has more than doubled, leaving new graduates with mortgage-sized educational debt.

And finally, the above three factors have created a fourth problem that essentially has made this dynamic self-perpetuating throughout the country: a distorted salary market for legal aid attorneys. When legal aid programs hire new staff, they typically look to other legal aid programs to determine the going “market” rate. We now know that this market is divorced from the reality on the ground, but so long as legal aid programs only look to each other in setting their compensa-tion, the legal aid salary market will never be able to right itself.

When one puts this all together, it’s easy to see that it’s devastating for our civil legal aid system. As newer attorneys who want to pursue these careers struggle financially and increasingly are forced to leave (with many taking second jobs at night or moving back in with their parents to try to stave off the inevitable), a growing gap in the legal aid workforce is developing. In a typical legal aid program, the outstanding corps who started years ago in legal aid is at the top but leaving soon, a num-ber of young new attorneys who are dedicated but inexperienced are on the ground floor, and increasingly, there’s virtually no one in between them. As one observer recently remarked, it’s like we lost a whole generation of legal aid attorneys somewhere along the line, and left unchecked, this trend is a recipe for disaster for the future stability of these programs.

Addressing this crisis: A solid investment in our justice system

As the findings of the Illinois, Florida, and NLADA studies show, the crisis facing civil legal aid attorneys is already negatively impacting the ability of legal aid programs to provide necessary services. The Illinois study, for example, found that losing just 10 percent of the experienced legal aid attorneys in our state means that almost 10,000 fewer vulnerable residents are able to get legal assistance that is often critical to their safety and independence. Given that legal aid pro-grams throughout the country already have to turn away over half of those seeking their help (see, for example, the Legal Service Corporation’s 2005 study, Documenting the Justice Gap in America, available at www.lsc.gov), it makes good financial sense to address this crisis now.

Left unchecked, this crisis also will hamper the private bar’s ability to provide pro bono services, aggravating the loss in direct services by the legal aid programs. Lawyers in private practice rely on good legal aid organizations to provide the necessary “infrastructure” to support their pro bono work (i.e., legal aid programs with solid screening, referral, training, and support functions for volunteers). Constant turnover in the legal aid programs damages that pro bono infrastructure and makes pro bono services less efficient as a result.

While not as tangible economically, there is another alarming aspect to this crisis: Legal aid programs are losing lawyers who are essentially irreplaceable in the current system. Legal aid attorneys from disadvantaged backgrounds who have a unique capacity to effectively serve clients struggling with poverty, abuse, and discrimination are at the greatest risk of leav-ing due to financial pressures, as these lawyers are the least likely to have other resources to fall back on. In addition, legal aid attorneys who went to law school for the sole purpose of serving vulnerable members of our community increasingly are being forced to leave because they simply can’t afford to stay in this work.

In addition to the short-term loss of critical client services, this crisis will have even greater adverse consequences for the fu-ture stability of our country’s legal aid programs if it is not addressed now. Some turnover is to be expected in any organization, and is even healthy, but any organization suffers when turnover becomes excessive. This is especially true for legal aid pro-grams, as there is not a readily available market of dedicated and experienced attorneys to replace those who are leaving at today’s salaries. Without a core group of dedicated legal aid attorneys to anchor the civil legal aid programs in our communities, these programs increasingly will become unstable and gradually lose their ability to provide their critical services. Given the vol-ume of unmet legal need that already exists, this would be a disaster for our entire justice system and all who depend on it.

For all of the above reasons, investing in increased legal aid salaries is a solid investment for our justice system. As the recent studies have demonstrated, this crisis has a real cost both in the short term and the long term; heading off the crisis, therefore, will have a real benefit. In other words, this is not a zero sum game, where investing in increased salaries would come at the expense of necessary services. In the short run, investing in increased salaries may not immediately yield the same increase in services as adding to the existing program capacity might. But the long-term benefit of having strong and stable legal aid programs with a solid core of dedicated, talented, and experienced lawyers will more than make up for any short-term loss in services we might see.

Leadership from bar foundations and other funders is critical

All funders of legal aid have a critical leadership role to play in addressing this crisis, regardless of their source of fund-ing. As noted above, this is a solid investment for any funder, one that ultimately will lead to more clients receiving better services. Any funder interested in legal aid wants strong, stable legal aid programs that are positioned to grow to serve more people the most effectively, and that can’t be done without protecting the core assets of these programs: the legal aid attorneys who have dedicated their careers to this work. It is particularly important for bar foundations to play a lead role on this issue. As lawyers, we are particularly conscious of what’s at stake with unnecessary turnover of key legal staff and the consequences for our pro bono and justice systems that result from it.

Bar foundations and other funders of legal aid also need to recognize that, through the conditional funding mentioned earlier, we had a big hand in the development of this crisis, and we need to do our part to put an end to it. While a number of steps will be necessary to fully solve the recruitment and retention crisis facing legal aid programs investments in or-ganizational capacity and other program staff are also critical we can’t effectively address these other issues without first solving the salary problem. Loan repayment assistance programs for newer attorneys will remain critical as well.

The Chicago Bar Foundation response

Illinois’ Investing in Justice study defined the crisis here and gave us a road map for solving it. But it became clear in the study’s aftermath that the longer-term forces that had led to today’s woefully inadequate legal aid salaries were so ingrained in our legal aid community here that the only way to reverse the trend would be through a community-wide ef-fort. The legal aid system in Chicago was in need of a jolt to head off this crisis, and the CBF orchestrated a comprehen-sive initiative that delivered it.

The CBF already had planned in early 2007 to launch a new annual fundraising campaign aimed at individual lawyers in law firms and corporations throughout the Chicago area, with the goal of significantly increasing the capacity of our community’s pro bono and legal aid systems. Recognizing that reversing the trend that saw us losing more and more of our community’s dedi-cated legal aid attorneys was the most immediate priority for increasing the capacity of our pro bono and legal aid systems, we made the issue of boosting legal aid salaries the sole focus of the campaign in the first year and committed in advance to use 100 percent of the funds raised for a special CBF grant program for this purpose.

Chicago’s legal community responded in a big way. Thanks to more than 1,600 Chicago lawyers and legal professionals and the many firms and corporations that matched individual contributions we not only achieved our ambitious goal to make a meaningful impact on this crisis right away, we also set the stage for a comprehensive solution within the next five years. The campaign raised more than $900,000, making possible a special grant pool that provided a significant down payment toward resolving this crisis.

As a result, each of the 260 full-time legal aid attorneys serving the Chicago area received a much-needed salary increase that averaged about $3,700 per attorney, with many of them receiving as much as a 10 percent raise. And as a condition of receiving these special grant funds, all of the major pro bono and legal aid organizations in Chicago developed and adopted a board-approved plan to raise their attorney salaries to the level of comparable government service positions here over the next three to five years.

For this initiative to be successful in the long run, we understand it will require an ongoing commitment from the CBF and other legal aid funders in Chicago (the other major legal aid funders here are also supporting this effort) to give the legal aid programs the means to carry out their salary increase plans. But thanks to the inspiring response of our legal community during the inaugural campaign and the resulting commitment of the legal aid programs here, we are well on our way to heading off this crisis in Chi-cago.

A nationwide response

Well before the CBF campaign took flight, legal aid organizations in New Hampshire successfully carried out a ground-breaking multiyear initiative to increase salaries for their staff attorneys. With the leadership of John Tobin, executive director of New Hampshire Legal Assistance, NHLA successfully completed a three-year initiative to bring its salaries into line with comparable public service employers in its region. NHLA raised its attorney salaries by a total of 30 percent over those three years (10 percent a year). The New Hampshire Bar Foundation was an important partner in the success of that effort, providing a significant increase in its annual funding for NHLA. (For more information, contact John Tobin at (603) 644-5393 or jtobin@nhla.org.)

More recently, the Florida Bar Foundation tackled this issue head on in the aftermath of its recently released recruit-ment/retention study. The foundation is providing special grants to the legal aid programs it supports to significantly increase their attorney salaries over the next three years, as well as to increase attorney retirement benefits. The 2007 median starting salary of $38,500 for staff attorneys will be raised to $43,500 this year and to $46,000 in 2010. In 2010, third-year attorneys will reach $50,000; currently, it takes nine years to reach that level.

The foundation will require that the programs adopt salary plans that reflect certain minimum salary standards and experi-ence-based milestones but otherwise leave them flexibility to determine how the salary increases will be allocated among their attorneys. The programs will also have to submit plans for how they will implement program improvements in recruitment, su-pervision, training, and other advocacy support in response to the study. (For more information, contact Paul Doyle at (407) 843-0045, ext. 108 or pdoyle@flabarfndn.org.)

Virginia is using a 2008 increase in the state Legislature’s appropriation for the Legal Services Corporation for Virginia (LSCV) from court filing fees to fund three related recruitment and retention initiatives for legal aid programs. That effort is funded by a new law that will increase the amount of court filing fees dedicated to legal aid funding from $4 per case to $9 per case, which is expected to generate an additional $4.2 million per year. LCSV intends to devote the entire increase to the three initiatives, which will: 1) increase starting salaries for legal aid attorneys to the same level as public defenders and prosecuting attorneys ($48,000, compared with the current $35,000 for legal aid attorneys), 2) fund a private, statewide re-tirement fund for legal aid attorneys and staff (6 percent employer contribution for each staff member), and 3) fund a loan repayment assistance plan that will provide all eligible attorneys with between $4,000 and $6,000 a year in loan forgiveness. (For more information, contact Mark Braley at LSCV, at (804) 782-9438 or mark.LSCV@mindspring.com.)

Many other bar foundations and IOLTA programs in other parts of the country reportedly are considering action on this issue now as well. Addressing this crisis facing our legal aid system will require a relatively large commitment on the part of bar foundations and other funders in the short term, but there will be a big long-term payoff. It truly is a solid investment in justice, and we’ll have a much stronger legal aid system when we are finished.

A look at the legal aid crisis in Illinois

The Chicago Bar Foundation and the Illinois Coalition for Equal Justice completed a comprehensive study in 2006 called Investing in Justice: A Framework for Effective Recruitment and Retention of Illinois Legal Aid Attorneys (available at www.chicagobarfoundation.org). The study was conducted by an industrial psychologist and a seasoned CBF attor-ney with national experience on these issues, and was overseen by a steering committee made up of a diverse group of stakeholders, including representatives of small and large legal aid programs, major legal aid funders in Illinois, law school representatives, and several members of the private bar. While there are a number of important findings and recommen-dations in the 2006 study, a few of the key conclusions are:

 

Almost half of Illinois’ legal aid attorneys (and almost three-quarters of newer legal aid attorneys without another source of income) plan to leave their positions in the next three years, and in most cases, that is preventable if we take some concrete steps now.

Turnover has very real costs to the legal aid programs, both in direct costs but more importantly, in the reduction of clients who can be served. Losing just 10 percent of our experienced legal aid attorneys over the course of a year means that about 10,000 fewer vulnerable Illinoisans will have access to critical legal services.

While increasing the availability of loan repayment assistance is critical, more loan repayment assistance alone is not going to fix the problem inordinately low salaries relative to similar public service positions (e.g., public defenders, state’s attorneys) are an even bigger problem. For example, the median legal aid salary in the Chicago area is almost 40 percent less than comparable government service positions.

For most legal aid attorneys in Illinois who are planning to leave their positions, increasing salaries by a median of just $10,000 per year would be enough to cause them to stay if loan repayment assistance were also available to them.

There are other important factors impacting retention that are not related to compensation including concerns about HR practices, professional development opportunities, and social services support. There also is a need for other program investments, such as training and support. But these other concerns can’t be effectively addressed without first tackling the salary problem.

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