Why Does a “Million Dollar Baby” Need Pro Bono Legal Aid?
By now you’ve heard about the Canadian couple whose Hawaiian vacation ended with two souvenirs, the premature birth of their daughter and a million dollar hospital bill. Saskatchewan Blue Cross, who sold travelers insurance to the tourists, has denied their claim for cover of the bill. For me, this seems like a simple cost-benefit moment. This couple could spend several thousands of dollars fighting the claim, or they could be on the hook for a million dollars.
This couple were paralyzed by this choice. For them, the cost of a protracted legal battle might as well have been a million dollars. It was unaffordable for them to fight for their rights. Fortunately, Toronto-based Sivan Tumarkin, a partner with Samfiru Tumarkin Barristers and Solicitors, is offering his services pro bono to the family.
The story seems to be headed for a happy ending. The family gets help tackling their legal problems with the help of the selfless lawyer, donating his time.
What this story highlights for me is the growing reliance on pro bono work to shore up the justice system. More and more people are unable to afford legal help. They’re unable to afford help, even when the costs of not getting help exceed a million dollars!
This couple, that vacations on distant, tropical islands, and prudently buys health coverage when abroad, cannot afford a lawyer. This is not an indigent defendant, but a couple probably in the middle class.
Saskatchewan does have legal aid available, but the eligibility guidelines cut off recipients if they make more than $18,500 a year; $20,340 a year if they contribute to the costs. The cutoff numbers for the funding eligibility list those for a family with 1 child. The median income for a family in Saskatchewan is $80,010. Assets like retirement savings and real property can also exclude a family from legal aid eligibility.
I do not know this couple’s finances, but if they are close to the province’s medium income, legal aid was not an option.
Also, the subject of this dispute is probably not covered by legal aid in the province. Even if they were income-eligible, they probably couldn’t get help due to the type of dispute.
International Problem
They’re not alone. Middle class families are unable to afford legal services, not just in Canada, but also increasingly in every jurisdiction. Fiscal access to justice is a problem in every common law jurisdiction.
In England, the civil legal aid budget was reduced by £330m. Since these substantial cuts, courts in the UK have seen a rapid rise in self-represented litigants, called ‘litigants in person’ (or LiPs on social media). Research by the Probation and Family Court union, Napo, found that before the cuts, in 18% of cases neither party was represented by a lawyer. By the end of 2013 that figure had soared to 42% of cases. Cuts to funding for legal aid have made justice in the UK slower or unobtainable. Lord Dyson, the Master of the Rolls in England has stated that ‘miscarriages of justice are occurring because of the withdrawal of legal aid.’
(For U.S. lawyers, that would be like a Supreme Court Justice coming out and saying that courts are no longer able to issue just verdicts.)
Lawyers across the UK seem to agree with Lord Dyson. A recent survey found that 83% of lawyers believe justice is no longer accessible to all, with 80% of the lawyers saying the situation was worse than five years ago. Inadequate funding has left people in the UK on their own when it comes to seeking legal redress. Statistics are starting to show that these people are not just being left on their own; they are being left behind.
Bankrupt Courts
The US courts are not faring better when it comes to providing adequate legal services. Many have trouble keeping the lights on at all. The Chief Justice of the Supreme Court has warned that budget issues are the most significant issue facing the courts. Budget battles in Congress have reduced court staffing by 14 percent, and federal defenders (lawyers court-appointed to help those that cannot afford an attorney) by 11 percent. This has happened even as more demand for legal representation continues to grow. Chief Justice Roberts stated,
In other words, everyone loses. Delays would mean that courts could not help families and businesses in need. Delays also mean that innocent people cannot have their day in court, and that potentially guilty people remain free.
And that’s just at the federal level. State level courts are suffering from even greater lack of funding. When surveyed by the National Center for State Courts (NASC),the majority of the 45 states responding said their budgets would not be keeping up with demand for at least the next three years. Comments in State of the Judiciary speeches show the impact stagnant budgets have on state courts. Here are a select few of the statements collated by NASC:
- Colorado (2011)
- No matter how capable our judges, they cannot be effective unless adequate resources are provided.
- Iowa (2013)
- Iowans expect and deserve to have full-time access to justice. Whether it’s children in need, or you, your business, or your friends and neighbors who must at some time count on access to court services, it is clear that Iowans expect their government to operate a full-time, full-service, and efficient court system. Currently, all clerk of court offices in Iowa are closed every Tuesday and Thursday afternoon. Closures deny access to Iowans, including those seeking commitment of loved ones for mental illness and substance abuse and people seeking protection from domestic violence.
- Maine (2011)
- I must begin my presentation by reminding us all that the Maine Judicial Branch has been substantially underfunded for decades.
- New Mexico (2011)
- But the practical reality is this: Furlough closures of backlogged courts don’t save a dime for the taxpayer or for the government. It’s not like a furlough closure of a museum or a park or a tourist train, where you can actually save money by cutting services to the public on a given day. The work of busy courts just gets even more backed up and still takes the same resources, the same employee time, the same expense to process.
Many courts have focused on efficiency to dampen the blow of stagnant budgets, but lack of funds makes many efforts to apply technological improvements unaffordable.
Kansas remains my bitter favorite of underfunded courts. For years, Kansas courts have been fighting a rear-guard action against declining funds. They have resorted to closing courts on certain weekdays and furloughing employees without pay, but even that cannot close an $8.25m shortfall in their budge for 2015. Kansas Chief Justice Lawton Nuss has stated,
Kansas courts had been working on a e-filing system to help make their courts more efficient, but Chief Justice Nuss is now seeking permission for those allotted funds to be used to simply keep the courts open.
When courts try to advance their services into the modern era, lack of funding hampers their every move.
Even if a court is open, instead of furloughed due to lack of funding, most middle-class Americans cannot afford legal help. At every level of the courts, middle-class America is finding the process too unaffordable. Study after study finds that Americans cannot afford to solve their legal problems.
In the United States, the Legal Services Corporation (LSC) handles federal funding for civil legal aid groups through grants. In their 2009 report, Document the Justice Gap in America, they found that legal aid societies were turning away 50 percent of applicants. These people were turned away not because they were ineligible nor because they had invalid legal claims, but simply because the legal aid societies could not afford to serve them. While these groups were able to serve almost one million people, they turned away another million people in need. These are people for whom the disputes affect their income, families, and health. All this has happened as they saw a 30 percent increase in demand since 2007.
The LSC has seen the funds it can distribute to help people and families in need slashed for decades. In 2012, the LSC expected the groups they funded to cut over one thousand personnel, including 163 attorneys, from their rolls due to lack of funding. The LSC is celebrating an increase in funding for 2015. The additional $10 million funds allocated by Congress will bring the total amount up to $375 million, still shy of the $400 million budgeted in 1995.
Civil needs are not the only type of cases where people suffer from unaffordable legal fees. Criminal cases are where the costs of legal services are problems for defendants are more closely tracked. Since Gideon v. Wainwright in 1963, criminal defendants who cannot afford an attorney have had access to public defenders. This case set a standard that assistance of counsel was a fundamental right under the United States Constitution. Federal and state courts have been required to offer public defenders to assist in defense for those that cannot afford an attorney.
Court budgets have become a limiting factor in what type of counsel criminal defendants can access. For the last several years, the U.S. Department of Justice (DoJ) has been investigating state courts for inadequately funding their public defender offices. An NPR survey found that most public defenders offices’ budgets were paid with fees imposed on the defendants, rather than state funding. What is the outcome of these fees? If you were too poor to afford an attorney, one would be provided to you but you must pay for it. The Catch-22 contradiction seems to have gone unnoticed by most legislatures.
Not that underfunded courts are unique to the United States. Canadian courts have long relied on user-fees for funding too. Only recently has there been push back in the growing imposition of fees on litigants. The Supreme Court of Canada recently declared British Columbia’s imposition of hearing fees unconstitutional. The Court held that hearing fees violate the Constitutional principle of the Rule of Law. While the hearing fees allowed for exemptions for those who are impoverished, the fees were so high as to be unaffordable for those with even moderate incomes. Court fees in Canada are allowed but not those that “subject litigants to undue hardship, thereby effectively preventing access to the courts.”
If you can afford a court appointed attorney, you’ll find yourself with one juggling 500–600 cases at once. In New York, the DoJ found that limited funds and heavy caseloads made public defenders provided by counties sued in a class action, “a lawyer in name only.” Defendants were paying for defenders that could not remember their name or the details of their case; relying on these people to fight jail terms that could eat years of their lives. States have been forced to invest in their public defenders’ budgets. Court cases and strikes by attorneys about public defender caseloads have also happened in Florida, Missouri, Lousiana, and other states.
Free is not good enough
In the face of declining funding, hobbled courts, and no adequate legal representation, what has been proposed as the solution?
Lawyers and law students have been asked to donate their time; giving pro bono service to clients that cannot afford legal help.
Potential clients for lawyers are being foisted on law students, who have beenconscripted by state bars to provide free legal representation. New York just instituted a plan where law students must complete 50 hours of pro bono representation to people of limited means, non-profits organizations, or groups promoting access-to-justice issues. Law school faculty, an admitted attorney, or a judge must supervise the student’s work.
While I support the idea of public service, programs like these cannot fill the unmet need for legal services. First, this solution pushes people with real needs to inexperienced students, rather than professionals vetted by the admission standards of state bars. That means putting people’s freedom and livelihoods into untrained hands. (As an aside, this is not to belittle law students. I clerked as a law student; helping prosecute discrimination claims. The learning curve was steep. It took me more than 50 hours to begin being qualified to help people, which I went on to do for months)
Second, this program requires law students to donate time working on cases, but does not require lawyers to donate time supervising. This leaves many eager law students scrambling for supervision rather than helping people to the best of their untrained ability. Only students at law schools with clinics will be able to fill these hours. If you are a person without a local law school clinic that handles your type of case, good luck finding help with this program. This program cannot come close to filling the unmet needs for legal services.
Even New York Court of Appeals Chief Judge Jonathan Lippman does not believe that pro bono efforts can meet unmet demand for legal needs. He has said,
When lawyers can be found to donate their time, there still are not enough to meet demand. For example, when waves of economic refugee children began flooding into the U.S., the American Immigration Lawyers Association (AILA) created a pro bono project where their members helped immigrants staying at the Artesia, New Mexico detainment facility. Volunteers were quickly overwhelmed with over 120 cases assigned to each. These cases were also fast-tracked for adjudication; forcing each volunteer to struggle to learn and prepare each case under accelerated deadlines.
At whose expense?
How many businesses can give away an overwhelming amount of free services and still expect to remain viable? Lawyers donating pro bono services are expected to do so at their own expense. Pro bono work is time spent not earning an income andcannot be used for tax deductions, as per the IRS.
For many lawyers, the idea of taking on my work for no pay is not an option. The median annual wage for lawyers was $113,530 in May 2012, which may sound like a large amount, but must be take into account the law school debt many lawyers carry. Lawyers’ median salary also varies great between metropolitan and rural areas. For example, in a rural county Missouri, the median wage for a lawyer is around $60,000. Donating enough time to make any impact on unmet legal needs would make it impossible for a lawyer to have time to adequate service paying clients. It would also decimate any firm trying to run their practice as a successful business. The profession is being forced to choose between making a living or making a difference.
Competing solutions / Same Ideas
With a problem this large, many people have offered a solution, all of them rely on money being allowed to flow into and fund the legal system.
The UK and Australia are now offering legal services through business, as well as law firms. These legal businesses must register as Alternative Business Structures (ABS) in the UK, and have reporting requirements similar to many law firms. The goal of allowing ABSs was to allow invested capital to fund legal services in ways that were previously not allowed. Results are promising, but ABSs have only been allowed to operate since 2012. Currently, out of 10,000 firms in the UK, there are 318 registered ABS as of December, 2014.
Australia also has an ABS offering, allowing firms to be owned by entities other than lawyers. One advocate for ABS, Mitch Kowalski, has a favorite example on how ABSs can help met legal demands by redirecting cash. Salvos Law, a pair of law firms by the Salvation Army, is an ABS in Australia. Since its creation in 2010, Slavos Law has conducted over 11,000 pro bono cases. Salvos uses profits from its commercial work to fund pro bono work. What made Salvos able to perform so many pro bono cases was funding. ABS provided the opportunity for the funding, but it was the funding — not the format — that made large-scale provision of legal solutions possible.
Evidence of ABS making the legal system more affordable has not fully emerged. In the UK, ABS has become especially prevalent in personal injury, mental health, and social welfare, according to the research paper, “When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism,” by Nick Robinson. This research paper reviews ABSs impact in the countries. In the UK, the paper concludes that ABS has not been able to stem the rising need for legal services around family matters, especially following the cuts in legal aid in the country. The paper concludes that investment from outside sectors may not increase legal access, as funding would flow to the profitable areas already serviced by lawyers.
A proponent of the opposite view, anti-ABS Ken Chase, cites the example of LAO LAW at Legal Aid Ontario. This research service for lawyers was created and funded by the Law Society. Chase’s proposal is to create other funded support services for law firms. He believes that these lawyer-support services can enable the economic advantages that can bring down the cost of legal advice services. While his method varies from Mitch’s ABS example, it’s similar in the idea of funding the legal system rather than starving it.
Drive for Expansion
Further experimentation in Canada is happening in British Columbia. In 2015, BC plans to open an online dispute resolution system called the Civil Resolution Tribunal (CRT). Focusing solely on small claims under $25,000 in value and issues relating to condo disputes, the CRT will be an online service that guides litigants through possible avenues to resolve their issues. Previews of the service are very impressive.
Two things stand out about the CRT service. It focuses on resolving disputes quickly, channeling litigants towards options that try to settle disputes rather than forcing a situation when one side “wins.” The first phase of using the CRT would be an interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement. Stage two would be party-to-party negotiations, using online tools to make contact and exchange information. The tribunal would monitor and intervene in the discussions if necessary. Stage three would involve a case manager, who would contact the parties by phone or online to discuss the issues and attempt a facilitated settlement. Only if all the stages failed would the dispute be sent to a tribunal for a binding decision.
The second interesting fact about the CRT is that lawyers are excluded from hearings. The enabling statute that created the tribunal specifically excluded lawyers except in cases of incapacity or disputes involving minors. It is hoped that excluding lawyers will reduce time and costs for these disputes.
Many organizations and government are looking at the CRT as a model that they can implement in their own jurisdictions. What has made it worthy of so much attention? The BC Ministry of Justice has budgeted $3.5 million to making the CRT possible, and recent legislation is pending that will expand its jurisdiction.
Is the CRT another solution to unmet, unaffordable legal needs? Possibly; we will know more when the CRT launches in late 2015. If so, like ABS and the lawyer-support services, more funding to legal services is making a solution possible.
More money, less problems
There’s finally starting to be political movement in to support courts.
In Utah, votes just approved the creation of an appellate court in Nevada. Before this most cases were appealed directly to the state’s Supreme Court. This vote required a change in the state’s constitution. This was done to handle the thousands of cases currently backlogged. Funding for the new court of $1.5 million would be offset by a similar amount that the Supreme Court returns annually to the state general fund.
North Carolina’s courts are hopeful for funding, as top jobs in the state’s General Assembly are attorneys for the first time in more than 20 years. The court had seen operating funds slashed by 41% since 2008. The new Supreme Court Chief Justice Mark Martin has requested legislative leaders approve $30 million more in funds for the court in the next fiscal year.
Canada has granted federal funding to keep local drug courts open with $1.2 million over the next three years. The drug court stopped accepting new clients last spring when they did not know if their previous funding would extend beyond the end of March.
California courts get an additional $180 million to court systems trying to recover from years of financial cuts. The court had suffered $1.2 billion in cuts due to state fiscal crises, and charges of mismanagement. The budget is still below the 2007 fiscal year budget for the court, but its budget is now up to $3.47 billion. $90 million of the increase goes directly to boost trial court budgets. For example, the San Joaquin County Superior Court started cutting services in 2011 before closing completely in 2013. It recently reopened, hearing small-claims, landlord-tenant disputes, traffic and some criminal cases.
While not every jurisdiction and court is seeing increases in funding, those that do are better equipped to serve the needs of their communities. If improvement in funding continues, we just might avoid a Gideon-type case on adequate legal counsel in civil litigation.
Still, incremental increases in funding without long-term commitments to fiscal access to justice leave many middle class families without recourse. Failure to fund courts and legal aid adequately is burdening families with large costs and no solutions.
The couple with the million-dollar baby has to rely on pro bono because their court system is over-worked and under funded. Cases take too long to resolve, and the side with the deepest pockets can simply game the system by waiting. And that ends up costing us all more money in the end.
