Since 1996, the legal services landscape has undergone a dramatic transformation. Legal services has seen a reduction in the total number of LSC grantees from more than 325programs in 1995 to 133 in 2018, and the geographic areas served by many of the remaining programs have increased dramatically. These changes were the result of the Congressional elimination of funding for state and national support entities and the mergers and reconfigurations promoted or sometimes imposed by LSC.
The network of state and federal support entities formerly funded by LSC has been substantially curtailed, and some of its components have been completely dismantled. This network, which had consisted of state and national support centers; the National Clearinghouse for Legal Services, which published the poverty law journal The Clearinghouse Review; and various training programs, had developed quality standards, engaged in delivery research, provided training to support legal services advocacy, and served as the infrastructure that linked all of the LSC-funded providers into a single national legal services program. Since the loss of their LSC funding, several of the national support centers that had focused solely on issues affecting the low-income community have broadened their focus to attract new sources of funds. Several closed their doors when they were unable to raise sufficient funds to operate effectively.
At the state level, the network of LSC-funded support centers has been replaced by a group of independent non-LSC funded entities engaged in state advocacy that operate in over 30states. Only 12 of the current state entities are former LSC-funded state support centers. Several states have been unable to recreate a significant state support capacity at all. Recently, the Shriver National Center on Poverty law (successor to the National Clearinghouse) has, with foundation support, created the Legal Impact Network that brings together many state advocacy programs and strong legal and policy advocates from throughout the country who are using innovative, coordinated strategies to address poverty and advance racial justice.
At the same time, new legal services delivery systems have begun emerging in many states that include both LSC-funded programs, operating within the constraints of Congressionally imposed restrictions, as well as separate non-LSC-funded legal services providers that operate unencumbered by the LSC restrictions. Many of these non-LSC-funded providers were created specifically in response to the imposition of the restrictions, when LSC-funded programs either gave up their LSC grants or spun off new entities that were supported with non-LSC funds that formerly went to the LSC recipients. The non-LSC-funded providers are generally free to seek attorneys’ fees, as are LSC grantees since the end of 2009; engage in class actions, welfare reform advocacy, or representation before legislature and administrative bodies; and provide assistance to aliens and prisoners, as long as their public and private funders permit their resources to be used for those activities. In 14 states and more than 20 large- or medium-size cities, two or more parallel LSC- and non-LSC-funded legal service providers operate in the same or overlapping geographic service areas.
Moreover, in a number of jurisdictions, the private bar became increasingly more involved in delivering basic legal services, as well as in undertaking those cases and activities that LSC recipients are prohibited from handling.
This new statewide system is emerging in large part because, beginning in 1995, in anticipation of funding cuts and the imposition of new restrictions, LSC initiated a strategic program that required all of its grantees to engage with non-LSC-funded providers, bar associations and state access to justice commissions, law schools, and other important stakeholders in each state in a state planning process. The goal was to develop a comprehensive, integrated system of legal service delivery for each state. Hallmarks of the new statewide delivery systems were to include a capacity for state-level advocacy; a single point of entry for all clients into the legal services system through a centralized telephone intake system; integration of LSC and non-LSC legal services providers;equitable allocation of resources among providers and geographic areas in the state;representation of low-income clients in all forums; and access to a full range of legal services, regardless of where the clients live, the language they speak, or the ethnic or cultural group with which they identify. States with large numbers of small LSC-funded legal services providers were urged to consider mergers and consolidation of local programs into larger and arguably more efficient regional or statewide programs, leading to the reconfiguration and reorganization of the legal services delivery systems in many states.
In addition to the state planning initiative that came from LSC, the Project for the Future of Equal Justice, a joint program of NLADA and CLASP, undertook a series of projects to promote the development of comprehensive, integrated statewide delivery systems. The ABA joined the effort by encouraging bar leaders to participate in state planning and to promote statewide, integrated systems. In February 1996, NLADA and the ABA created the State Planning Assistance Network (SPAN). SPAN provided leadership and assistance to state planning groups in order to support and stimulate legal services planning efforts around the country. In 2006, in recognition of the importance of state-level Access to Justice initiatives, the ABA created a new Resource Center for Access to Justice Initiatives to support the bench, bar, and legal services leaders engaged in efforts to expand civil justice and increase legal aid funding. Moreover, in a number of jurisdictions, the private bar became increasingly more involved in delivering basic legal services, as well as in undertaking those cases and activities that LSC recipients are prohibited from handling.
Beginning in 1998, under the leadership of LSC President John McKay and Vice President Randi Youells, LSC intensified its effort to promote state planning by requiring its grantees to submit detailed state plans and to engage in numerous follow-up activities. LSC’s efforts to promote mergers and reconfigurations increased in scope and intensity. Beginning in 1998 and continuing through 2005, LSC made funding decisions based in large measure on the results of the state planning process that has gone on in each state, although in some instances, LSC rejected the proposals that emerged from the state planning process, substituting its own configuration decisions. As a result of reconfigurations, the number of LSC grantees has been reduced substantially, and fewer programs with proportionately larger LSC grants are each responsible for serving more poor people in a larger geographic area. In 2018, LSC funded 133 grantees across the country, down from more than 325 in 1995.
The state planning initiative has fundamentally changed how civil legal assistance disorganized in this country. Instead of a diverse group of separate, locally controlled, and fully independent LSC-funded programs, loosely linked by a network of state and national support centers, efforts were made in each state to develop a unified state justice system that includes LSC and non-LSC providers, law schools, pro bono programs, other human services providers, and key elements of the private bar and the state judicial system, working in close collaboration to provide a full range of legal services throughout the state. Instead of a philosophy of local control, programs were urged to think in terms of collective responsibility for the delivery of legal services in each state. The focus was no longer on what an individual program could do to serve the clients within its service area but on what a state justice community could do to provide equal access to justice to all of the eligible clients across the entire state. These efforts were more successful in some states than in others, but the legal services community as a whole has changed its focus from local programs to service to all of the clients within a state.
Related oral histories
Battle, LaVeeda — Interview by Alan Houseman, 2016 May 12 LSC
LSC board member.
Bergmark, Martha — Interview by Alan Houseman, 2015 May 15 LSC
Vice-President and President of LSC. Vice-President of NLADA.
Brooks, Terry — Interview by Alan Houseman, 2016 Nov 09
Staff director of the legal services division of ABA. Key player during the period for the ABA, which played a key role in preserving LSC.
Clark, Julie — Interview by Don Saunders, 2002 Oct 02
Director of govt relations at NLADA. Head lobbyist for NLADA starting in 1981 and through this period.
Dana, Howard — Interview by Don Saunders, 2002 Aug 06
Key member of LSC board.
Groudine, Bev – Interview by Alan Houseman, 2018 May 10 ABA
Houseman, Alan — Interview by Linda Perle, 2018 Jan 22 LA/LSC
General Counsel for LSC legal aid programs. Lobbyist to preserve LSC.
Lyons, Clinton “Clint” — Interview by Victor Geminiani, 1991 Jul 23 LSC
President of NLADA.
McCalpin, Bill — Interview by Linda Perle, 2002 Aug 09
Board member of LSC then board member of NLADA.
Perle, Linda – Interview by Alan Houseman, 2018 Jan. 22
Lawyer for LSC legal aid programs.
Singsen III, Antoine G. — Interview by Victor Geminiani, 1991 Nov 01
Consultant.
Smegal, Thomas — Interview by Linda Perle, 2002 Sep
Key LSC board member.
Tull, John — Interview by Alan Houseman, 2016 Nov 10
Whitehurst, William — Interview by Alan Houseman, 2015 May 07
Chair of ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID).
State access to justice commissions
One of the most effective ways to develop, expand, and institutionalize comprehensive, integrated state systems for the delivery of civil legal aid is through the establishment of state access to justice commissions.
Access to justice commissions have existed for a decade or more, including the Washington State Access to Justice Board, the California Access to Justice Commission, and Maine’s Justice Action Group. As of [2018?], 40 states have active access to justice commissions. New commissions are on the drawing boards in more states.
They are conceived as having a continuing existence, in contrast to a blue-ribbon body created to issue a report and then sunset. They have a broad charge to engage in ongoing assessment of the civil legal needs of people in the state and to develop, coordinate, and oversee initiatives to respond to those needs.
Access to Justice Commissions carry out a number of activities:
- Funding for civil legal aid: Increasing state legislative funding (appropriations and legislatively enacted filing fees add-ons), funding from changes in court rules/statutes (e.g., pro hac vice fees and cy pres distributions) and private funding from foundations, the bar and the general public. Many states run public relations and public outreach campaigns as part of fund raising initiatives.
- Developmental Activities: Undertaking state legal needs and economic impact studies, convening public forums across a state, developing strategic plans for access to justice and holding access to justice seminars and conferences on general and specific topics (e.g. law schools, technology).
- Self-represented litigation: simplification of court processes and forms; developing court-based self-help centers; producing educational programs, handbooks and materials; changes in the Code of Judicial Conduct; increasing language access; and cultivating partnerships with public libraries as points of access to legal assistance. Best practices for administrative agencies, strategic plans and recommendations have also been developed to guide future endeavors.
- Pro bono initiatives: implementation of Supreme Court recognition programs, mentorship and training programs, retiring and retired lawyer programs, specialized pro bono programs, regional committees, and rule and policy changes to support pro bono work.
- Limited scope representation: formulating or amending rules of professional conduct or rules of procedure, and developing and providing educational resources.
- Legal aid delivery initiatives: expanded uses of information technology, remote video conferencing, triage approaches, portal projects, legal incubator programs, disability access initiatives, addressing racial disparities, mediation and ADR initiatives, legal answers websites, court based vacillators/navigators and limited licenses for non-lawyers and legal technicians.
- Law school and legal profession efforts: new law school initiatives, pro bono admission requirements for graduation, implicit bias training, poverty simulations, and proposals to add questions about access and poverty law to bar exams.
The ABA Resource Center for Access to Justice Initiatives produced a report released in August 2018, entitled Access to Justice Commissions: Increasing Effectiveness Through Adequate Staffing and Funding by Mary Flynn. The report is a comprehensive review of the 40 Access to Justice Commissions, their funding, creation, structure, activities and staffing. The report finds that:
- broad, active stakeholder involvement increasers the impact of access to justice commissions;
- professional staff plays a key role with effective commissions; the Conferences of Chief Justices and individual justices have played a key role in expanding access to justice commissions;
- the support of the legal aid community is extremely valuable for successful commissions; and
- private philanthropy has strategically nurtured the expansion of commissions.
It also includes best practices recommendations including seeking out a diverse set of funding sources and have a minimum staffing level.
The ABA Resource Center also produced Access to Justice Commission Initiatives: Examples and Resources (17-page PDF) in August 2017.
Funding
Funding for this new state justice system has not remained static. From 1996 through2016, total funding from all sources for legal services in the United States grew from an estimated $700 million to over $1.6 billion. Despite the 1996 reductions, appropriations for LSC recovered slowly from $278 million in FY 1996 to $420 million in FY 2010, and funding from other sources grew significantly during much of that same period. Until recently,most of this increase was attributed to expansion of IOLTA 6 programs and new mechanisms to increase the amount of IOLTA funding that was available to support civil legal assistance. However, with the economic downturn that began at the end of 2008,IOLTA funds for legal services have spiraled down in many states, as a result of historically low interest rates as well as major slowdowns in the real estate market and general business activity that had provided the impetus for IOLTA funding.
After the 1996 reductions in LSC funding, many programs were successful in securing substantial additional new funding to support civil legal services. Legal services programs received significant non-LSC federal funding from the Department of Justice under the Violence Against Women Act (VAWA), the Department of Housing and Urban Development, the Internal Revenue Service, and other federal agencies. Funds also have come from general state or local government appropriations and from contracts with state or local agencies to assist them in establishing eligibility of individuals for federal benefits, including Supplemental Security Income/Social Security Disability Insurance programs and Medicaid.
In addition, programs received funding from court filing fee surcharges; attorney registration fees or state bar dues assessment; state abandoned property funds; punitive damage awards;and various other state and local government initiatives. Since 1982, funding for civil legal aid derived from state and local governments has increased from a few million dollars to over$300 million per year. However, the exact amount of state funding for civil legal assistance was not fully documented, because much of this funding went to non-LSC-funded programs that do not have to report to any central funding source, unlike LSC-funded programs.
LSC-funded legal services programs were also successful in securing substantial increases in funding from private sources, including foundations and corporate gifts, donations from individual philanthropists, United Way campaigns, special events, grants from religious institutions, fee-for-service projects, private bar fundraising campaigns, grants from bar associations, voluntary bar dues check-offs or add-ons, cy pres awards, and awards from attorneys’ fees pursuant to fee-shifting statutes once they were permitted under the LSC restrictions.
While these resources are not distributed equally, in 39 states non-LSC funds exceed LSC funds, and the ratio of non-LSC funds to LSC funds continues to increase. Although LSC funds remain the single largest source of support for civil legal services, programs in most areas of the country have become less dependent on LSC dollars in recent years. However, financial support for this newly emerging system of delivery must be put into context. Private philanthropy is highly dependent on the state of the economy. State funding is no more secure than federal funding, and during the Great Recession state appropriations for civil legal services were significantly reduced or, in some states, eliminated entirely. In many states,efforts have been made by the legislatures or IOLTA commissions to impose significant restrictions on the use of their funds.
Changes in Delivery: Technology and Self-Help Initiatives
In addition to changes in the funding landscape, there have been numerous modifications in the legal services delivery system over the last two decades. Faced with severely limited resources, legal services programs have adopted new technologies and strategies that have allowed them to provide limited legal assistance to a larger number of people. As a result,low-income persons have access to information about legal rights and responsibilities and about the options and services available to solve their legal problems, protect their legal rights, and promote their legal interests.
LSC began a new grant program, Technology Initiative Grants (TIG) in 2000 and funded more than 708 projects totaling more than $63 million. Technological innovation in virtually all states has led to the creation of websites that offer community legal education information,pro se legal assistance, and other information about the courts and social services. Most legal aid programs now have websites, numbering more than 300 nationwide.
All states have a statewide website, most of which also contain information useful both to advocates and clients. Most of these statewide web sites were made possible by the Technology Initiative Grants program of LSC. All of these state sites can be accessed through www.lawhelp.org. Half of the sites are hosted on one platform operated by ProBono Net (www.probono.net). Dozens of national sites provide substantive legal information to advocates; other national sites support delivery, management, and technology functions. Many program, statewide, and national websites are using cutting edge software and offering extensive functionality. Projects in many states use kiosks with touch-screen computers that allow clients to produce court-ready pleadings and access to other services, such as help with filing for the Earned Income Tax Credit. Videoconferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.
Finally, increasing numbers of legal aid programs across the country, in partnership with the courts and legal community, are using document assembly applications, most notably HotDocs and Access to Justice Author (A2J Author) to expand and make more efficient the provision of legal services to clients. These projects generally focus on the use of document assembly for pro se resources used by the public and automated documents used by legal aid staff to more efficiently represent their clients. Many of these projects nationally are coordinated through Law Help Interactive, which is a project of Pro BonoNet.
A2J Author uses HotDocs Online software to assist self-represented litigants in a web mediated process to assess eligibility, gather pertinent information to prepare a set of simple court forms, and then deliver those forms ready to be signed and filed. A2J Author is equipped with “just in time” help tools, including the ability to speak each word of the interview to the user in English or Spanish. The user can be directed to other websites to obtain explanations of technical terms.
In addition, there has been a rapid expansion of efforts by courts, legal aid providers, and bar associations to help people who are attempting to represent themselves in courts. Civil legal aid programs are devoting substantial time and resources to address the issue of assistance to pro se litigants. Many legal aid programs throughout the country operate self-help programs independently or in conjunction with courts. Some programs provide only access to information about the law, legal rights, and the legal process in written form,on the internet, on videotape, through seminars, or through in-person assistance. Other programs actually provide individualized legal advice and also often provide legal assistance in drafting documents and advice about how to pursue cases. Often, programs provide both printed and internet-accessible forms for use by persons without legal training, and also may provide assistance in completing the forms.
A critical part of expanding access has focused on a range of limited legal assistance initiatives to provide less than extended representation to clients who either do not need such extended representation in order to solve their legal problems or live in areas without direct access to lawyers or entities available to provide extended representation.
Many legal aid programs now operate legal hotlines, which enable low-income persons who believe they have a legal problem to speak by telephone to a skilled attorney or paralegal and receive advice and brief service. Legal hotlines may provide answers to clients’ legal questions, analysis of clients’ legal problems, and advice on solving those problems so that the client can resolve the problem with the information from phone consultation. Hotlines may also perform brief services when those are likely to solve the problem and make referrals if further legal assistance is necessary. Hotlines now operate in over 92 programs in 45 states,Puerto Rico, and the District of Columbia. Some hotlines focus on particular client groups,such as the elderly. Others serve the low-income population in general. Finally, more anymore states have a central phone number (or several regional phone numbers) that clients can call to be referred to the appropriate program or to obtain brief advice about their legal problems.
Developments During the Bush Administration
In 2003, the Bush Administration appointed a new LSC Board of Directors. For the most part,the members of the LSC board were highly supportive of the legal services program, seeking increased appropriations from Congress and adopting policies that continued the commitment of their predecessors. In early 2004, the Board selected as the new LSC President Helaine Barnett, who previously worked for many years as an attorney and manager for the Legal Aid Society of New York, a former LSC grantee. Ms. Barnett hired a highly competent and committed senior staff, which worked diligently to expand resources available to LSC grantees and to improve the quality of LSC programs. In 2005, LSC began a new quality initiative and issued a well-received report on the national “justice gap,” documenting the gap between the resources available to support legal services and the legal needs of the low income community. The “justice gap” study was updated in 2009. In 2006, LSC issued a set of revised Performance Criteria, setting new standards for its grantees and recommitting LSC to high-quality and effective legal services.
The year 2006 was a landmark for the ABA’s efforts relating to legal services. At its annual meeting in August, the ABA adopted a new set of substantially revised Standards for the Provision of Civil Legal Aid. Although based on its 1986 Standards, the new standards also addressed the major changes in the legal services delivery system and the client community that had been made in the previous two decades, including new standards on participation in statewide and regional systems, cultural competence, the effective use of technology,limited representation, representation on transactional matters, and representation of groups and organizations. In addition, the ABA adopted two new major policy statements. One was a call for the expansion of the right to counsel in civil cases involving basic human needs, and the other was a set of 10 principals for an effective state-based legal services delivery system.
Finally, LSC came under increased scrutiny from US General Accountability Office (GAO)which began a series of audits in 2006 of LSC and its grantees. These audits resulted in two extensive and critical GAO reports issued in 2007 that included a number of recommendations intended to modernize and strengthen LSC’s governance and accountability practices and to improve its internal controls, grants management, and oversight operations.
The GAO reports and the implementation of their recommendations engulfed the LSC Board and management in a time-consuming set of activities and provided substantial fodder to LSC’s critics. LSC implemented most of the GAO recommendations, and GAO indicated that LSC is responding effectively to the concerns that it had raised. In addition,the LSC Board appointed by President Obama created a Special Task Force on Fiscal Oversight to study how fiscal oversight of grantees is currently performed by the Corporation. The Board accepted and adopted the findings and recommendations of the Task Force in January 2012. The recommendations included creating a risk-based,integrated approach to financial oversight and consolidating management’s three,separate oversight offices into one office called the Office of Grantee Assessment (OGA). LSC’s Vice President for Grants Management oversaw the implementation of the Task Force recommendations.