2009-2017: Obama Administration

With the election in 2008 of Barack Obama, the legal services community looked forward to a period of relative calm and expanded federal support. For FY 2009, LSC funding had reached$390 million, an increase of more than 11 percent over the 2008 funding level of $350.5million. The President appointed a new Board of Directors in 2009, although the full board was not confirmed until 2010. While the new board included several very conservative members, all wee supporters of the legal services program. The President’s budget proposal for FY2010 included a substantial increase in funding for LSC and proposed elimination of many of the restrictions. Things really began to look up when Congress passed the 2010 LSC appropriation that included $420 million in funding for LSC, although the only restriction that was eliminated was the prohibition on seeking attorneys’ fees. A new LSC President, James Sandman, was hired and began work early in 2011. Sandman had served for many years as the managing partner for the Washington, D.C. law firm of Arnold & Porter, and had recently been the general counsel of the D.C. public schools. He had served as the president of the D.C. Bar and was a pro bono leader among private attorneys in the nation’s capital.

Nevertheless, with the continuing fiscal crisis and mounting calls in Congress for reduction of the federal deficit, LSC faced a potential funding crisis of significant proportions. The 2010 election cycle resulted in a highly partisan Republican majority in the House of Representatives and a slim Democratic majority in the Senate. A proposal by a freshman Republican House member to eliminate funding for LSC entirely was soundly defeated on a bi-partisan vote, but despite the President’s request for a $30 million increase to $450 million,Congress cut FY 2011 funding for LSC field programs by $16 million to $404 million. President Obama also sought $450 million for LSC for FY 2012, but Congress, under the guise of its continuing efforts to hold the budget in check, cut overall LSC funding by $56 million to $348million, a reduction of 13.9 percent, slashing funding for basic field grantees by 14.9 percent. Efforts to eliminate additional restrictions have been stymied. Funding has slowly moved up to $385 million for 2017.

In addition to the Fiscal Oversight Task Force and the Pro Bono Task Force discussed elsewhere, in 2012, the LSC Board adopted a five-year (2012-2016) strategic plan. 7 The plan established three major goals and identified specific implementation initiatives:

  1. Maximize the availability, quality, and effectiveness of the civil legal services that LSC grantees provide to eligible low-income individuals;
  2. Become a leading voice for access to justice and quality legal assistance in the United States; and
  3. Achieve the highest standards of fiscal responsibility, both for LSC and its grantees.

LSC has also embarked on a major new project to improve LSC’s data collection and reporting mechanisms and to educate LSC grantees about collection, analysis, and use of data. The data collection and analysis project has three major objectives:

  1. Develop and implement an improved system for collecting and analyzing data from LSC grantees, so that LSC can obtain a fuller picture of grantees’ operations, accomplishments, and limitations;
  2. Develop tools and resources that enhance LSC grantees’ ability to collect and use data to design, assess, and improve their delivery strategies and program operations, and to demonstrate the need for and effect of the services they provide clients throughout the country; and
  3. Provide training and technical assistance that fosters LSC grantees’ effective use of the tools and resources developed.

In June 2012 and January 2013 LSC convened a two-part Summit on the Use of Technology to Expand Access to Justice. The Summit brought together selected technology experts, academics, private practitioners, and representatives of legal services programs, courts, and governmental and business entities to explore the potential of technology to move the United States toward providing some form of effective assistance to 100 percent of persons with essential civil legal needs and unable to afford an attorney. Summit participants agreed on the following focus areas for the next five years:

  1. Document Assembly: improving automated form creation for self-represented individuals;
  2. Expert Systems: developing intelligent tools that guide clients and advocates through the steps needed for complex legal procedures;
  3. Remote Services Delivery: using technology to overcome physical barriers (e.g. distance in rural states or disability) to seeking representation;
  4. Mobile Technology: delivery of assistance and services using smart phones and tablets; and
  5. Triage: further automating the complex processes of matching clients to resources.

Finally, the LSC Board’s created an Institutional Advancement Committee and hired a Director of Development to seek private funds for a 40th Anniversary Celebration and a 40th anniversary campaign to fund:

  1. A prestigious, national fellowship program aimed at recent law school graduates to foster a lifelong commitment to legal services and, if feasible, senior or emeritus lawyers;
  2. research;
  3. A Pro Bono Innovation Fund to encourage and replicate innovations in pro bono services;
  4. An outreach project to better educate and increase public awareness of the significance and value of civil legal services,and effectively promote the work of LSC and its grantees; and
  5. Other projects (e.g.,expanding TIG, assisting grantees with capacity building), as well as introducing members of the honorary support auxiliary group and/or the alumni group, who will play a role in supporting LSC’s development efforts.

Related oral histories

Bergmark, Martha — Interview by Alan Houseman, 2015 May 15
Head of the project advisory group. VP of NLADA. VP of lsc. P of lsc.

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.

Houseman, Alan — Interview by Linda Perle, 2018 Jan 22
General Counsel for LSC legal aid programs. Lobbyist to preserve LSC.

Perle, Linda – Interview by Alan Houseman, 2018 Jan. 22
Lawyer for LSC legal aid programs.

Livingston, Lora J. — Interview by Alan Houseman, 2015 May 07
Chair of ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID).

White House Forums

Five White House forums were held between 2012 and 2017 to highlight the work and importance of civil legal aid. At the first forum, President Barack Obama promised legal aid supporters that his administration would be a “fierce defender and advocate on your behalf.” The President stressed the role of legal aid attorneys in ensuring that everyone in America is playing by the same rules in tough, economic times. He congratulated those throughout the legal aid community who “helped to answer the call” by ensuring that more people are able to stay in their homes, avoid domestic violence, and have access in general to the nation’s system of justice. In addition, Eric Holder, Attorney General of the United States and Harold Koh, U.S. Department of State Legal Advisor spoke. The forum also included a panel of six project directors from LSC-funded programs and a panel of judges and officials on the importance of civil legal aid.

The second forum featured remarks from: Vice President Joseph Biden; Attorney General Eric Holder; Senior Advisor to the President Valerie Jarrett; Deputy Counselor to the President Steve Croley; and LSC Board Chair John Levi. The forum featured two panels:one on pro bono’s role and the other on technology’s role in promoting access to justice. Similar formats continued for the next three forums.

Leaders Council

In May of 2016, LSC formed a new Leaders Council to raise public awareness of the current crisis in legal aid. The Leaders Council consists of high-profile and influential leaders from various industries. They include public figures such as former Major League Baseball player Henry “Hank” Aaron, author John Grisham, University of Michigan head football coach Jim Harbaugh, former Attorney General Eric Holder, Viacom Vice Chair Shari Redstone, and Microsoft Corporation President and Chief Legal Officer Brad Smith. Others include Earl Johnson and Jo-Ann Wallace (CEO of NLADA). Kenneth C. Frazier, CEO of pharmaceutical company Merck & Co., and Harriet Miers, a partner at Locke Lord and former White House Counsel to President George W. Bush, serve as co-chairs of the Leaders Council.

Voices for Civil Justice

Voices for Civil Justice is a national nonprofit communications hub launched in 2013 that raises awareness of civil legal aid. Voices seeks to strengthen and broaden the brand identity of civil legal aid and to establish, via a drumbeat of media coverage, a comprehensive narrative of what civil legal aid is and why it matters. For more information, see http://voicesforciviljustice.org.

In July 2017, Voices released findings of Voices’ latest round of messaging research conducted by Celinda Lake: Building a Civil Justice System that Delivers Justice for All. According to the research 84 percent of voters believe it is important for our democracy to ensure everyone has access to the civil justice system—an enormous level of support, indicating this is a core value of a large majority of Americans. And, 82 percent of voters agree that “equal justice under the law is a right, not a privilege.”Voters want civil justice reform, and they strongly support a wide range of services to enable everyone to get access to the information and effective assistance they need, when they need it,and in a form they can use.

Private Attorney Involvement: Recent Developments

In addition to the continuing requirement that LSC programs devote the equivalent of 12.5 percent of their LSC grant to private attorney involvement,there are other developments that focus on increasing the involvement of private attorneys in the delivery of civil legal aid.

The Pro Bono Institute’s Law Firm Pro Bono Project challenged large firms around the country to contribute 3 to 5 percent of their total billable hours to the provision of pro bono legal services.

As of 2013, 140 law firms are signatories to that challenge. 8 The Pro Bono Institute also has a challenge for corporate in-house counsel to increase the number of significant pro bono activities among lawyers who work on legal matters directly for corporations. The Corporate Pro Bono Challenge is a simple, voluntary statement of commitment to pro bono service by corporate legal departments, their lawyers, and staff. The goal is for one-half of the legal staff to support and participate in pro bono services. 9 As of 2013, there are 114signatories to the corporate challenge.

The American Bar Association’s Standing Committee on Pro Bono and Public Services recently issued a report—Supporting Justice III: A Report on the Pro Bono Work of America’s Lawyers (March 2013)—which reports on a 2012 survey completed by 2,876 lawyers throughout the country in private practice, corporate counsel offices, government, and academic settings. 10 This report is based on a new survey similar to those done by the ABA in 2004 and 2008. The study focused directly on what lawyers did for persons of limited means and for organizations that address the needs of persons of limited means. The study found that 63 percent of respondents worked on matters that address the everyday legal problems of people in poverty and 36 percent of the lawyers met the ABA’s aspirational goal of providing at least 50 hours of free pro bono services to persons of limited means.

The LSC Board appointed a Pro Bono Task Force that released its report in October 2012. 11The Task Force concluded that LSC should (1) serve as an information clearinghouse and source of coordination and technical assistance for pro bono services; (2) review certain aspects of LSC’s Private Attorney Involvement (PAI) Regulation; (3) partner with other stakeholders to launch a public relations campaign on the importance of legal services and pro bono; and (4) work with law schools and law firms to create a new civil legal services fellowship program for recent graduates designed to bridge the gap between firms and legal services organizations.

In addition, LSC established and received funding from Congress for a Pro Bono Innovation Fund. At the first LSC 40th Anniversary celebration in 2014, LSC President Jim Sandman presented the first Pro Bono Innovation Fund grants to 11 LSC grantee executive directors. In2015, LSC awarded grants to 15 legal aid organizations; in 2016, LSC awarded grants to 11legal aid organizations; and, in 2017, LSC awarded grants to 15 legal aid organizations. The goal of all these projects is to engage pro bono lawyers and other volunteers to leverage LSC’s federal funding and increase the legal resources available to low-income Americans.

NLADA and the American Bar Association also embarked on major efforts around probono. The ABA’s Standing Committee on Pro Bono and Public Service convened in 2009 a yearly National Pro Bono Summit to facilitate a national pro bono dialogue and to develop an action plan with realistic goals and concrete next steps to encourage real change in the nation’s pro bono legal services delivery system. NLADA appointed a Blue Ribbon Commission to look at pro bono efforts in both the civil and defender contexts.

Right To Counsel in Civil Cases At State Expense

In the United States, there is no general right to state-funded counsel in civil proceedings. The United States Constitution does not provide an explicit right to state-funded counsel in civil proceedings, although the Fourteenth Amendment does prohibit a State from depriving “any person of life, liberty, or property, without due process of law” or denying“to any person within its jurisdiction the equal protection of the laws.” Unlike Gideon v. Wainwright, 372 U.S. 335 (1963), in which the United States Supreme Court held that there must be counsel in criminal cases in which the defendant faces imprisonment or loss of physical liberty, the Court refused to find a constitutional right to counsel in civil cases when first faced with the issue in 1981. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Supreme Court held in a 5-4 ruling that the due process clause of the federal constitution did not provide for the guaranteed appointment of counsel for indigent parents facing the termination of parental rights. Rather, “the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings is to be answered in the first instance by the trial court, subject, of course, to appellate review.”

This basic framework was continued in 2011 when the Supreme Court decided Turner v,Rogers, 131 S.Ct.2507 (2011), which held that a parent jailed for civil contempt due to failure to pay child support is not categorically entitled to counsel when (1) the state provides other procedural safeguards; (2) the contemnor’s opponent is neither the state nor represented by counsel; and (3) the matter is not “unusually complex.” The court also determined that there is not a presumption in favor of counsel when physical liberty is at stake. However, the Court did hold that the state must provide four safeguards to ensure due process. These were: (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.

No state constitution explicitly sets out a state-funded right to counsel in civil cases. Virtually all state constitutions have due process and equal protection clauses whose wording may differ from the federal constitution but whose scopes have often been interpreted to be similar to or even broader than the federal constitution’s provisions. These provisions have been the primary legal framework for asserting the right to counsel in civil cases at state expense. Many state constitutions have “access to court” provisions,and some have provisions incorporating English common law rights. In limited categories of cases, some state legislatures have enacted statutes requiring state-funded counsel to be appointed for one or more parties, and the highest courts in some states have judicially decided that state-funded counsel should be provided as of right to some parties. These state-funded counsel provisions or court rulings are generally in the family law area and civil commitment. There are a few federal statutory requirements for appointment of counsel in civil cases, but these are very limited. Thus, in the vast majority of civil cases, there is no constitutional or statutory right to state-funded counsel.

The National Coalition for the Civil Right to Counsel, a coalition of over 240 participants from 35 states and housed at the Public Justice Center in Maryland, has focused on changing this legal framework through supporting litigation primarily in state courts, pursuing state statutory reform, and promoting pilot projects. These efforts are paying off. Many new state laws and court decisions are establishing the right to counsel in a range of cases, though primarily in the family law area. Significant efforts have been made to develop more expansive state statutes that provide for the right to counsel in civil cases at state expense in situations that go far beyond the few areas that now provide for such counsel. The California Access to Justice Commission developed a Model Statute in 2007, and the American Bar Association developed a Model Statute in 2010. In 2010, the Maryland Access to Justice Commission began a process that led in 2013 to Maryland legislation that created a statewide task force to explore civil right to counsel issues.

In 2017, New York City and Washington D.C. enacted right to counsel legislation that would provide a right to counsel for low-income families in eviction proceedings who are at or below 200 percent of the poverty level. Providing counsel will happen in New York City by increasing the City’s eviction legal aid spending by $93 million (on top of the $60 million the Mayor invested in 2014), which will occur over five years. In doing so, NYC will become the first jurisdiction in the country to provide a right to counsel in housing cases, making this an enormous step forward for the civil right to counsel movement in the United States. In May2017, the Washington, D.C. Council approved a budget that sets aside $4.5 million for a program to offer free legal aid to tenants facing eviction. Other cities, including Philadelphia, are also setting up right to counsel projects in eviction proceedings.

In several states, advocates have turned to setting pilot projects that provide counsel in a category or categories of cases. Massachusetts began pilot projects in 2009 to explore the impact of full representation in eviction cases. According to a March 2012 report, 12 both pilot projects prevented evictions, protected the rights of tenants, and maintained shelter in a high rate of cases. In one pilot, two-thirds of the tenants who received full representation were able to stay in their homes, compared with one-third of those who lacked representation. Even those represented tenants who moved were better able to manage their exit on their own timetable and their own terms. Full representation therefore allowed more than two-thirds of the tenants in this pilot to avoid the destabilizing consequences of eviction, including potential homelessness. Represented tenants also received almost five times the financial benefit (e.g., damages, cancellation of past due rent) as those without full representation. A collaboration of legal services programs in Massachusetts recently launched a new pilot project to provide legal help to people facing evictions in two additional counties.

In 2009, California adopted the Sargent Shriver Civil Counsel Ac. Under that Act, the California Judicial Council oversaw ten pilot projects in seven counties for appointment of counsel in civil cases including housing, child custody, and probate guardianship. The projects started in fiscal year 2011-2012. The legislation also required data collection and evaluation of both the civil representation and court-innovation components in order to provide a basis to revise and extend the legislation. In June 2016, the Governor signed legislation making the Shriver pilots permanent. In July of 2017, The Judicial Council of California released the Evaluation of the Sargent Shriver Civil Counsel Act prepared by NPC Research of Portland Oregon and the recommendations of the Shriver Civil Council Act Implementation Committee. (Endnote 13) The evaluation clearly supported the important role of attorneys in representing their clients, reaching settlements, improving the durability of court orders and helping ensure more efficient use of judicial resources. Attorney resources are used most effectively with well-designed triage systems. Such systems are critical to the smooth functioning of the continuum of service. The evaluation also showed that court-based opportunities for settlement discussion, including mediation and settlement masters, are an effective way to resolve cases before trial, benefiting all parties;the improved use of technology, including expansion of e-filing, helps facilitate the efficient handling of cases; and expanded court-based self-help centers are a critical element of the continuum of service.

Another example of a pilot was a multi-year, collaborative study entitled The Longer-Term Influence of Civil Legal Services on Battered Women, funded by the National Institute for Justice and operated by the University of Iowa and Iowa Legal Aid. It focused on the impact of providing counsel for victims of intimate partner violence in protection order,custody, child support, and marriage dissolution cases. The study found that after being provided counsel women reported substantially less physical violence (a decrease of around 75 percent); significantly decreased symptomatic responses to traumatic stressors,including intrusive thoughts, avoidant behaviors, hyperarousal, and depressive symptoms;and improved economic situations. Women reported a statistically significant increase in the adequacy of their family resources. Women also reported a decrease in difficulty living on their current income, an increase in monthly income, and a decrease in the number of assistance resources used.