It’s too soon to name the current era. But it’s useful to look at where things stand currently.
2017-2019: The Trump Administration
The budget submissions for Fiscal Year 2018 and Fiscal Year 2019 of the Trump Administration called for the elimination of LSC and no further funding. A range of groups were in opposition including the American Bar Association and numerous state and local bar associations, Corporation General Counsels of over 185 corporations, most leading newspaper editorial boards, major national law firms, over 150 law school deans, and the Presidents of the Conference of Chief Justices and the Conference of State Court Administrators. An example of bi-partisan support is the new Congressional Access to Civil Legal Services Caucus launched by Rep. Joseph Kennedy (D-MA) in December 2015 with Rep. Susan Brooks (R-IN).
The budget submission of the Administration was just the beginning of a long process. Congress appriated $410 for FY2018 and $415 for FY2019.
While the Trump Administration has proposed to eliminate it, LSC continued to operate and the LSC board appointed by President Obama and the LSC President remain.
In July 2017, LSC released a new toolkit on legal aid websites created by Ernst & Young LLP. On April 25, 2017, LSC, Microsoft Corporation, and Pro Bono Net named Alaska and Hawaii as state partners in a pilot program to develop online, statewide legal portals to direct individuals with civil legal needs to the most appropriate forms of assistance.
In June 2017, LSC released The Justice Gap: Measuring the Unmet Civil Legal Needs of Low income Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation, Washington, D.C., the report found that in 2017, low-income Americans will approach LSC-funded legal aid organizations for help with an estimated 1.7 million civil legal problems. They will receive legal help of some kind for 59 percent of these problems,but are expected to receive enough help to fully address their legal needs for only 28percent to 38 percent of them. More than half (53 percent to 70 percent) of the problems that low-income Americans bring to LSC grantees will receive limited legal help or no legal help at all because of a lack of resources to serve them. The study found seven of every 10low-income households have experienced at least one civil legal problem in the past year.
A full 70 percent of low-income Americans with civil legal problems reported that at least one of their problems affected them very much or severely. They seek legal help, however,for only 20 percent of their civil legal problems. Many who do not seek legal help report concerns about the cost of such help, not being sure if their issues are legal in nature, and not knowing where to look for help.
Civil legal aid in the US: Current snapshot
Civil legal aid in the United States is provided by a large number of separate and independent staff-based service providers funded by a variety of sources. NLADA estimated that 1,147 staff-based programs, employing 6,783 FTE attorneys, are involved in some form of civil legal assistance to the poor. The current overall funding is approximately $1.582 billion.
The US system of civil legal aid is characterized by:
- A diverse set of programs providing civil legal assistance
- A range of initiatives to serve clients,
- A wide range of funding sources,
- Considerable fragmentation of the civil legal aid system,
- Lack of state coordination, and
- Inequality in funding both across states and within states.
Inventory of providers
LSC-funded: 133 programs
The largest element of the civil legal aid system is comprised of the 133 programs that are funded and monitored by LSC. LSC is also the largest single funder, but overall, far more funds come from states and IOLTA programs than LSC. In addition, there are a variety of other sources, including local governments, other federal government sources, the private bar, United Way, and private foundations.
Not LSC-funded: Appox. one thousand programs
In addition to the LSC-funded providers, there are many other legal services providers that do not receive LSC funds but are supported by funds from these other sources. Most are small entities that provide limited services in specific locales or for particular client groups, but many are full-service providers that operate alongside the LSC providers in the jurisdictions they both serve. For example, in the District of Columbia, the largest single general service provider is the Legal Aid Society of DC, a non-LSC funded provider.
Pro bono: 900 programs
In addition to staff-based providers are supplemented by approximately 900 pro bono programs, which exist in every state and virtually every locale. These pro bono programs are either components of bar associations, component units of legal aid staff programs, or independent nonprofit entities with staff that refers cases to lawyers on the pro bono panels. Law school clinical programs and self-help programs also supplement the staff delivery system.
Judicare: One LSC-funded program
There remain a very few “judicare” programs directly funded by either LSC or other funders. LSC funds only one small judicare program, which now has staff attorneys and paralegals who deliver legal assistance in some cases.
It is very rare that a funder will directly fund, by contract or otherwise, individual lawyers or law firms. However, some staff attorney programs have created judicare components or contracted with individual lawyers and law firms, who are paid by the staff program to provide legal assistance to certain groups of clients.
State advocacy and support organizations: approx. 38
The United States system also includes approximately thirty-eight state advocacy and support organizations that advocate before state legislative and administrative bodies on policy issues affecting low-income persons. Some of these also provide training and technical support to local legal aid advocates on key substantive issues.
Federal advocacy entities: More than 30
Moreover, more than 30 entities are engaged in advocacy on behalf of low-income persons at the federal level. Fifteen of these were formerly funded by LSC and were part of the national support network; others never were funded by LSC.
Access Across America report (October 2011)
Rebecca Sandefur and her colleague Aaron Smyth issued a report, Access Across America: First Report of the Civil Justice Infrastructure Mapping Project (American Bar Foundation) October 7, 2011. The report describes trends and provides a national overview and state by state information on who is eligible for civil legal assistance, how services are produced and delivered, how eligible people may connect with services, how civil legal assistance is funded and coordinated, and how both free and fee generating limited-scope civil legal services are provided.
Over the last twenty years, the civil legal aid system has begun in earnest to utilize innovations in technology to improve and expand access to the civil justice system. 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. Technological innovation in virtually all states has led to the creation of Web sites 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 Web sites with over 300 sites.
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 Pro Bono 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.
Video conferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.
Technology: Document assembly applications such as HotDocs and A2j Author
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 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 Bono Net.
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.
Other approaches and innovations
Assistance to self-represented litigants
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 often provide also 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 they may provide also assistance in completing the forms.
Limited legal assistance initiatives (unbundling)
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 forty-five 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 and more 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.
Eligibility for assistance
The latest data from the American Community Survey indicate that 60.3 million Americans are eligible for civil legal assistance from LSC funded programs.
Legal aid programs funded by LSC have limitations on the clients that they can serve. The primary limitations relate to financial eligibility and status as an alien. LSC programs may use funds from sources other than LSC to serve individuals or groups who do not meet the LSC financial guidelines, but they may not serve aliens who do not meet the alien eligibility guidelines.
Legal aid programs that do not receive funding for LSC often restrict service to clients who meet financial eligibility guidelines. These guidelines often mirror the LSC guidelines but may be more generous or more restrictive than those guidelines, depending on the program’s priorities or on restrictions that may be imposed by other funders.
LSC-funded programs may only use LSC funds to provide legal assistance to clients who meet specific financial eligibility guidelines. The basic rule is that LSC programs serve clients at or under 125% of the Poverty Guidelines, or $32,188 for a family of 4 in 2019.
Asset ceilings and eligibility
LSC programs set their own asset ceilings for individual clients. These asset ceilings may be waived under certain circumstances. LSC programs may serve individuals who meet the asset ceilings and whose income is below 125% of the current official Federal Poverty Guidelines (poverty guidelines), which are revised annually by the U.S. government. In addition, under certain circumstances LSC programs may serve individuals who meet the asset guidelines and whose income exceeds 125% of the poverty guidelines.
Income and eligibility
LSC programs may serve, without regard to income, those individuals who are seeking to maintain benefits provided by governmental programs for low-income individuals or families or whose income is primarily devoted to medical or nursing home expenses. LSC programs may also serve individuals whose income does not exceed 200% of the poverty guidelines if they are seeking to maintain or obtain certain governmental benefits or if the program has determined that they should be financially eligible based on certain other specified factors.
Legal assistance to organizations of low-income persons
LSC-funded programs are also permitted to provide legal assistance to organizations of low-income persons, such as welfare rights or tenant organizations. To qualify for LSC funded assistance, the client organization must lack the means to retain private counsel, and the majority of its members must be financially eligible under the LSC regulations; or the organization must have as its principal activity the delivery of services to financially eligible members of the community.
LSC-funded programs cannot serve certain aliens, prisoners, or certain public housing evictees
LSC-funded programs are permitted to serve financially eligible individuals who are U.S. citizens or who are members of specified categories of aliens. LSC programs cannot assist undocumented aliens; aliens seeking asylum, refugee status, or conditional entrant status; or other categories of aliens who are legally in the U.S., including students and tourists.
Furthermore, LSC programs are not permitted to provide certain services to prisoners. Specifically, LSC programs cannot participate in civil litigation on behalf of a person incarcerated in a federal, state or local prison or participate in administrative proceedings challenging the conditions of incarceration.
In additiona, LSC programs are not permitted to represent persons convicted of or charged with drug crimes in public housing evictions when the evictions are based on threats to the health or safety of public housing residents or employees.
Usually no formal tests for merit or significance
Unlike civil legal aid plans in most developed countries, neither LSC nor most state funders impose a formal “merit” test on applicants for service and representation. Nor is there a “significance test” required by LSC or state funders.
Programs may impose their own criteria for service, such as only providing advice and brief service in certain kinds of cases or providing assistance only in particular categories of cases or with regard to specific issues. But the decision to limit service is a program-by-program decision and not a decision made by LSC or most other major institutional funders, such as state IOLTA programs. Some other funders limit the use of their resources to certain clients or types of cases, such as domestic violence victims.
Generally no co-payments or client contributions
Civil legal aid programs generally do not impose co-payments or client contributions from the clients served, and neither LSC nor state funders require co-payments or client contributions. In fact, LSC prohibits its programs from using co-payments for clients eligible for LSC funded services.
In addition, since the U.S. legal system is not generally a “loser pays” system, civil legal aid clients and programs are not usually required to reimburse an opponent’s legal fees and costs if they lose.
Restrictions on service
Much of the funding for civil legal aid programs is provided to the programs without earmarks on who can be served and what can be done. With these funds, the programs themselves make the key decisions about who will be served, the scope of service provided, the types of substantive areas in which legal assistance will be provided, the mix of attorneys and paralegals who will provide services, and the type of services provided (such as advice, brief services, extended representation, and law reform).
Congress has imposed restrictions on what LSC can fund and what its recipients can do, and a few other states have similar restrictions. But, in the U.S. system, LSC, IOLTA, and many other funders do not decide what kinds of cases programs will handle and which clients they will serve. It is the program itself that undertakes planning and priority setting and decides who will deliver the services (staff attorney or private attorney). As a corollary to this responsibility, it is the program that oversees how these services are delivered and evaluates the quality of work that is provided by its staff attorneys and the pro bono and paid private attorneys with whom the program works.
However, some government and private funding sources limit their funding to specific types of clients (e.g., aliens) or specific types of cases (e.g., domestic violence). Civil legal aid programs can decide whether or not to seek this funding, and many do. It is the program itself that decides internally whether to seek such funding.
The U.S. Congress has imposed some restrictions on what types of cases civil legal aid programs funded by LSC can bring and what types of advocacy they can pursue even with non-LSC funds.
- LSC funded providers are precluded from most advocacy and representation before legislative bodies and in administrative rulemaking proceedings, except in a few circumstances.
- LSC programs cannot initiate, participate, or engage in any class actions.
- LSC programs are prohibited from representation in redistricting cases and from participating in any litigation with regard to abortion.
Note: In 2009, Congress lifted the restriction on claiming, collecting and retaining attorneys’ fees from adverse parties.
Restrictions apply to all of LSC grantee’s funds, from whatever source
Prior to 1996 there had been some restrictions on what LSC-funded legal services programs could do, particularly with LSC funds. Then, the 1996 restrictions further tightened and prohibited LSC grantees from using funds available from most non-LSC sources to undertake those activities that are restricted with the use of LSC funds. In other words, all of a LSC grantee’s funds, from whatever source, are restricted.
Nevertheless, the restrictions do not cover most of the work that LSC programs can do on behalf of the low-income community, and LSC-funded programs can continue to provide representation in over 95% of the cases they were able to undertake prior to the imposition of the 1996 restrictions.
Legal Services Corporation (LSC)
In 1974, Congress passed and the President signed the Legal Services Corporation Act, the comprehensive legislation to make permanent the legal services program started under the Economic Opportunity Act. The LSC Act was reauthorized in 1977, but has not been reauthorized since.
For more detailed information about LSC, including comprehensive annual reports, budget requests to Congress, detailed fact books, regulations, laws and other critical information see www.lsc.gov.
LSC is not a federal agency, nor a government controlled corporation, but a nonprofit corporation established with the powers of a District of Columbia corporation and those provided by the LSC Act. The President of the United States appoints a bipartisan eleven-member board that must be confirmed by the Senate. Board members serve in a volunteer capacity, are not Executive branch employees and, under the LSC Act, cannot be fired by the President. Board members serve for three-year terms but hold over at the conclusion of their terms until new board members are qualified, i.e. confirmed by the Senate. The Chair of the board is chosen by the board, not by the President. The LSC board also appoints a president for LSC as well as certain key officers of the Corporation who serve at the pleasure of the board. The LSC president appoints the remaining members of the LSC staff. The LSC president and staff are not federal employees.
Unlike many federal agencies or government corporations, the LSC president administers the Corporation, making all grants and contracts. The LSC board does provide general oversight of LSC, makes broad policies, and promulgates the rules, regulations and guidelines governing LSC and the legal services grantees it funds. The board also submits its budget mark directly to Congress. The board generally meets at least four times a year for two days, with additional conference call meetings in between.
LSC funds 133 grantees that operate local, regional or statewide civil legal assistance programs with 813 offices throughout the country. Generally, one field program provides legal services in a designated geographic area. In addition, LSC, with Congressional approval, has earmarked funds for migrant and Native American grants for specialized programs that deliver services to these populations. All legal services programs are private, nonprofit entities, independent of LSC. All LSC grantees are governed by boards which consist of 60% attorneys and one-third eligible clients. By LSC regulation, all programs must expend 12.5% of their basic LSC grant on the involvement of private attorneys in the delivery of legal services.
2017 Justice Gap report
Through the innovative technologies described above, the civil legal aid system has made continuing progress in expanding access to legal information in most areas of the United States. But there is not enough funding available to provide all low-income persons who need it with legal advice, brief service, and particularly extended representation by a lawyer or paralegal. As a result, many low-income persons who are eligible for and need civil legal assistance are unable to obtain it.
In June 2017, LSC released its new Justice Gap report: Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC. https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf
Methodology: Survey of 2,000 low-income adults
To update two previous Justice Gap reports, LSC contracted with NORC at the University of Chicago to conduct a survey of more than 2,000 adults living in low-income households. For the purposes of the survey, “low-income households” are households at or below 125% of the Federal Poverty Level (FPL), the income eligibility standard for people seeking assistance from an LSC-funded legal aid program. The survey was administered using telephone and web interview modes to gather detailed information about low-income Americans’ civil legal needs at the individual level, household level, and level of specific civil legal problems.
According to the Report, the survey was designed to accomplish the following goals:
“• Measure the prevalence of civil legal problems in low-income households in the past 12 months;
• Assess the degree to which individuals with civil legal problems sought help for those problems;
• Describe the types and sources of help that low-income individuals sought for their civil legal problems;
• Evaluate low-income Americans’ attitudes and perceptions about the fairness and efficacy of the civil legal system; and
• Permit analysis of how experiences with civil legal issues, help-seeking behavior, and perceptions vary with demographic characteristics.”
Methodology: 2017 intake census by LSC grantees
This report also presents analysis of data from LSC’s 2017 Intake Census. LSC asked its 133 grantee programs to participate in an “intake census” during a six-week period spanning March and April 2017. As part of this census, grantees tracked the number of individuals approaching them for help with a civil legal problem that they were unable to serve, able to serve to some extent (but not fully), and able to serve fully. Grantees recorded the type of assistance individuals received and categorized the reasons individuals were not fully served where applicable.
In 2017, low-income Americans will approach LSC-funded legal aid organizations for help with an estimated 1.7 million civil legal problems. They will receive legal help of some kind for 59% of these problems, but are expected to receive enough help to fully address their legal needs for only 28% to 38% of them. More than half (53% to 70%) of the problems that low-income Americans bring to LSC grantees will receive limited legal help or no legal help at all because of a lack of resources to serve them.
The study found seven of every 10 low-income households have experienced at least one civil legal problem in the past year. A full 70% of low-income Americans with civil legal problems reported that at least one of their problems affected them very much or severely. They seek legal help, however, for only 20% of their civil legal problems. Many who do not seek legal help report concerns about the cost of such help, not being sure if their issues are legal in nature, and not knowing where to look for help.
The major problem in achieving meaningful access to a full range of high-quality legal assistance programs is the lack of programs with sufficient funding to provide the legal advice, brief service, and extended representation necessary to meet the legal needs of low-income persons. Based on the analysis presented in its 2017 report, LSC found:
“• Eighty-six percent of the civil legal problems faced by low-income Americans in a given year receive inadequate or no legal help;
• Of the estimated 1.7 million civil legal problems for which low-income Americans seek LSC-funded legal aid, 1.0 to 1.2 million (62% to 72%) receive inadequate or no
• In 2017, low-income Americans will likely not get their legal needs fully met for between 907,000 and 1.2 million civil legal problems that they bring to LSC-funded
legal aid programs, due to limited resources among LSC grantees. This represents the vast majority (85% to 97%) of all of the problems receiving limited or no legal assistance from LSC grantees.”
Justice Gap: Other findings
Many states lack full range of services from non-LSC providers
In many states, there are few, if any, non-LSC providers to ensure that low-income persons have access to the full range of services that they need and which cannot be provided by LSC recipients because of restrictions or limited resources. A significant gap in the civil legal aid system in the United States, and particularly in the many states with limited non-LSC resources, is the lack of providers that can:
(1) serve prisoners, aliens, and others who cannot be represented by LSC funded providers;
(2) bring class actions and effectively; and
(3) engage in advocacy in all relevant forums, including legislative and administrative rule-making and policy-making forums. In large parts of the country such providers do not exist, or, if they exist, they are small, under-funded, and not able to meet the need that exists. This problem is, in part, a result of the restrictions imposed on LSC-funded entities by the 1996 appropriation riders.
Historically, LSC and some IOLTA funders have sought to ensure coordination and support for all legal providers and their partners, along with a central focus on statewide issues of importance to low-income persons, including representation before legislative and administrative bodies.
Statewide advocacy, training, and support are inadequate or non-existent
State advocacy, training, and support are insufficient in many states and totally inadequate or non-existent in many others.
The loss of over $10 million in state support funding as a result of the Congressional funding decision made in 1996 has taken a large toll on the state support structure that was previously in place. Many of the state support units and the regional training centers that were part of larger programs have been eliminated. In a number of states, there has been no state-level policy advocacy, no significant training of staff, no information sharing about new developments, no litigation support, and no effective coordination among providers. Several new entities have been created to carry on state level advocacy, particularly policy advocacy. However, virtually all of these new entities are severely under-funded and under-staffed. Several of the remaining freestanding state support programs have survived, but, with a few exceptions, they have not made up the loss of LSC funds.