Introduction: The Current Crisis in Legal Services
This country’s system for providing civil legal services to the poor is in the midst of a perfect storm. The United States is now five years into the worst financial crisis since the Great Depression. An estimated 61.4 million Americans – nearly one in five – will qualify for civil legal assistance funded by the Legal Services Corporation (LSC) in 2012.3 These families earn less than $28,813 per year for a family of four.4 The number of people qualifying for civil legal aid has increased by over 10 million since 2007. There has been a significant increase in the demand for legal services in specific areas, such as foreclosure,5 and also in the number of people who are seeking free legal services for the first time. Many Iraq and Afghanistan war veterans also are turning to legal services agencies for help as they return home to new economic and personal challenges.6
In short, there has been an explosion in the demand for legal services. Yet, although the United States has one of the best justice systems in the world, millions of Americans cannot access this system because they cannot afford to do so.7 Despite a network of government and non-profit agencies dedicated to providing free civil legal services to the poor, including those funded by the LSC,8 at least 50% of people seeking help from LSC- funded organizations – and eligible to receive it – are turned away because of insufficient resources.9 Other studies have found that 80% of the civil legal needs of low-income people go unmet.10
Recent revenue reductions for legal services have exacerbated these problems. In 2011, LSC-funded organizations alone reduced their headcount by 661 full-timeequivalent (FTE) positions, including 241 attorneys, and anticipate shedding an additional 724 FTE staff in 2012, including 333 attorneys.11 These cuts have serious consequences for the poor, as studies consistently show that access to legal counsel makes a significant difference for litigants.12
In the midst of this perfect storm, assistance from the private bar is critical. Pro bono cannot replace the enormous contributions of full-time legal aid programs, either in terms of volume or expertise. But it is an essential mechanism for narrowing the justice gap, especially where efforts to engage pro bono lawyers are adequately resourced and supported. Of course, there are many excellent existing programs for lawyers who wish to volunteer their time and services, and many lawyers in the profession have answered the call to give back, especially in light of the current crisis. But the effective engagement of the private bar is uneven across the country and there is a need for significant energy, innovation, and attention to pro bono delivery by the entire profession, including the courts, bar associations, Access to Justice Commissions (AJCs), private attorneys, government attorneys, corporate counsel, law schools, legal services organizations, and, of course, LSC itself.
This report considers how LSC, its grantees, and other stakeholders can narrow the justice gap through the regular and effective engagement of pro bono lawyers. It is the outcome of many months of work by a dedicated and distinguished Pro Bono Task Force convened by LSC’s Board of Directors and made up of leaders from legal services organizations, major law firms, law schools, bar associations, in-house legal departments, the government, and the courts. Specifically, the Task Force focused on ways in which pro bono can be used consistently to increase the supply of lawyers and others available to provide legal services, while also engaging pro bono lawyers to reduce demand for those services – for example, by recruiting them to tackle systemic issues that generate legal problems for the poor. The Task Force also considered ways in which pro bono volunteers could be better and more efficiently matched with client need. The resulting report focuses chiefly on what LSC and its grantees can do to encourage increased and effective pro bono participation. But it also contains requests of others, including the judiciary, bar associations, law schools, in-house lawyers and legal departments, and firm lawyers.
One major theme of this report is collaboration. In making its recommendations, the Task Force recognizes that there currently are other significant efforts underway to address the justice gap, including those of the National Legal Aid and Defender Association (NLADA), as detailed in its 2011 report, A Blueprint for Action, as well as those of the American Bar Association, through its Center on Pro Bono and its Pro Bono Summit, which took place in late 2011.13 There likely will be significant overlap in these efforts. Collaboration is key to addressing the legal services crisis and the Task Force welcomes the chance to work with these bodies in implementing their collective recommendations.
Finally, the Task Force recognizes that developing and supporting effective pro bono programs requires the investment of valuable time and resources by already strapped legal aid organizations. To put it simply: pro bono is not free. The Task Force therefore encourages funders to make infrastructure investments to facilitate the engagement of pro bono volunteers.
3 U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2011, at 18 (Sept. 2012). http://www.census.gov/prod/2012pubs/p60-243.pdf.
4 Legal Services Corporation 2012 Income Guidelines, Appendix A to 45 C.F.R. Part 1611, 77 Fed. Reg. 4909 (Feb. 1, 2012). http://www.lsc.gov/sites/default/files/LSC/pdfs/45CFRPart1611AppendixA2012Income%20Guidelines.pdf
5 See, e.g., Melanca Clark & Maggie Barron, Foreclosures: A Crisis in Legal Representation (Brennan Ctr. For Justice, 2009); Laura Arenschield, Funds for Free Legal Aid Sink as Need Rises, The Columbus Dispatch, Aug. 5, 2012, http://www.dispatch.com/content/stories/local/2012/08/05/funds-for-free-legal-aid-sink-asneed-rises.html.
6 Quil Lawrence, A New Generation of Vets Faces Challenges at Home, NPR, Aug. 3, 2012, http://www.npr.org/2012/08/03/157658364/a-new-generation-of-vets-faceschallenges-at-home.
7 See supra, note 1.
8 See Legal Services Corporation: America’s Partner for Equal Justice, LSC, http://www.lsc.gov/.
9 Legal Services Corp., Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low Income Americans 2-3 (Sept. 2009), http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.
10 Laura K. Abel & David Pedulla, Reform Federal Civil Justice Policy to Meet the High-Stakes Legal Needs of Low-Income People, Brennan Ctr. for Justice at the NYU Sch. of Law Blog, (Jan. 5, 2007), http://www.brennancenter.org/blog/archives/reform_federal_civil_justice_policy_to_meet_the_high_stakes_legal_needs_of/.
11 See Legal Services Corp., Summary of Results of LSC Survey Grantees Re Impact of 2012 Budget Cuts on LSC Grantees’ Finances and Services, http://www.lsc.gov/sites/default/files/LSC/lscgov4/SUMMARY_OF_RESULTS_OF_LSC_SURVEY_GRANTEES_RE_IMPACT_OF_2012_BUDGET_CUTS.pdf
12 The Boston Bar Association, for example, recently documented that in eviction cases, having some form of legal assistance, including full representation in targeted cases, substantially increased tenants’ likelihood of staying in their homes and even receiving a damage award. Boston Bar Assoc. Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homeless Prevention, March 2012, http://www.bostonbar.org/docs/default-document-library/bbacrtc-final-3-1-12.pdf; see also Howard H. Dana, Report to the LSC Report of The Pro bono Task force, October 2012 | 32 House of Delegates: ABA Resolution on Civil Right to Counsel 2006, 15 Temp. Pol. & Civ. Rts. L. Rev. 507, 517-18 (2006) (citing Barbara Bezdek, Silence in the Court: Participation and Subordination of Poor Tenants’ Voices in the Legal Process, 20 Hofstra L. Rev. 533 (1992)); Carroll Seron et. al, The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment, 35 Law & Soc’y Rev. 419 (2001).
13 For information on the ABA’s Pro Bono Summit, see ABA President to National Pro Bono Summit: Progress is What We’re Here for, Oct. 25, 2011, available at http://www.abanow.org/2011/10/aba-president-to-national-pro-bono-summit-progressis-what-we%E2%80%99re-here-for/.
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Legal Services Corporation and Its Grantees