Pro Bono—Devlopment Campaign
Access to Justice Development Campaign 2000-The Case for Support
*This article was originally accompanied by several graphs, a map and a the Voluntary Standard for Pro Bono Participation. To see these materials, please refer to pages 370-377 of the March 2000 issue.
This Case for Support is a statement of conviction written by the legal profession to inform the reader of the vital role of civil legal aid in the American justice system. It is written to show the human needs that are uniquely entrusted to the legal system, and the problems that occur when a person cannot afford to pay for access to the justice system. It is also written to explain the response that our profession has tailored through its community legal aid programs.
This Case for Support is written to demonstrate the lack of adequate financial support for such an essential piece of society. It will be used to invite both our colleagues and the general public to think most seriously about access to justice and to encourage generous, long-lasting financial support for these nonprofit programs through the Access to Justice Fund.
The Tradition of Legal Aid
Responding to the needs of poor people who cannot afford to pay for legal help is a tradition of the legal profession. Organized bar associations have provided volunteer lawyers since their beginnings in the 1800s. Then the profession recognized that staffed offices with public-interest, legal aid lawyers would provide the best foundation for sound representation for the growing numbers of people who could not afford lawyers. Most legal aid agencies were originally established through the efforts of local bar associations; they continue to work with local pro bono lawyers who provide needed services to additional clients. The first legal aid office in Michigan was established in Detroit in 1909, and still exists today as the Legal Aid and Defender Association of Detroit.
The need to safeguard the civil legal rights of poor people is clear. In Michigan, there are approximately 1.2 million people at or below poverty level, and another 300,000 are under the legal aid eligibility level of 125 percent of the poverty level. These low-income families include retirees on fixed incomes, abused women, neglected children, abandoned mothers, laid-off workers, people with disabilities, the working poor, and many others who struggle daily for survival, independence, and dignity.
There is one lawyer for every 340 people in Michigan, but there is only one civil legal aid attorney for every 6,500 low-income citizens. Despite the new and creative ideas that have been implemented by the legal services providers, including a dramatic increase in the number of pro bono lawyers in Michigan, less than 20 percent of the civil legal needs of more than one million people in Michigan are being met. A recent American Bar Association survey showed that 47 percent of those polled view the legal system as unfair to the poor and to minorities—the lack of access to justice for the poor is eroding public confidence in our entire system.
The compelling needs of individual clients served by Michigan legal services programs are described in Justice For All, an annual publication of the Michigan State Bar Foundation (MSBF). Through the services of legal aid programs in 1998, a lawyer was provided to 75,000 low-income families and individuals at no charge. Those 75,000 legal aid clients received high-quality, direct legal help that made a singular difference—peaceful resolution of civil disputes and proper representation in the civil justice system.
Equal access to justice is an American ideal based on the social compact between the people of the United States and our government. That compact provides that every individual has an equal right of redress—access to a civil justice system where perceived wrongs can be corrected without the need to resolve disputes in the street. The civil justice system is premised on an obligation that all people respect the rule of law. It belongs to all citizens, regardless of economic status. It must be accessible to all of us in order for it to be the fair and just cornerstone of an orderly society we perceive it to be.
While the legal system belongs to all society, lawyers play a unique role in that system. Navigating today’s legal system often requires a lawyer’s help. Attorneys are the voice of those who must ask the courts for justice. Access to justice is not an issue for those whose wealth allows them to pay for a lawyer. Access to justice is an issue for those people who cannot afford to pay for the services of a lawyer because it is they who will remain voiceless in their quest for justice. Without a lawyer, many poor people are prevented from getting justice in the manner set forth by the American ideal. Justice for some is no justice at all.
Legal Services Delivery in Michigan
Justice For All provides a detailed description of the current legal aid programs that are the foundation of the Michigan legal services delivery system. Fifteen programs provide services in every county of our state and have offices or outreach programs in 50 key locations throughout Michigan. A volunteer board of directors, the majority of whose members are appointed by the organized local bar associations, governs each program. Clients and other human service agency representatives serve on most of the governing bodies as well. The following is an example of what has been accomplished through their direction:
•A legal services program helped a woman adopt her eight-year-old great-granddaughter, whom she had raised from birth. The mother had little contact with the child over the years but contested the adoption. The child’s birth father also objected, even though he was serving time in prison and had never seen the child. After legal services worked with the probate judge on a plan for reintegration of mother and child, the mother failed to comply with the plan and decided to consent to the adoption. As a result, the eight-year-old continued in the stable home that she had known since birth and will be provided for through her ‘‘new’’ mom’s Social Security.
All of the real life stories in this document reflect assistance provided to families by legal aid staff lawyers or the pro bono attorneys who also help. All legal services programs use private lawyers in their community to provide pro bono assistance to program clients. Despite a record amount of pro bono services, with Michigan lawyers handling more than 7,000 reported civil cases in 1998, the unmet need remains large. More pro bono is needed and is being sought, but pro bono alone cannot fill the gap.
In addition to the programs described in Justice For All, other agencies, such as Michigan Protection and Advocacy, Senior Legal Services of Macomb County, and United Community Housing Coalition, provide related services. The Justice For All programs work in close conjunction with those agencies to assure that a full range of quality legal services is available to the low-income population. Together, this set of legal services programs constitutes the strong corps of public interest lawyers who help protect the rights of the most vulnerable people in our communities.
The Funding Challenges
Finding adequate funding for civil legal aid offices has been problematic. In 1964, a significant effort by representatives of the American Bar Association (ABA), the National Legal Aid and Defender Association, and the Office of Economic Opportunity resulted in the establishment of a federal program for financial support of legal services for the poor. This was led, in part, by Michigan’s own John W. Cummiskey, the chair of the ABA Legal Aid Committee. Our state’s leadership by the legal profession for this cause has remained strong ever since. As the years passed, legal services programs built an impressive record of effective legal work on behalf of the poor. It became increasingly apparent, however, that this work would often require litigation against government entities. To provide independence from partisan political interests, legislation establishing the Legal Services Corporation (LSC) was established in 1974 by Richard Nixon to provide funding for legal services for the poor.
LSC depends on an annual grant from Congress for funding the operations of hundreds of legal services programs that serve every single county nationwide. The effective advocacy of many legal aid advocates, as well as a misunderstanding of the necessity of some of the work, has caused controversy among some about whether the government should continue to fund legal services to the poor. This controversy often plays out during the annual federal budget process, and successful efforts to cut the LSC budget have created havoc with local legal aid office operations. The issue was made painfully clear during the mid-1990s when Congress threatened to completely end the main source of legal aid funding. When the struggle was over, funding to all legal aid programs was cut by nearly 30 percent.
Efforts to prevent further cuts have been successful and have been led by State Bar of Michigan representatives each year. These leaders are from both political parties—access to justice is not a Republican ideal or a Democratic ideal, it is an American ideal that transcends politics.
Unlike the criminal defense system, there is no constitutional guarantee that funding will be provided—in any amount—for poor people with civil legal needs, even though these critical needs can often affect serious matters such as family safety, shelter, or medical needs.
The majority of funding for legal services programs in Michigan comes from a mix of federal, state and city/county funds, State Filing Fees, Interest on Lawyers’ Trust Accounts, and United Way support. Although some individual programs have selected assistance, overall support from the private sector has been, to date, minimal. The blend of funding sources is shown in this chart:
Many local bar associations, in collaboration with the local legal aid programs, assist in organizing annual giving programs that are often linked to a pro bono recruitment effort. The success of each local fundraising effort varies tremendously across the state. An impressive high of nearly $175,000 was raised last year in Grand Rapids. Other communities, however, have disappointingly low results, perhaps due to lack of awareness of legal aid funding issues and lack of resources to organize giving campaigns. The Access to Justice Development Campaign (ATJ Campaign) is working to bring this information to all areas of our state and enlist the support of the profession and the public throughout Michigan.
A Historic Collaboration
Realizing, in 1995, that another serious federal funding threat could devastate the legal services delivery system, lawyers across the state were motivated by a vision of the future that would be better than what they were then facing. In a historic partnership, the State Bar of Michigan, the Michigan State Bar Foundation, and the legal services providers joined together to plan for the future.
After months of study that involved a cadre of clients, lawyers, and human services providers, The 1995 Michigan Plan for Delivery of Legal Services to Low Income People in Michigan (the Michigan Plan) was developed. The plan’s recommendations regarding funding and resource development included a coordination of efforts, strong State Bar involvement, and the creation of a full-time resource development office, whose purpose would be to:
…begin an annual fundraising campaign and engage in other fundraising activities. The object would be to provide a long-term alternative funding stream not dependent upon government appropriations. These activities should be combined with general public education and complemented by public relations efforts within and outside the legal community.
Assuming leadership, the State Bar of Michigan undertook a long-range planning process that involved past and present state and local bar leaders. This group identified and developed long-range goals for the State Bar, and the Access to Justice Goal Group Report was adopted. As part of the State Bar’s 1997 Long Range Plan, Access to Justice (ATJ) became a top priority of the State Bar.
Both the Goal Group Report and The Michigan Plan recognize that adequately funded legal services programs play a critical role in expanding access to the legal system for all people. To address this goal, the State Bar created and funded the ATJ Resource Development Department in September of 1997 to
•initiate a development campaign to generate additional operating funds for legal services providers serving the low-income population, and
•build a permanent endowment fund for legal services.
The ATJ Department and the ATJ Development Office of the State Bar are guided by the ATJ Task Force, a high-level committee of the State Bar of Michigan.
The Access to Justice Fund (ATJ Fund) was created to do what the government cannot reliably do—ensure justice for all by providing adequate funding for civil legal aid. The ATJ Fund will alleviate the vagaries of uncertain federal funding of such an important public good—that of a fair and just system that is open to all.
Meeting Needs...Expanding Access
The guiding principle of the ATJ Campaign is ‘‘to raise funds to improve access to justice for low-income people with civil legal needs in Michigan.’’
By following this principle, the ATJ Campaign will help to assure a secure funding level for the legal services programs that represent poor people in the Michigan civil legal system. The ATJ Campaign will raise community awareness about the need for a fair and just legal system that is available to everyone. It will continue to provide legal help for the most vulnerable families like these:
•A nursing home resident lost his medical assistance because his elderly wife did not understand the process for handling family property to ensure that the property was not deemed available for his medical expenses. Legal services requested an administrative hearing and, with the assistance of the administrative law judge, arranged a settlement that returned the benefits to the resident. Without the assistance of legal services, the nursing home would have evicted the elderly resident.
•A 50-year-old man with disabling chronic back pain was assisted by legal services in obtaining disability benefits. When his benefits began, he was assigned to a new managed care provider who denied the pain management services that he had previously received from his doctors. Legal services filed hearing requests with both the HMO and the Department of Community Health and continued to advocate informally with both. On the eve of the hearing, the HMO approved the pain management services that had been previously prescribed to assist the disabled man.
A strong civil legal services delivery system will help inspire a greater shared confidence in the justice system, because when an underdog gets justice, there is satisfaction in the whole community.
The legal system belongs to all citizens—it is our responsibility to ensure that it functions well for everyone. Poor people, just as the rich and middle-income, should have access to lawyers who will be their voice in the legal system. Everyone deserves a good lawyer.
Strategies to Achieve Success
The ATJ Campaign will follow the main implementation strategies identified by The Alford Group Inc, a consulting firm that specializes in assisting nonprofits. Alford conducted a comprehensive campaign analysis in 1999. It involved focus groups and personal interviews with nearly 50 stakeholders in the justice system. The Alford Group’s Campaign Analysis Report and Executive Summary recommended that:
…the main implementation strategy should be a series of local campaigns to occur throughout the State. These campaigns will be conducted by local teams coordinated by local leaders with strong connections to the State Bar of Michigan, the local bar associations and the local legal services offices. The local campaign chairs will sit on the Resource Development Subcommittee of the Access to Justice Task Force and they will have technical assistance from the State Bar of Michigan Development Campaign staff.
The ATJ Campaign will include a strong major gifts initiative and will also build on the State Bar of Michigan’s Representative Assembly voluntary pro bono standard that suggests annual giving of $300 by every Michigan lawyer. The State Bar will encourage all of its members to make their annual contribution to the ATJ Fund.
The highest volunteer leaders of the State Bar of Michigan guide the ATJ Campaign. They are assisted by two full-time State Bar staff members. Through the chair of the ATJ Task Force, statewide campaign co-chairs have been appointed. They will work with local campaign chairs throughout the state to invite State Bar members to learn more about the legal services challenge and to invest in the ATJ cause. The short-term goal of the campaign is to raise $2 million from its members and from select private sources. Once that is achieved, the ATJ Campaign will invite the general public to join, and will inspire those outside of the profession to invest in this important public good.
The ATJ Fund was established in 1998 to receive all monies raised by the ATJ Campaign. All funds are received and governed by the Michigan State Bar Foundation (MSBF) according to its ATJ Financial and Investment Policies. Those policies provide that both operations and endowment gifts can be designated for a named legal services organization, thus allowing a donor to choose whether the funds will provide services for programs in their own community. Distribution of those funds must be made at least annually.
When a donor chooses to make a gift ‘‘for needs throughout the state,’’ those funds are distributed ‘‘to qualified legal services providers and other recipients selected by the Foundation through its grants and evaluation process for grants supporting civil legal services for low-income persons.’’
Donors can also designate whether their gift is for long-term endowment purposes or for current operational needs. While the State Bar suggests that gifts be directed to the endowment fund so that long-term stability is ensured, it recognizes that the overall success of the ATJ Fund means that operational funding must be encouraged as well. This is especially true if coordination with established local annual giving campaigns is to be achieved.
Through a special arrangement with the Capital Region Community Foundation (CRCF), endowment gifts can be eligible for Michigan’s Community Foundation tax credit. Those gifts are eligible for Michigan’s 50 percent community foundation income tax credit on amounts up to $400 for a joint return and $200 for an individual return. In addition, businesses are eligible for Michigan’s Single Business Tax Credit by using the endowment fund held at CRCF.
Programs and Services
Civil Legal Needs—ATJ-Funded Programs
The ATJ Fund is administered by the MSBF. It provides funding for Michigan 501(c)3 organizations that provide free legal help to low-income people with civil legal needs in Michigan. Donors to the ATJ Fund can designate the specific legal services program they wish to support. If a gift to the ATJ Fund is undesignated, the MSBF Statement of Financial and Investment Guidelines for the Access to Justice Fund governs fund distributions. The money is distributed
…to qualified legal services providers and other recipients selected by the Foundation through its grants and evaluation process for grants supporting civil legal services for low-income persons. Distributions will be made throughout the entire state of Michigan in an equitable manner as determined by the Foundation Board of Trustees in light of the needs to be addressed.
Each of these programs assists clients like these:
•Seniors in a housing complex were being billed $3,000 each as a pro rata share of a water bill that accumulated when the township had not properly maintained the meter and a leak had gone undetected. A legal services attorney determined that Public Service Commission rules require a utility to bear these costs if the problem could have been detected by proper maintenance. The lawyer helped one of the seniors prepare a presentation to the township board. He was able to get the township board to cancel the assessment for the whole complex, about 50 families, thus saving these fixed-income seniors $150,000.
•A man who spoke very limited English bought a used vehicle on a monthly payment plan, but the dealer billed him a higher monthly amount than the figure specified in the contract. He was also charged extra for a warranty because the dealer would not sell him the car unless the warranty was added to the contract. The man was unable to resolve the discrepancy with the seller. Legal services sent a letter to the dealer rescinding the contract based on fraud and misrepresentation. As a result, the dealership honored the rescission and refunded sums that had been paid by the buyer.
If a donor designates a legal services program other than those that have already received ATJ funds, the MSBF will determine if the designation meets general ATJ Fund guidelines. Michigan nonprofit organizations that provide civil legal aid to low-income people will generally be eligible for operations funding.
ATJ Endowment donations designated for particular programs are pooled with the general ATJ Endowment Fund for investment purposes, with separate accounting for that program’s pro rata share of earnings. Designated endowment gifts may, at the discretion of the MSBF, be paid out to the designated program if, over a minimum of a three-year period, the cumulative amount of gifts and earnings for that program does not exceed a threshold amount necessary to sustain an endowment.
If a designated program ceases to exist or operate as a nonprofit, the principal and earnings for that program will revert to the appropriate ATJ endowment or operating fund at the MSBF. Decisions of this type are made by the MSBF after appropriate input from the State Bar of Michigan and the Legal Services Association of Michigan.
Governance of ATJ Fund Recipients
Well-qualified boards that guide programs in their efforts to provide high-quality legal services and insure accountability to their clients govern the programs that receive ATJ funding. Many of the ATJ programs receive LSC funding, and the governing bodies of those offices are guided by federal regulation.
The boards of directors are made up of lawyers, who are appointed by local bar associations that represent a majority of attorneys who practice law in the service areas, and by financially eligible clients who are appointed by client, neighborhood, and community associations. The board members reasonably reflect the interest of the eligible clients, and each has an awareness and knowledge of the delivery of quality legal services to the poor. Programs also strive to assure that the composition of the legal services board of directors reflects the diversity of the community, including race, ethnicity, and gender. The boards provide specific direction to the programs, but do so as not to interfere with the professional responsibility of the program attorneys to their clients. Not all ATJ-funded programs are required to follow the LSC regulations on board composition, but they are all governed by correspondingly caring, thoughtful, and community-supported individuals who are committed to the delivery of high-quality legal services to the poor. All in all, over 250 community volunteers serve on the boards of legal aid programs in Michigan.
A director, who is usually an attorney, heads each of the ATJ-funded programs. Each program employs staff attorneys to provide client services. They are frequently assisted by paralegals who support the staff attorneys or provide direct representation to clients. Other staff supports the legal work in ways tailored to the specific delivery system of the program.
Each program uses at least a portion of one employee’s time to screen and refer matters to pro bono lawyers. Administrative staff includes financial professionals who account for the funds received and lead the programs through thorough annual audits. The total number of program employees in Michigan in 1998 was 434, including 215 full-time equivalent staff attorneys. They provided legal help to
•A single woman and her child lived in a house that had been owned by her mother who had been murdered. Because the mother had not paid the property taxes, the house was sold. When the purchaser of the taxes sued to obtain clear title, legal services arranged for a pro bono attorney to help defend the action in circuit court, process the mother’s estate, and secure title in the daughter’s name so she could obtain financing to pay the property taxes. As a result, the woman and her child remain in the house where she had lived for most of her life.
•A couple bought a modest home in 1958 on a land contract. The seller of the home died two years later, but the couple continued to make payments until the home was paid off in 1978. The couple was able to obtain an abstract of title but no deed. They sought help from legal services when they realized they did not have proof that they owned the home. Legal services assisted them in securing clear title to the home they had shared for 40 years.
Programs are required to regularly define the priority services they will provide. An extensive community survey process that includes clients, other human service agencies, private lawyers, judges, and program staff and management informs those decisions. The local board of directors makes decisions on what constitutes priority work.
In 1998, the priorities process directed the handling of cases and matters like these:
•A man was confined to a wheelchair after being severely injured in a car accident. He made an oral agreement to live in a home owned by his brother, located two doors from his parents, where they could help look after him. In turn, he transferred the insurance proceeds to his brother to fix up the home and make it wheelchair accessible. After an argument, the brother-landlord started eviction proceedings. Legal services represented the disabled man, counterclaimed for return of the contribution he made to the home, and collected a jury verdict against the landlord. The man’s funds were returned, allowing him to find other housing he could convert for handicap access.
•A hospital was trying to garnish a woman’s bank account even though the sole source of the funds in the account was Social Security disability. Legal services intervened to contest the illegal garnishment and discovered that the woman had been covered by private insurance at the time of her hospitalization. The hospital had either failed to bill the insurance company or the insurance company failed to process the bill properly. After legal services’ involvement, the garnishment was dropped, the insurance company paid the medical bills, and the woman received a rebate for sums already paid to the hospital.
Facilities or Mechanics of Service Delivery
Programs use a number of methods to inform the community about their services. These include in-person presentations to community groups, food distribution centers, shelters, and human service agency personnel. Brochures are placed in locations where low-income people visit, such as welfare offices, second-hand stores, and thrift shops. Telephone book and yellow pages listings are used. Many programs set up information booths at community events like fairs and health screening days, and use public service announcements on radio and cable television stations.
Community Legal Education
Most ATJ programs provide classes to community groups to inform them of their legal rights and responsibilities and assist them in preventing legal problems. Oftentimes, materials and information are also presented so that low-income people can effectively represent themselves in small claims, simple divorce, or eviction defense matters.
These seminars take place in schools, hospitals, welfare offices, community centers, and legal aid offices. Other topics covered include consumer law, estate planning, child support, and driver’s license restoration.
Legal services programs meet new clients through a number of distinct intake systems. Traditional intake services have been provided through an appointment method in which face-to-face interviews are conducted. Some systems use a walk-in service in which attorneys, law students, or paralegals greet the next client eligible person. Many programs use telephone intake systems in which staff screen calls for income and asset eligibility, and a lawyer or paralegal talks with the caller to assess their legal situation.
More recently, several Michigan programs began ‘‘hotline’’ intake systems, in which banks of lawyers or paralegals answer calls from clients who are held in a phone queue. The lawyers generally use headphones and sit in front of a computer screen to most effectively and efficiently screen the caller for eligibility and legal situation. Using this system, programs are able to provide an immediate response to a higher number of clients.
Regardless of the intake system used, certain clients are identified as having legal needs that must be addressed by a case handling attorney or paralegal. Those clients are referred to a staff attorney, paralegal, or pro bono lawyer for extended services.
The kinds of cases handled by legal services programs in Michigan in 1998 are shown in the following chart:
Programs that receive Access to Justice funding are fiscally accountable to their own boards of directors and to their funders, including the MSBF. All of the programs are subject to an annual independent audit. Most of the programs are also subject to the notably thorough A-133 federal audit.
The State Bar of Michigan provides financial support for staff and other needs of the ATJ Campaign. The State Bar does not charge any administrative costs to the ATJ Fund, and 100 percent of the funds raised are received by the MSBF.
The State Bar of Michigan manages an $8.5 million annual budget, with revenue from member dues ($5 million) and from nondues income ($3.5 million). Bar finances are overseen by its Fiscal Committee, chaired by the State Bar of Michigan Treasurer, an elected volunteer who works with the Bar’s financial staff. Bar funds are subject to annual audit. The current State Bar of Michigan auditor is Plante & Moran.
The MSBF was established in 1947 by Michigan lawyers and judges in recognition of the legal profession’s responsibilities to the public. It supports projects that promote advancements in the administration of justice and further the delivery of legal services to the poor. In 1998, it administered grants totaling approximately $7.5 million for public-interest programs throughout the state. Legal aid grant requests are managed by the MSBF’s Legal Services Grant Committee, chaired by John W. Cummiskey.
Programs that received ATJ funding are generally subject to the Peer Evaluation Process administered by the MSBF. This process uses regular site visits to evaluate program performance in order to provide in-depth advice and feedback to the program to improve its operations and the quality of its work product. In addition to ensuring that grant funds are being used for the purpose intended, the evaluation process also recognizes and rewards program excellence.
The evaluation process helps the MSBF make informed funding decisions that channel precious resources to those service providers who can use them most effectively. Among other tools, the American Bar Association’s Standards for Providers of Civil Legal Services to the Poor are used in the evaluation process.
Adequate and enduring financial support of civil legal aid is a legacy that we, as a generation of lawyers, can give to our profession and to our community in support of their trust in us. We will convince the corporate, foundation, and general communities that they need to support this public good only if we show strong support from within our profession. Our creation of a meaningful legal aid endowment will stand in tribute to our commitment to the highest ideals of our justice system and the public good it serves. n