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Home Page Official Publication of the State Bar of California April2009
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Help for working poor clients

The go-to legal source for thousands of poor people who have lost their homes or jobs — or both — in these convulsive economic times has been legal aid, and the lawyers who advocate for them have their hands more than full. But local bar associations around the state also offer a little-known program that is helping Californians who do not qualify for legal aid but cannot afford to pay an attorney’s regular rates.

The programs go by a variety of names: Modest Means, Middle Income, Moderate Means, Low-Fee. Most attorneys who meet the qualifications for a bar association’s Legal Referral Service (LRS) are looking for clients to pay a normal hourly rate, often more than $200 to $400 an hour. But some also join the modest means programs and agree to charge lower rates.

“It helps a group of people in the community who often don’t have adequate access to legal help because of cost, and are often ignored,” says Joan Saupé, Moderate Means Committee chair for the Contra Costa County Bar Association. “Many moderate means people cannot afford a $300 an hour-plus attorney, nor do they have the savings for a retainer. These are working people without a lot left after the bills are paid.”

The Santa Clara County Bar Association’s Modest Means Program started in 1990 “because there was a gap between who could use the Lawyer Referral Service and hire attorneys at regular rates and people who qualified for pro bono work,” says Executive Director Chris Burdick. “It’s been very successful … I think it’s a critical component of the whole range of public services we offer.”

The Bar Association of San Francisco (BASF) Low Fee Referral Program has been in place since the 1970s. “We’ve always seen a need, although it’s greater now,” says Carol Woods, director of BASF’s Lawyer Referral Service. “We are seeing more people who are facing foreclosure and facing job losses.”

The Santa Clara County Bar Association (SCCBA) advertises the Modest Means program in all its LRS literature and it is offered as a possibility when people call the service. Burdick says calls to Santa Clara’s LRSs are up by 300 percent, but she attributes that to an aggressive ad campaign, not the current economy.

The Los Angeles County Bar Association (LACBA) is quieter about its Middle Income program. “We certainly don’t push this or advertise it extensively,” says Patricia Holt, directing attorney of LACBA’s Lawyer Referral Service. BASF’s Woods says her organization doesn’t advertise the Low Fee program too widely partly because “we don’t want to raise people’s expectations. You have to be pretty low income to qualify.”

At LACBA, which made 100 Middle Income referrals last year, the lawyer’s rate may be no more than $100 an hour and no more than $500 for a retainer. A person may qualify with income up to about $60,000 in a four-member family. BASF is different from many other programs in that it doesn’t set the fees. “We ask the attorneys who are interested in taking these cases to substantially reduce their hourly rates,” says Woods. “We don’t get into what that would be.” It’s proved its success, she adds, because the rate in which Low Fee referrals retain the attorney is close to the 26 percent retention rate of full-pay referrals.

A number of lower income programs limit the practice area to divorce and other family law issues, but others, such as LACBA, Santa Clara and BASF, offer a wide menu ranging from juvenile dependency to elder law to foreclosures.

The fee structure varies from program to program as do the income requirements of clients. For example, Santa Clara charges flat fees for some services and hourly rates for others. Contra Costa limits gross monthly income for a family of four to no more than $4,375 a month to qualify for the program. Lawyer fees can range from $40 to $125 per hour.

Saupé says the help goes beyond legal technicalities. The attorneys “help calm and direct the whole process,” she says. “In cases with a child, the attorney actively encourages the attitude of thinking of the child first, of cooperating with child raising, of communication with an ex-partner about a child. In cases without a child, just a divorce for example, the attorney encourages being realistic about property division and support and encourages mediation so that the process is less stressful.”

The lower rates don’t mean the fees don’t add up. One Modest Means client of San Diego family law attorney Michael Fischer has accrued $19,000 in legal bills in a messy divorce and custody case in which he charges $75 an hour. The case is not representative of the Modest Means Program, Fischer says, but it does point up the fact that these programs require a commitment from the client.

“There are those who just can’t afford [legal representation] and they should not be deprived of the opportunity under the law just because of their means,” says Fischer. He adds that he prefers “low bono” over pro bono because he says people who are paying nothing often “just want to litigate everything.” In contrast, people who are paying something out of their own pocket “have an incentive to settle.” He estimates that he and his law partner, Craig Van Thiel, average about 20 hours a week altogether on Modest Means cases.

Fischer first became involved in the program when he started practicing in 2005. “Of course, you’re looking for clients from anywhere,” he says. But he doesn’t believe in stopping now, even if the $75 an hour doesn’t always cover overhead. “I think we have an ethical and moral obligation to continue taking clients. The legal system is exceedingly expensive.”

Chris Happ

Chris Happ, another San Diego family law lawyer, usually charges $200 an hour but, like other San Diego lawyers in the Modest Means programs, charges $75 an hour for the lower income clients. “I treat them the same way I treat my full-fee clients,” Happ says. “I don’t give them discounted service.” In some instances, the costs become more difficult to handle than the clients had anticipated. Happ says he tries to make accommodations, such as creating an installment plan. The discounts don’t only apply to clients he gets through the bar’s referral service, he adds. If a potential client just doesn’t have enough income to pay $200 an hour, he can adjust downward for that client also.

It isn’t just the client who benefits, says Happ. “Part of it is getting experience… It’s given me exposure to many different types of family law.” He has lawyer acquaintances, he adds, who wish the program extended to other types of law and have complained that there’s no similar way for non-family law attorneys to gain the wide experience the programs offer.

“The attorneys who handle the moderate means cases are a caring group,” says Saupé. “They could be earning more outside the program but feel a need to support this group of people and the program goals even though it is a financial sacrifice.”

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