James Towery

Addressing the needs of the poor

Each month, President James Towery answers questions from members in this column. Please address your questions to: Ask the President, California Bar Journal, 555 Franklin St., San Francisco 94102-4498.

This month's question and Towery's response:

QUESTION: What is the State Bar doing about all the federal cutbacks in funding for legal services?

TOWERY: Your question is very timely. At its July meeting, the State Bar Board of Governors considered the Access to Justice Report, an ambitious strategic plan for dealing with chronic underfunding of legal services.

Your question also is timely because of recent events in Washington.

Last year, federal funding for the Legal Services Corporation (LSC) was $400 million. This year, Congress slashed that funding to $278 million, a cut of 33 percent.

This cut had a disproportionate impact on California, where it translated to a 38 percent reduction.

In addition, this year legal services agencies are facing a host of new restrictions, including the preclusion of handling class actions or advocacy for welfare reform.

In early July, the House Appropriations Committee approved funding for the next fiscal year for LSC at the level of $141 million, a further cut of almost 50 percent.

By the time this article goes to press, the full House will have voted on this recommendation.

What is at stake in this debate is the promise of our democracy of equal justice under the law.

For the poor, equal justice is closely intertwined with the concept of equal access. Whatever rights our legal system bestows on the poor are meaningless if the poor do not have equal access to our justice system.

In March 1993, the State Bar appointed the Access to Justice Working Group, chaired by Court of Appeal Justice Earl Johnson Jr. This working group has spent more than two years studying the problem and the proposals contained in its report are ambitious, multi-faceted and occasionally controversial.

However one reacts to the Access to Justice report recommendations, it constitutes a powerful indictment of how we in America, and specifically California, are failing to meet the legal needs of the poor and near-poor.

A few statistics from the Access to Justice report demonstrate the depth of this indictment.

California had, as of 1993, some 5.2 million citizens who live in poverty. To meet the legal needs of the poor, we had a total of 517 full-time legal services attorneys -- a ratio of one legal services attorney for every 10,000 persons living in poverty.

In contrast, we had one attorney for every 300 Californians to serve the rest of our state's population.

And the situation is getting worse. Comparing 1980 to the present, we have 128 fewer legal services lawyers and 1.5 million more people living in poverty.

Our legal services program in California unquestionably suffers from chronic underfunding. The Access to Justice report estimates that $350-$400 million would be required in California alone to adequately meet the legal needs of the poor.

In contrast to that need, the amount actually spent (in 1993) was $100 million.

This underfunding is particularly egregious when compared to what other western nations do.

Virtually every European nation requires that poor persons have counsel to represent them in all civil matters. In the great majority of these countries, there is full governmental funding of legal services for the poor. England spends 10 times per capita what California does for legal services.

What then is the result of the fact that America does not recognize a right to counsel for the poor in civil matters and chronically underfunds what legal services are available?

As documented by the Access to Justice report, the result is that the legal needs of the poor are not being met.

According to comprehensive legal needs assessments, some 75 percent of the poor who face legal problems never receive any legal assistance at all. Of the 25 percent who receive some legal assistance, too often that assistance is partial and not fully effective.

Against this background, the Access to Justice report makes a number of sweeping recommendations to address the problem.

These recommendations touch upon formalizing the right to counsel in civil matters, particularly if fundamental human needs are involved, funding, use of ADR and changing methods of delivering legal services.

The recommendations are a call to action for the legal profession, the judiciary and society as a whole.

So, what is the State Bar doing to address the crisis in legal services? The answer is that we have several ambitious initiatives underway.

Within the last few months, we have begun a collaborative effort involving the California Supreme Court, the State Bar and the Judicial Council to increase private bar involvement in pro bono. This effort is based upon the recognition that judges can play a very helpful role in recruiting private lawyers to do pro bono, in recognizing volunteer lawyers and in facilitating the work of pro bono attorneys in such areas as calendar coordination and priority. I am extremely gratified that our new chief justice, Ronald George, has embraced this collaborative effort. We are currently laying the groundwork for this program with staff at the bar and the Judicial Council.

Secondly, the Legal Services Trust Fund Commission of the State Bar, which administers the IOLTA program, has been working diligently for several years to increase IOLTA funds.

The trust fund commission and staff have been working with specific banks to reduce service charges on IOLTA accounts and raise the interest rates banks pay.

Most California banks still pay 1 to 1.25 percent on IOLTA accounts. As a result of the commission's efforts, IOLTA payments will increase this year from roughly $6 million to almost $9 million. This is a welcome increase, but still far below the 1992 high water mark of $22 million.

The most important endeavor of the State Bar involves the Access to Justice report. With the board's approval, the next step will be the appointment of the broad-based Commission on Access to Justice.

The commission can then explore implementation of the ambitious blueprint contained in the Access to Justice report.

We need to build a coalition in California involving the bench, bar, corporate world, labor, consumers' groups and others that will advocate for the legal needs of the poor.