Access Crisis: Ohio and other states struggle to provide liberty and justice for all
In a courtroom right now, a young father is fighting for visitation rights for his child. He is unrepresented and, when called to order, merely stands before the court and says, “I want to be able to visit with my child.” He doesn’t know court procedure and the need to call witnesses. He loses. A mother sits in jail, picked up for driving on a suspended license. She’s waited 45 days to hear from her court-appointed lawyer. In the meantime, she lost her job and never received her final paycheck. She then missed a rent payment and was evicted. Her landlord stole her valuable possessions and threw away the rest. If she were released, she’d have nowhere to go, which is certainly not something that is going to help her find a new job.
“The access to justice movement is at the top of the list of exciting things going on in the Ohio legal arena. We are behind the curve when you look at what other courts and states in the country are doing and what they have already established,” said Maureen O’Connor, chief justice of the Supreme Court of Ohio. “I look at it as an opportunity to seek out the best and the brightest and bring in those resources and programs, that brilliance, and make it our own.”
In total, 27 states have formed access to justice commissions, most of which are focused on improving justice in civil cases. Ohio is not one of those states. Commissions often spearhead fundraising, start and coordinate projects focused on specific needs, develop pro se materials, and coordinate pro bono efforts.
“Our experience to date is that commissions are making a huge difference in the states where they are active,” said Meredith McBurney, resource development coordinator for the American Bar Association’s Resource Center for Access to Justice Initiatives. “Commissions are not funders or providers. They make action happen through influence. This needs to be a really cohesive and strong group of top-flight people who have come together to make a difference. It must involve the supreme court in the state. It must involve high-level leaders from the bar. And, it must involve all of the cast of groups that make up the current legal aid community.”
In Ohio, and most other states, legal aid has been hit particularly hard by the Great Recession, and most programs have seen budget cuts of nearly 40 percent and hiring freezes.
“When things go wrong for a person in poverty, the consequences can be dire and often lifelong. There is a tumbling effect where one crisis often leads to another and another,” said Eugene King ’83, director of the Ohio Poverty Law Center. “Lawyers can stop that if they get involved early. They really can change the course of a person’s life. But, legal aid funding is often counter-cyclical – the greater the need, the less funding. Programs know funding rises and falls, but no one expected the recession to last this long.”
Funding a challenge for civil cases
It is often cited that 80 percent of the legal needs of low-income people go unmet. Pinning down an actual number is an insurmountable task fraught with information gaps, unclear definitions, and little organizational support. What is certain is that there is no right to counsel in civil court, and each day thousands of people try to navigate the legal system on their own as pro se litigants. The consequences – foreclosure, child custody, denial of public benefits, guardianship, bankruptcy – are significant.
“We are in a triple-whammy right now – more poor people, greater problems, and less resources. It demands the best out of our profession to try and meet these needs,” said Nathan Heck, senior justice of the Supreme Court of Texas. The state has one of the most robust access to justice programs in the country.
According to the National Legal Aid & Defender Association, there are more than 40 million people living at or below the poverty line in America. While it is difficult to ascertain a specific number of people legal aid programs have assisted, each year federal funds are used to support more than 1.5 million cases. On average, more than two-thirds of legal aid clients are women, and each year legal aid programs handle more than 50,000 cases in which the primary issue is protection from domestic violence.
“The tenacity of this recession has created a greater level of callousness or indifference toward poverty. The recession has lasted so long, and the state has suffered so much. The state is dramatically tightening up access to public benefits,” King said.
The Legal Services Corporation (LSC), which is funded by Congress, is the largest funder of legal aid programs. However, according to the American Bar Association (ABA), nationally only 24 percent of legal aid programs receive LSC funding. In comparison, over 36 percent of legal aid programs are designated as “specialty” programs that serve a target audience (elderly, disabled, immigrants, etc.) and receive no LSC funding, but possibly could receive other grants. Almost 20 percent of programs are stand-alone, pro bono programs not affiliated with a larger legal aid provider.
In 2011, LSC provided $3.71 million in legal aid funding, which was about 27 percent of the total spent on providing civil legal services to the poor across the country. Other public funds were used to fund 21 percent, and state legislatures chipped in another 17 percent. Interest On Lawyer Trust Accounts (IOLTA) funds contributed only 13 percent of the total. Nonlegal foundations and corporations donated about 8 percent of the total, while the legal community itself, which includes donations from lawyers, law firms, bar foundations, registration fees, and bar associations, made up 6 percent of the total.
“Legal Aid’s greatest need is funding,” said Dianna Parker ’05, pro bono coordinator at The Legal Aid Society of Columbus. “Since 2008, legal aid has lost 40 percent of its staff. There is so much need, and we are in a good position to provide for that need if we have funding. We have poverty lawyers on staff, and we have the expertise. It is an uncomfortable topic, but it is the reality right now.”
In 2012, Congress cut the LSC budget by more than $56 million, which led to a 14.8 percent decrease in funding to local legal aid programs.
Six states – Illinois, Minnesota, Missouri, Pennsylvania, Texas, and Wisconsin – supplement legal aid funding through mandatory bar dues or attorney registration fees. Nine other states have similar programs but allow lawyers to opt out, and 14 states encourage a payment add-on for legal aid when paying dues or fees. Ohio has none of these programs.
Thirty states and the District of Columbia receive an appropriation to supplement legal aid funding. Ohio is among the 20 states that receive no state appropriations. Monies from court fines and fees are utilized in part in Ohio as well as in 30 other states to help fund legal aid services. Due to historic low interest rates, many states have seen a huge cut in the funds coming from IOLTA accounts. For example, since the recession hit, IOLTA funding went from $20 million to $2 million in Texas.
“This is a nonpartisan issue. It is not Republican or Democrat. It is not conservative or liberal. It is not ideological. It is good government. We like to make that point,” said Heck. “The lack of IOLTA funds has forced us to seek public funding in Texas. The Legislature has stepped up and given us $20 million last session and $18 million this year.”
In New York, the Chief Judge’s Task Force to Expand Access to Civil Legal Services included an independent study from a financial analysis firm, which concluded that expanding civil legal services could save the state $85 million in costs associated with domestic violence and $116.1 million in shelter costs. The report concluded legal aid services in the state had a positive economic impact of nearly $1 billion in the state in 2010. The New York Legislature allocated $12.5 million to legal aid in 2012, which included the largest increase of any state.
“We always have more demand than we have resources. We always have to establish priorities and put limits on how many resources are spent in an area,” King said. “The recession changed everything, and we had to reexamine all of those priorities. People who had never done housing or foreclosure work are now handling foreclosure cases.”
Ohio Rep. Kathleen Clyde ’08 is cautious about the prospects of a significant allocation from the Ohio Legislature.
“Access to justice competes with a lot of long-vested interests for an ever-smaller pie,” Clyde said. “A roadblock in the Ohio General Assembly is a general lack of understanding of the work of legal aid providers, at best. At worst, some actual hostility of those who do this important work. In the middle, some general apathy of those who do this work. Term limits and limited staff really prevent legislators in Ohio from understanding complex issues like the need for additional legal aid.”
Criminal cases, failed promise of Gideon
More than 50 years ago, an inmate from a Florida prison convicted of petty theft from a pool hall handwrote a request of certiorari to the Supreme Court of the United States. He had been denied a lawyer at trial and had represented himself – making an opening statement, cross-examining witnesses. But he was convicted. Earlier, the Supreme Court had issued a string of opinions setting forth various standards for when defendants must be given counsel. The hodgepodge string of cases left trial courts deciding when defendants should be appointed an attorney on a case-by-case basis. The handwritten note and Clarence Earl Gideon’s plight caught the attention of the Supreme Court, who appointed him one of the finest lawyers of the time – Abe Fortas – to advocate his case before the court.
The court unanimously sided with Gideon and declared defendants have the right to an attorney in all felony cases. Gideon was retried with an attorney and acquitted. But the idealism ended there. From the beginning, the Gideon principle has been an unfunded mandate with few people standing up and proclaiming more tax dollars should be spent defending the indigent accused.
Across the United States, public defender offices may be administered at the state level or at the county level. In 27 states, including Ohio, offices are funded and administered primarily on the county level. According to the U.S. Department of Justice, these county offices handled 4 million cases and had almost $1.5 billion in expenses in 2007, the last year for which full data is available. On average, county offices have seven litigating public defenders on staff, 73 percent of which exceed the ABA’s maximum recommended limit on cases per attorney. In addition, nearly 40 percent of county offices have no investigators on staff.
U.S. Attorney General Eric Holder launched the Department of Justice’s Access to Justice Initiative in 2010. The program aims to improve indigent defense, enhance access to legal services for the economically disadvantaged, and promote alternatives to court-intensive solutions.
“I have been in public defense for three decades, and especially over the past 10 years, there has been an effort to be tough on crime. There has been almost a feeding frenzy at our state Legislature to tack on collateral consequences to up sentences while decreasing funding to organizations that represent poor people,” said Theresa Haire ’82, deputy director of the Office of the Ohio Public Defender. “In essence, Gideon has in a way sanctioned bad behavior in criminal courts throughout Ohio. It has come to the point that if you are an innocent poor defendant with a warm body that has a law license sitting next to you, and you go off to jail – too bad. The system is set up so if you try to appeal what happens to you, the bar that was set up by Gideon – the right to assistance of counsel – is so low that the odds of you of obtaining relief after the fact are prodigious.”
In Ohio, local boards of county commissioners determine what type of public defense system will be used. Some counties have public defender offices, while others have agreements with nonprofit organizations, court-appointed counsel, or the Office of the Ohio Public Defender. In Lucas County (Toledo), public defender services are contracted to the local legal aid society.
In 2012, Franklin County (Columbus) handled more than 70,000 cases compared to more than 38,000 in Cuyahoga (Cleveland) and 37,000 in Hamilton (Cincinnati). Cuyahoga County has about 100,000 more people than Franklin County, while Hamilton County has about 300,000 fewer people. The budget for Franklin County is just over $12 million a year, while Cuyahoga and Hamilton counties operate for just over $10 million. The state does reimburse counties for some defense costs, which averages out to about one-third of the county’s total indigent defense budget.
The DOJ and other organizations have called for statewide public defense systems, citing a uniformed approach, better training opportunities, and more stable funding as leading to higher overall quality and consistency. The Ohio Public Defender Commission made a similar recommendation in its 2012 annual report, calling for “the creation of a unified indigent defense delivery system to ensure quality, efficiency and accountability within the system.” The report also recommended pay parity between prosecutors and public defenders, minimum rates for appointed counsel, mandatory caseload standards, increased training and certification, and denial of reimbursement for poorly performing, court-appointed attorneys.
“The system is very much aimed at avoiding trial,” Haire said. “Often the pre-trial hearings are set six or so weeks after the arrest, and the defendant is sitting in jail for this time. It is not surprising that they plead guilty when they have been sitting in jail, and their only option is to sit there longer if they want to go to trial. During this time, the defendant may have lost their job, housing, possessions, significant others, and pets while they are waiting. These poor people all have real lives, and there are real consequences.”
Money, of course, is the ultimate solution, but increased public money is also unlikely at a time when courthouses are struggling just to stay open.
“Open and accessible courts are not a luxury. They are an absolute necessity in a free and civilized society. They are guaranteed in both the United States and Ohio constitutions,” Chief Justice O’Connor said. “Access to justice should be an essential part of any state’s legal system, and the need to meet that goal has only increased in these times of economic stress.”
In addition to the trend toward access to justice commissions, some solutions proposed include:
Increased pro bono involvement
Increasing pro bono involvement from the private bar is a key objective for many legal aid programs.
“Through the pro bono program, we are expanding what legal aid is able to do with our limited staff, especially considering our funding cuts in the past several years,” Parker said. “We run several referral projects, which means that clients who contact Legal Aid who are deemed eligible and as having a real legal problem are referred to private attorneys. We do that for landlord-tenant issues, consumer debt, foreclosure, and tax. Legal Aid also sponsors several brief advice clinics each month. They are run entirely by volunteer attorneys, who are covered by Legal Aid’s malpractice coverage.”
Several states are considering the prospect of requiring pro bono work as part of bar membership requirements. Currently, New Jersey is the only state that has made pro bono a requirement. While there is no set number of hours required, courts may assign a pro bono case to an attorney, and the attorney must see the case through completely. The majority of cases involve violation of domestic violence restraining orders, municipal appeals, and parole revocation hearings. Once a year, attorneys may file to be exempt from the requirement. However, the courts have not been very sympathetic to pleas for recusal. “Real estate attorneys, corporate counsel, experts in commercial leases, all have been assigned to represent indigent defendants charged with simple assault, driving while intoxicated; all were required not only to learn how to defend those cases but to find out where the courthouse is,” the New Jersey Supreme Court wrote in an opinion upholding the pro bono assignments.
New York recently required new attorneys to complete at least 50 hours of pro bono work before they can be admitted to the bar (hours can be performed while in law school). California is considering a similar proposal. New York’s Access to Justice program last year initiated a “bridge-the-gap” CLE training program in which lawyer participants receive free CLE training in exchange for 50 hours of supervised pro bono practicum volunteer hours assisting litigants in New York City civil and supreme courts. The program fulfills CLE requirements for first- and second-year lawyers. In its first year, the program was oversubscribed.
“Mandatory pro bono can be a challenge,” Parker said. “I like the idea in theory because it would increase the number of volunteers. But we risk getting attorneys involved who don’t want to be here. We have a quality control here at Legal Aid because everything is under our malpractice, and we have to have attorneys representing clients zealously.”
Other states do not require pro bono service but do have mandatory reporting of pro bono. In Florida, for example, where reporting is mandatory, just over 50 percent of attorneys report doing some pro bono. The average is approximately 22 hours per attorney and more than 1.5 million hours of service provided annually. In Illinois, where reporting is mandatory, about 30 percent of attorneys provide more than 2.5 million pro bono hours each year. In comparison, in Ohio, where reporting is voluntary, 12 percent of attorneys stated they perform pro bono work, and the number of hours is not quantified.
“I think some attorneys are leery of pro bono because they feel like they are going to be on the hook and be this client’s attorney for life,” Parker said. “But, that is not the case. Once the representation has been completed, we send them a closing letter, and the attorney is done. If a client has another issue, then they need to go back through Legal Aid.”
In 2002, ABA Model Rule 1.2(c), which allows for limited scope representation in reasonable circumstances, was adopted in an effort to increase legal services to low- or moderate-income individuals. This so-called “unbundling” allows legal representation to be broken out into separate and distinct tasks that the client can purchase separately. To date, 41 states have adopted the rule.
“Some attorneys are more likely to be involved in pro bono if they know they can tailor their representation to what they practice and the time they have,” Parker said. “Given the number of unrepresented litigants we have out there, limited service is better than no service. I think the idea needs to be explored more, but I do think it may have the potential to increase services to low-income people who would otherwise not be able to have any representation.”
Enhanced pro se
Across the country, people are attempting to represent themselves in court when they cannot afford or find an attorney. Nationwide, in family court, between 60 to 90 percent of cases involve at least one party who is self-represented. In addition, a Utah study showed that only 3 percent of debt collection cases had attorneys on both sides and in eviction cases – meaning 97 percent of respondents were self-represented.
In 2009, the ABA conducted a survey of judges and found that in the majority of courtrooms, self-representation has increased significantly since the Great Recession. Nearly two-thirds of the judges believed that outcomes for self-represented parties were worse than if the party had counsel.
In 2006, the Supreme Court of Ohio Task Force on Pro Se and Indigent Litigants made a laundry list of recommendations to improve pro se litigation, including advocating for increased unbundling of services by practicing lawyers.
“The Supreme Court of Ohio has been active in supporting litigants that are self-representing,” O’Connor said. “This has an upside and a downside. A lot of times with these access to justice issues that people are coming to court pro se. Sometimes they do themselves more harm than good when they represent themselves, but they do not have access to representation or do not qualify for aid.”
The exact solutions may be unknown, but it is clear the status quo cannot remain.
“Access to justice should be an essential part of any state’s legal system and the need to meet that goal has only increased in these times of economic stress,” O’Connor said.