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SPECIAL FEATURE: Access to Justice Commissions and Initiatives
ATJ Commissions and
Resource Development
ATJ By Meredith McBurney, Resource Development Consultant for the American Bar
Association’s Resource Center for Access to Justice Initiatives and Management
Information Exchange1
How do we generate enough money to provide ATJ Commissions have also had a positive impact on
quality civil legal assistance to all those in need? increasing resources through IOLTA, private bar cam-
paigns, attorney registration fees, pro hac vice, and cy
How do we generate enough money annually to pres.
simply keep programs in every state moving forward,
increasing funding at a rate above inflation? Here are a few examples.
The first of these sentences poses a question related ATJ Commissions have played a major role in
to accomplishing our mission, and is very aspirational. increasing state legislative funding:
The second sentence should be our absolute mini- New Mexico: The New Mexico ATJ Commis-
mum standard and should be sion was instrumental in obtaining a $2,500,000
achievable, but has not been state legislative appropriation, which more than
to date. doubled the amount of state funding and moved
Successful resource devel- New Mexico into the top ten states in the country
opment is a continuing and in terms of state funding. In her article on page 13,
complex process. Those who Sarah Singleton describes how the New Mexico
have had significant success Commission held hearings around the state, with
generating resources from local judges willingly participating at least in part
a variety of sources know it because the Commission was a Supreme Court-
requires developing partnerships with the highest levels created entity.
of the bar, the judiciary, government and legal services The hearings provided the underpinnings for
providers. a report to the Supreme Court which documented
The Access to Justice (ATJ) Commission move- the need for legal assistance to the poor, and then
ment has been built on the premise that bringing these led to the major campaign to increase legislative
powerful forces together will achieve increases and funding. Getting all the major stakeholders in-
improvement in all areas, but increased resources has volved and committed to achieving the goal would
been a major focus. It is not an accident that half of the likely not have been possible without the ATJ
consulting time for the ATJ Resource Center is devoted Commission.
to supporting resource development work.
The District of Columbia: In 2006, the D.C. ATJ
So what has been achieved? Commission obtained $3,200,000 in funding
ATJ Commissions have led or been effective sup- from the D.C. City Council, the equivalent of the
porters in successful efforts to increase resources. In state legislature for our nation’s capitol. This first
some states and in some instances, they have been THE funding ever from the D.C. Council was possible
key to success. The area of greatest success, not surpris- because of the work of the ATJ Commission, es-
ingly, has been with state legislative funding — ATJ tablished in 2005, just over one year before. Peter
Commissions, with their broad, statewide leadership Edelman, chair of the Commission, led the funding
coalitions, are ideal entities for the various work re- campaign. Commission members decided that a
quired to obtain and increase state legislative funding. successful proposal would need to be targeted to
Spring 2008
specific services, and they organized “listening ses- established in 2007, and to date has played a major
sions” to determine the most critical needs. There role in two successful statewide funding initiatives.
was then an extensive education campaign with The Alabama Supreme Court approved an increase
the thirteen members of the Council, led by Com- in its pro hac vice fee; the increase of $200 will go to
mission members and staff. One of the initiatives fund civil legal services, generating approximately
funded was a loan repayment program, which the $120,000 annually. The Court also amended the
D.C. Council passed in 2006, at the urging of the IOLTA rule, changing Alabama’s program from
Commission and others. The initial funding for FY opt-out to mandatory as of January 1, 2008. This
2007 was renewed for FY 2008. change is expected to generate significantly more
income for IOLTA, as it has in other states. The ATJ
Low hanging fruit — quick results in states with Commission is now leading the effort to obtain
new commissions and limited resources: state legislative funding for Alabama. Alabama re-
Some very low-funded states have created ATJ ceived $75,000 from a special fund of the Governor
Commissions in recent years and have quickly reaped in 2007; they are now seeking to join the forty-five
the benefits: states that have on-going state funding for legal
Mississippi: Mississippi, which has been one of the services.
lowest funded states, has led the country in per-
centage increase of non-LSC funding for the past More established commissions led the way:
two years. The funding successes here began before Maine: The Maine Justice Action Group (JAG),
the ATJ Commission was even formed, but, as one of the first commissions created, has a history
noted on page 15 (examples of ATJ Commissions), of successes. In the area of funding, the JAG was
they grew out of the work to engage the Supreme responsible for the Campaign for Justice, a com-
Court and State Bar that led to the creation of the bined, statewide private bar campaign that in three
Commission in 2006. years made Maine the second highest ranking state
The Supreme Court began to recognize the in per attorney giving to civil legal services. This
need and approved a pro hac vice fee for legal ser- campaign was the outgrowth of a resource devel-
vices in 2003. In 2004, Supreme Court Justice Jess opment planning retreat sponsored by the JAG
Dickinson attended the Equal Justice Conference in 2004. The plan called for the development of a
and National Meeting of ATJ Chairs, and he quick- private bar campaign, which would then be used as
ly became a strong advocate for improving access a catalyst to stimulate new additional funding from
to justice in Mississippi. Through his leadership, the state legislature. The state legislative campaign
the Supreme Court implemented a mandatory pro was launched the year after the private bar cam-
bono/contribution reporting rule in 2005, which paign, and led to a solid increase in revenue from
generated $257,000 in its first year. With strong court fees and fines.
support from the Supreme Court and the State Bar,
a filing fee surcharge passed the legislature in 2006, Texas: Since it was founded in 2000, the Texas ATJ
and in its first year raised $436,000. There had been Commission has provided strong and effective sup-
numerous failed efforts to secure state funding in port to many resource development efforts in this
the past; only this combined effort from the top bar huge, low-funded state with over 3,000,000 poor
and court made success possible. The most recent people. Several efforts have involved state funding,
successful change occurred in 2007, when the including obtaining $2,500,000 annually from the
Supreme Court revised the IOLTA rule, convert- Attorney General’s budget to provide services for
ing the program from opt-out to mandatory and victims of crime, the addition of a $1,500,000 state
authorizing comparability. Although implementa- appropriation in 2005, and a new allocation in
tion of comparability has not yet begun, IOLTA is 2007, for legal services for victims of sexual assault
already generating four times as much revenue for from a new fee on sexually-oriented businesses.
legal services. Commission members also worked on the adop-
tion of a pro hac vice fee for legal services and a bar
Alabama: It is likely that Alabama, another very dues add-on. They helped smooth the waters for
low-funded state, will follow in the footsteps of the resolution of disagreements over a $65 manda-
Mississippi. The Alabama ATJ Commission was Continued on page 51
Spring 2008
A State Bar Leader’s Perspective Massachusetts: Barriers to ATJ
Continued from page 13 Continued from page 41
2 Because of the focus on barriers, the testimony did not
with this pro bono effort. Without the Commission’s emphasize the many efforts of our courts to improve ac-
presence and urging, it is doubtful if the State Bar or cess to justice.
the Supreme Court would have been moved to suggest 3 Barriers to Access to Justice in Massachusetts: A Report,
such a comprehensive approach. With Recommendations, to the Supreme Judicial Court,
June 2007. The report can be found at www.mlac.org/ac-
1 Sarah M. Singleton, a shareholder of Montgomery &
cesstojusticereport and at www.ATJsupport.org (search un-
Andrews, P.A., in Santa Fe, New Mexico, is a member of
der Massachusetts on “Documents and Resources” page).
the board of directors of the Legal Services Corporation
and Co-Chair of the New Mexico Access to Justice Com-
California: Improving Language Access
mission, which she played a leading role in creating. She is
Continued from page 42
a former president of the State Bar of New Mexico.
1 Hon. Kathleen E. O’Leary was appointed Associate Jus-
Communication Revolution tice for the California Court of Appeal, Fourth Appellate
Continued from page 25 District, Division Three (Santa Ana) in 2000, after having
served on the Orange County trial court since 1981. She
of Portland, Oregon, Elizabeth currently is a consultant to currently chairs the Judicial Council’s Task Force on Self-
Legal Aid programs and other progressive nonprofits. Represented Litigants and the Court Interpreters Advisory
2 Research results and tool kit components available on-line Panel. In 2007, she received the Benjamin Aranda Access
at http://www.nlada.org/News/News_Education to Justice Award in recognition of her long term commit-
3 Identifying target audiences, developing messages that ment to equal access in the California courts.
appeal to audience values, choosing audience-appropriate 2 Geoffrey L. Robinson is past chair of the California Com-
messengers and tactics, etc. mission on Access to Justice, and now chairs its Language
Access Committee. He was the primary author of the
Commission’s 2005 report, “Language Barriers to Justice in
Colorado Model California.” He is a partner with Bingham, McCutchen, in
Continued from page 37
their Walnut Creek, California office. He is the recipient
Cruelty Prevention, and the Colorado Network to End of the firm’s first John J. Curtin Public Service Award and
Financial Exploitation of the Elderly. She is the 2003 re- the California State Bar’s President’s Pro Bono Award.
cipient of the Carolyn Hamil-Henderson award given by
SafeHouse Denver to individuals who make significant ATJ Commissions and Resource Development
contributions to building community awareness about Continued from page 35
domestic violence and helping to stop future abuse. While
a prosecutor for the City of Aurora, she spearheaded the tory dues fee, half of which goes to legal services.
development and implementation of the Aurora domestic Finally, they were very involved in the successful ef-
violence response, the first fast track criminal prosecution fort to obtain an IOLTA comparability rule in 2006,
program in the nation. She writes and teaches nationally which is generating millions of additional dollars
and internationally on the subject of domestic violence, for legal services.
workplace violence, and violence against women. She is 1 Meredith McBurney, a consultant since 1997, specializes
also a trained mediator, and received 2002 and 2003 me- in resource development for legal services and other advo-
diator of the year in the area of domestic relations and cacy organizations. She currently serves as Resource De-
parental responsibility from Jefferson County Mediation velopment Consultant for the American Bar Association’s
Services. She has served on the Board of Director of sev- Resource Center for Access to Justice Initiatives and Man-
eral organizations including SafeHouse Denver and the agement Information Exchange. From 1981 to 1997, she
Colorado Women’s Bar Association. She received her JD was the Executive Director for Colorado’s IOLTA program
from the University of Oregon. Kathleen may be reached and statewide fundraising organization. Before that, she
at kschoen@cobar.org. was the administrator for Colorado Rural Legal Services.
Meredith may be reached at meredithmcburney@msn.com.
Fundraising for Civil Legal Services in Difficult Economic Times:
Some Ideas for Access to Justice Commissions
Prepared for the Access to Justice Chairs Meeting
May 16, 2009, Orlando, FL
This current financial crisis is likely to be long and difficult. Staff and board leadership
of legal aid programs will be forced to make hard decisions that are likely to affect the
health of each state’s access to justice system for years to come. ATJ Commissions can
make a huge difference in how well its legal aid programs weather the storm. Here are
some thoughts about what Commissions can do to help:
Encourage all stakeholders to work together – This is a primary Commission role, in
good times and bad. Commissions are in a position to look beyond the interests of
individual stakeholders to the overall legal needs of poor people in the state. Work with
all legal services providers and look for solutions that will maintain the best possible
range of services in your state. Encourage coordinated activity.
Focus on the big issues for the long haul – In times of economic crisis, even the best
program leaders tend to lose sight of critically important longer term matters as they deal
with whatever is today’s most pressing issue. In the fundraising arena, there tends to be
too much hand-wringing and panic behavior, which, of course, is counter-productive.
Those organizations that implement effective, well-conceived strategies are more likely
to receive the funding that continues to be available. Review the accompanying piece,
Best Practices for Fundraising in Difficult Economic Times, and talk with your provider
organizations about how the Commission can best help them during this crisis.
Direct fundraising leadership and support – Use the political and brain power, both of
the Commission collectively and each individual Commission member, to sustain and
increase funding:
x Lead efforts to increase LSC funding. This is one source that has potential for
increasing during this particular economic crisis. Meet with all members of your
congressional delegation sometime during the year, either in their home districts or in
Washington as part of ABA Day. Working with your Bar and taking advantage of
your Commission’s diversity, build powerful, informed teams to visit each member.
x Coordinate efforts to identify and obtain new funds that are flowing into states from
federal initiatives. Doing this work once at the state level can save individual
programs a lot of time.
x Work to maintain and/or expand state legislative funding, including organizing
grassroots lobbying and education efforts. Be pre-emptive; if you wait until this
funding is threatened, it may be too late.
x Support legislation or court rule changes to provide for pro hac vice and/or cy pres
funds to go to access to justice
x Coordinate with your state’s IOLTA program to propose rule changes that will
increase revenue (conversion to mandatory, interest rate comparability)
x Work on all legal community related giving initiatives:
o Attorney registration fees or bar dues add-ons for legal services
o Private bar campaigns – Assist in improving, expanding, initiating, etc.
Communication/Education Campaigns – Essential to maintain and build support in
difficult economic times. Not only is this work that may be best done on a statewide
level, but most individual programs will find it difficult to develop these activities when
they are faced with more clients and fewer resources.
x Hearings, town hall meetings, etc – Commissions in several states have held very
successful hearings or other group sessions to educate judges, legislators, and other
opinion leaders about the value of and need for civil legal assistance. Contact either
of the ATJ Resource Center consultants to learn more.
x Identifying expert assistance for communications campaigns – Effectively
communicating the right message is more important now than ever. Many law firms,
corporations and bar associations have marketing staff who may be helpful in
developing effective communications tools on a pro bono basis.
This document was prepared by Meredith McBurney, resource development
consultant for the American Bar Association’s Resource Center for Access to
Justice Initiatives. The Resource Center is available to assist access to justice
commissions, bar associations, civil legal services programs and other similar
entities in increasing resources. For more information or assistance, contact
Meredith at 303/329-8091 or meredithmcburney@msn.com, or go to the Center’s
site on the ABA webpages at www.atjsupport.org.
Best Practices for Fundraising in Difficult Economic Times:
A compilation of ideas from wise fundraisers, inside and outside of legal services
x Hold steady – Keep what you have, nurture you current donors. Raising money is only
harder, not impossible.
x Avoid penny-wise, dollar foolish – This is not a time to cut your fundraising staff or
operations; trying to raise money with less when it is harder is crazy.
x Talk and Listen – Especially to your major funders/donors – Listen to what they can and
can’t do given the current economy. Some will need to cut back or defer their gifts, but
others will be able and willing to do more, especially if you make a compelling case.
x Identify and cultivate your most likely donors – Always a good practice, but donors make
more careful choices in bad economic times – your closest “family” may choose to give more
to your organization at a time of greatest need. If you have non-donor board members and/or
volunteers, now is the time to ask for their support.
x Be as personal as possible - The closer the relationship and more personal the solicitation,
the more memorable your request and the more critical your appeal seems. Most
organizations are not doing this well, so it is a chance for yours to stand out in a positive
way.
x Remember your clients – Remind donors that legal services is a core service in the
community, and low income people are already getting nailed disproportionately. Talk about
the consequences to clients if your organization must cut services.
x Demonstrate good stewardship – Being well-managed, efficient and effective is always
good, but at this time it is absolutely critical. Show that a gift to your organization will be
well used.
x Avoid audacious goals – If possible, as needed and where appropriate, give your donor base
a reprieve from aggressive increases.
x On the other hand, never let a crisis go to waste – For some programs and some funding
sources, now may be the best opportunity to increase giving; think strategically about your
situation. Think about the experience with funding for foreclosure work.
x Be creative – A law firm with too little money right now may have staff who could do
volunteer work. A firm with excess capacity may have space to share, equipment to donate.
Discuss options as you talk with current and prospective donors.
x Remember the future – Eventually things will improve, and you want to be ready for it. You
want to be in a better, stronger position, so plan and organize now.
x Do a better fundraising job – Ironically, most organizations do a less good job of fundraising
just at the time that they need to be better. Follow the rules above and you are likely to come
out ahead!
Please e-mail additional ideas and comments to Meredith McBurney, Resource
Development Consultant, Management Information Exchange (MIE) and the American
Bar Association’s Resource Center for Access to Justice Initiatives, at
meredithmcburney@msn.com.
Financial Management in Tough Times
Riding the Dragon Coaster
By Gerry Singsen1
The Dragon Coaster is a classic wood rollercoaster 1970 dollar value from $78.6 million in 1970 to $58.4
opened at Rye, New York’s Playland Amusement Park million in 1975.
in 1929 and still operating today. 2 I remember my first This period involved slow strangulation — posi-
visit to Playland in ninth grade. tions left vacant “for awhile” gradually disappeared
The initial hill on the Dragon from plans. Infrastructure investments were put off.
Coaster seemed to go straight up. Salaries were frozen. There was no national strategy
After that it was down and up and for dealing with this cut in resources, no retrenchment
twist and down, a long slow rise materials or training.
and then more twists and downs “Recovery” came in the form of increasing ap-
and ups, and into the dragon’s propriations for the new Legal Services Corporation
mouth and through the dark drag- (LSC). The FY76 appropriation was $117.0 million
on body. The ride was terrifying. ($79.7).5 (In the rest of this article, funding amounts in
Stepping back afterwards, a couple of things are current dollars are given in the main text and the value
clear. The trip was predictable — each time you got on of that funding in 1970 dollars is given immediately
you knew you were in for the same ups and downs – afterwards in parenthesis.) By 1978, the appropriation
and the trip ended up where it began — if you did not was $205 million ($124.0), but by then “expansion” and
panic, you made it back to where you started. Legal ser- “equalization” were distributing the dollars over many
vices funding resembles the Dragon Coaster. Our his- more eligible persons and a number of new or rapidly
tory suggests that the twists and turns are predictable. growing legal aid societies.6 Many of the original OEO
programs never did get back to 1970 levels.
I. The first downhill slide was a slow decline in the
value of grants because of inflation. Between 1970 and II. The second downhill moment was at the start of
1975, the Office of Economic Opportunity (OEO) Of- the Reagan era, when a third of the LSC funding disap-
fice of Legal Services had $71.5 million each year.3 With peared all at once. The LSC appropriation for FY80
no new money to disburse, annual grants were frozen was $300.0 million ($151.2), LSC’s high water mark.
for the most part. Because of inflation, the staffing High inflation undercut FY81’s $321.3 million ($142.7)
power of a steady OEO grant fell 26%, from $71.5 mil- and LSC has never been close to the 1980 level since.
lion to $53.2 million in constant 1970 dollars.4 (It would have required an appropriation of $799.1
OEO programs also had some funds from other million in 2007 to equal the 1980 LSC appropriation.)
sources, such as Volunteers In Service To America (VIS- Total funding of the 1980 delivery system was about
TA), foundations and contributions. And there were $380 million ($191.6). The Republican Congress cut
some legal services programs that relied completely on the 1982 appropriation to $241.0 million ($97.0 mil-
non-OEO sources. Data from this period is poor, but I lion). Total non-LSC funding was about $90 million for
will estimate here that total non-OEO funding in both a 1982 total of $321.0 ($129.3), a real drop of 33%.
1970 and 1975 was perhaps 10% of the OEO funds. The lesson of the early 1970s had been learned this
If that is right, the total 1970 to 1975 delivery system time. LSC broadcast that cuts were coming and that it
funding was about $78.6 million per year, which fell in was better to make those cuts early.7 With the help of
Spring 2009
the Wharton School at the University of Pennsylvania, planned layoffs that preserved each program’s core ser-
extensive materials on retrenchment management vices and critical personnel. More offices were closed.
were prepared and retrenchment training was offered There appeared to be far fewer programs relying on
across the country.8 Basic topics included preserving devices like job sharing and shorter work weeks. And
the “core” mission, outplacement assistance, office clos- the presence of a growing array of federal grants, in-
ings, values clarification, management of rumors, what creasing state appropriations and more IOLTA revenue
to disclose and when to disclose it, and even strategic buffered the cuts.9
program consolidations. Some programs lost their best In the years since 1996, the LSC appropriation has
advocates while testing four-day weeks, job sharing, stayed at a value in 1970 dollars about equal to FY96’s
frozen salaries and contracts with former staff attor- appropriation. For FY07 the appropriation stood at
neys. $348.6 million ($64.0). When all funds are taken into
Recovery came in two forms this time. Across account, LSC grantees in FY07 reported $844.4 million
the country, grantees began diversifying their fund- ($155.1). But the universe of legal aid programs now
ing sources and more programs without LSC funding extends far beyond the LSC grantees; available data
were created. By 1994, 37.4% of the funding of LSC suggest the total civil delivery system had about $1.15
programs came from non-LSC sources, particularly trillion in FY ’07 ($211.2); LSC accounted for less than
Interest On Lawyer Trust Accounts (IOLTA), and non- 30% of the total.
LSC programs may have accounted for 15% of the total
delivery system. Meanwhile the Congress gradually IV. Today feels like the middle of the fourth down-
rebuilt the LSC funding. For FY94 (Clinton’s first year) cycle in legal aid funding since the founding of the OEO
the appropriation was up to $400.0 million ($101.4). Office of Legal Services in 1965. Like 1970–75, 1982 and
The initial FY95 appropriation was $415 million 1996, programs are again facing lay-offs and thinking
($105.2), but that was rescinded back to $400 million about office closing. But this time the cause is a na-
by the Gingrich Congress ($98.8). Taking all sources of tional economic crisis which is making states cut their
funds into account, the total delivery system in 1994 budgets, pushing IOLTA receipts down, jeopardizing
was about $730 million ($185.0). private contributions and closing foundations. LSC
funding for FY09 has been set at $390 million ($70.9),
III. The third big drop and twist on the rollercoaster up $40 million over FY08. How far is non-LSC funding
was in 1996, when President Clinton was unable to hold going to drop? An optimistic estimate for FY09 might
the line and LSC funding was slashed to $278 million be a total system at about $1.1 billion ($200.0). A more
($67.0) — again a real cut at LSC of 32%. The twist conservative estimate, better for planning, might be
was that the non-LSC funding of LSC programs also $1.0 billion ($181.8), down about 14% nationally in
dropped because a number of programs abandoned real dollars since 2007.
their LSC grants and took their non-LSC funding into Figures 1 and 2 capture some of this data.
the non-LSC program category. As a result, the share
of the total delivery system that lies outside the LSC Figure 1: LSC (OEO) Funding Downcycles
sphere, and beyond the LSC data collection, may have 160
doubled. My estimate of the 1996 delivery system is
$635 million ($153.0), a cut of 17%. 140
When LSC saw this cut coming, President Alex 120
Forger initiated the era of state planning. In a letter to
each state, Forger forecast a time when LSC might no 100
longer be funded and called on state leaders to join
80
with their legal aid programs and develop alternative
funding sources. He suggested that they consider the 60
state the central unit of legal services planning and
become less dependent on federal support. 40
Many executive directors in 1996 had lived through
20
the first two eras of funding cuts. The strategies of
the early 1980s were revisited. The devastating effects 0
of reliance on attrition were largely avoided through 1970 1975 1980 1982 1994 1996 2007 2009
Management Information Exchange Journal
Riding the Dragon Coaster contributions and private grants dry up. Comparing
Continued from page 25 the optimistic and pessimistic budgets will probably
show a swing of 30% or 40%.
Figure 2: Total Legal Aid Funding Downcycles
Make your plan to deal with the pessimistic budget. 10
250 Hire temporaries; hire contractors to do projects
rather than permanent staff.
200 Make cuts early to create a stable base for your next
three years – save in the first year to cover mainte-
nance of effort in the third year.
150 Preserve your most critical work; do not starve
everything.
Remember that you will always make it through
100
the dragon and that the next “up-cycle” is just as
predictable, and plannable, as the current down-
50 cycle.
2. Expect Growth in the Long Run
0 Look back at Figure 2. Ignore the high points of
1970 1975 1980 1982 1994 1996 2007 2009 1970, 1980, 1994 and 2007 and focus on the fund-
ing levels in 1970 dollars at after each cut. The trend
This issue of the MIE Journal features articles that is gradually upwards. The national delivery system is
collect the wisdom of the earlier downturns. Program growing consistently.
managers will benefit by studying the techniques that
have evolved to deal with hard times. This article high- 1975 $ 58.4 million
lights two of these lessons. 1982 $129.3 million
1996 $153.0 million
1. Expect Downturns in the Future 2009 $181.8 million
This is a cyclical business. Figure 2’s graph of the
forty-three year history of legal aid since the start of Even while the Dragon Coaster flings you around,
federal funding in 1965 shows a period of retrench- there is a stable, and growing base to rely on. Indeed,
ment in every decade. The total funding of the delivery where you get off each time is better than where you
system (in real, or 1970 dollars) has been reduced by got on.
26%, 33% and 17%. Because of fund source diversifica-
tion, the total funding cut was softened in 1996. It is One Final Note
too early to count the dimensions of the current down- The American Recovery and Reinvestment Act of
turn, but it seems likely to end up as a reduction of 2009 is going to provide a boost for some legal services
10% to 20% and to be followed by a faster recovery. programs, but remember that it is “one-time” money.
What can you do about it? Make reasonable pro- As such, this stimulus money can provide a bridge to
jections of your program revenue for 2010 and 2011 the return of better IOLTA income, but it cannot sup-
and then project your current operating level into an port staff permanently. If a program needs to hire new
expense budget for those years. Next, revisit your as- staff to carry out the purposes of a stimulus contract,
sumptions and become more optimistic. Project the it may be wise to use staff on contracts that explicitly
same years’ revenue with a fast economic recovery and come to an end without an offer of permanent employ-
with success for your efforts to cut costs and increase ment.
grants. Imagine LSC at $450 million in 2011. Finally,
revisit your assumptions again and be pessimistic. Proj- 1 Gerry Singsen is a consultant and trainer. His clients are
ect revenue and expense on the assumption that eco- legal services program staffs, managements and boards
nomic recovery will not come until 2012, that IOLTA of directors, and the Massachusetts Access to Justice
is damaged for 2010 and 2011, that your young lawyers Commission. He has written extensively on legal ser-
turn over but your old lawyers hang on, and that your vices goals, management, practice and regulation. He
Continued on page 55
Spring 2009
Riding the Dragon Coaster Remarks at MIE’s 2008 National Fundraising
Continued from page 26 Conference, Continued from page 23
has been a project director, deputy director and middle 1980 with a BA in philosophy from the University of
manager in legal services programs, was Vice President Maine at Orono and received his Juris Doctor from Anti-
of LSC between 1979 and 1982, was a lecturer at Har- och School of Law in 1984. From 1984 to 1989, Jonathan
vard Law School from 1984 to 1994, directed the Inter- was an associate at the Alexandria Virginia civil rights
university Consortium on Poverty Law and helped many firm of Victor Glasberg & Associates, where he litigated
programs, regions and states plan their responses to cases on a broad range of issues including, police brutali-
LSC’s state planning initiative between 1998 and 2004. ty and misconduct, employment discrimination, discrim-
Gerry may be reached at gerrysings@aol.com. ination in public accommodation, voting rights and free
2 http://www.ridezone.com/parks/ny/rye/playland20.htm. speech. In 1989, he joined D.C. Prisoners’ Legal Services
3 Funding amounts include all funds appropriated; LSC’s Project as its first staff attorney and helped open the of-
costs are treated as overhead charges on its grants. fice. In 1991, he became the Project’s Executive Director.
4 Calculation of 1970 equivalents were carried out on From 1998 until 2002, Jonathan was the Executive Direc-
The Inflation Calculator www.westegg.com/inflation. tor of the Public Justice Center in Baltimore, Maryland,
The calculator uses national consumer price index data, where he worked on a range of issues including juvenile
but stops at 2007. For 2008 the CPI was unchanged. For justice reform, workers’ rights, the rights of language
2009, 2010 and 2011, I estimated annual 1% inflation minorities and housing. Jonathan has served on the
rates. D.C. Access to Justice Commission since its inception in
5 This funding was for 15 months, as the federal fiscal year 2005. In 2006, Jonathan received the Gelman Rosenberg
end shifted from June 30 to September 30. & Freedman Excellence in Chief Executive Leadership
6 “Expansion” was making grants for geographic areas (EXCEL) Award for outstanding leadership in the areas
that had no prior grantee. “Equalization” was increasing of innovation, motivation, community building, ethical
grants from their prior levels up to $7 per poor person. integrity and strategic leadership. Also in 2006, Jonathan,
Programs serving established geographic areas with along with Legal Aid, received the Justice Potter Steward
grant levels in excess of $7 per poor person got no in- Award recognizing those who have made a significant
creases from either expansion or equalization. contribution to the administration of justice. Jonathan
7 A cut of $100,000 in expenses at the start of a year saves may be reached at JSmith@legalaiddc.org.
the full $100,000; the same cut six months later saves 2 Reginald Heber Smith, Justice and the Poor, The Carn-
only $50,000. To save $100,000 starting six months into egie Foundation for the Advancement of Teaching, 1919,
the year, you have to cut 200,000 in annualized spend- http://books.google.com.
ing.
8 The retrenchment papers are in the MIE Library at
www.m-i-e.org along with an introduction by John
Arango.
9 The 1996 cuts were not shared equally by LSC grantees.
Congress eliminated funding for national and state sup-
port, regional training centers, and several other cat-
egories. The separate appropriation for migrant services
was also eliminated, forcing LSC to identify the migrants
within each state’s basic field population in order to
continue specialized migrant services. As a result, the
percentage LSC cut suffered by a typical field program
was considerably less than 32%.
10 For further exploration of this budgeting perspective,
and tried and true cost reduction ideas, see Singsen, Visit www.m-i-e.org for up-to-date
G., “Management of Scarce Resources (Or How to Be resources, MIE online library,
a Better Ant),” 13 Clearinghouse Rev. 550 (1979). information on fundraising and
[Available in the MIE library.] special services, and valuable links.
Wyoming
lawmakers
New legislation will provide means for a
statewide civil legal services program to
step up
help Wyoming’s indigent population By Hon. E. James Burke
/ ast year’s February edition of the
Wyoming Lawyer had a map of the United
States on the cover (see far right). Three
at or below poverty level. Studies that have
examined the legal needs of those living in
poverty have concluded that 80% of their
grantee, Legal Aid of Wyoming, is now in
place and is accepting clients. They have four
attorneys and offices in Cheyenne, Casper,
states were colored red. Wyoming was one legitimate civil legal needs go unmet. and Fremont County. Unfortunately, the
of those states. The red states were the only We learned what “poverty level” means replacement process took too long and the
ones that did not provide state funding for in real dollars. For a family of four the fed- funds are limited and severely restricted. Le-
civil legal services for the indigent. A lot eral poverty amount is $22,050. We visited gal Services Corporation made it clear that
has happened since then. The Wyoming with clerks of court who are on the front federal funding for civil legal services was
Legislature, in challenging economic times, lines and grapple with the frustration of in- never intended to be the complete solution
stepped up big time. They passed House Bill dividuals unable to afford basic legal help. to the unmet civil legal need problem. They
61 in this year’s budget session. The legisla- Members of the judiciary told us of the sig- hoped that the federal funding, if properly
tion will generate more than a million dol- nificant increase in pro se representation and utilized and coordinated with other pro-
lars per year for a statewide civil legal servic- the difficulties inherent in that situation. We grams and resources, would be an impor-
es program that will provide sorely needed learned that the vast majority of debt col- tant component of a statewide program.
legal help for people in our state that cannot lection cases resulted from unpaid medical Since receiving the federal grant, Legal Aid
afford it. I was fortunate to have an inside bills. of Wyoming has been inundated with calls
view of the effort that led to this legislation. We identified the civil legal service pro- and has been able to accept only a relatively
Back in February of 2009, the Access to viders in this state. They are few in number small percentage of callers as clients. The
Justice Commission was just getting up and and must routinely turn down many legiti- federal legal services grant limits financial
going. It was tasked with identifying the un- mate requests for help because they lack the qualification for prospective clients to 125%
met need for civil legal services and, if need necessary personnel and resources to meet of the federal poverty level, or $27,562.50
was established, crafting a strategy to address the demand. We spent a great deal of time for a family of four.
that need. In order to fulfill that responsi- with Legal Services Corporation discuss- The law school legal service clinics con-
bility, we tried to get a handle on the cur- ing the need for an immediate replacement tinue to offer assistance but have limits on
rent situation. We found that at least 50,000 grantee for the federal funds administered the help they can provide. Those programs
people, 10% of the state’s population, are by that organization. Fortunately, a new have two supervising faculty attorneys and
*RYHUQRU )UHXGHQWKDO VLJQV +RXVH %LOO LQWR ODZ DV 6HQDWRU 7RQ\ 5RVV &KH\HQQH DWWRUQH\ 'RQD
3OD\WRQ 'LUHFWRU RI WKH 8QLYHUVLW\ RI :\RPLQJ 'RPHVWLF 9LROHQFH /HJDO $VVLVWDQFH 3URMHFW DQG
'HQLVH %XUNH IDU ULJKW $VVLVWDQW 'HDQ RI WKH 8QLYHUVLW\ RI :\RPLQJ &ROOHJH RI /DZ ORRN RQ
up to 16 law students available to provide for improving the law, the legal system or
help each semester. The Wyoming Coalition the legal profession.” (See Rule 6.1(a)(2)
Against Domestic Violence and Sexual As- (iii), Wyoming Rules of Professional Re-
sault Legal Assistance to Victims Project of- sponsibility). This is a problem if the goal of
fers civil legal representation in the domestic pro bono involvement is to help individuals
arena. It has two full-time attorneys, but is with specific legal problems. For example, I
facing elimination of one of the positions may be entitled to pro bono credit for the
because of the loss of federal grant funds. All time spent writing this article, but this ar-
of the legal service providers told us that the ticle doesn’t help one person with a specific
need was overwhelming and all have been legal problem.
part of this effort to secure additional re- Law nights have increased in number,
sources. but are still sporadic in most communities.
We also explored the status of pro bono While beneficial in many respects, they also
efforts in the state. We found that the defini- can be a source of frustration for the par- 7KH FRYHU RI WKH )HEUXDU\ :\RPLQJ /DZ
tion of “pro bono” is pretty vague. It is dif- ticipating attorneys and those seeking help. \HU LQGLFDWHG WKDW :\RPLQJ ZDV RQH RI WKUHH
ficult to gauge the number of attorneys who Participating attorneys find that they have VWDWHV WKDW GLG QRW SURYLGH VWDWH IXQGLQJ IRU FLYLO
are actually providing pro bono representa- few referral options for someone who needs OHJDO VHUYLFHV IRU WKH LQGLJHQW
tion to specific clients. It appears that many representation beyond the advice given that
fulfill their “aspirational” 50 hour pro bono evening. The efforts of the State Bar to iden-
requirement by “participation in activities tify attorneys who will accept pro bono cases
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have been marginally successful. As of this We held community meetings in Chey- legal services. Several individuals, demon-
date, only 32 attorneys have taken the pro enne, Evanston, Riverton, Casper, and Gil- strating remarkable courage, shared their
bono pledge. lette. We invited every member of the Leg- personal stories.
Certainly there are many attorneys that islature to every meeting. We invited local We obtained a grant from the Federal
go above and beyond in the pro bono area government officials. We invited those who Court’s Attorney Admission Fund Com-
and they do so without publicity or recog- provided services to the indigent in a vari- mittee and hired videographers to record all
nition. And there are successful programs. ety of contexts. We invited everyone. Many of the meetings. A young film maker from
One that has had significant success is the came. We learned a lot. Cheyenne, Dillon Petrillo, combed through
pro bono program at Casper College run For me, the public meetings brought the hours of footage and created a 16 min-
by Mary Kubichek and Craig Silva. With the need home in a very personal way. The ute video that is available for viewing on our
focus and local leadership, that program sense of individual hopelessness was palpa- website.2 I’d recommend it. It gives a glimpse
could be implemented in other legal com- ble at every meeting. “Justice can be bought” of what occurred at those meetings. It puts
munities. Hopefully, the State Bar’s current was a common refrain. And when you lis- a face on the problem. Although many at
efforts and renewed emphasis on pro bono tened to the reasons behind the statement, the meetings expressed skepticism about
activities will result in more attorneys opt- you were forced to concede that there was the possibility of anything worthwhile com-
ing to provide pro bono representation in merit in the accusation. The law is compli- ing from the meetings, there was no doubt
specific cases. That involvement is critical to cated. Those with lawyers do better in court that, deep down, all were still counting on
the development of a statewide legal services than those without. Legal forms are daunt- our profession for help. For members of the
program but, by itself, can never satisfy the ing and the court system is intimidating. Pro commission, it was simply impossible to at-
tremendous need that exists. se representation is a viable option for very tend those meetings and not want to take
We also tried to identify programs and few. Paid attorney representation is simply meaningful action to address the problem.
approaches that have worked in other states. out of the question for most. There is no question that the current
We reviewed studies and surveys conducted Connie Sloan Cathcart, Executive Di- patchwork of federal grants, pro bono ef-
about the need in other states. We consulted rector of the United Way of Laramie Coun- forts and pro se representation is inadequate.
with experts from other states and the ABA ty, came to the Cheyenne meeting with a flip Ultimately, we came to the same inescapable
who have worked with numerous programs chart. She ran the numbers for a family of conclusion as all who have studied the issue:
around the country.1 They suggested that we four making $34,000 (approximately 150% a viable statewide legal services program is
hold public meetings throughout the state of the federal poverty level). Her presenta- impossible without state funding. We fo-
as a way to assess need, engage community tion brought home the economic realities in cused on obtaining that funding.
leaders, and learn about public perception of devastating detail. There simply is no money We drafted proposed legislation and a
our legal system. We took their advice. available for that family to pay for necessary detailed White Paper, “Indigent Civil Legal
“ This is a system based solution, where the
Courts and the legal system are fixing the
problems rather than expecting the Wyo-
ming taxpayers to carry the burden.
Governor Dave Freudenthal ”
Services in Wyoming: A Report to Governor
Freudenthal and the Wyoming Legislature
and a Call to Action to Establish a State- Access to Justice Commission Members
wide Program” supporting that legislation.
We obtained legislative sponsorship for the
legislation.3 We tweaked the bill prior to in- +RQ ( -DPHV %XUNH -XVWLFH :\RPLQJ 6XSUHPH &RXUW
troduction based upon sound advice we re- 1 'HQLVH %XUNH $VVLVWDQW 'HDQ 8: &ROOHJH RI /DZ
ceived from those in the Legislature and the 6WXDUW 5 'D\ $WWRUQH\ DW /DZ :\RPLQJ 6WDWH %DU )RXQGDWLRQ
Governor. All advised removing our request +RQ 7LPRWK\ & 'D\ &LUFXLW &RXUW -XGJH 1LQWK -XGLFLDO 'LVWULFW
for an immediate $500,000 general fund 6OHHWHU & 'RYHU ([HFXWLYH 'LUHFWRU :\RPLQJ 6WDWH %DU
appropriation (to be repaid). We took the
:DOWHU ) (JJHUV ,,, $WWRUQH\ DW /DZ
advice and the bill as introduced, HB 61, 5 'DQLHO )OHFN $WWRUQH\ DW /DZ
sought only a special appropriation from :LOOLDP / +LVHU 3UHVLGHQW :\RPLQJ 6WDWH %DU
funds raised by a $10 increase in court fees. +RQ 0DULO\Q 6 .LWH -XVWLFH :\RPLQJ 6XSUHPH &RXUW
The clerks of court, who will be tasked 5LFKDUG / /DYHU\ ,PPHGLDWH 3DVW 3UHVLGHQW :\RPLQJ 6WDWH %DU
with collecting those funds, publically sup- /HLJK $QQH 0DQORYH *RYHUQRU¶V 3UHVV 6HFUHWDU\
ported the bill. Governor Freudenthal sup- 5RQGD 0XQJHU 'HSXW\ &RXUW $GPLQLVWUDWRU3XEOLF ,QIRUPDWLRQ 2I¿FHU
:\RPLQJ 6XSUHPH &RXUW
ported the bill and expressed that support in
'RQD 3OD\WRQ $WWRUQH\ DW /DZ
a letter sent to every member of the Legisla-
$PDQGD .D\ 5REHUWV $WWRUQH\ DW /DZ
ture.4 Chief Justice Voigt expressed support
+RQ :HVOH\ $ 5REHUWV &LUFXLW &RXUW -XGJH 1LQWK -XGLFLDO 'LVWULFW
for the bill in his State of the Judiciary ad-
6HQ $QWKRQ\ ) 5RVV :\RPLQJ /HJLVODWXUH 6HQDWH 9LFH 3UHVLGHQW
dress to the Legislature. The Wyoming State
+RQ -RKQ 6W &ODLU &KLHI -XGJH 6KRVKRQH DQG $UDSDKR 7ULEDO &RXUW
Bar and the Wyoming State Bar Foundation
+RQ 6FRWW : 6NDYGDKO 'LVWULFW &RXUW -XGJH 6HYHQWK -XGLFLDO 'LVWULFW
publically supported the legislation. Many
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other organizations expressed support for
the bill at legislative hearings. Efforts were
³+RQRUDU\´ &RPPLVVLRQ 0HPEHUV
made to ensure that every legislator was con-
tacted and educated about the bill. Many
0DUN $URQRZLW] $WWRUQH\ DW /DZ
had attended one of the public meetings. All
-RKQ %XUPDQ 3URIHVVRU 8QLYHUVLW\ RI :\RPLQJ &ROOHJH RI /DZ
were provided with a copy of the White Pa- 5D\ 0DFFKLD 'LUHFWRU /HJDO $LG RI :\RPLQJ ,QF
per and a DVD of the public hearings. We -RDQQ 2GHQGDKO &RXUW $GPLQLVWUDWRU :\RPLQJ 6XSUHPH &RXUW
welcomed and attempted to address all con- 5HQQLH 3ROLGRUD 6WXGHQW 8QLYHUVLW\ RI :\RPLQJ &ROOHJH RI /DZ
cerns about the bill. /HDK 6FKZDUW] 6WXGHQW 8QLYHUVLW\ RI :\RPLQJ &ROOHJH RI /DZ
Nevertheless, passage of the bill proved 6KDURQ :LONLQVRQ &RPPXQLFDWLRQV 'LUHFWRU :\RPLQJ 6WDWH %DU
to be a challenge, particularly in the Senate.
/DUU\ :ROIH $WWRUQH\ DW /DZ
HB 61 passed the House by a vote of 49-9
(2 excused). In the Senate, on second read-
$OO ZKR SDUWLFLSDWHG PDGH YDOXDEOH FRQWULEXWLRQV ,I ZH ZHUH WR JLYH RXW
ing, an attempt was made to amend the bill 093 DZDUGV IRU WKH OHJLVODWLYH VXFFHVV WKH\ ZRXOG JR WR 6HQ 7RQ\ 5RVV
by significantly restricting the type of legal :DOWHU (JJHUV DQG /DUU\ :ROIH 7KHLU HIIRUWV ZHUH H[WUDRUGLQDU\
services that could be provided. The amend-
“ It may not rank up there with, “The Giants win the pen-
nant! The Giants win the pennant!” or “Do you believe in
miracles? Yes!” for all time great calls, but “Having received
a majority vote of those elected to the Senate, House Bill
61 has passed the Senate,” will stay with me for awhile.
ment failed in a very close vote. Later that be monitored by the Legislature and future
”
clusive, but to provide direction on
day, discussions were held in an effort to al- funding will be jeopardized if demonstrable the management and operation of
leviate concerns that were raised in the floor results are not achieved. If you wish to lend the program:
debate. Consensus was reached on a pro- your time and talents to this important en- (I) Cases in which an indigent
posed amendment. On third reading, the deavor, let us know. We’ll put you to work individual is a defendant in a
bill was amended to specifically exclude tort and I’ll bet you find it satisfying. There is lawsuit;
cases, criminal defense, and cases against no doubt that those who participated in this (II) Cases in which an indigent
public agencies or political subdivisions project feel that their time has been well individual is seeking to en-
seeking to change or overturn existing rules, spent. (See insert on previous page.) force a court order;
regulations, and policies. The amendment As you are all aware, opportunity is a (III) Cases involving domestic re-
also identified non-exclusive case priorities.5 terrible thing to waste. We now have a tre- lations and family law;
As we soon learned, however, passage of the mendous opportunity. Let’s not blow it. Too (IV) Matters involving general
amendment did not guarantee passage of many are counting on us. We’ve seen their legal advice to indigent indi-
the bill. faces. N viduals.
We listened to the debate on our com- (B) In adopting rules and regulations
puters courtesy of the Legislature’s website. ENDNOTES governing the program, the court
Those who spoke in opposition outnum- shall prohibit the program from
bered those who spoke in favor. Debate was providing legal representation in
1. Meredith McBurney and Bob Echols
passionate at times. Senators Massie, Meyer, the following areas:
from the ABA Resource Center for
Perkins, and Scott spoke in favor and their (I) Cases seeking tort damages;
Access to Justice Initiatives, and John
defense of the bill still resonates with me. On (II) Criminal defense;
Asher of Colorado Legal Services were
third reading, the Senators vote individually (III) Cases against public agen-
particularly helpful.
and it was difficult to hear their votes. There cies or political subdivisions
2. http://www.courts state.wy.us/AJC.aspx
was a significant pause before the totals were seeking to change or overturn
3. Senators Ross, Massie, Meyer, and Ses-
announced: “20 ayes, 10 no’s.” It may not existing rules, regulations and
sions agreed to sponsor the bill in the
rank up there with “The Giants win the pen- policies. This prohibition shall
Senate. Representatives Throne, Con-
nant! The Giants win the pennant!” or “Do not limit the program’s ability
nolly, Gingery, Hales, Hammons,
you believe in miracles? Yes!” for all time to represent indigent individ-
Lockhart, Lubnau, and Dan Zwonitzer
great calls, but “Having received a majority uals who are seeking benefits
signed on as sponsors of the bill in the
vote of those elected to the Senate, House that may be owed them by
House. Rep. Throne shepherded the bill
Bill 61 has passed the Senate.” will stay with public entities.
through the House. Sen. Ross, the bill’s
me for awhile. (iv) The rules shall establish eligi-
prime sponsor, handled things in the
The House concurred in the amend- bility standards for the receipt
Senate.
ment and on March 11, 2010, the bill was of services. The eligibility
4. The White Paper and the Governor’s let-
signed into law by Governor Freudenthal. standards shall require that
ter are also available on the website.
The commission members savored the leg- civil legal services be funded
5. The pertinent language of the statute
islative success for less than a day. The fo- from the account only for in-
states:
cus immediately shifted to developing and dividuals whose total house-
(A) In adopting rules and regulations
implementing a statewide legal services pro- hold income does not exceed
governing the program the court
gram that is right for Wyoming. We have two hundred percent (200%)
shall set the following priorities,
strict deadlines for progress. Our efforts will of the federal poverty level;
which are not intended to be ex-
IOLTA
Increasing IOLTA Revenue
Conversion to Mandatory IOLTA
x An effective way to increase IOLTA revenue for programs that currently have voluntary or
opt-out participation
x Programs that converted from opt-out to mandatory IOLTA in the 1990s realized annual
revenue increases of 49 percent to well over 100 percent
x American Bar Association policy has supported mandatory IOLTA since 1988
x The Supreme Court’s decision in Brown v. Legal Foundation of Washington 538 U.S. 216
(2003) resolved any Fifth Amendment concerns that may have existed regarding
mandatory IOLTA
Other Rule and Policy Changes
IOLTA programs have pursued other rule and policy changes to increase revenue. Recent
examples include:
x Adding “Comparability” Provisions, which require that financial institutions pay IOLTA
accounts no less than the interest rate or dividend generally available to non-IOLTA
depositors at the same institution when the IOLTA accounts meet or exceed the same
minimum balance or other account eligibility requirements
x Defining “Reasonable Fees,” which distinguish charges that are properly deducted
from the IOLTA account earnings and borne by the IOLTA program from others that
should be properly borne by the lawyer or firm maintaining the account or passed along
to the client, unless waived by the bank
x Prohibiting “Negative Netting,” which is the practice of using earnings from one IOLTA
account to pay fees on another account. The effect of this practice, if not prohibited, is
that the IOLTA program bears the fees that exceed earnings on individual accounts
Assistance Available
For more information on these and other IOLTA revenue enhancement strategies, contact your
state IOLTA program or Beverly Groudine, Staff Counsel, American Bar Association Commission
on IOLTA, at bgroudine@staff.abanet.org or 312/988-5771.
TYPES OF IOLTA PROGRAMS
(Program status as of April 2010)
MANDATORY OPT-OUT VOLUNTARY
Alabama Alaska South Dakota
Arizona Delaware Virgin Islands
Arkansas District of Columbia*
California (L) Idaho
Colorado Kansas
Connecticut (L) Nebraska
Florida New Hampshire
Georgia Virginia
Hawaii Wyoming
Illinois
Indiana
Iowa
Kentucky
Louisiana
Maine
Maryland (L)
Massachusetts
Michigan
Minnesota
Missouri
Mississippi
Montana
Nevada
New Jersey
New Mexico
New York (L)
North Carolina
North Dakota
Ohio (L)
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
Washington
West Virginia
Wisconsin
______________
41 9 2
Notes:
nd
*As of August 1, 2010, the District of Columbia will become the 42 mandatory IOLTA jurisdiction
Jurisdictions in Bold converted from voluntary status.
Jurisdictions in italics converted from opt-out status.
(L) denotes programs created by state legislature (state statute). All other programs were created
by state Supreme Court order.
IOLTA Rate Comparability
As of 4/1/10, 32 jurisdictions have amended their IOLTA legislation, rules, court
or legislatively-authorized regulations and/or guidelines to include a provision that
financial institutions which offer IOLTA accounts pay an interest rate or dividend
on IOLTA accounts that is no less than the highest interest rate or dividend
generally available from a financial institution to its non-IOLTA customers when
the IOLTA account meets the same minimum balance or other eligibility
qualifications.
The jurisdictions are:
Alabama
Arkansas (effective February 1, 2007)
California (effective January 1, 2008)
Connecticut
District of Columbia (to become effective August 1, 2010)
Florida
Hawaii (effective July 1, 2008)
Illinois (effective June 1, 2007)
Indiana
Kentucky (effective January 1, 2010)
Louisiana (effective April 1, 2008)
Maine (effective April 1, 2008)
Maryland (effective April 1, 2008)
Massachusetts (effective January 1, 2007)
Michigan
Minnesota (effective July 1, 2007)
Mississippi (effective January 1, 2007)
Missouri (effective January 1, 2008)
New Jersey
New Mexico (effective January 1, 2009)
New York (effective August 15, 2007)
North Carolina (to become effective July 1, 2010)
Ohio
Pennsylvania (effective September 20, 2008)
Rhode Island (effective March 11, 2009)
South Carolina (to become effective June 15, 2010)
Tennessee (compliance required as of January 1, 2010)
Texas (effective March 1, 2007)
Utah (effective April 1, 2008)
Washington (effective December 2009)
West Virginia (effective April 15, 2009)
Wisconsin (effective January 1, 2010)
Note: Effective dates are listed for those states where comparability has been in effect for less
than 48 months.
Prepared by the American Bar Association Commission on IOLTA
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DIALOGUE
Committees
Winter 2010
Topical Index
VOL. 14, NO. 1
Publications
Dialogue News and Perspectives from the ABA Division for Legal Services
Magazine Home IOLTA Feature
Awards
Resources LAMP Access to Justice Commissions and IOLTA Programs:
Calendar Helping One Another to Help More Clients
LRIS
Jobs By Bob Echols
Contact Us
Delivery The growth of state Access to Justice (ATJ) commissions has been one of
Find Legal Help the most striking and consequential justice-related developments of the
past decade. As of early 2010, 24 states and the District of Columbia
Pro Bono have established one of these blue-ribbon commissions. With a few
exceptions, these commissions were all created in the past decade—the
IOLTA majority in the past five years. Several more states are in the planning
phase.
ATJ and IOLTA
Partner to The idea of the organized bar, the courts, legal aid providers, funders,
and other stakeholders working together to expand access to civil justice
Increase
for low-income and disadvantaged people is not new. What is novel
Access to Civil
about ATJ commissions is that they institutionalize these relationships,
Justice
typically under the aegis of the state supreme court, providing the
group’s recommendations with built-in visibility and credibility and
From the Chair
facilitating their implementation.
Grantee
Interest on Lawyers’ Trust Accounts (IOLTA) programs have played a key
Spotlight
role in the development of many existing ATJ commissions, sometimes
News and providing important seed funding to get a commission going. In many
states they collaborate closely with the commission on an ongoing basis.
Notes
Often they are directly or indirectly represented on the commission. This
article provides some examples of how ATJ commissions and IOLTA
programs are working in tandem to expand access to civil justice in their
Download this states.
issue in PDF
Shared Goal, Different Roles
Download this
Although they share fundamental goals, ATJ commissions and IOLTA
article in PDF
programs have different missions and roles. Speaking broadly,
commissions have a “big picture” charge: to convene the key players; to
assess needs; to identify gaps in the system; to make recommendations
about ways to fill those gaps and expand access to civil justice; to
promote and support efforts to do so; and to serve as a voice constantly
reinforcing the principle of equal justice.
While commissions have no formal authority, other than whatever may be
specifically granted to them by the state’s supreme court they are
defer to and act consistently with the commission’s goals and
recommendations.
IOLTA programs, in contrast, have specific program funding, oversight and
evaluation missions and authority, as well as professional expertise in
these areas. As a result, they can have a direct impact on the provider
community.
IOLTA programs also frequently have responsibilities relating to needs
assessment, planning and public awareness, areas that relate to the
commission’s charge. Indeed, in states without commissions, the IOLTA
program may be taking the lead in these areas, as well as in seeking
additional resources for civil legal aid. In states where IOLTA programs
have initiated the effort to launch a commission, their decision to do so
usually resulted from a recognition that a commission would provide
higher visibility and more effectiveness for such efforts.
Ideally, a state’s ATJ commission and IOLTA program will work
synergistically, with each entity complementing the role of the other,
thereby reinforcing its mission and maximizing the impact of what it does.
One caveat: every state is different. This may seem like a truism, but in
fact the relationships among the various entities involved in ATJ efforts
play out so differently in every state that there is no single ideal model
that applies everywhere. Nevertheless, there are useful lessons to be
learned from the collaborative efforts described below.
“Show Me the Money”
Some of the biggest successes of ATJ commissions have been in helping
to increase funding for civil legal aid, which is, after all, a core mission of
IOLTA. Commissions have been extremely active in advocacy for state
legislative funding (appropriations and filing fee and fine add-ons),
attorney registration fee/bar dues surcharges, cy pres rules, and pro hac
vice fees. With their supreme court, bar, and legislative connections,
commissions are ideally situated to undertake this role. In California
alone, efforts led by the ATJ Commission have resulted in new funding
that has totaled more than $100 million over a decade. Recently – in
Arkansas and Texas, for example – commissions have successfully led
efforts to obtain state funding to make up for potentially devastating
IOLTA shortfalls.
IOLTA programs have been key partners in many of these efforts,
including the recent Texas campaign. (In states without commissions,
they have sometimes taken the leading role themselves, as with several
recent funding successes in Pennsylvania.) Often the newly generated
revenues are routed to the IOLTA program for distribution through its
grantmaking process. This has been the case in Texas, California, and the
District of Columbia, where the ATJ Commission led the effort that
resulted in a new $3.2 million appropriation from the City Council
beginning in 2006 (subsequently increased, but reduced in the current
funding cycle).
In a number of states (recently, Maine and Texas), commissions
partnered with IOLTA programs in leading the effort for new rules to
expand IOLTA participation and enhance revenues such as conversion to
mandatory IOLTA and adoption of interest rate comparability. As part of
their public awareness efforts, commissions can also help to educate
attorneys about the importance of IOLTA and its grantees.
Commissions and IOLTA programs have also worked together on private
bar fundraising. In California, the Access to Justice Commission and the
IOLTA program jointly oversee the outreach campaign for the Justice Gap
Fund, which solicits voluntary contributions to the IOLTA program as part
of bar dues payments. Maine’s Justice Action Group launched a highly
successful statewide, coordinated private bar fundraising campaign in
2004. However, while they may lend their prestige and contacts to such
campaigns, commissions are not structured to run the campaigns
themselves, and are likely to spin them off as a separate entity, as was
the case in Maine. The IOLTA program can be of assistance in developing
the campaign – as the Maine Bar Foundation was – and indeed might
h lf
Commissions have also worked with IOLTA programs to mobilize and
maximize the legal community’s financial and in-kind support for civil aid.
For example, in Texas, the ATJ commission obtained pro bono services
from the chief information officers of leading law firms, who spent more
than a year surveying legal aid organizations about their technology
programs and creating a technology plan to address the deficits. Based
on the group’s recommendations, the Texas Access to Justice Foundation
(the IOLTA program) purchased the necessary equipment in bulk and
donated it to the legal aid offices. In the District of Columbia, the D.C. Bar
Foundation (the IOLTA program) has secured the pro bono services of a
prominent policy firm to support the ATJ commission’s communications and
public funding agenda.
Getting the Message Out
ATJ commissions also seek to raise awareness about civil legal needs,
barriers to the justice system, and the benefits of civil legal aid, through
regional hearings, reports, press events, editorial campaigns, videos and
other communications efforts. These efforts have been coordinated with
and/or supported by IOLTA programs. In Texas, the ATJ commission and
the ATJ Foundation (IOLTA) jointly adopted a communications plan, and
communications efforts are staffed out of the Foundation. In Hawaii, the
ATJ Commission recently sponsored a “Summit Conference” on ATJ issues,
funded by the Hawaii Bar Foundation (IOLTA). ATJ Commissioners and
IOLTA staff have written short articles for Hawaii State Bar news
publications on individual legal service programs, activities of the
Commission, financial issues facing legal service providers, and law firm
pledges for 100 percent pro bono participation.
By involving more private attorneys in the delivery of civil legal aid,
increased pro bono participation also helps to get the Access to Justice
message out and build support for legal aid among the bar, thereby
furthering the goals of IOLTA. Virtually every ATJ commission has been
active in efforts to expand pro bono participation and services, through
new rules, recruitment campaigns and recognition awards, support
programs for volunteers, and similar measures. Sometimes these pro
bono efforts can result in powerful new allies for IOLTA: for example,
members of the Texas ATJ Commission’s Corporate Counsel Committee,
which seeks to expand pro bono service and financial support for legal aid
by corporate counsel, were extremely influential in the successful
legislative campaign to obtain state funding to replace the IOLTA shortfall.
While many states are facing a crisis in legal aid, the good news is that
interest in Access to Justice issues on the part of the bar and the courts
(and in some cases, the state legislature) has never been higher. The
growth of state ATJ commissions, their communications efforts, and the
support of those efforts in many states by IOLTA programs has been a
key factor in this development.
Delivery System Planning and Innovation
ATJ commissions and IOLTA programs both have important roles to play in
the area of delivery system planning, but these roles are fundamentally
different and should be mutually reinforcing: the commission works at the
“big picture” end of the spectrum; the IOLTA program functions at the
programmatic end. The IOLTA program can provide valuable input to any
planning process and is essential to implementing the commission’s
recommendations. It is critically important that the two entities coordinate
their efforts to avoid duplication and conflicting messages.
In Washington State, the IOLTA program formally adopts the
commission’s state delivery plan as its own, to use as the basis of its
funding decisions. In 2007-2008, the New Hampshire Bar Foundation (the
IOLTA program) was an active participant in a delivery system planning
process involving the three principal providers, convened by the ATJ
commission, which resulted in a consensus about ways the programs
could rethink their division of labor.
IOLTA programs have supported commission goals by funding innovative
pilot projects or by carrying out specific initiatives themselves with IOLTA
1
staff. In the District of Columbia, the ATJ Commission has encouraged
providers to streamline intake and referral across the legal services
develop a joint proposal for a shared hotline. In Massachusetts, the
IOLTA program, through its staff, has supported a collaborative pilot
project involving the courts, the bar, and legal services providers, to
promote “unbundled” legal services, an initiative supported by the
Massachusetts ATJ Commission. Specifically, IOLTA staff led the effort to
develop training manuals and events for participating attorneys. The
Massachusetts ATJ Commission and IOLTA program have also
collaborated on “civil Gideon” initiatives. The IOLTA director was the Vice-
Chair of the bar’s Civil Right to Counsel Task Force, and a pilot project
recommended by the Task Force and supported by the Commission has
been launched with IOLTA funding.
IOLTA programs have also provided funding or in-kind support for
particular commission activities or projects such as planning processes
and reports or legal needs studies. The Maine Bar Foundation provided in
-kind support for the state’s long-term planning process and report.
Alabama’s legal needs study, originally undertaken and funded by the
Alabama Law Foundation (an IOLTA program), was released under the
imprimatur of the Access to Justice Commission.
Staffing and Other Fiscal Support for ATJ Commissions
Experience has shown that permanent staffing makes a major difference
in the effectiveness of the commission. In a number of states, ATJ staff is
funded by, and works out of, the bar or the courts. Where full funding is
not available from these sources, IOLTA has sometimes stepped in to
fund this key delivery system function, in whole or in part, as it does in
2
Maine, North Carolina, and South Carolina. In the District of Columbia,
the D.C. Bar Foundation helped to obtain funding and in-kind support for
Commission staffing from major law firms.
In addition, IOLTA programs can assist by serving as the fiscal agent for
the commission, since most commissions do not have a formal corporate
status. The Maine Bar Foundation provides this service for the Justice
Action Group. And, in Texas, the ATJ Foundation (IOLTA) regularly receives
3
donations to fund ATJ Commission initiatives.
Synergism at Work
With their roles clearly defined, with a shared vision and values, working
together in coordination, a state’s Access to Justice commission and
IOLTA program can maximize their effectiveness in expanding access to
civil justice in their state. It’s a two-way street: both entities will benefit.
Most importantly, clients will benefit, as more services are made available
to more people.
1
Some IOLTA programs are limited by statute or rule to a specific funding
formula, and thus may not be able to fund Commission initiatives.
2
While some IOLTA programs may have concerns about providing funds
for a staff person who does not serve clients directly, the record of
success in states with established ATJ commissions makes it clear that
this investment will be paid back many times over.
3
Conversely, the Foundation serves as the charity of choice for the
proceeds from Commission fundraising events, such as a gala dinner held
in May 2009.
Bob Echols is State Support Consultant for the ABA Resource Center for
Access to Justice Initiatives.
Updated: 02/17/2010
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