![[Image: Gary Bellow]](../images/bellowsmsm.jpg)
![[Image: Albert M. Sacks]](../images/Sacks_1asm.jpg)
Project Background
Present Status of Access to Legal Services in the U.S.
THE POLICY AGENDA OF THE ABA, local bar leaders, progressives, incumbents and leaders of the existing legal services system, has two main planks: (1) increase government and charitable funding to expand the network of decentralized, not-for-profit legal service programs for poor people; and (2) encourage -or require- all lawyers to donate money or time, preferably both, each year to represent clients.
The larger policy agenda is at a standstill. Congressional funding in real dollars for the Legal Services Corporation has decreased, not increased, over the past two decades. Alternative local and charitable sources, which now exceed federal support, have not made up the difference in real dollars, let alone expanded the base of the program.
Vast amounts of new funding would be required to provide salaried, specialized lawyers, to meet even the minimal needs of all households at or below 125% of the poverty line: five or more times the annual eight hundred million dollar2 - or $4 billion or more. Moreover, the current expenditures are artificially low, reflecting inadequate salaries and benefits paid to most legal services advocates, as well as the majority of clients receive3. Such an influx of funds is not in the offing. Moreover, even if a five-fold increase in public and charitable support were on the horizon, it wouldn't meet the pressing legal needs of households above the poverty level.
Similarly, despite vigorous and sincere efforts, less than a third of U.S. lawyers participate in pro bono efforts on behalf of the poor. Even if the network of salaried poverty lawyers were greatly expanded, it may be unrealistic to expect that small amounts of time from a million or more volunteer lawyers, of vastly differing experience and expertise, can fill the unmet needs of clients.
A much broader range of approaches to making legal services available ought to be examined seriously. The Bellow-Sacks Project does not propose to produce a blueprint for delivering civil legal assistance to all those whom the market does not and cannot serve. Such an aspiration is far beyond the resources and capacity of the Project and is properly, and ultimately, the responsibility of public policy makers, consumers, direct providers and those asked to provide the resources to support greatly expanded access.
The Project does aim to enliven the national policy debate by exploring approaches that might help expanding civil legal advice and assistance to low and moderate-income households.
The Project will seek the views of stakeholders because it shares their deep commitment to universal access to quality services. To reach this goal, the Project views everything as on the table, although it also assumes that a complex mix of approaches, directed to various needs and populations, will more likely work than a single best approach. It will look for synergies and connections and will bring together innovators and experts, consumers and providers, academics and public policy shapers and makers.
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2Total funding for civil legal aid is difficult to determine because many sources of funds exist, but no single source of data. LSC reports that for fiscal year 2002, federal funding was $329,300; and other funding for legal aid programs with at least some federal support totaled approximately $628,300. See www.lsc.gov. The figure of $800 million comes from the Project for the Future of Equal Justice. In "Update: April 2002", it reported that in fiscal year, civil legal services received that amount. See, www.equaljustice.org. The Project For the Future of Equal Justice has contact with programs that receive no federal funding and whose funding may not be included in LSC's total. Therefore, the larger figure of $800 million likely reflects current funding.
3Since 1974, three-quarters or more of all clients represented by legal services offices with LSC funds received only limited or brief service. See recent case closing data at www.lsc.gov. See also, Jeanne Charn, "A Comment on the Current State of Government and Charitably Funded Legal Services for the Poor in the U.S.," available on Bellow-Sacks website.
Project Topics
THROUGH SEMINARS, PAPERS AND LIVELY DISCUSSION, the Bellow-Sacks Project will explore some or all of the following topics:
Comparative Perspectives ~
| What might we learn from other countries many of which devote greater resources to and reach many more people than the U. S.? We will examine and report on the structure, funding, functioning (who gets served in what types of matters, at what levels of quality), staffing and productivity of legal aid systems in other countries. | |
| What can we learn from the delivery of non-legal services, such as delivery of both primary and specialized medical care? Would an expanded legal services delivery system produce similar problems to those in medical care, such as cost control and barriers to access by discrete groups? What solutions might we learn from medical efforts to assure quality? |
| How might technology aid in making legal services available? During the technological revolution, computers, the Web and other high tech approaches will certainly have an important role. | |
| Might technology produce cost savings on the conventional fee-for-service side and therefore make it easier for the private lawyers to provide quality service to low-and moderate- income people? | |
| Might computer programs assist average households in preparing, for example, wills, powers of attorney, directives to physicians without the direct assistance of a lawyer? | |
| Similarly, will the Web educate people about law, legal procedures and remedies enough to facilitate broad forms of self-help? How should the quality of information on the Web be assured? | |
| What role will technology play in managing cases and assuring quality? | |
| Might potential clients use search engines to find assistance appropriate to their needs, whether information, advice, standard forms or the location of offices providing free or low cost legal services? |
| Would pre-paid or insurance approaches be feasible and cost effective in meeting some important legal needs of the poor? Such programs targeted to moderate-income clients, claim to provide at least minimal service to 50 times the number of clients served by the legal services program for the poor. | |
| While this field was once dominated by not-for-profits, there are now a number of for profit ventures. Pre-paid plans appear to be the primary vehicle for increasing access to working, moderate-and middle-income households. What are the strengths and weaknesses of these increasingly popular programs? | |
| Which legal needs does the pre-paid sector meet? Whose legal needs does it meet? Would an insurance or "judicare" approach (governments reimburse private practitioners for their services to poor people as in Medicare) benefit low-income as well as moderate-income households? |
Fee-for-Service
lawyers are selling:
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| Over-burdened legal services offices are embracing familiar forms of limited assistance. The American Association for Retired People and other Non Governmental Organizations (NGOS) run advice hotlines-in some of them, callers remains anonymous-offering at least limited legal information and assistance. | |
| Should pro se and less-than-full service be targeted only to clients who are likely to obtain essentially the same result as they would with skilled representation? Should clients who will do significantly less well than with a skilled advocate be encouraged to represent themselves so long as the results are likely to be better than doing nothing at all? | |
| What role might unbundled legal services play in expanding access? | |
To
which clients should pro se and less-than-full services be
targeted?
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| May state courts (or legislatures, if necessary) simplify legal procedures and iimprove forms to increase the success rate and attractiveness of self-representation? | |
| Some state court systems provide high quality court-based assistance to pro se litigants. Many other court systems are interested in doing so. Legal Service Organizations (LSOs) are being asked to participate. Can courts effectively inform and assist pro se clients? Should they? If such efforts are to succeed, what changes are needed in court processes and the roles of court officers, clerks, magistrates and judges themselves? Who is likely to benefit most from such efforts? |
| What role might paralegal or lay advocates play? How much should lawyers be involved to assure lawyer involvement and avoid concerns about unauthorized practice law? Should rules against unauthorized practice be relaxed? | |
| The medical profession has developed an elaborate structure of paramedical professionals, with training and certification requirements. The legal profession lags far behind. Should there be certification requirements for specific areas of non-lawyer practice? Should non-lawyers be allowed to practice independent of lawyer supervision? | |
| Some administrative agencies, including the Social Security Administration and the Immigration and Naturalization Serve, authorize paralegals to practice in appropriate cases. Should courts do the same? | |
| Does paralegal practice offer other benefits? |
| Private lawyers
provide three-quarters of the legal services to poor clients
and all of the services to moderate-income clients. Are these
lawyers as efficient and effective as they might be?4
What resources would make these lawyers more available to
and more effective in serving in low-and moderate-income clients?
_______ 4See the ABA's 1994 Comprehensive Legal Needs Study which reports on the amount and nature of legal needs of low and moderate income Americans. The study finds that the private bar provides approximately three-quarters of the legal service obtained by people financially eligible for free legal service. |
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| In the 1970s, some private lawyers opened up store front offices. Some private lawyers even franchised law offices, creating small chains of offices with common branding, marketing, and approaches to serving clients. What did these store fronts and franchises learn about efficiencies, cost effectiveness, and client access? What lessons may legal services use? | |
| Congress
has barred legal services lawyers from handling certain categories
of cases and from engaging in policy work. Might pro bono
resources be marshaled more efficiently and effectively to
handle these cases and engage in policy work? In the categories of cases that legal services lawyer may handle, some individual cases are low priority. They are likely to be long and expensive, to require expertise, and to divert too many resources from too many other cases. Might pro bono lawyers be delegated these complex cases? Might pro bono lawyers be deployed more strategically to produce more service in general to clients? |
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| Is it important that all or most lawyers personally contribute time to legal services programs? Should "buy-outs" or "group satisfaction" of pro bono obligations be encouraged or discouraged? "Buy-outs" occur when lawyers pay money instead of giving time. "Group satisfaction" of pro bono obligations occurs when one of few lawyers in an organization engage in enough pro bono work to satisfy the obligations of the rest of the lawyers in the firm, department, or group. Should buy-outs and group satisfaction be encouraged or discouraged? | |
| What additional roles might private lawyers play? |
| How well do the demographics of lawyers providing legal services correspond with the demographics of clients? For example, how many lawyers live and work near to where clients live and work? How many lawyers speak the non-English language that clients speak? How many lawyers practice the field of law and have the expertise that clients need? How many lawyers share the same race and ethnicity of their clients? | |
| What contributions might lawyers make at different points in their careers? What might law students contribute through law school clinical or pro bono programs? Might retired lawyers be recruited to "second careers" as legal service providers? | |
| Several national studies and many state and local ones have quantified unmet legal needs. While the Project will not undertake such a study, we will scrutinize the methodologies and reliability of the existing studies, to assess both the magnitude and the nature of unmet legal needs. | |
| How would a much-expanded system identify and respond to changing client needs? Should such a function be incorporated into a delivery system, or should the system rely on clients' self-identified needs to define service priorities? | |
| Should the system meet all needs that clients identify? If not, who should decide and how? | |
| Do some groups have particular barriers to access, e.g. households in sparsely populated areas, people with disabilities, the frail elderly, non-English speakers, immigrants who mistrust government and its institutions? To what extent and at what expense should these barriers be lowered? | |
| We must learn from community medicine: Even when affordable services are available, may reasons exist why people don't use them We ought not to assume that easier to access to more legal services means that more people will use them, or use them in ways we predict or intend. |
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| Might present resources, even without increases in funding, be used more efficiently and effectively to achieve greater access to higher quality service? | |
| What do we know and what ought we to know about the type of service and the outcomes that the present system produces for poor clients? | |
| By what quality and efficiency criteria should new approaches be compared with existing approaches to delivery? | |
| If the legal services system were greatly expanded, how would it assure integrity and independence and assessments when making comparative effectiveness of different approaches to service delivery? |
| What incentives would attract and retain the best advocates? How might direct client service become as professionally attractive and rewarding as higher profile law reform and public policy advocacy? | |
| What mix of experience levels is optimal to meet the needs of specific client populations? How can such a mix be obtained and retained? | |
| What skills do mangers need to assure that the program provides services effectively and efficiently? | |
| How should the views of consumers, clients and community groups impact providers' decisions on management and allocating resources? |
If we are to achieve universal access to legal advice and assistance, we must first debate structural issues and policy choices, such as the following:
| Should services to poor and moderate-income clients be provided in separate, parallel systems or in one system? | |
| Is it important that government, charitable, and NGO organizations coordinate their resources and if so how? | |
| To what extent should public efforts and resources be directed to getting as many people as possible some assistance? Or should available resources be used to serve fewer people at a higher level of quality? | |
| Ought a sliding (or some other) system of client co-payments be instituted? Should it be encouraged or required? For some, most or all clients? | |
| Should a co-payment system be instituted only when it creates a net resource gain to the delivery system? Do client co-payments have an independent value as in indication of client desire for service or as a vehicle for encouraging client entitlement to insist on good service from a provider? | |
| What standard of care or service should be subsidized -- "Cadillac services," comparable to what the wealthiest clients command? Or the quality and extent of services that a prudent client with adequate resources would purchase? | |
| Should the possibility of multiplier effects influence the standard of care for categories of cases? Should a category of cases with many multiplier effects receive a "Cadillac" standard? | |
| What balance should be struck between centralized and localized policy-making and implementation? | |
| How can equity among states and localities be established so that all persons with similar needs have similar opportunities to obtain assistance? Once some level of minimum access is assured, is this an important or appropriate or desirable goal of a system that aspires to universal access? | |
| What is and what ought to be the role of consumers, clients and community groups in shaping service priorities? How can strong consumer and client perspectives be integrated into an expanded and more diverse system? |
Bellow-Sacks Seminars, White Papers and Website
Seminars and White Papers ~
The Bellow-Sacks Project will address these issues by hosting seminars -- working sessions that will bring together experts and innovators to:
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summarize
the most accurate and recent data and information available on present
efforts; identify
best practices; assess
the potential to replicate best practices; identify
constraints on implementing best practices, including ethical requirements
and institutional barriers; realistically
estimate the type and magnitude of resources required for implementation;
and identify
the demographics of clients who would most likely benefit from best
practices. The aim is not to achieve broad representation at the seminars, but to convene from the large pool of talent a small group of knowledgeable, experienced and imaginative thinkers and actors prepared to roll up their sleeves and work hard and collaboratively for a day or two on a particular topic. In addition to Bellow-Sacks Project staff, several thinkers and actors will provide continuity by participating in most seminars.
Every seminar will have a reporter who will produce a white paper by consolidating the seminar's ideas and discussions; and existing reports, publications and communication with experts. White papers will be disseminated through the Project's website.
Other Papers ~
For some topics, the Project will commission an expert to research and write a paper. For other topics, Project staff and consultants will produce analyses and papers.
In addition, the Project will collect and disseminate other papers and works in progress, including law school papers by Harvard students for their courses5 or an array of descriptive and analytic papers about making civil legal services more available. Most of the papers have not been circulated outside the Harvard community, but wider dissemination may provoke debate creative thinking.
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5 The main source of such papers is from students in the "The Legal Profession: Delivery of Legal Services," a course that Gary Bellow developed, which the author of this paper, the Director of the Bellow-Sacks Project, continues to reach.
Bellow-Sacks Website ~
The Bellow-Sacks Project hosts this website where project papers, reports on seminar proceedings, and a calendar of upcoming events will be posted. Links to other websites relevant to the delivery of civil legal services will be included as we learn about them. The website will also offer opportunities for discussion and exchange by anyone interested in the topics and in the broad issue of making civil legal services universally available. We hope that a wide range of policy makers and opinion leaders will engage Project papers and products via the website.
Conclusion
THE BELLOW-SACKS PROJECT BEGAN in the fall of 2000 and held its first seminar in May 2001. One or more seminars and conferences are scheduled for 2003 and 2004. Broader discussion and debate will be sought via one or more conferences in 2003 and 2004.
The most urgent priority facing the legal profession today is the unfinished work of the visionaries who launched the legal services program in 1965. Explosive growth in regulations and entitlements since then make access to quality legal advice and assistance all the more pressing and valuable for every household. If access is limited to the few households with sizable resources, it threatens the legitimacy of an independent bar, and of our adversarial of justice itself.
We hope that the Bellow-Sacks Access to Civil Legal Services Project will expand our thinking and options and reinforce our will to make universal access to legal services a fundamental norm of our society. We undertake this project in the spirit of Gary Bellow's and Al Sack's confidence and optimism that even the most difficult problems will yield to sustained work by capable and dedicated individuals.
We hope to enlist many such capable and dedicated problem-solvers, to collaborate with the much larger community of consumers, practitioners, academics, policy makers and activists who have dedicated their careers and lives to equal justice, and to persuade skeptics in positions of power and influence that access to justice, for all Americans, can become a reality.