Unmet Legal Needs in the U.S. and Alaska

Unmet Legal Needs in the U.S. and Alaska

Barbara Armstrong

"Unmet Legal Needs in the U.S. and Alaska" by Barbara Armstrong. Alaska Justice Forum 27(2): 1, 7-12 (Summer 2010). Concern about access to justice for low-income individuals prompted to founding in 1876 of the first legal aid society in the U.S. Currently, the largest provider of civil legal assistance to the poor is the Legal Services Corporation (LSC), a 501(c)(3) nonprofit created by Congress in the 1970s, which funds programs in all 50 states, including the Alaska Legal Services Corporation (ALCS). This article desribes civil legal assistance and pro bono programs provided by LSC, ALSC, and other legal aid and pro bono organizations in Alaska and the U.S. which are attempting to address the "justice gap" for impovershed persons.

The provision of free civil legal assistance to the poor in the United States dates back to 1876 and the founding of a legal aid society to protect the rights of German immigrants. This organization later expanded its mission and became the Legal Aid Society of New York. In their brief history of civil legal aid, the National Legal Aid & Defender Association goes on to note that in 1888, a Chicago legal services agency was the first to offer legal aid regardless of nationality, race, or sex. By the early 1900s, legal aid offices were slowly opening in most of America's larger urban areas.

Today the concern about access to justice for low-income individuals in the U.S. is still with us. The Legal Services Corporation (LSC), a major provider of free civil legal services in the nation, released a recent study that examines this ongoing issue. Its September 2009 report, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans, looks at the available legal aid attorneys in all 50 states and the lack of attorney assistance for a growing number of low-income citizens.

In 1965, the Office of Economic Opportunity's Legal Services Program was developed under President Lyndon Johnson's "War on Poverty." Nearly a decade later, Congress created the Legal Services Corporation (LSC) to guarantee continuous funding for the program, and LSC was mandated to provide access to civil legal assistance for low-income persons. (Municipal, state, and federal public defenders provide attorneys in criminal matters for persons who cannot afford an attorney.) Lawyers who work for one of the 136 organizations around the country funded by the Legal Services Corporation provide the majority of free or pro bono civil legal help to impoverished persons in the U.S. Other groups also assist in meeting the justice gap. Non-LSC-funded legal aid and pro bono organizations serve this low-income population either through their own legal aid staff attorneys or through recruiting lawyers in private practice to take cases pro bono, or both.

2009 Legal Services Corporation (LSC) Report

The LSC report examines a variety of issues involved in access to civil justice including the number of people seeking legal assistance and what areas of legal assistance are needed, state legal needs studies from 2006-2009, the number of legal aid lawyers compared to private lawyers, survey data on unrepresented or pro se litigants, and comparison data from the 2005 LCS study on unmet legal needs.

The 2009 LSC report notes that:

  • For every person LCS helped, one was turned away because LSC lacked the staff and resources to assist them.
  • Few legal problems of low-income people are ever dealt with by a legal aid attorney or a private attorney.
  • In 2008, over 35 percent of cases closed by LSC organizations involved family law issues. Twenty-five percent of closed cases were concerned with housing (other than foreclosure), and 13 percent of closed cases were in the category of consumer problems.
  • 2007 data on attorney employment numbers estimate there is one legal aid attorney available for every 6,415 low income persons. (Individuals must be at or below 125 percent of the federal poverty level to be eligible for LSC services.)
  • In contrast, according to 2007 data, it is estimated that there is one private attorney available to provide legal services for every 429 people above the LSC poverty level.
  • There is a continuing need for volunteer attorneys to provide free legal assistance, although increasing pro bono attorney numbers will not be enough to close the "justice gap."
  • An estimated five-fold increase in federal funding is needed to help meet the civil legal needs of low-income persons.
  • A comparison of the nine state legal needs studies examined in the 2005 ALSC Justice Gap Report and the seven state studies looked at in the 2009 Report shows a consistent level of unmet legal needs.
  • A survey of state court judges has shown there is an increasing number of pro se or self-represented litigants, and recent studies point to often less favorable results in court proceedings for those persons who are representing themselves when compared to persons represented by an attorney.

LSC and Alaska Legal Services

The Legal Services Corporation is a 501(c) 3 nonprofit headquartered in Washington, D.C. Each state has one or more legal services organizations, all nonprofits, which receive federal money through the D.C. office. The Alaska Legal Services Corporation (ALSC) was founded in 1967, and came under the auspices of the nationwide program in 1974. ALSC's main office is in Anchorage. There are currently regional offices in Bethel, Dillingham, Fairbanks, Juneau, Kenai, Ketchikan, Kotzebue, Nome, and Palmer. In 2010 ALSC has 16 full-time and four part-time attorneys and three paralegals. Forty-seven per cent of ALSC funding comes from LSC federal money, with additional monies from state appropriations, municipal and borough matching grants, attorneys' fees awarded in court cases, IOLTA money (interest on lawyers' trust accounts-a program administered by the Alaska Bar Foundation), private grants and donations, and Native regional nonprofit corporation and profit corporation funding. The total funding for ALSC in FY 2010 was $3,140,470 (Table 1).

Table 1. Major Funding Sources for Alaska Legal Services Corporation, FY 2010 and 2011

Alaska Legal Services Clients and Cases

Alaska Legal Services Corporation (ALSC) serves low-income clients who fall within certain income restrictions: 125 percent up to 200 percent of the federal poverty guidelines adjusted for Alaska (see Table 2 for guidelines). ALSC is prohibited from handling certain categories of cases: class actions, criminal defense, representation of prisoners in any type of case, and representation of undocumented noncitizens, with an exception if the case involves domestic violence or human trafficking.

Each year Alaska Legal Services conducts a brief survey of nonprofits and of other service providers across the state that refer low-income persons with legal problems to an ALSC office. The survey asks questions about the types of legal problems these agencies are seeing. ALSC is able to use this data to help establish priorities for case acceptance for their offices around the state. Each regional office can focus on the specific high priority needs of the community it serves.

The following types of cases are more likely to fall within the "high" priority category: consumer finance; domestic abuse; custody/visitation and divorce (cases involving child snatching, denial of parental access, severe child or spouse abuse not being addressed otherwise, or complex legal issues); guardianship; neglected/abused dependents; health cases involving Medicare, Medicaid, home and consumer-based care, and long-term health care facilities; housing involving federal subsidized housing and public housing; housing discrimination; predatory lending; mortgage and foreclosures; income maintenance issues of Temporary Assistance for Needy Families (TANF); food stamps; Supplementary Security Income (SSI) appeals; Native allotments; and Indian/tribal law.

Table 2. Federal Poverty Guidelines for Alaska and Alaska Legal Services Corporation Income Eligibility Guidelines, 2010

ALSC Caseload

In 2009 ALSC received 3,421 inquiry calls, and 2,834 individuals filed applications for legal service. Of the 587 calls that did not result in an application, ALSC estimates it could have assisted over 76 percent of those, had the caller filed the necessary forms. ALSC accepted 1,855 of the 2,834 applications it received and rejected 979. Over half of the clients whose applications were rejected could have been helped if ALSC had more resources. The remainder were rejected for ineligibility reasons, including not falling within the required low income category. Alaska and Hawaii both have adjusted poverty level rates (Table 2). See Table 3 for Alaska poverty rates by borough/census area.

In 2009, 34 percent of the cases ALSC handled were in the category of family law, 17 percent were housing issues, followed by consumer/finance and health at 12 percent each (Table 4).

ALSC closed a total of 1,370 cases by year-end 2009. However, in about 21 percent of those cases, ALSC was only able to provide the client with part of what the client sought, e.g., the client sought full representation, and ALSC was only able to provide an "unbundled" partial service. The remaining 485 cases accepted in 2009 were ongoing as of the close of the year.

Overall, ALSC estimates that for every 100 callers who asked for legal aid in 2009, ALSC attorneys were able to help 54. Of the 46 rejected callers, 17 did not meet requirements for assistance, but 29 could have received some type of legal service if ALSC had had more resources.

Table 3. Alaskans Below Poverty Line, 2008
Table 4. Alaska Legal Services Corporation Cases for 2009 by Category

Volunteer Attorneys - LSC Pro Bono Nationwide

Each LSC office is required to have some type of pro bono component that recruits volunteer attorneys to take cases. This LSC-funded pro bono work is one of several pro bono efforts that exist in each state. Other legal aid agencies, as well as bar associations, encourage and recruit attorneys to assist with providing civil legal service to low-income individuals. Although pro bono service is seen as an integral part of meeting civil legal needs for low-income persons, LSC notes that the numbers of people needing civil legal assistance can only be met by increasing LSC and non-LSC funded legal aid agency attorneys, as well as increasing pro bono activity by volunteer lawyers. LSC maintains that a substantial increase in funding for LSC attorneys is critical to closing the justice gap for low-income Americans:

[D]espite the expansion of non-LSC-funded programs in the past decade, a majority of attorneys serving the poor still work in LSC-funded programs. The LSC network of offices thus remains the primary source of civil legal aid for low-income Americans.

LSC received $420 million in funding in FY 2010 and requested $516.5 million for FY 2011. President Obama's budget proposal for LSC is $435 million. Both these FY 2011 figures are still far below the five-fold increase LSC says is required to close the justice gap.

Pro Bono Programs in Alaska

In Alaska, a number of organizations are involved in recruiting pro bono attorneys to assist with civil legal representation for low-income persons. (See "Pro Bono Programs in Alaska," page 6.) The Alaska Bar Association Pro Bono Director reports that in 2009 there were 200 volunteer attorneys who accepted cases or some level of representation for low-income individuals through one of the several legal service providers in the state. The majority of these attorneys donated 50 or more hours to the case or issue. There are currently 2,439 active lawyers in Alaska either in private practice or government service, or in the state judiciary. (The majority of lawyers are concentrated in Anchorage, followed by Juneau and Fairbanks as noted in Table 5.) Alaska Attorney General Dan Sullivan, like other attorneys general, has encouraged state attorneys to participate in pro bono work. Judges are allowed to encourage pro bono activities by lawyers and to support pro bono efforts, but cannot practice law or directly solicit individual lawyers for pro bono cases.

Table 5. Active Alaska Bar Association Members by Judicial District, Borough/Census Area, and City

Self-Represented Litigants

The LSC national report highlights another issue that is a growing concern for state courts: the increasing number of persons representing themselves in court proceedings. These individuals are called self-represented or pro se litigants. The National Center for State Courts' (NCSC) website has data from several individual state courts on the number of persons representing themselves in civil litigation, but complete nationwide data is not available. However, in 2009, the Self-Represented Litigation Network (SRLN) with a membership including judges, court staff, lawyers, paralegals, and others in the legal field, surveyed about 100 of its judicial members. Sixty percent of the judges indicated an upsurge in self-represented litigants from 2008 to 2009. The LSC report points to this as as indicator of the impact of the economic downturn.

Alaska courts are also facing a growing percentage of people who act as their own lawyer, and a growing percentage of domestic relations cases. Statistics are not readily available on self-represented litigants here; however, the Alaska Court System Family Law Self-Help (FLSHC) does have some statistics on represented and unrepresented parties in certain types of cases.

The Family Law Self-Help Center (FLSHC) is a free statewide program for individuals representing themselves in family law cases. There are no income requirements. FLSHC is based in Anchorage and provides education and information about court procedure and forms through a toll-free telephone helpline and a detailed website. The Center has over 7,000 contacts annually, and is one of the most frequently used resources of the court system. The FLSHC includes a director, a part-time staff attorney, and four facilitators who speak to self-represented litigants about their case, and explain procedures and court forms. In Anchorage, the state's largest court and most populated judicial district, the Center presents free classes on domestic relations matters for self-represented litigants. All of these services result in pro se litigants having a better understanding of the process, filing forms appropriately, and consequently, gaining faster processing through the court system, and shorter waiting periods.

Data compiled by FLSHC indicate that in domestic relations cases the most likely parties in Anchorage to be unrepresented by an attorney in 2009 and thru July 2010 are unmarried parents in a child custody case (Table 6). In 2009, the parties represented themselves in 55 percent of cases with child custody issues, and through July 2010, 59 percent of child custody cases were handled by self-represented parties. (The FLSHC reports that these numbers do not reflect dissolutions cases, which are a large part of domestic relations case filings, and generally have a very low attorney representation rate.) The Alaska Court System Annual Statistical Report 2009 shows that there was a 7.3 percent increase in domestic relations case filings from FY08 to FY09, although domestic violence case filings dropped by 1.4 percent during that same period.

Table 6. Representation Rates at the Beginning of a Case: Anchorage Domestic Relations Cases, 2009 to July 2010

In addition to providing a range of services to pro se litigants who call or come to them, the FLSHC director and staff attorney also assist with the Volunteer Lawyers in the Courtroom program currently being conducted in Superior Court Judge Stephanie Joannides' courtroom in Anchorage. This pro bono project is coordinated by the Alaska Pro Bono Program, Inc., a nonprofit corporation, and provides volunteer lawyers at specified domestic relations court hearings to assist the parties in settling their case without going to trial. Each party has the option of brief (15-30 minutes) consultations with his/her own volunteer lawyer. Judge Joannides screens her assigned domestic relations cases for appropriateness for this program, and calendars them for one afternoon a month. There have been 43 cases to date, and 70 percent have settled without going to trial. Those parties who do not settle their case receive appropriate interim orders, including for child support, and the case is scheduled for trial at a future date.

Court Outcomes for Unrepresented Parties

The LSC report outlines the need for more national data on unrepresented parties, types of cases, and the final disposition of their matters in order to assess ways of meeting this growing issue. The report references the work of Professor Russell Engler of New England Law School.

In his Fordham Urban Law Journal article "Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed," Engler looks at representation and outcomes in court. He notes:

The activity of the past decade [regarding self-representation] comes against the backdrop of unmet legal needs, the inadequacy of funding for legal services for the poor, and reports demonstrating that litigants without counsel often fare poorly even where basic needs are at stake in the proceedings.

Engler discusses several types of cases and the impact of legal representation in each, including housing, family law, small claims, administrative appeals, unemployment, and immigration.

In Alaska, we have some data on outcome and representation in selected cases. Anchorage representation rates in FY 2006 and FY 2007 for domestic relations cases (with dissolution, without dissolution, dissolution only), small claims, and forcible entry and detainer (FED)/evictions are shown in Table 7. The highest percentage of both parties being represented by an attorney occurred in domestic relations cases that were not dissolutions and that involved contested issues.

Table 7. Representation Rates at the Beginning of a Case: Anchorage, FY 2006-FY 2007

Data is also available for some domestic violence cases. A 2005 report by the Alaska Judicial Council, Court Innovations in Domestic Violence Cases, looked at a number of characteristics in intimate partner domestic violence cases in Anchorage District Court from 2002 and 2003-2004. Respondents (the person against whom the protective order is being requested) had an attorney in 15 percent of the long term protective order domestic violence hearings, and petitioners (the person requesting the protective order) had an attorney in 15 percent, but in only 9 percent did both parties have an attorney.

Further analysis of the cases by Dr. Darryl Wood in "Court Processing of Domestic Violence Protection Orders in Anchorage, Alaska" found that long term protection orders were granted in "23 per cent more of the cases when the respondent did not have an attorney…than when he or she did have an attorney." A follow-up report in 2007 by the Alaska Judicial Council, Evaluation of Domestic Violence Advocates: 2007, found that respondents in domestic violence long term protective order cases had attorneys in 26 percent of the cases in 2006-2007 versus 15 percent of the cases in 2003-2004. In cases where a respondent was represented by an attorney, judges granted fewer long term protective orders (39%) in 2006-2007 compared to orders granted (47%) in 2003-2004 if the respondent had an attorney. The report notes,

Practitioners agreed that the presence of attorneys at hearings affected the outcomes, often making it more likely that the petitioner would request dismissal [of the request for a protective order]."

Access to legal services for victims of domestic violence has come to be seen as one of the most important means of preventing further victimization. Amy Farmer and Jill Tiefenthaler in "Explaining the Recent Decline in Domestic Violence" (Contemporary Economic Policy, 2003) studied data from the National Crime Victimization Survey (NCVS) from 1992-1998. During this time period, there was a decrease in domestic violence incidents. Following the analysis of the NCVS data, they concluded:

[A]lthough shelters, hotlines, and counseling programs targeted at battered women are found to have no significant impact on the likelihood of abuse, the availability of legal services in the county of residence has a significant negative effect on the likelihood that an individual woman is battered.

Alaska Supreme Court Access to Civil Justice Committee

From 2006 to 2009, Virginia, Utah, Wisconsin, Nevada, Alabama, Georgia, and New Jersey conducted studies of unmet legal needs in their area. Alaska does not have any survey data currently. The Alaska Supreme Court Access to Civil Justice Committee, co-chaired by Supreme Court Justice Daniel Winfree and Anchorage Superior Court Judge Mark Rindner, is considering a proposal to conduct a statewide pro bono needs assessment. This project, if approved, would fall under the Alaska Supreme Court Fairness and Access Initiatives Group which includes the Access to Civil Justice Committee as well as the Fairness, Diversity and Equality Committee chaired by Justice Dana Fabe. Pro bono is looked to by all states as one way of closing the justice gap for low-income people. However, in assessing the need across the country, the 2009 LSC report issues a caution:

[E]ven expanded pro bono contributions will not be enough to address a major portion of the unmet legal needs.

Conclusion

Judges, lawyers, the courts, and legal aid organizations are continuing their work to meet the civil legal needs of low-income Americans. The landscape of this need is changing and growing. Increasingly there is a call for a "Civil Gideon" that is, the right to counsel in a civil matter if an individual does not have the means to hire an attorney. (The Gideon v. Wainwright decision in 1963 guaranteed the right to counsel in a criminal trial.)

LSC's 2009 Annual Report discussed the rise nationally in case closings for that period and attributed the higher numbers to the economic downturn. Unemployment cases increased by 63 percent, food-stamp cases by 37 percent, and foreclosure cases more than doubled (Figure 1). And data just released in September by the U.S. Census Bureau Annual Social and Economic Supplement for 2009 shows that the number of citizens nationwide and in Alaska who are below the federal poverty line has increased. One estimate indicates that the poverty level for Alaskans in 2009 was 11.7 percent, up from 9.2 percent in 2008.

Economic climate, level of civil representation (full representation versus unbundled services, i.e., representation for discrete parts of a case or matter), and resource allocation are significant issues that need to be considered. Further research will assist in the assessment of the breadth and depth of unmet civil legal needs of low-income persons in Alaska and across the nation.

Additional information including statistics from pro bono organizations describing lawyer participation, cases, and number of clients assisted, as well as additional information on poverty rates and maps of Alaska Court service locations, are available on the Justice Center website at http://justice.uaa.alaska.edu/forum/27/2/a_unmet2.html.

Barbara Armstrong is the editor of the Alaska Justice Forum.

Figure 1. Recession-Related Cases Handled by Legal Services Corporation Programs, 2008 and 2009