Legal services and tech, in Slate

“Like everyone else, lawyers for the poor are trying to do more with less, as government grants and private funding have dried up. Increasingly, that means turning to tech, using new tools to deliver information to clients, support volunteer lawyers, and improve their own systems. They’re using text messaging, automated call-backs, Web chats, and computer-assisted mapping. A crush of new clients is pushing the growing reliance on technology, as the old systems just can’t keep up.”

– Me, in Slate, writing about how legal services groups are using technology to serve more people, and make better use of their incredibly, absurdly scarce resources.

The budget-slashing hysteria’s latest victim: legal aid for the poor

Published July 12, 2011, with Mother Jones.

Legal assistance for the poor will take a huge hit under a proposal just released by the House Appropriations Committee, which aims to slash the budget of the Legal Services Corporation back to 1999 levels. Officials at LSC, which has been around for four decades and supports 136 independent legal-aid outposts all over America, knew big cuts were coming—the program was by no means exempt from DC’s budget-slashing hysteria. But supporters were betting on losing $70 million, the figure proposed last year during budget negotiations.

The new proposal would take away $104 million—26 percent of the program’s resources—at a time when demand is soaring. Legal-aid offices from Texas to Maine report that the need for their services already has been outstripping funding for years.

“Demand is just going to keep going up. People are still losing their jobs. People are still struggling to put food on the table. Foreclosures are still happening,” says Cynthia Martinez, spokeswoman for Texas RioGrande Legal Aid, the state’s largest legal-services agency. “Last year, we had to turn away half of the people that came to us because we just don’t have the resources. And it’s not like when we say no, the legal problems just go away.”

You’ll hear similar stories nationwide. “We know that in February we were only able to handle about 20 percent of the calls that were actually tracked on our voicemail system, in one office location,” said Nan Heald, executive director of Pine Tree Legal Assistance, Maine’s largest legal-services provider. “And a lot of people don’t even get through on the phones because they’re busy.”

More of those who do get through, Heald says, “are getting limited service rather than full representation, because we’re trying to manage the demand with reduced staff.” She has lost seven staffers since 2009. It’s not just the federal cuts that are hurting these agencies. “We get foundations, we get individual donations, state grants, state funding. All of our funding sources are dropping,” Heald adds.

In Texas, a bill providing $20 million for legal services was passed only after a major fight in the state legislature, and Gov. Rick Perry has yet to sign it. In Florida, renowned for its “rocket-docket” foreclosure courts, Gov. Rick Scott vetoed a bill providing $1 million in funding for legal aid, despite broad bipartisan support.

Another key funding source for legal services comes through interest on lawyers’ trust accounts. When a lawyer wins a cash settlement for a client, the money often goes into a pooled account before it’s paid out. The interest on that money is used to support civil legal services. But with interest rates plummeting, that revenue source has also been gutted.

Already, the legal-aid nonprofits supported by the LSC are slated to lose a total of 445 staff members, including 200 lawyers, by the end of 2011, according to a survey of the groups. Last year, 63 million people—an all-time high—qualified for their help, an increase of 11 percent from the year before. “This is not the time to undercut the fundamental American commitment to equal justice for all,” says Legal Services president James Sandman.

“There is never a convenient time to make tough decisions,” counters Frank Wolf, chair of the House subcommittee responsible for the LSC’s budget. “But the longer we put off fixing the problem, the worse the medicine will be…The bill represents our best take on matching needs with scarce resources.”

Heald says she understands the need to cut spending, but explains that legal services has a “preventive effect” that actually saves money for the states. Housing a family in a homeless shelter in Maine for just two or three weeks is five to ten times more expensive than supporting a lawyer who can help keep the family in stable housing, she says. “And that’s just the cost of the shelter nights, and not the cost on all the other supportive systems a family might need.”

“I think it’s important to have the full picture, and not to see just part of it,” she adds.

For now, the hopes of the legal aid community hinge on the Senate. “We’re hopeful that things will continue to be okay, and we’re not going to face these major cuts,” said Linda Perle, director of legal services at the DC-based Center for Law and Social Policy. “But that might just be wishful thinking.”

If the proposed cuts do take effect, the LSC estimates that 235,000 people eligible for help will be turned away. And that will have a direct impact on vulnerable Americans, Rodriguez says.

“It means that more people won’t have the support they need,” she says, “to assert their rights in desperate situations.”

Foreclosure crisis + legal aid cuts = @#$%!

Published February 14, 2011 with Mother Jones.

Marilyn Hopper learned the hard way what happens to people who can’t afford a lawyer.

Back in 2009, Hopper, a diminutive, pleasant, 57-year-old from Detroit, was sued by a company called Midland Funding over a $1,700 credit card debt, which grew to $2,400 with fees and interest. She missed the initial court hearing at Michigan’s 36th District Court, and in her absence, the judge gave the company permission to take $700 a month from her paycheck.

That got her attention pretty fast. When she showed up in court this past November to contest the judgment, she explained that the hearing notice had been delivered to her old address — a home she’d lost to foreclosure. Over the objections of Midland’s pink-suited young attorney, Hopper convinced the judge to reduce the garnishment from her paycheck to $200 a month, but the company’s past withdrawals had left her nearly destitute. “I was subjected to undue hardship because they were taking such a large chunk,” she told me. When I asked whether she’d considered hiring a lawyer, Hopper sighed. “Most of them want $4,000 up front, and who has $4,000 lying around?”

Thanks to a landmark 1963 Supreme Court ruling, criminal courts must assign a lawyer to any defendant who can’t afford one. But there’s no such safety net for the hundreds of thousands of cash-strapped Americans who, like Hopper, find themselves embroiled in civil litigation, from employment and custody battles to foreclosures and bankruptcies — cases that often have serious consequences. “You’re not going to go to jail, but you may lose your home, you may lose your kids, you may lose your job,” says Linda Perle, director of legal services at the Center for Law and Social Policy in Washington, D.C. “There’s very important interests at stake.”

Traditionally, people with little money could turn to Legal Services Corporation (LSC), the federally mandated nonprofit that supports free legal-aid programs in hundreds of communities. But over the past few years, a perfect storm of conservative pushback, stagnant budgets and recessionary demand for legal services has left those who can least afford it fending for themselves against the financial behemoths.

Carter

The corporation lawyers “are here every day, and they pretty much bank on people not showing up, or not having an attorney to represent them,” says Alison Folmar, a Detroit lawyer who spends much of her time in the 36th District Court, defending everyday clients in anything from traffic disputes to domestic-violence cases. “The playing fields are not even.”

The courts, too, are reeling from having more and more people show up as their own lawyers. Unfamiliar with the process, these solo flyers require considerable hand-holding from judges and bailiffs who are dealing with overstuffed dockets. Nearly 80 percent of judges in a 2010 American Bar Association survey (pdf) said that pro se litigants have a negative effect, primarily by bogging things down. “The amount of time that gets spent to assist a self-represented person through any kind of litigation really expands for court staff, as well as for judicial hearing time,” says Lorraine Weber, director of access and fairness for the Michigan Supreme Court.

Numbers are hard to come by, but what little research that exists on the topic supports the notion that going it alone is a losing proposition. Tenants represented by lawyers, for instance, were three to 19 times more likely to beat their landlords in eviction cases. And a study of women seeking restraining orders found that 83 percent of those with lawyers secured an order while only 32 percent of those without lawyers prevailed.

I witnessed this disparity firsthand one morning in one of the 36th District’s windowless, linoleum-floored courtrooms. Judge Roberta Archer presided over two foreclosure cases, three eviction cases and three debt-collection cases, and only one of the defendants had a lawyer in tow. He was the only defendant who didn’t lose his case. “For some people, it makes a world of difference,” says Archer’s colleague, Judge Katherine Hansen. “Some people have a defense, but they don’t really know how to put the words to a defense.”

An unschooled defendant would certainly have a tough time explaining flawed mortgage paperwork to a judge — if the defendant even makes it that far. In Michigan and 26 other states, foreclosures seldom go to court without a proactive move by the borrower’s lawyer. In Michigan, most foreclosures are conducted “by advertisement” — the bank runs a legal notice in a local newspaper for four weeks stating its intent and then initiates a sheriff’s sale. A homeowner’s day in court is by no means guaranteed.

Nor, of course, is a lawyer. To qualify for free legal aid, a family must earn no more than 125 percent of the poverty threshold — about $27,500 for a family of four. That’s not much, to be sure, but more and more people have been qualifying. In 2009, the most recent year for which numbers are available, nearly 44 million Americans were living in poverty, up from about 40 million in 2008. “There are only about 180 legal aid lawyers for the state of Michigan,” says Linda Rexer, executive director of the Michigan State Bar Foundation, which funds legal aid grants. “Now, in Michigan, a third of our 10 million population would qualify for legal aid.” That’s about 18,500 potential clients per legal aid lawyer.

Initiatives only make a dent in swelling need

Across the nation, pro bono and legal aid lawyers have been facing a crisis of numbers. In 2009, the 136 independent legal aid groups backed by Legal Services Corporation saw a dramatic rise in recession-related cases: Their collective foreclosure caseload more than doubled from the previous year, and cases involving unemployment compensation jumped by 63 percent, according to the LSC’s annual report (pdf). This explosion of demand has forced grantees to turn away half of the people who come to them with eligible cases.

These numbers, of course, only take into account people who step up and ask for help. Many never make the phone call to legal aid in the first place, or give up when their calls go unanswered by harried local staff. “Program after program will tell you, they are just flooded with new need,” says Rebekah Diller, deputy director of the justice program at the Brennan Center for Justice at New York University School of Law.

Last June, the Brennan Center reported some striking local stats. One office in Orange County, California, reported a 337 percent jump in requests for foreclosure help. In Las Vegas, where 1 in every 76 housing units had a foreclosure filing in December — more than 43,000 homes — there were fewer than 10 legal aid lawyers for the entire city. According to the Oregon state bar, requests for help in landlord-tenant cases had more than tripled. And Cleveland’s Legal Aid Society reported a 56 percent increase in employment-related cases. The list goes on.

The crisis in civil representation hasn’t gone unnoticed. In 2008, as foreclosures slammed the state, Maryland’s Pro Bono Resource Center launched a program to train pro bono lawyers in foreclosure prevention and defense. Last March, the Justice Department launched an initiative called Access to Justice, aimed at improving indigent defense in civil and criminal cases.

Other states are looking at recruiting retired lawyers and allowing them to represent low-income clients. And Michigan is building an online resource for people who plan to represent themselves in court — similar to websites launched in Illinois, Wisconsin and elsewhere. “There are some problems that can be effectively resolved with self-help,” explains Rexer of the Michigan State Bar Foundation, who is spearheading the effort. “There are other problems that require full representation and the help of a lawyer.”

But none of these initiatives are likely to make much of a dent in meeting the legal needs of the poor. That would require more money, and state lawmakers are loath to pass laws guaranteeing people a lawyer in civil cases — a budget-busting proposition for deficit-plagued governments.

At the federal level, the GOP’s resurgence has made matters worse. Prior to the midterm elections, congressional lawmakers were mulling the Civil Access to Justice Act, which would loosen restrictions on groups receiving money from the LSC. The changes would once again let legal aid lawyers file class-action lawsuits and engage in policy advocacy — both of which are now forbidden — allowing them to bundle together cases against unscrupulous lenders, for instance, and alert elected officials to emerging problems.

But the act didn’t make it out of committee before the November elections. “That thing is kind of dead in the water at this point,” says Ken Boehm, chairman of the National Legal and Policy Center, which opposes the changes.

Earlier this month, the House unveiled its latest appropriations bill, which would slash the LSC’s budget by another 18 percent. (The corporation had asked for a 23 percent increase to keep pace with the overwhelming demand for its services.) The House conservative caucus, meanwhile, aims to do away with the LSC entirely as part of its Spending Reduction Act of 2011 — “a $2.5 trillion head start in the race to resolve the growing debt crisis and preserve the American Dream.”

The upshot, says the Brennan Center’s Diller, is that most low-income people are basically stuck with two choices when they are faced with foreclosures, evictions, debt collections, custody battles or employment-related problems. “You give up and you don’t even show up in court,” she says. “Or you try to go it alone.”

The GOP plot to destroy legal aid

Published February 14, 2011 with Mother Jones.

Last month, when the House conservative caucus proposed scrapping a program that has provided the poor with free legal assistance for nearly four decades, it felt like déjà-vu. Indeed, this provision of the GOP’s Spending Reduction Act of 2011 was simply the latest salvo against an entity under siege by conservatives since the day it was conceived.

Legal Services Corporation (LSC) is a federally funded nonprofit that doles out money ($420 million this year) to 136 independent groups providing legal services in hundreds of communities around the nation. Debt collectors knocking down your door? Foreclosure mill trying to take your house? If you can’t afford a lawyer and your family is hovering near the federal poverty line, then the LSC is your ticket to legal representation.

If you’re lucky, that is. The corporation’s budget has always been limited, and over the past few years, as more and more Americans grapple with civil cases involving employment, foreclosures, debt collections and bankruptcy, soaring demand for legal help has overwhelmed the LSC’s limited resources.

But the current crisis in the civil courts isn’t a product of the Great Recession. It’s the natural consequence of a decades-long campaign by agricultural interests, Christian conservatives and their congressional allies who would prefer to do away with the LSC altogether.

Publicly funded legal aid got its start under the Johnson administration, which recognized that lawyers for the poor were a key element of its war on poverty. In 1964, Congress passed the Economic Opportunity Act, and beginning the next year, with the government’s help, nonprofits began providing free community legal services, assisting broke clients with life’s mundane issues — eviction and custody battles and so forth. With their challenges to public housing programs and school districts, legal aid lawyers antagonized politicians, but they were enormously popular among their clients. When the Nixon administration began dismantling Johnson’s Office of Economic Opportunity, legal services survived. In 1974, Congress passed legislation creating the Legal Services Corporation, which President Nixon signed into law days before his resignation.

Among the LSC’s early opponents was the American Farm Bureau Federation, whose members were rankled by lawsuits filed on behalf of agricultural workers, many of them immigrants, in cases involving unpaid wages and poor working conditions. The bureau argued that these cases were often frivolous matters and that underpayment of wages was usually unintentional. In 1995, bureau lobbyist Bryan Little assailed the LSC as a “money-making machine” for the American Bar Association.

Legal aid faced another formidable foe in the Christian Coalition and Ralph Reed, then its executive director, who claimed the LSC “subsidizes divorce and illegitimacy.” The coalition’s 1994 Contract With the American Family sought the complete defunding of the LSC, alongside platform planks on “Restoring Respect for Human Life” and “Restoring Religious Equality.”

The following year, with Newt Gingrich installed as speaker of the House, congressional Republicans heeded the call with a proposal to phase out the LSC’s funding over three years. Among the program’s most vocal critics were Sen. Phil Gramm of Texas, whose spokesman called it “less an instrument for the delivery of legal services than a machine with a Democratic political agenda as its primary purpose.” Indiana Congressman Dan Burton was among a group of House Republicans putting out a weekly “LSC Hall of Shame” newsletter. “Legal services,” his spokesman argued, “wastes taxpayer dollars by spending millions on outlandish test cases.” GOP Congressman Robert Dornan of California called for abolishing the LSC entirely, adding that “it’s time to defund the left.”

In 1996, Congress struck a compromise. The LSC could continue to exist, but its budget would be slashed by one-third, and crippling restrictions would be imposed on its network of lawyers. By this time, the LSC had been under attack for more than two decades and had managed to stay afloat despite dwindling funding — adjusted for inflation, its budget peaked back in 1981 and has been shrinking ever since. “Congress didn’t want to cut it entirely, but they didn’t want to give them a blank check for all these controversial cases,” says Ken Boehm, chair of the National Legal and Policy Center and a longtime LSC critic. “So they decided to cut the baby.”

The new restrictions meant that LSC-funded lawyers could no longer represent prisoners or most immigrants — legal and undocumented alike. They also were barred from collecting court-awarded attorney’s fees (a restriction rescinded in 2009), from engaging in any sort of policy advocacy and from alerting elected officials to problems they’d encountered — unless invited in writing to do so. The restrictions “deprived low-income clients of some of the tools that every other litigant has available to them,” says Rebekah Diller, an expert on the civil courts at the Brennan Center for Justice at New York University School of Law. The restrictions included what legal aid advocates call a “poison pill”: Any group taking a single dollar from the LSC could not participate in any of the restricted activities, even if they planned to use state or private funding for those purposes.

Perhaps most significantly, the law included a ban on class-action lawsuits, which represented a tiny fraction of the cases but packed a big punch. Lawyers from South Brooklyn Legal Services, for instance, had won a class action securing disability benefits for women with HIV. Legal aid lawyers in Maryland had prevailed on behalf of state prisoners contesting overcrowded living conditions. And lawyers from around the country took part in a major national effort challenging the way Social Security reviews were handled.

But what really got under the skin of the critics were the welfare-reform cases. On several occasions, publicly funded lawyers had come before the Supreme Court to challenge various welfare policies, including a regulation that required “a man in the house” and rules that denied benefits to people with green cards, people moving to new states and children from large families. With three major cases, their litigation ended up boosting the nation’s welfare tab by $400 million to $500 million annually.

With Congress gearing up for a welfare overhaul, some members may have wanted to preempt legal challenges to the changes they were poised to implement. Gramm, for one, called legal services “a major impediment to meaningful welfare reform.” Legal services lawyers were “being advocates for the existing welfare bureaucracy, and while they may have a right to do it, they don’t have a right to do it with taxpayers’ money,” he told the New York Times in 1995.

The restrictions outraged legal aid lawyers, who railed against the compromise. But some within their ranks saw the compromise as the only way to ensure their survival. The LSC could operate with restrictions or not operate at all.

Linda Perle, who directs legal services at the Center for Legal and Policy Studies, counters that LSC-funded lawyers never really pursued a left-wing agenda as the critics claimed. “What was said about legal services was never true. And it’s not going to be true if the restrictions are removed,” she says. “It will just be easier for legal services lawyers to provide justice to their clients.”

Fewer resources for clients and LSC

In the 15 years since the restrictions were passed, a serious crisis in civil representation has developed, and the recent recession has made it worse. Studies show that at best, 15 to 20 percent of low-income people have their legal needs met, says Perle. Some studies even suggest the figure may be as low as 5 percent, “and that was before the recession,” she adds. “Now resources are much fewer, and there are many more people who are eligible now, because people lost their jobs, people who were working full time are part time. There’s a lot more poor people now than there were two years ago.”

The recession also hammered the LSC’s alternative revenue source. Besides federal funds, the corporation gets money through a program called Interest on Lawyers Trust Accounts (IOLTA). It’s just what it sounds like: The countless small judgments that lawyers win for their clients are pooled into trust accounts from which the clients are ultimately paid; since 1980, states have been allowed to use a portion of the interest on that big pool of money to provide legal help to the indigent. But plummeting interest rates have taken a huge bite out of the total. “Basically, what we’ve seen is a 75 percent decrease” from 2008 to 2010, the director of the National Association of IOLTA Programs told the National Law Journal in January.

Like any large institution, the LSC has its internal issues. A 2009 inspector general’s report (pdf) found flaws in its oversight of contractors, for instance, and a follow-up report from the Government Accountability Office noted that “missing or flawed internal controls” limited the corporation’s ability to monitor the performance of its grantees. Another embarrassing development involved a rash of theft by staffers at four legal aid programs. These ranged from the conviction of a Hawaii program employee for stealing about $30,000 to a high-profile case in which the finance chief for Maryland Legal Aid was convicted of embezzling more than $1 million from the agency.

But the program’s biggest problems have been related to the congressional restrictions, which reports from lawyers and judges in 21 states have identified as a “barrier to justice,” according to the Brennan Center.

The ban on class actions, for example, prevents LSC-funded lawyers from pursuing recession-related problems such as unscrupulous behavior by foreclosure mills. “Many times, particularly when you have consumer fraud and widespread systemic problems, the best way to get at that is with a class action,” says Diller. As an example, she cites mortgage rescue scams, wherein shady operators target hard-hit neighborhoods, promising to help homeowners but making off with their money instead. “The way one should respond to that, when a company like that is targeting a whole community, is by bringing a class action on behalf of everyone affected,” she says. “But because of the restrictions, most of the law offices that help low-income people can’t do that.”

And the ban on legislative advocacy means that if an attorney sees “some sort of consumer scam preying upon low-income and elderly people,” Diller adds, “you can’t go bring it to the attention of your legislature.”

New Congressional efforts to cut aid

Now, once again, legal aid is on the chopping block: The Spending Reduction Act introduced by Ohio Congressman Jim Jordan proposes a $420 million cut to the LSC’s budget — which happens to be $420 million. The Christian Coalition and the American Farm Bureau are all for it.

The Christian Coalition, “and virtually all of its supporters, would support the current Republican effort to totally eliminate federal tax dollars going to such groups as the LSC,” says longtime Coalition lobbyist Jim Backlin, adding that his group also seeks cuts to the National Endowment for the Arts, the Corporation for Public Broadcasting and “countless other federal organizations.” The Farm Bureau’s policy book promotes a “call for major reform,” including “the U.S. government ceasing to provide federal funding for Farm Workers Legal Services.”

Realistically, the wholesale elimination of LSC funding isn’t likely to make it far in the Senate, but the latest version of the House appropriations bill that funds the LSC calls for an 18-percent budget cut. Which is pretty brutal, given that the corporation had requested a 23 percent increase based on overwhelming need for its services.

The LSC said in a statement that the cut would “decimate civil legal aid,” while Stephen N. Zack, president of the American Bar Association, called the proposal “shocking and unacceptable,” adding that his group will fight it.

“LSC-funded programs help about a million people a year,” says Diller. “So you’re always going to find one or two cases that you can construe as controversial. The point is that you have millions of people in need.”

Flawed loan paperwork? Prove it.

Published February 14, 2011 with the Investigative Reporting Workshop.

When Nicolle Bradbury was on the verge of foreclosure in 2009, she reached out to a nonprofit legal services group in Maine, asking for help. Tom Cox, a volunteer with Pine Tree Legal Assistance, took her case. And he quickly spotted a red flag in her file — something that only someone, like Cox, who spent decades looking at legal documents is likely to have caught. Her foreclosure paperwork had been approved by a “limited signing officer,” and Cox suspected that person didn’t know as much about Bradbury’s mortgage as he was supposed to.

Photo by Tim Greenway

Tom Cox prepares for a court case in front of the Maine District Court in Biddeford on Nov. 18, 2010. He says foreclosure defense work is “some of the most complicated that there is.”

That hunch led to what is now known as the robo-signing scandal: the practice by which lenders and mortgage companies, processing thousands of foreclosure papers every month, used low-level workers who breezed through stacks of documents but did not actually verify the information in the loan papers, although their signatures attested that they had done just that. In theory, borrowers with robo-signed loans may be able to challenge their foreclosures. But flawed loan paperwork is no guarantee of success in court, particularly if, like most homeowners, they are facing the courtroom alone.

“The foreclosure defense work is some of the most complicated that there is,” Cox told me last week. “The amount that you have to know, and the speed at which the law is evolving, is amazing to me.”

To expose what he calls the “dishonest documents,” Cox deposed Jeffrey Stephan, who signed loan papers for GMAC, including Bradbury’s foreclosure paperwork. But to get Stephan “into a chair at a table across from me” took enormous effort, Cox says. He had to file a document with the Maine courts, asking the courts in Pennsylvania, where Stephan lived, to take action. The whole process was so obscure he had to explain the system to the judge.

“There’s no way a lay person could navigate that,” he says. “Most lawyers can’t.”

Maine is not a state known for its foreclosure crisis, and, indeed, the numbers are miniscule compared to states like Nevada and Florida. But in a rural state, where the rental housing options are limited, foreclosure can be devastating.

Nan Heald is the executive director of Pine Tree, the only group in the state that receives money from the Legal Services Corporation. She says that Pine Tree, Maine’s biggest legal services agency, can handle just 6 percent of the foreclosure cases that come its way. And that’s with the support of outside lawyers like Cox. Without the lawyers coming through the state’s pro bono program, Heald says, she’d be able to help just 3 percent of the foreclosure cases they see.

Historically, legal services groups in Maine have received substantial support from a state fund fed by the interest on lawyers trust accounts. But with interest rates down, the flow from that fund has plummeted. Pine Tree is facing a 20 percent budget shortfall this fiscal year, according Heald. Asked how she plans to make up the deficit, she laughs.

“A lot of grant writing,” she says. Heald says she hopes new funding will become available as awareness of the crisis in legal representation grows.

“I’m always optimistic that budget deficits can be erased,” she says. “I’d like to believe that’s possible.”