Wisconsin Lawyer: Reflections: Civil Justice Shortfalls and COVID-19: A Toxic Combination:

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    September
    08
    2020

    Reflections: Civil Justice Shortfalls and COVID-19: A Toxic Combination

    I'm embarrassed that I did not take the case of a woman who was terrified by wrongful eviction. I don't "do" tenant-side work. But, could I have? With so much need and so little funding, now is a perfect time to start or increase our efforts to support civil legal services.

    Deanne M. Koll

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    During the middle of the state lockdown in response to the COVID-19 crisis, I received a cold call at my desk at work. For some context, I work in northwestern Wisconsin, about 30 miles from the Minneapolis-St. Paul metro area. So, rural, but not that rural.

    The call was from a woman looking for assistance relating to her housing. I kindly advised her that neither I nor anyone at my firm did tenant-side legal work – we made that firm-wide decision a few years ago. She was upset. Not at me, necessarily, but at her situation. She told me that I was the fifth (yes, fifth) lawyer she’d talked to that day who told her that they did not do tenant-side work.

    Panic stricken that she might never find someone to help, she asked me if I knew of any lawyer that might do this type of work, to whom I could refer her. I paused. With regard to our local bar – which I know very well – I was having a hard time thinking of someone who could help her. During my consideration, the caller started to spit out her issue. She said that her landlord was telling her that she had to get out, even though she hadn’t breached the lease. She said that he was threatening to remove her and all her stuff – physically himself – if she didn’t vacate immediately. She had not been served with any eviction notice.

    Now, I’m no landlord-tenant legal guru, but even I recognized this was improper. I’m embarrassed to admit this, but I gave her the 1-800 number to the State Bar of Wisconsin’s lawyer referral service and wished her good luck. Yup, you read that correctly, I provided her the phone number and moved on to my next emergency. I had hope that the State Bar would point her to a local civil legal aid provider in my area.

    Nowhere to Turn

    I’m one lawyer and this is one call. But this is not fiction: This call actually occurred and this woman actually had nowhere to turn. If we presume that there are 13,000 active attorneys in Wisconsin, and only 50 percent of them took one call like this during the pandemic, that means that there were approximately 6,500 people who had this issue. If I’m speculating, I suspect the number is much higher. Certainly a large number of people who need legal services never even pick up the phone to call an attorney. That’s a lot of people who needed help on tenancy issues during the COVID crisis.

    Now, extrapolate that need to the many other civil legal services: divorces, bankruptcy, benefits denials, child custody, and so on. Private practice lawyers regularly take calls from individuals who are in need – some desperately – of legal services in the civil arena. And, the vast majority of those potential clients are shocked to learn that they must pay for these services and even more shocked to learn the cost. I suspect that the vast majority of my private practice friends would attest that they regularly take calls from people who have safety-jeopardizing or life-altering situations and simply do not have the funds necessary to hire private counsel. Most lawyers are grateful to have civil legal service organizations in their area to which they can refer these parties. Unfortunately, the COVID crisis has both endangered funding for those civil legal aid providers and also increased the need for their services.

    Funding Hit By a Perfect Storm

    One of the oldest funding sources for civil legal aid is through the IOLTA (Interest on Lawyers’ Trust Accounts) program. The Wisconsin Trust Account Foundation (WisTAF) was created in 1986 by the Wisconsin Supreme Court to collect the interest lawyers earn on client money (in their IOLTA accounts) and then make grants of that money to worthy civil legal aid organizations.

    Deanne KollDeanne M. Koll, William Mitchell 2006, is an attorney and shareholder with Bakke Norman S.C., with offices in Menomonie and New Richmond, Wis. She serves on the Wisconsin Trust Account Foundation (WisTAF) board of directors.

    Because it’s based on interest rates, IOLTA revenue has wildly fluctuated over the years. After the Great Recession in 2008, revenue plummeted by 83 percent. Correspondingly, WisTAF’s ability to fund statewide civil legal aid plunged during that time as well. Not until 2019 did revenue come close to resembling pre-recession levels – just in time for the Federal Reserve to slash interest rates in 2020 in response to the COVID crisis. In riding this interest rate wave, WisTAF now projects its annual income from IOLTA accounts will drop by one-half over the next two years.

    These numbers are cause for alarm. Funding from WisTAF is not “found money” for the state’s legal service providers. The WisTAF funding to grantees provides operating dollars that are included in annual budgets. In other words, the WisTAF money is necessary for these providers to continue to provide thousands of people with access to legal representation and advice in their current manner.

    WisTAF has done a noteworthy job of building reserves, to ensure that annual payments to the civil legal service providers have some stability. But reserves only last so long. And, once they are depleted, it takes years to rebuild them, as happened after the Great Recession.

    Of course, the timing of the funding decreases couldn’t be worse, because the number of people who need civil legal services is undoubtedly on the rise. You can’t turn on a television without hearing about the job losses and economic fallout from the COVID pandemic. As of June 2020, the U.S. Department of Labor reported that 19.5 million people continued to file for unemployment. And, in Wisconsin, the Department of Workforce Development reported 678,000 total filings as of mid-June. We are now into September and the numbers are even worse. People who have lost their jobs might fall into poverty and become eligible for civil legal aid services. Accordingly, a potential for increase in demands occurs on the heels of a shortage in funding and budgets for these services.

    Propping Up Civil Legal Aid

    So, what are we going to do? Lawyers in Wisconsin must step up and do whatever is necessary to prop up this system that has been hit by the perfect storm. This could be making financial contributions to support legal aid or encouraging your law firm to support this worthy cause. This could be leaning on the local, state, or national elected representative you know, to share your story about civil legal aid funding needs. Or, it could mean taking cases, perhaps as part of a pro bono or reduced-rate system.

    I’m embarrassed that I did not take the case of the woman who was terrified by wrongful eviction. I don’t “do” tenant-side work. But, could I have? Shamefully, I think the answer to that question is yes. I pledge to do better the next time I receive a similar call, and this article is my public proclamation to ensure I do. The preamble to the rules of professional conduct for attorneys states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” What will you pledge to do to embody your special responsibility for justice in this state?

    Make a Difference: Connect with Clients in Need

    Participate in Pro Bono Programs. For too many Wisconsin residents, a fundamental promise of our democracy – equal justice under law – is simply out of reach. They are already sacrificing health insurance to pay the rent, prescription drugs to keep up with the mortgage, and groceries to cover child care. When they need help with a legal problem, they cannot afford the professional legal help they need but they cannot effectively represent themselves. They fall into the “justice gap.”

    Wisconsin lawyers are uniquely qualified to help close the justice gap and we have an ethical obligation to try.

    Pro bono service also helps to strengthen your existing skills, exposes you to new areas of law, and helps you network with other professionals.

    Explore the pro bono areas at wisbar.org/probono or contact Jeff Brown, (800) 444-9404, ext. 6177.

    Join a Lawyer Referral Program. The State Bar’s Lawyer Referral and Information Service (LRIS) connects attorneys with clients who are pre-screened for legal issue, geographic location, and ability to pay. Members of the public contacting LRIS are directed to services provided through these primary programs:

    • Lawyer Referral
    • Lawyer Hotline
    • Modest Means Referral
    • Lawyer Referral Anti-Bias Pro Bono panel

    Lawyer Referral matches potential clients with attorneys for fee-based representation and provides information on legal resources statewide. Lawyer Hotline provides brief answers to basic legal questions. The Modest Means Referral service matches clients whose income is too high to qualify for legal services and too low to afford standard legal fees with attorneys who agree to make payment arrangements or accept lower than their usual fees.

    The Lawyer Referral Anti-Bias Pro Bono panel provides victims of hate crimes and harassment with referrals to attorneys who will provide a limited-scope consultation at no cost to help the caller determine their legal rights, resources for reporting hate crimes and harassment, and get answers to questions on how to pursue their complaint with law enforcement and the criminal or civil justice systems. LRIS has created a referral system where callers can quickly identify their issue and get referred to an attorney on a pro bono basis.

    For more information visit wisbar.org/lawyerreferral or contact Katie Wilcox, (800) 444-9404, ext. 6191.




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