Wisconsin Lawyer
Vol. 80, No. 7, July 2007

• Access to Justice Study Committee Recommendations at a Glance
• About the Access to Justice Study Committee

Imagine trying to support a family of four on less than $40,000 a year. By the time you parceled out funds to pay for housing, food, child care, utilities, health care, transportation, and so on, you'd have little left, if anything at all. Suppose you suddenly faced a civil legal problem. From what part of your budget would you squeeze out the money to hire an attorney?

That's a question that keeps many Wisconsinites lying awake at night. Nearly a third of our state's families, both rural and urban, had incomes of less than 200 percent of the federal poverty guideline as of 2005. That translated into an income of less than $38,700 for a family of four.

For low-income families, the lack of access to legal help is "another badge of poverty," says Rick Sankovitz, a Milwaukee County circuit court judge and chair of the State Bar's Access to Justice Study Committee. Low-income families with a civil legal problem may be at risk of losing their homes, jobs, health care, or other basic necessities.

This is the scenario that Sankovitz and his committee explored in their study, "Bridging the Justice Gap: Wisconsin's Unmet Legal Needs," released in March 2007. The committee found that a half-million low-income Wisconsinites facing civil legal problems can't get legal help because they can't afford it, or don't qualify for legal aid services, or do qualify but get turned away because of the legal aid agencies' case overloads. (See "Bridging the Justice Gap: Gauging the Public's Unmet Civil Legal Needs" in the April Wisconsin Lawyer to learn more about the extent of unmet legal needs, and visit www.wisbar.org/committees/atj/study for the full report.)

"This study is the first step in what you might loosely describe as a three-step process," Sankovitz says. "First, we had to document the need for legal services. The second step is to build a coalition for change. And the third step is to develop a budget recommendation that would perhaps go into the state biennial budget for 2009-2011."

Work on steps two and three is under way, beginning with the Wisconsin Equal Justice Conference held on March 16, 2007, at Marquette University. Judges, legal services providers, private bar attorneys, law school professors, and other interested parties gathered to plan strategies to improve access to justice. As starting points for the discussion, the Access to Justice Study Committee's report offered several recommendations for action. Those recommendations then won approval at the May meeting of the State Bar Board of Governors.

Recommendation #1: Create a Permanent Access to Justice Commission

The Access to Justice Commission's task would be to lead the way in bridging Wisconsin's justice gap. Members of the commission could include legislators, lawyers, judges, legal services providers, law school faculty, representatives from state agencies, business and civic leaders, and members of the general public. The aim would be to include people with a broad range of experiences in the group.

Dallas attorney Deborah Hankinson hails this recommendation as a critical step. She led the effort to launch the Texas Access to Justice Commission in 2001, when she was a Texas Supreme Court justice. Now chair of the ABA's Standing Committee on Legal Aid and Indigent Defendants, she works with states across the country to set up access to justice commissions. Some 25 states have done so, she reports.

As Hankinson sees it, creating a permanent commission conveys the message that access to justice is a serious societal problem, not just the legal profession's problem, and that solving it demands long-term commitment from diverse key players.

"You have to institutionalize the commission," she says. "This is not just a Bar activity on the side. You have to make a fundamental mind shift, put a formal structure in place, and start figuring out what to do. And you have to take a comprehensive approach that brings everybody to the table."

In the early days of creating the Texas commission, organizers sought guidance from the state of Washington, where the Access to Justice Board dates back to 1994, when it began as a two-year trial project.

"The Access to Justice Board has been a primary catalyst for the many positive changes we have made," says Washington State Supreme Court Chief Justice Gerry Alexander. "The court recognized that fact when it renewed the board for another five years in 1996. In 2001, we gave it an indefinite life. That's how successful it's been."

In 2001, Alexander and his colleagues consulted with organizers in Texas to help create the Texas Access to Justice Commission. Hankinson recalls one of the first and most crucial lessons their Washington peers imparted. "They taught us that we had to work together based on trust," she says. "They brought buttons for us to wear during our meeting that had the word `Turf' with a line slashed through it." Ever since, the Texas commission has tried to hold that "No Turf" motto close to heart, and Hankinson strongly suggests Wisconsin follow suit. It's not easy to do, she concedes, because the entities with a stake in equal justice can get caught up in looking out for their own interests.

"The key is teamwork," Hankinson advises. "That's the only way to improve access to justice for clients. Every time we find ourselves locking horns over something, we say to each other, `Think about the clients.' That requires openness and willingness to share in the decision making, resources, and results."

In Texas, having a broad-based commission has spurred far-reaching support for improving civil legal services. As just one example of how this has played out, Hankinson relates what happened when the Texas Commission asked the Texas Supreme Court for a comparability rule for IOLTA (Interest on Lawyers' Trust Accounts). The rule requires that lawyers put trust funds into banks paying comparable interest rates on non-IOLTA and IOLTA accounts. Predictions are that this change will generate as much as $21 million a year in new IOLTA funds in Texas, says Hankinson.

Shortly after proposing the change in IOLTA, commission members jumped into gear to make contacts to advocate for the new rule. The chain reaction began. By the time commission representatives returned to the Texas Supreme Court a month later, the court had already signed the order to put the new rule into effect.

"If we hadn't had the Access to Justice Commission and the work it's done for six years to build this solid fabric that underpins what we do," Hankinson says, "this rule would have been two or three years in the making. We've seen what happens when we come together."

Recommendation #2: Secure State Funding for Civil Legal Services

Currently Wisconsin provides about $4 million for civil legal services, most of which goes to state programs that help people having difficulties with elderly or disability benefits. Wisconsin is one of only six states in the nation that provide no funding for general civil legal services. That contrasts to $12 million in Minnesota, $14 million in Ohio, and $3.5 million in Illinois.

The committee recommends that the Wisconsin Legislature allocate sufficient funds to at least meet the legal needs of people who are eligible for legal services programs, but now are turned away because of a funding shortfall. Filling that gap would require an annual investment of $16 million, the committee estimates, based on the current level of need.

Governor Doyle has requested $1 million for general civil legal services in the current state budget bill, Wis. SB 40. "A million dollars is going to support services for only a small fraction of those who need them," says Wisconsin Supreme Court Chief Justice Shirley Abrahamson. "But every bit helps. I believe SB 40 is a small but important step in the direction of justice for all, and I urge retention of that appropriation."

Looking at the history of funding in other states provides optimism for what could happen in Wisconsin. The state of Washington is in the third year of its Justice in Jeopardy initiative, which sprang out of a civil legal needs study similar to Wisconsin's.

"State money in Washington was stuck at about $2 million a year as late as 1997," Alexander reports, "and none of that came from the state general fund. As a result of the Justice in Jeopardy initiative, we have that up to $9 million a year now, with the lion's share coming from where it should come from _ the general fund."

In April 2007, the Washington Legislature approved a $5.27 million increase for civil legal services in the 2007-09 budget. The added funds will enable opening six legal services offices in rural areas, which, Alexander says, was a critical factor in winning rural legislators' support. "These are communities that haven't seen a legal aid office since the War on Poverty during the Johnson administration," he notes.

Closer to home, Illinois has had success in boosting state funding for civil legal aid. In 1999, state funding was at zero. Now it's at $3.5 million a year, and the request in the governor's budget for the next fiscal year is $5 million.

To people in Wisconsin seeking to garner state funding, "The most important thing I can say to you is that it is possible," says Mark Marquardt, deputy director of the Lawyers Trust Fund of Illinois. "You can do it, even though it maybe doesn't seem possible from where you sit right now."

Marquardt advises that winning political support that translates into funding support relies on conducting a true campaign, which means having definite goals, a well-laid-out strategy, and a clear message. "If you leave out any of those elements," he says, "what you're doing is embarking on a well-intentioned crap shoot. You might get lucky, but you probably won't."

To get civil legal services on the agenda of Illinois' movers and shakers, Marquardt and other organizers created the Blue Ribbon Committee of the Equal Justice Illinois Campaign. The committee's roster includes politicians from both major parties, law professionals, and leaders from business, religious, labor, and citizen advocacy groups.

To build support for state funding, "The key message we use over and over again is that legal services is a critical social service," Marquardt says. "State government is not used to funding legal aid, but it is used to funding social services. We put [civil legal services] in that context _ that it's a key part of the social safety net."

Legislators comprehend the value, he notes, when you explain that handling an eviction case, for instance, costs $239 in legal fees, a small fraction of what it costs to provide services for a homeless family. "We use examples like that to show how civil legal services is a preventive way to keep the worst from happening," Marquardt points out.

The Illinois campaign uses various methods to communicate its message. For instance, it works with a public relations firm to place stories in newspapers statewide relating how local people have been helped by legal services. When paying visits to legislators to advocate for funding, "We have a stack of clips to show that this is on the public radar," Marquardt says.

Other Primary Recommendations

• The Wisconsin Legislature should fund self-help centers connected to every courthouse in Wisconsin. The Access to Justice Study Committee recommends that self-help centers be connected to every Wisconsin courthouse. Ideally, each courthouse would have a self-help center on premises. But for courthouses in sparsely populated counties an alternative could be access to a regional self-help center via videoconference or computer technology.
• The Wisconsin Supreme Court should modify ethics rules and procedural rules to permit paralegals to advocate in court and before agencies on a limited basis. The committee recognizes that lawyers need not, and indeed cannot, be the entire solution to the problem of lack of civil legal services to low-income people. "This recommendation is in line with the policy the Bar has had all along," Sankovitz says, "which is that the Bar approves the use of nonlawyers when they are trained and supervised by lawyers. It's an age-old tradition in the law profession to use paralegals."
• This recommendation also highlights that lawyers aren't asking for better funding for civil legal services merely to serve their own special interest, Sankovitz adds. "We're advocating not only more use of lawyers but also nonlawyers," he says, "to try to stretch that legal dollar to make sure services are rendered in the most cost-effective way."
• When possible, clients should be required to pay for a portion of the services they receive, based on their ability to pay. The telephone survey of more than 1,200 low-income Wisconsin households conducted for the Access to Justice Committee's study revealed that most respondents are willing to pay something to help cover the cost of legal services they receive.
• Civil legal services should not be financed by an increase in filing fees. Wisconsin's fees imposed on litigants already are higher than average. Increasing fees would only heighten the barrier to access to justice, in the committee's view.

In addition to the six primary recommendations discussed above, the committee also set forth six other major recommendations. One of these is to make permanent the $50 Wisconsin Supreme Court assessment on attorneys that was instituted in 2006 and is administered through the Wisconsin Trust Account Foundation (WisTAF). This assessment brought in a total of $776,000 in 2006 to help fund civil legal services. The Access to Justice Committee recommends extending the assessment to judges, as well.

A similar assessment, set at $65, on Texas attorneys was extremely unpopular when it was put in place in 2004, according to Hankinson. But in Texas, as in Wisconsin, people have moved on, she says, and some vocal opponents have become strong proponents of the assessment.

"What primes the pump is donations by members of the legal profession," Hankinson contends. "Simply put, the lawyers have to lead. If the Bar demonstrates that its members are deeply committed to improving access to justice, then other funding entities take note and respond in kind."

Another way lawyers show their commitment to equal justice is through pro bono work. The Access to Justice Study Committee recommends exploring "expanded efforts to increase the already substantial pro bono contributions of Wisconsin lawyers." The State Bar's pro bono survey found that in 2005, Wisconsin attorneys donated 40,000 hours in free legal services to poor people, worth more than $6 million at market rates.

For a full list of the committee's recommendations, see the accompanying article, "Access to Justice Study Committee Recommendations at a Glance."

The Next Step

The State Bar's Access to Justice Study Committee invested many hours over more than 18 months in conducting its study and preparing its report. Sankovitz also gives due credit to former Bar president John Skilton, a long-time champion of equal justice. The work of Skilton's Commission on the Delivery of Legal Services in the mid-1990s laid the groundwork for the more recent study.

"The report his commission issued presaged most of the recommendations we're making," Sankovitz says. "That doesn't mean we're 11 years late in coming to the party. It means he's 11 years ahead of the rest of us."

As Sankovitz sees it, the Wisconsin Equal Justice Conference in March marked Day 1 of the next phase: building partnerships to put a plan into action. Based on experience with states, Hankinson sees Wisconsin as being off to a strong start.

"You have created an important foundation by conducting a legal needs study," she says, "and by using the results of that study to articulate compelling recommendations."

A key ingredient needed now, and for years to come, is a healthy dose of persistence, she adds. "You will stub your toes," she says. "We [the Texas Access to Justice Commission] did, and we almost fell apart. But I sit in meetings now and I'm amazed at the number of people involved in what's going on. We're not yet `successful,' but we're working on the problem. And we're making headway."

The state of Washington has learned similar lessons in its efforts to improve access to justice. "It takes persistence," Alexander agrees. "But most importantly, it takes a belief in the rightness of your cause. Supporting civil legal justice is the responsibility of everyone, not just lawyers."

Wisconsin Lawyer