Who's Providing Legal Counsel to Wisconsin's Poor?
An unacceptably high number of poor people in
Wisconsin are without the option for legal representation. Why? Federal
poverty thresholds and guidelines are outmoded, the geographic
distribution of lawyers limits access for poor people, and the level of
legal aid funding doesn't meet the need. This overview helps lawyers
assess appropriate client referral and, perhaps identify gaps that their
current or future civil legal pro bono work might fill.
by Hannah C. Dugan
In some corners of this state, individual attorneys still take in the
like of chickens and venison for legal assistance provided to poor, but
proud, clients. That puts into perspective the eye-popping attorney fees
featured in headlines of late. Most attorneys negotiate fees based on
the prevailing market rates to cover overhead and personal income.
However, even fees calculated on this fair and reasonable basis can
prove to be a financial strain for middle-class people, a budget
struggle for working-class people, and unbudgetable by poor people.
Fulfilling the promise of equal justice and achieving access to the
courts too often only is made meaningful by retaining legal counsel. The
bar has found and fought for ways to make resources available for
low-income persons to have access to lawyers. This article outlines how
lawyers, individually and collectively, provide civil legal counsel to
Wisconsin's poor. It presents the allocation and distribution of such
resources and describes some of the client eligibility standards and
limitations and services provided under several Wisconsin nonprofit law
firm models. Further, it briefly discusses the court's
attorney-appointment authority for indigents. This overview of such
poverty law representation criteria will assist private and government
attorneys in assessing appropriate client referral and in identifying
gaps that their current or future civil legal work might fill.
Who is Poor?
Hannah C. Dugan, U.W. 1987,
litigation/development attorney at the Legal Aid Society of Milwaukee
Inc., is a former member of the State Bar Legal Assistance Committee and
current vice chair of the Professional Ethics Committee.
|
Due to several factors, measuring poverty rates is a sticky wicket,
fraught in recent years with controversy about the validity of census
statistics, the methods of analyzing those statistics, and the adequacy
of poverty measurement tools.1 Whether a person
experiences periodic "poverty spells" or is "chronically poor" doesn't
much matter if a legal problem arises when a person is without funds.
Mary Naifeh, in an article in the 1998 U.S. Census Bureau Current
Population Reports, writes, "Reflecting diverse viewpoints, 'War on
Poverty' proponents may emphasize how many individuals experience any
episodes of poverty and the duration of the episodes, but 'Welfare
Reform' advocates may focus primarily on persons who are chronically
poor. Both groups are likely to examine transitions in and out of
poverty."2
Federal Poverty Thresholds. The official basis of
poverty measurement is amazing, given how many significant decisions are
based on it. The current official federal poverty thresholds, used
mainly for statistical purposes, were developed in 1963 based on the
assumptions of one person in the Social Security Administration who
reviewed a 1955 Department of Agriculture Household Food Consumption
Survey. The survey provided that families of three or more persons spent
about one-third of their after-tax income on food. The "economy food
plan" cost, developed by the Social Security Administration, was tripled
to arrive at the poverty threshold for a family of three. This procedure
did not assume budget amounts for any other category of consumption
except food.
Originally, household income measurement was affected by family size,
and the households were differentiated statistically - for example, by
farm and nonfarm status, the household head's gender, the ratio of
adults to children, the aged/nonaged status - creating a matrix of 124
poverty thresholds. While the poverty thresholds were calculated on the
basis of after-tax income data, they were applied to income data that
used a before-tax definition of income. In 1969, the thresholds were
calculated according to the Consumer Price Index, in an effort to ensure
that the poverty guidelines would not get higher in real terms as the
real income of the general population rose.3 The
poverty thresholds are used mainly for statistical purposes.
Federal Poverty Guidelines. The Federal Poverty
Guidelines (F.P.G.) are a simplification of the federal poverty
thresholds and are used for the administrative purposes of determining
financial eligibility for certain federal government, state government,
and nongovernmental programs. They are updated annually, issued by the
Department of Health and Human Services, and published in the Federal
Register.4
Wisconsin's Poverty Profile. According to the 1990
U.S. Census, 508,545 persons in Wisconsin were living below the poverty
threshold, representing 10.7 percent of the state's population, and a 2
percent increase of poverty in Wisconsin compared to the 1980 census. Of
these statistics, females and members of racial minority groups, across
the board, experience disproportionate poverty rates relative to their
percentages of the population.5
Using the F.P.G. as a measurement of eligibility for legal assistance
is specious. Looking at the 2001 F.P.G., a family of two would be below
the poverty guidelines if its annual income is $11,610. This income must
cover the basic necessities of living. If the household consisted of a
parent and child, with the parent working full-time at minimum wage, the
family still would fall below the F.P.G. Under this standard, hiring an
attorney becomes both a low priority and a perceived luxury.
Of the 508,545 included in Wisconsin's poverty population in 1990,
the estimated number of low-income persons needing legal services is
203,418.6 By American Bar Association standards, the
estimated number of low-income Wisconsinites receiving civil legal
services from some source should have been 40,684, leaving a gap in the
provision of legal services to 162,734 persons.7
However, in 1999, no more than 20,000 low-income Wisconsinites received
direct representation civil legal assistance from Wisconsin Trust
Account Foundation (WisTAF) grantees. Law firms and lawyers without
WisTAF grants provide substantial (but uncalculated) hours of pro bono
representation to several thousand of the remaining estimated 183,000
low-income persons not receiving, but needing, civil legal assistance.
But the point is clear: Even if the bar collectively met the
ABA-estimated standards in Wisconsin, an unacceptably high number of
poor people are left without the option for legal representation.
The ABA Needs Study confirms that low-income persons straddling the
poverty guidelines have a greater number of legal needs (that, when once
met, can lift them out of poverty) than the very poor, who more often
have one major legal hurdle (that, when once cleared, can substantially
transform life circumstances).
The disproportionate, geographic distribution of attorneys in
Wisconsin also affects attorney access for poor people. The three
counties where Wisconsin lawyers are most heavily concentrated -
Milwaukee, Dane, and Waukesha - contain 7,657 of the practicing bar
(including government attorneys unavailable for hire). That is, 49.95
percent of practicing attorneys list a State Bar membership address in
2.7 percent of the state's counties.8 These same three
counties hold an estimated 32.25 percent of the state's population
(1,693,253 Wisconsinites), and an estimated 37.6 percent of its poverty
population (191,498 persons).9
Put another way, 50.05 percent of in-state lawyers practice in 69
counties in which an estimated 62.4 percent of the poverty population
resides. Attorney access even for paying clients is minimal in some
counties; for example, Florence County includes two practicing
attorneys, while an estimated 10.7 percent of its estimated population
of 5,136 falls below the poverty guidelines.
State Resources for Representing Indigent and Low-income
Persons
Nonprofit Law Firms. In 2000, in law firms
exclusively dedicated to providing legal aid to low-income persons,
about 80 civil legal assistance staff attorneys served clients in
Wisconsin.10 Put into context, Wisconsin residents
generally average one private practicing attorney for every 590
residents; Wisconsin's estimated poverty population averages one civil
legal assistance staff attorney for every 6,741 poor persons.11 It is no surprise that in many instances the gap
between available lawyers and client needs increasingly is being filled
by nonlawyer advocates.12
Access to legal representation for the poor is further hampered by
the amount of funding available for such services. In Wisconsin, civil
legal funding available for legal services is $13.47 per low-income
citizen, placing Wisconsin as the 38th lowest of the 50 states for such
funding.13
Pro Bono Representation. A chief resource for
representing the poor is the service of private and government attorneys
providing pro bono legal representation. Pro bono publico is a
long-standing professional ethic and tradition in the practice of law.
To date, Wisconsin has not adopted mandatory pro bono, nor adopted
mandatory pro bono reporting requirements or voluntary pro bono
reporting systems.14 Statistics, therefore, are not
available for the amount of pro bono hours spent serving the legal needs
of the poor. In 1994, the Wisconsin Supreme Court requested all
Wisconsin attorneys to complete a pro bono activity survey. The results
confirmed that when attorneys do engage in pro bono activity, they
commit a substantial amount of time and other professional resources to
such representation.15
The pro bono publico tradition, deeply embedded in the legal
profession, is outlined aspirationally in the Rules of Professional
Conduct SCR 20:6.1 and sworn to by every Wisconsin lawyer who pledges,
in the Attorney's Oath, SCR 40.15, to "never reject from any
consideration personal to myself the cause of the defenseless or
oppressed or delay any person's cause for lucre or malice." Government
attorneys and the judiciary have some limitations in providing pro bono
publico service due to conflicts related to their offices.16 Private attorneys establish their own standards and,
in more recent years, some law firms have incorporated pro bono publico
firm-wide standards, credits to billable hours, and even requirements in
associates' and partners' periodic evaluations.17
Similarly, law schools nationwide increasingly are incorporating pro
bono programs; some are debating whether to condition graduation upon
demonstrated law student pro bono activity.18
Fee Arrangements. Individual attorneys also provide
services to low-income persons at reduced-fee rates, by adjustment of
total bills after completion of matters, through waiver or reduction of
retainer fees, and by otherwise adjusting fees based upon a client's
circumstances. The private bar also represents low-income people who are
eligible or subscribe to group and prepaid legal service programs,19 and those whose case types serve as a means of
eligibility, for example, civil rights representation by the American
Civil Liberties Union-Wisconsin Chapter, and immigration counsel by
Catholic Charities Legal Services to Immigrants in Milwaukee.
Organizational Resources. For years, local bar
associations have run projects, programs, Law Day events, hotlines, and
lawyer referral services to provide information to pro se litigants, and
to make referrals for legal assistance. The State Bar of Wisconsin's
recent online addition, www.legalexplorer.com., is an example of bar
outreach. In addition, Volunteer Lawyers Projects panels are available
in each of Wisconsin's 72 counties, organized to refer screened indigent
and low-income clients to private attorneys for civil legal services.20 Other pro bono panels are maintained by the federal
district courts, the ACLU-Wisconsin Chapter, and several State Bar of
Wisconsin practice sections (for example, the Appellate Practice,
Business Law, and Environmental Law sections).
The State Bar governance structure includes the Committee on Legal
Assistance as one of only four standing committees, thereby emphasizing
that, institutionally, providing legal assistance to the poor is one of
the State Bar's primary purposes.21 The State Bar also
supports the Office of Pro Bono Coordinator, which serves as a
clearinghouse for client inquiries statewide, and which assists
individual attorneys, law firms, law schools, and local bar associations
with their pro bono initiatives and activities.22
Funds Targeted for Civil Legal Assistance. In 1986,
Wisconsin incorporated an Interest on Trust Accounts (IOTA) program.
Codified as the Wisconsin Trust Account Foundation Inc. (WisTAF),23 it was created for law-related charitable and
educational purposes. WisTAF collects interest from attorney trust
accounts and maintains and allocates such funds, usually annually.24 The funds are distributed pursuant to grant
applications accepted for WisTAF board review, with funds expended
pursuant to SCR 20:1.15 "to provide legal aid to the poor."25 WisTAF has proven to be an important resource for
serving the poor. During its 13 distribution cycles, WisTAF has
distributed $17,087,500, including allocating $1,722,000 for 2001 to
nonprofit law firms or law-related programs throughout Wisconsin.26
The state's most recent biennium budget for the first time included a
budget line for civil legal services. The allocation is highly targeted,
restricted, and requires matching amounts. Nevertheless, it signals
recognition by the state of the importance of supporting civil legal
assistance.27 In the current biennium budget, the
State Bar is lobbying aggressively for continued inclusion of a civil
legal assistance budget line and, indeed, an increase in the budget
amount.
The Equal Justice Coalition Inc. (EJC) is an independent,
free-standing, recently incorporated nonprofit entity.28 Its broad-based board includes lawyers, business
people, academics, and others who advance the EJC's mission: to
implement short-term and long-term strategies to maximize the amount of
resources, financial and otherwise, available to low-income persons in
the state. The EJC collects donations and allocates funds to WisTAF,
which, in turn, determines fund allocation for direct legal aid,
according to its powers and duties as outlined in SCR 13.03.
Some Wisconsin local bar associations distribute limited grants for
such law-related activities, for example, the Dane County Pro Bono Trust
Fund and the Milwaukee Bar Association Foundation Inc., while other
in-kind support is available through non-profit law firm sponsorship of
poverty law-related fellowships.29
Other Resources. Means for reducing poor litigants'
legal costs (thereby avoiding delay or injustice) include: petitions for
waiver of costs and fees30 and for waiver of
transcript costs,31 and the limited payment of costs
by attorneys representing indigents.32
Institutionalized Sources of Civil Legal Assistance to the
Poor
During the last 13 years, WisTAF has provided funds to 36 different
grant applicants for legal aid to the poor and for law-related
activities. The goals of these legal assistance providers and
law-related programs vary, as do their program designs. Below are
overviews of four attorney-based law firm models providing direct legal
assistance to low-income clients. While legally incorporated as
nonprofit entities, they nevertheless are distinguished correctly from
other WisTAF recipients as "law firms."
Two Legal Services Corporation-funded models. Four
law firms in Wisconsin receive Legal Services Corporation (LSC) funds33: Legal Action of Wisconsin Inc. (LAW),34 Western Wisconsin Legal Services Inc. (WWLS),35 Legal Services of Northeastern Wisconsin (LSNEW),36 and Wisconsin Judicare.37 The
service delivery model for LAW, WWLS, and LSNEW is similar; the service
model for Judicare is discussed separately.
While not exclusively supported by federal funds, these legal
services providers in 1999 received $4,783,010 from LSC for low-income
representation in Wisconsin.38 These legal services
law firms receive substantial, targeted-fund contracts for which they
must follow proscribed regulatory conditions including income/asset
eligibility assessments39 and the alien and
immigration status of a potential client.40 LSC-funded
programs must adopt and submit written priorities for the types of cases
and matters to which the staff will limit its commitment of time and
resources.41 The code also provides restrictions on
the types of cases and matters that an LSC-funded program may undertake.
Serious consequences, including loss of funding, may occur for breaches
of the restrictions, such as representation in certain eviction
proceedings and in undertaking class actions.42
LSC-funded Staff Models. The LSC-funded LAW, WWLS,
and LSNEW programs all accept clients at 125 percent or below the
F.P.G., unless otherwise provided in their programs. For example, they
all provide services under the Older Americans Act and therefore do not
have income guidelines for those client populations.
LSC basic field grants provide for case service priorities in public
benefits, housing, medical benefits, access to medical care, family law,
and a series of special projects directed to targeted populations, for
example, victims of domestic violence, the elderly, and Native
Americans. The service model design includes an application of the LSC
regulatory eligibility standards and restrictions, an assessment of
whether the client fits in a priority area, and assignment of the case
to either staff attorneys, supervised paralegals, or referral to pro
bono attorneys included in the firms' Volunteer Lawyers Projects.
LSC-funded Attorney Referral Model. Wisconsin
Judicare is a compensated pro bono delivery system relying upon private
practitioners to represent clients at reduced fees. Its service model
encompasses 33 rural counties and includes substantial Native American
populations and nation jurisdictions. Although also funded by LSC funds,
the program model is designed differently to address the substantial
geographic coverage, as well as the markedly fewer attorneys practicing
in these 33 counties relative to the other service areas in Wisconsin.43
Judicare has a very limited number of staff attorneys who provide
some representation. The bulk of representation in Judicare's service
area is provided by members of the private bar who contract with
Judicare to provide legal services for nominal fees. After an
eligibility determination, Judicare issues a Judicare card to a client
who, in turn, selects a participating attorney. After consultation, the
attorney requests coverage for additional representation costs and
Judicare reviews the request for approval of coverage. At the conclusion
of the representation, the attorney submits the final billing to
Wisconsin Judicare. The nonstaff attorneys are reimbursed at the rate of
$40 per hour (tribal advocates at $25 per hour) with set, maximum, per
case reimbursement rates, as provided in Judicare's program, designed
and approved by LSC. This "contract" model is the most feasible means of
service delivery in these counties where attorneys, even at a reimbursed
rate, still may not be able to cover overhead costs.
Non-LSC Legal Aid Model. Non-LSC-funded nonprofit
law firms have direct service models that are not unlike LSC-funded
programs: providing quality legal representation without cost to
low-income persons. They do not face the limitations of LSC funding
restrictions, giving them some additional autonomy. However, they do not
have the substantial, legal-services-targeted LSC awards; therefore,
they must compete for funding with the host of other nonprofit entities,
and abide by restrictions set by foundations and other funders.
The Legal Aid Society of Milwaukee Inc., which was organized as part
of the legal aid movement at the end of the 19th century, started as a
membership group, with $1 per year dues supporting the Society
administration. Milwaukee's Society initially was a volunteer effort
with referrals for free, individualized, direct services representation
by a designated firm which "contracted" to accept cases and "payment"
from the civic-minded, member organization. Eventually, the volunteer
referral model evolved to an attorney-staff model - consistently setting
and resetting its priorities since 1916 according to client and local
needs. Funding has evolved from in-kind and Society member dues support
to the mix of fundraising events, donation appeals, restricted and
unrestricted foundation support, and eventually incorporating even
fee-for-service contracts, for example, public defender services in the
1970s and guardian ad litem services contracts since the 1980s.
To be eligible for Milwaukee Legal Aid representation, a client's net
income generally must not exceed 100 percent of the F.P.G., followed by
an assessment of liquid assets. Currently, the delivery model includes
prioritizing practice areas by case type, which includes cases involving
basic legal needs of family, economic benefits, consumer, health,
housing, civil forfeiture defense, and discrimination law. The service
model also includes special projects for targeted populations, for
example, the elderly, persons with AIDS, the homeless, victims of
domestic violence, and low-income taxpayers. Because Milwaukee Legal Aid
does not receive LSC funds, it is not subject to any of the federal
funding restrictions regarding representation of immigrants/aliens or
pursuing class action matters. During the last decade, it increasingly
has directed its resources to pursuing major law reform and class action
litigation.
Non-LSC-funded, "Mixed" Services Model. Another
service model is found both at Madison's ABC for Health and Milwaukee's
Centro Legal Por Derecho Humanos.44 Both nonprofit law
firms provide some services without cost, based on income assessment
according to the F.P.G. The firms' "free" work is supported through
foundation support and donations and other fundraising strategies.
However, when a client's household income exceeds 150 percent of the
F.P.G. or involves specific types of cases, the law firms employ sliding
fee and fixed fee scales in payment for retained legal
representation.
In general, these types of "mixed" services models often extend
representation to clients with household incomes up to 250 percent above
the F.P.G. These higher income "caps" address the needs of persons who
likely cannot afford counsel at market rates, but can retain competent
counsel at the relatively manageable reduced-fee rates this service
model employs. Fees are set to accommodate clients' circumstances and
case types, for example, 1) a fixed per-case amount; 2) an initial
amount with a fixed per-court-appearance amount; and 3) fee amounts
based on individually negotiated, specified "unbundled" services. Under
this model, for example, a divorce case client may contract to pay a
fixed fee (depending upon whether the case is contested or involves
minor children), or fees based on the number of hearings attended, or
fees based on the chosen lawyer services of counsel, advice, and
preparation of the petition (and opting to complete the action pro
se).
The reduced-fee components of mixed service models provide clients
with some certitude of the costs they will face, encourage client-based
decision making and a sense of "ownership" over the matter, and
generally increase the access of clients to some affordable, or free,
attorney representation. The law firms under these models are able to
provide free services, expanded services with fees to represent in
additional areas of practice, maximize attorney resources through
"unbundled" representation, and diversify the funding base of the firm
while, arguably, increasing the client's sense of choice. The mixed
services model altogether requires staff to balance caseloads between
fee-based cases and free services, requires careful monitoring of the
income stream to avoid putting a nonprofit status at risk, requires
institutionalization (and the associated costs) of billing practices and
systems, and may affect foundation and donor support, either positively
or negatively.
Court Appointment in Civil Cases
In criminal law cases, defendants have a right to counsel under both
the U.S. and Wisconsin constitutions, and the right to have such counsel
appointed without costs if the defendant cannot afford counsel. There
are U.S. Supreme Court-recognized limitations on the right to appointed
counsel in civil actions: generally, presumption of such appointment
only exists when an indigent may be deprived of physical liberty if the
indigent "lost the case."45 The court also has
inherent power to appoint counsel to serve the interests of the circuit
court,46 to meet a need for the fair presentation of a
case (even though the state constitution or statutes don't provide for
counsel appointment), and to serve due process concerns. So, in some
civil matters the court will appoint counsel but only pursuant to an
individualized determination of the necessity for appointment. The
courts, through a Fourteenth Amendment due process-based analysis, must
balance the private interests at stake, the government's interest, and
the risk that procedures used will lead to erroneous decisions, and then
"the net weight of these elements is balanced against the presumption
that a right to counsel exists only when personal freedom is
jeopardized."47 Counsel appointment for indigent
litigants has been considered in cases involving civil contempt,48 civil commitment proceedings,49
CHIPS cases,50 and termination of parental rights
cases.51
The absolute right to appointed counsel in civil proceedings is not
recognized by the court; however, if the deprivation of liberty
interests or important personal liberties are at stake, counsel at
public expense in certain civil proceedings can be furnished. Expansion
of such appointment authorities to other civil proceedings is the
subject matter of law review articles, not current court
deliberations.52 Attorney costs in such cases
currently are paid by the counties at various hourly rates.53
Conclusion
This article has outlined poverty law resources in Wisconsin. The
resources meet some, but not the substantial, access-to-justice needs of
the poor. Other states have explored and even adopted other resource
strategies - that is, mandatory pro bono and its cousins; voluntary or
mandatory pro bono reporting; pro bono "buyout"; civil legal Gideon
funds (using, for example, distribution of punitive damage and class
action cy pres awards; and "service taxes" on for-profit legal
services); substantial state funding, filing fee surcharges; and
fee-shifting statutes in challenges involving eligibility for
government-administered entitlements and benefits. All of these
potential resources have been met with understandable controversy, and
some indeed have generated more resources.
For the time being, Wisconsin's most reliable access-to-justice
resource remains the same: attorneys who undertake cases pro bono, who
absorb cases into the cost of their practices, who chose careers in
legal aid and legal services offices and other nonprofit entities, who
lobby for state and federal funding for what is a public good and public
responsibility. And those generous and proud attorneys who accept
chickens and venison.
Endnotes
1 See, The Hidden Side of
the Clinton Economy, Atlantic Monthly, Oct. 1998, at 18; David M.
Betson, Poor Old Folks: Have Our Methods of Poverty Measurement
Blinded Us to Who Is Poor?, (Univ. Notre Dame), Nov. 1995. In 1995,
the National Academy of Sciences/National Research Council reported to
Congress a proposed new approach for developing an official poverty
measure for the United States, which to date has not been adopted.
2 Mary Naifeh, "Trap Door?,
Revolving Door? Or Both?" U.S. Census Bureau Current Population
Reports (Washington, D.C.), July 1998, at 70.
3 During the 1980s, 76
poverty thresholds were eliminated, reducing the matrix from 124 to 48.
Constance F. Cadre & Robert T. Michael, Measuring Poverty: A New
Approach, (Washington, D.C.: National Academy Press, 1995).
4 Many government programs
use the guidelines to determine eligibility for many government
benefits. However, in general, public programs, for example, SSI and
Earned Income Tax Credit Program, use their own guidelines to determine
program eligibility.
5 U.S. Census Bureau, Census
Historical Poverty tables, CPH-L-162 Persons by Poverty Status in
1969, 1979, and 1989 by State.
6 At any one time, 40 percent
of all low-income persons are in need of civil legal services. Legal
Needs and Civil Justice: A Survey of Americans, Consortium on Legal
Services and the Public, American Bar Association, 1996, and its
Final Report on the Implications of the Comprehensive Legal Needs
Study, 1996.
7 ABA study, supra, in which
it was estimated that only 20 percent of all low-income persons actually
received assistance.
8 Total number of licensed
attorneys throughout the state is 15,329.
9 The state estimates are
calculated from U.S. Census statistics found at http://quickfacts.census.gov.qfd/states/55000.html.
The county-based estimates are calculated from U.S. Census statistics
found at http://quickfacts.census.gov/qfd/states/55/55133.html.
Figures also are based on information included in the Notice of Proposed
Availability of FY2001 Competitive Grant Funds, Legal Services
Corporation, 750 First St., Washington, D.C., April 21, 2000.
10 These numbers reflect
the number of staff attorneys (not full-time equivalent) and include
staff attorneys who are responsible for both administrative duties and
caseload representation. Included in this total are the following
WisTAF-grantees: ABC for Health, Centro Legal Por Derecho Humanos, Legal
Action of Wisconsin Inc., Western Wisconsin Legal Services Inc., Legal
Services of Northeastern Wisconsin, Wisconsin Judicare, and the Legal
Aid Society of Milwaukee Inc.
11 Estimates are based on
the 2000 U.S. Census Bureau estimated Wisconsin population of 5,326,000.
U.S. Census Bureau, Population
Estimates Program, Population Division, U.S. Census, Washington,
D.C. 20233. . This number is divided by the January 2001 record of 9,027
in-state private practitioner attorneys filing trust account statistic
reports (excluding attorneys who are publicly employed, serving as
corporation counsel, or "not practicing"). Wisconsin's
total estimated poverty population for 1999 is 539,300. .
12 See, State Bar of
Wisconsin Paralegal Practice Task Force Report, June 2000.
13 The State Planning
Assistance Network (SPAN), a partnership between the ABA and the
National Legal Aid and Defender Association. In comparison, Minnesota
ranks 7th nationally on the amount of legal services funding and spends
an average of $43.16 per low-income person for civil legal assistance
funding. SPAN statistics are based on LSC-funded law firms; other
nonprofit law firm resources and spending averages are not included in
these calculations. SPAN Update: A Guide to Legal Services
Planning, State Planning Assistance Network of the American Bar
Association and National Legal Aid Defender Association, January, 1999,
at 50.
14 For a discussion of the
advantages and disadvantages of such systems see, State Pro Bono
Reporting: A Guide for Bar Leaders and Others Considering Strategies for
Expanding Pro Bono (Washington, D.C.: ABA Standing Committee on Pro
Bono and Public Service, April 1999.)
15 Commission on the
Delivery of Legal Services: Final Report and Recommendations,
(Madison, Wis.: State Bar of Wisconsin, June 1996) at 39.
16 See, State Bar of
Wisconsin Government Lawyers Pro Bono Task Force Report, (Madison,
Wis.: State Bar of Wisconsin, April 1996); Hon. Judith Billings, and
Jenny M. McMahon, "Expanding Pro Bono: The Judiciary's Power to Open
Doors," Dialogue, American Bar Association, Spring 1998, Vol.
2, No. 2 at 1; Wisconsin Code of Judicial Ethics SCR 60.05(2) and its
commentary, discussing the judiciary's unique positions to contribute to
the improvement of the law and the legal system. Oxholm, Carl, "A Rule
to Show Cause on the Courts: How the Judiciary Can Help Pro Bono-Part
II," Dialogue, American Bar Association, Spring 1999, Vol. 3,
No. 2 at 3.
17 For law firm models, see
the State Bar of Wisconsin Pro Bono Handbook for Law Firms. A
copy is available from the State Bar, (800) 728-7788.
18 See, Deborah L. Rhode,
"Cultures of Commitment: Pro Bono for Lawyers and Law Students,"
Researching Law, American Bar Foundation, Vol. 10, No. 2,
Spring 1999. Marquette University Law School opted for its voluntary Pro
Bono Society, induction into which occurs upon graduation after meeting
select and strict service criteria.
19 SCR 11.06. GPLSP is
provided pursuant to a plan of an organization or attorney to provide
legal services for enrollees eligible for the plan, irrespective of
income level.
20 For over a century,
organized programs have facilitated the referral and "attorney-matching"
of poor clients. During the last 20 years, the number of programs has
burgeoned, coincident to regulatory focus of mandatory Private Attorney
Involvement expenditures by LSC-funded entities. "In 1980, the ABA
identified 80 pro bono programs. Today, there are more than 900
programs." Billings, Hon. Judith, "From the Chair...,"
Dialogue, American Bar Association, Spring 1999, Vol. 3, No. 2
at 3. The Volunteer Lawyers Projects of Wisconsin's LSC-funded programs
report 2,500 panel members. "SPAN Update: A Guide to Legal Services
Planning," State Planning Assistance Network of the ABA and National
Legal Aid Defender Association, January 1999, at 76.
21 SCR 10 Appendix, Article
IV, Standing Committee, Section 5.
22 The current State Bar
pro bono coordinator is Deborah Kilbury Tobin, (608) 250-6177.
23 SCR 13, Stats. WisTAF is
a Wisconsin nonstock, nonprofit corporation. The WisTAF board of 15
members operates without pay but with the assistance of paid staff.
24 SCR 20:1.15 requires
attorneys to maintain property for safe keeping and to outline
provisions for such safe keeping. Included in the rules is a requirement
that interest accruing on the pooled interest bearing trust account, net
of any transaction costs, shall be paid to the WisTAF, which is then
deemed to be the beneficial owner thereof.
25 WisTAF also may expend
funds to programs that benefit the public as may be specifically
approved from time to time by the supreme court for exclusively public
purposes and to pay reasonable and necessary expenses of the board and
the administration of the program, including employment of staff. SCR
13.03(2)(a) 2 and 3.
26 Pursuant to statute,
WisTAF allocates funds on two tiers: direct legal aid to the poor and
law-related public education programs. WisTAF receives a small
percentage of its funds from sources other than interest on trust
accounts. Most recently, it has received funds from the Equal Justice
Coalition.
27 Codified as section
49.1635 of the Wisconsin Statutes, the grant provides applicants with
federal Temporary Assistance to Needy Families (TANF) program matching
funds. The grant project, administered by WisTAF in conjunction with the
Wisconsin Department of Workforce Development, allocates and monitors up
to $100,000 per annum in the biennium budget.
28 The concept of
establishing the EJC was included in the project implementation goals
identified by the Delivery of Legal Services Commission convened by the
State Bar of Wisconsin in 1994.
29 Such opportunities are
highly competitive and often national in scope, for example, the Skadden
Fellowships and National Association for Public Interest Law (NAPIL)
Fellowships.
30 Wis. Stat. §
814.29.
31 State ex rel.
Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 454
N.W.2d 792 (1990).
32 SCR 20:1.8(e)(2).
33 The Legal Services
Corporation, established pursuant to Congressional Act in 1977, grants
federal funds to applicant-legal services providers pursuant to proposed
program models and in compliance with federal regulation. Legal Services
Corporation Act, Pub. L. 93-355(1977) authorizing legislation, amended
and reauthorized subsequently. LSC regulations are provided at 45 CFR
Ch. XVI, Part 1600, et. seq. Other government, private, foundation, and
fees-for-service contracts also are administered by these law firms.
However, receipt of LSC funds distinguishes these firms from entities
that do not receive LSC funds.
34 With offices in
Milwaukee, Madison, Kenosha, and Racine, LAW provides civil legal
services in Milwaukee, Racine, Kenosha, Walworth, Rock, Green, Waukesha,
Jefferson, Dane, Dodge, and Columbia counties, and administers the
LSC-migrant assistance grants statewide.
35 With offices in La
Crosse and Dodgeville, WWLS provides legal services to Lafayette, Grant,
Iowa, Sauk, Richland, Crawford, Vernon, Juneau, Monroe, La Crosse,
Jackson, Trempealeau, and Buffalo counties.
36 With offices in Green
Bay and Oshkosh, LSNEW serves clients in Sheboygan, Fond du Lac, Green
Lake, Marquette, Adams, Waushara, Winnebago, Calumet, Manitowoc,
Outagamie, Brown, Kewaunee, Ozaukee, Washington, and Door counties.
37 Wisconsin Judicare has
an office in Wausau, and serves 33 Wisconsin counties, including Pepin,
Eau Claire, Clark, Wood, Portage, Waupaca, Shawano, and Oconto and
counties north of these.
38 "SPAN Update: A Guide to
Legal Services Planning," State Planning Assistance Network of the ABA
and National Legal Aid Defender Association, January 1999, at 50.
39 45 CFR Ch. XVI, Sec.
1611.3. The maximum annual income of clients may not exceed 125 percent
of the F.P.G. A recipient who exceeds that standard but does not exceed
150 percent of F.P.G. may be provided legal assistance if one is seeking
to secure benefits provided by a governmental program for the poor. 45
CFR Ch. XVI, Sec. 1611.4. In addition, a person's circumstances may
allow eligibility if one or more of the factors set forth in section
1611.5(b)(1) are present. A person also could be considered eligible for
program services even if the person's gross income exceeds 150 percent
of the F.P.G. if the person's gross income is primarily committed to
medical or nursing home expenses. 45 CFR Ch. XVI, Sec. 1611.5(a)(1)(B).
Maximum asset ceilings, including both liquid and non-liquid assets,
minus certain exemptions, must be used in determining eligibility for
services. The ceilings may be waived in unusual, extremely meritorious
situations. 45 CFR Ch. XVI, Sec. 1611.6.
40 All client files must
include a signed form attesting to an applicant-client's U.S. alien
status. 45 CFR Ch. XVI, Sec. 1626, et. seq.
41 45 CFR Ch. XVI, Sec.
1620.1 et. seq.
42 Including discouraging
fee generating cases (45 CFR Ch. XVI, Sec. 1609), restrictions on
lobbying (45 CFR Ch. XVI, Sec. 1612), restrictions on legal assistance
with respect to criminal proceedings (45 CFR Ch. XVI, Sec. 1613), and
restrictions to collaterally attacking criminal convictions (45 CFR Ch.
XVI, Sec. 1615) and litigation on behalf of prisoners (45 CFR Ch. XVI,
Sec. 1637); eviction proceedings and class actions are restricted by 45
CFR Ch. XVI, Secs. 1633 and 1617, respectively.
43 In these counties, 1,301
attorneys are licensed "active," "nonjudicial," and have not reached
"emeritus" status. This number (from a total of 15,329 attorneys in
these categories statewide) means 8.04 percent of the bar (including
government attorneys unavailable for hire) practices in 46 percent of
the state's counties.
44 ABC for Health focuses
primarily on various aspects of health law; Centro Legal provides civil
and criminal legal services with an emphasis, but not an exclusive
requirement, on providing services to Spanish-speaking persons.
45 Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973).
46 Chiarkas v.
Skow, 160 Wis. 2d 123, 13, 65 N.W.2d 625 (1991).
47 Joni B. v.
State, 202 Wis. 2d 1, 549 N.W.2d. 411 (1996), analyzing the
application of Lassiter v. Dep't of Social Services, 452 U.S.
18, 24 (1981), and Piper v. Popp, 167 Wis. 2d 633, 650, 482
N.W.2d 353 (1992).
48 State ex. rel.
Maas, 75 Wis. 2d 542, 249 N.W.2d 799 (1977).
49 Wis. Stat. §§
51.20(3), 977.05(5)(i), 977.05(6)(i).
50 Wis. Stat. §§
48.23, 48.23, 938.23(1)(a).
51 Wis. Stats. §
48.23(2); In re Termination of Parental Rights to M.A.M., 116
Wis. 2d 432, 342 N.W.2d 410 (1984).
52 Some states have
codified appointment of counsel, for example, Ind. Code Ann. §
34-1-1-3 (court "shall assign [to an indigent] an attorney to defend or
prosecute a case"); MO. Ann. Stat. § 514.040, VA. Code Ann. §
141.183, and W. VA. Code § 59-2-1 (court may assign counsel to poor
persons). Actions involving children's interest and their contractual
limitations, and collateral attacks are examples of areas that
appointment of counsel for indigent persons in civil matters raise the
same due process and fairness issues with substantial rights at risk.
Ross, Catherine, From Vulnerability to Voice: Appointing Counsel for
Children in Civil Litigation, 64 Fordham L. Rev. 157 (1996);
Hawkins, Susan, Protecting the Rights and Interests of Competent
Minors in Litigated Medical Treatment Disputes, 64 Fordham L. Rev.
2075 (1996); Medine, David, The Constitutional Right to Expert
Assistance for Indigents in Civil Cases, 41 Hasting L.J. 281
(1990).
53 The draft compilation of
actual court-appointed attorney and guardian ad litem costs during
calendar year 1999 under Chapters 48, 55, 880, 767, and "other
appointments" totaled $10,154,540.64, with recoupment of such costs in
calendar year 1999 being $2,040,349.33. Draft report of the Director of
State Courts as required under Sec. 768.19(5)(i). See Olmstead v.
Circuit Court, 2000 WI App 261 (filed 16 Nov. 2000), for a current
interpretation of appointment authorities and GAL payment under Wis.
Stat. section 767.045(6).
Wisconsin Lawyer