Recommendation 2: Legal Services Lawyers

Recommendation 2. Increase the number of legal services lawyers who focus on the needs of low-income Americans.

Lawyers are critical to the proper functioning of the law and must continue to play a vital role, even an expanded role, in providing access to civil justice.

The most important and effective lawyers engaging in this effort are full-time legal services lawyers. They identify the people who are most in need of legal services, provide those services full time, and train and mentor pro bono volunteers to amplify their efforts. Recruiting more legal aid lawyers will be an essential part of the effort to close the civil justice gap in the United States, as Helen Hershkoff and Stephen Loffredo argue in Getting By: Economic Rights and Legal Protections for People with Low Income.29

For almost 50 years, the federal government has recognized the importance of legal aid lawyers to a functioning civil society. The first sustained investments in the field were made during the 1960s, when Lyndon Johnson’s War on Poverty produced the Office of Economic Opportunity and its legal services program.30 In 1974, Congress established the Legal Services Corporation (LSC) as an independent, nonprofit organization with a bipartisan board of directors, funded largely by the federal government and authorized to award grants to organizations providing legal aid to poor and low-income individuals and families.

Although LSC remains the largest funder of civil legal aid in the country, federal support of legal services has diminished. In 1980, LSC’s 325 grantees had 6,200 full- and part-time lawyers, or about one for every 36,500 people.31 In 2018, LSC had 132 grantees with 5,345 full- and part-time lawyers, or about one for every 61,200 people.32 To restore the earlier ratio, the United States would need about 9,000 legal services lawyers, representing a 50 percent increase from the number who served in 2018. That is not necessarily the right measure for how many legal aid lawyers the country needs, but it is an indication of how stretched and overworked the field has become.

To increase the number of lawyers providing civil legal services, the nation needs to invest more money in legal services organizations. Today, the federal contribution is less than half what it was during the War on Poverty. LSC’s fiscal year (FY) 2020 budget is $440 million, less than half of the organization’s inflation-adjusted FY1980 budget. Factoring in population growth—from 226.5 million in 1980 to 331 million today—the federal money spent today per person on LSC is less than one-third what it was 40 years ago.

LSC grantees, measured by staff size and overall funding, likely represent 60–65 percent of the market. The remaining 35–40 percent includes some of the biggest legal-aid programs in the country: for example, Greater Boston Legal Services, the Legal Aid Society of New York, Community Legal Services in Philadelphia, and the Legal Aid Society of Washington, D.C. Aggregate funds to all of these entities—from federal and state governments, philanthropies, and other sources—were modestly higher before the pandemic than they were 40 years ago. Still, in 2017, total funding for civil legal aid (including LSC’s budget of $385 million) was estimated at $1.58 billion—about 0.5 percent of the total that federal, state, and local governments spent on criminal justice.33 This public and private investment is woefully inadequate to the challenges ahead.

Worse, as a result of the pandemic, funding from state governments, philanthropies, and other sources is likely to shrink. One example is the threat to the trust accounts lawyers hold for clients, known by the acronym IOLTA (Interest on Lawyers Trust Accounts). In each state, the District of Columbia, and the Virgin Islands, the interest on IOLTA accounts is pooled to provide funding for civil legal-aid organizations.34 When interest rates plunge—as during the Federal Reserve’s response to COVID-19—this significant source of funding for legal services shrinks or dries up. The federal government is unlikely to fill the gap. In 2020, Congress gave LSC an additional $50 million as part of pandemic stimulus funding, and as of June 1, 2020, the House had proposed a second $50 million tranche of emergency funding. But even $100 million would cover only about one-third of the predicted funding losses due to the pandemic.35

At a time when low-income Americans will need even more legal assistance than before—to help address the wave of evictions, domestic issues, healthcare disputes, and other COVID-related problems—the necessary investment in legal aid lawyers appears to be shrinking. This trend cannot continue. Funders who have a long history of supporting legal aid, and those who are new to the field, need to step forward now to sustain and expand the pool of experts in civil legal justice and to encourage and empower more lawyers to focus on the problems of the needy.

Endnotes

• 29Helen Hershkoff and Stephen Loffredo, Getting By: Economic Rights and Legal Protections for People with Low Income (Oxford: Oxford University Press, 2019), xli.
• 30Johnson, To Establish Justice for All, vol. 2.
• 31Ibid., 502.
• 32L. Lim, J. Layton, S. Abdelhadi, D. Bernstein, and R. Ahmed, By the Numbers: The Data Underlying Legal Aid Programs (2018) (Washington, D.C.: Legal Services Corporation, 2018).
• 33Libby Perl, Legal Services Corporation: Background and Funding, RL34016 (Washington, D.C.: Congressional Research Service, 2016); Alan W. Houseman, Civil Legal Aid in the United States: An Update for 2017 (International Legal Aid Group, 2017); and Sandefur and Smyth, Access across America, 17.
• 34“What Is IOLTA,” IOLTA.org.
• 35In 2018, the last year for which national data are available, state funding for legal services from interest on lawyers’ trust accounts, state court filing fees, and legislative appropriations was about $370 million. Groups that rely on these monies expect to lose as much as 75 percent of that annual funding.