Roundtable Discussion

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Civil Legal Services

Part I

Roundtable participants from left to right are: Christopher L. Ford, Centro Legal por Derechos Humanos Inc.; Jeffery L. Brown, State Bar of Wisconsin; Laura Gramling Perez, Reinhart Boerner Van Deuren SC; Gwendolyn G. Connolly, Law Office of Gwendolyn G. Connolly; Hon. Richard J. Sankovitz, Milwaukee County Circuit Court; and John F. Ebbott, Legal Action of Wisconsin Inc.

As the number of pro se litigants grows, the state Supreme Court, State Bar and legal services organizations have been looking at the challenges associated with representing the poor in civil cases. Last year, the Supreme Court established a $50 fee for lawyers licensed to practice in Wisconsin, which was created to supplement waning Interest on Lawyer Trust Account (IOLTA) contributions to the Wisconsin Trust Account Foundation (WisTAF). The court also asked the State Bar to study the issue of civil legal services to the poor and the group responded by creating the Access to Justice Committee. Other groups such as Legal Action of Wisconsin Inc. are looking at whether there is a state constitutional right to legal representation in civil matters. The Wisconsin Law Journal brought together a group of six people to discuss the need for those services and what steps are, or should be taken to provide them. What follows is the first half of their discussion.

Wisconsin Law Journal: Forty-three years ago in Gideon v. Wainright, the U.S. Supreme Court established a right to counsel in criminal cases. John Ebbott, you have raised that issue a couple times in the civil arena, and you have a case currently pending. What is happening with that?

Hon. Richard J. Sankovitz Milwaukee County Circuit Court “The Supreme Court’s Policy, Planning and Advisory Committee identifies the need to provide lawyers to unrepresented people as one of the top four priorities for the upcoming biennium; it is always in the top four.”

JOHN F. EBBOTT: The current case is Parrish v. Mendoza, and it’s pending in the Wisconsin Court of Appeals in District IV. It involves her right to custody and placement of her teenage daughter who is our client. It’s a final order now, and we had petitioned to bypass the court of appeals and go to the Supreme Court, and that was denied and sent back to the court of appeals.

We filed a motion to supplement the record with the transcript of the Piper v. Popp case, which is the Wisconsin Supreme Court case wherein a prisoner/defendant asked for counsel to be appointed to represent him in a tort action arising out of the murder of the plaintiff’s mother. That was denied. The Supreme Court seized on trial court’s comment that he couldn’t have done any better with a lawyer, and he was amazingly successful in representing himself.

So I’ve asked the court to look at the transcript in that case, because the transcript shows that he could have done much better had he had an attorney; that he did not do an amazingly good job. The jury came back with about a $400,000 verdict against him — $200,000 in punitives after being out an hour. So how that is amazing success on the part of the pro se litigant is beyond me.

At any rate, we wanted the court to look at that transcript because we’re concerned that they would look at Piper v. Popp and would say, “This decides it, and that’s all we need to look at.”

So that tolls the respondent’s brief filing time, and until they decide the motion, the respondent won’t file a brief, and then I’m trying to persuade some people to file briefs on our behalf. So that’s the status of our case.

Christopher L. Ford Director, Centro Legal por Derechos Humanos Inc “After we’ve had a really rational, thoughtful go at this, I think we can then make a strong case to the Legislature and to the public that we need extra dollars for specific reasons that make sense.”

WLJ: Let’s take a step back and touch base on what you’ve seen in terms of a need for providing civil legal services.

CHRISTOPHER L. FORD: Certainly in our case at Centro Legal, and frankly over most of my 15 or 20 years in the courts, I have seen countless people appear and have life-defining decisions made without them really even understanding how they were made, what the criteria were, or even who the people were in the courtroom.
It clearly is a necessary and useful thing in my view to have an attorney in a courtroom, particularly in a family case, and all the other areas of law too.

HON. RICHARD J. SANKOVITZ: Certainly in the courts we’re seeing an ever-increasing need for representation for people who can’t afford it. The Supreme Court’s Policy, Planning and Advisory Committee (PPAC) identifies the need to provide lawyers to unrepresented people as one of the top four priorities for the upcoming biennium; it is always in the top four. Every year that we collect the data on it, there’s always a greater need than there was the time before. It used to be that Milwaukee stood out as a place where 70 percent of litigants in family courts were without lawyers. Now you hear that data repeated in a variety of counties large and small across the state.

What we also have learned through the Access to Justice Committee work to date … confirms that more and more people are in need of lawyers.

One of the interesting things that we’re studying is the fact that people we put this unfortunate label on, “poor,” are people who are more like us than different from us.

John F. Ebbott Legal Action of Wisconsin Inc. “I don’t think the conversation ever gets started because of the cost. No one wants to talk about providing lawyers to poor people, because they think the cost is horrendous.”

They are homeowners, but they are homeowners who struggle to make the mortgage payment. When they don’t, they find themselves in court in a high-stakes piece of litigation, because what they have to lose is their house, their equity, the place for their family to live in.

LAURA GRAMLING PEREZ: I serve on the Steering Committee and also volunteer at the Marquette Volunteer Legal Clinic, which provides walk-in, very basic legal advice and direction to people.

One thing that I found very striking from the time that we started that clinic several years ago is that I see many more people come to that clinic who are working, moderate-income people who have either real significant consumer issues, very significant family law, custody, sorts of issues surrounding support, issues surrounding placement of children, and placement of grandchildren. They are people who are working who very often own their own homes and who come to the clinic both because they can’t afford an attorney and because they don’t know how to access one.

GWENDOLYN G. CONNOLLY: A good 50 percent of my practice is related to consumer law. And that really deals with commercial issues that individuals are facing, whether it’s financial issues or managing their debt issues, purchasing homes or purchasing cars.

What is striking is the lack of know-ledge that most people have about these fundamental transactions that they have undertaken. Generally through the advice of a mortgage broker or an auto sales person, who isn’t necessarily providing them with good legal counsel, it’s the consequence of the transaction they’re involved in. Then something perhaps happens to them, or the terms were not as they were represented to be, and they find themselves in a world of hurt with a variety of legal consequences happening to them. Sometimes they’re going to lose their home; sometimes they’re going to lose the mode by which they get to their job. There are a variety of things that are happening to these people, and they don’t really have control over many of those, and even understand what forces have acted, or are going to act upon them.

Laura Gramling Perez Reinhart Boerner Van Deuren SC “You really have to address the funding issue and address the coordination of services issue hand-in-hand, and make sure we’re not working in a system where different providers are competing for funds in a way that doesn’t make sense.”

For many of them, I’m not the first lawyer they’ve spoken to sometimes. Those people who have spoken to other lawyers are usually persistent. They were perhaps told by other lawyers or by their friends that they didn’t have a snowball’s chance. So there is a lack of awareness at times that there are causes of action that can help these people.

JEFFERY BROWN: At the State Bar, I’m used to being the fourth or fifth person that someone’s talked to looking for help from a lawyer. Usually it’s family law.

Usually the other side is represented, and they’re just feeling that they’re not getting a fair deal, that they’re not being paid attention to, that they’re not getting their point across and they’re getting nowhere.

John’s offices can only accept about two out of 10 cases that come through the door where the client is eligible. So a lot of these people would be eligible for free services if we had the funds, and if we had the lawyers to help them. … About half of those who call me are just looking for help with the next step. On a bad day, I probably get 10 of those calls; on a good day, five of those calls plus e-mails of people asking questions like that.

EBBOTT: One thing we have to be careful of, and that’s going to be a challenge, is to expand the universe of need without expanding the resources. In 2005, Legal Action closed 6,987 cases and declined 7,125 applicants, and those are ineligible applicants. Our income levels are 125 percent of poverty and in some cases 200 percent of poverty. So the 200 percent does capture a lot of working poor, but my concern is that we say there’s this greater need, but then we don’t get additional resources generally throughout the state to meet this need.

SANKOVITZ: You don’t have enough resources to meet the need of the people that are 125 percent and below.

Gwendolyn G. Connolly Law Office of Gwendolyn G. Connolly “I think that the bar and the bench should be of one voice that, ‘Lawyers add value, and everyone who walks into the courtroom should have a lawyer.’”

EBBOTT: Correct. The danger is that the focus on the very poor gets diluted, so even the totally inadequate extent to which we’re serving the very poor now is diminished in an effort to meet the entire universe of need. So I don’t have a solution, but I think it’s something we need to keep our eye on as we go forwar
d in this.

SANKOVITZ: I think that if we as a profession devise a solution to this problem, we confront and maybe solve the biggest issues that face the bar. The issues that we implicate when we talk about Civil Gideon, or providing lawyers by constitutional mandate to litigants, or the WisTAF fee, whether we tax lawyers to help pay for more lawyers for the indigent, or whether we go to the Legislature and propose that they do so, what we’re confronting are basically two questions. First is, does it matter if you have a lawyer? Second is, if it matters, can we possibly say there’s anybody who doesn’t deserve a lawyer?

WLJ: So what needs to go into developing a solution?

BROWN: The biggest piece is money. And probably the second biggest piece is getting the organization together and getting the bodies together to do it.

CONNOLLY: When you use the word “provide,” I think that’s a challenging verb, because provide can be read to mean via the public, i.e., it’s free or it’s a significantly reduced cost somehow, and it’s a “burden,” that is borne somewhere by the greater good or by the greater public.

I don’t see that necessarily as the best solution. It’s a component of the solution, but if it’s the only answer to the solution, then the cost will close down the conversation. So I think that “providing” has to be a really broad word, and really has to have many facets to it, so that even those who are not going to be at poverty or 125 percent of poverty are the working poor who maybe have a home and own a vehicle, but they aren’t going to be able to pay $200 or $250 an hour to a lawyer just to even sit down and talk to that lawyer, let alone litigate a case for them. There’s got to be other mechanisms in place that permit them to obtain a lawyer.

Jeff Brown Pro Bono Coordinator, State Bar of Wisconsin “A lot of these people would be eligible for free services if we had the funds, and if we had the lawyers to help them.”

FORD: I think we have to have a more complex conversation than we’ve been having so far. I think that we need to take the information from the access study which will show needs in various populations, in various areas of practice, and then I think we really have to analyze that data and go through some prioritization and say we need to put more money in this practice area, or this particular population is not being served at all, and this is being served better.

Then we have to take the next step of looking at where we’re allocating our dollars now and can they be reallocated. After we’ve had a really rational, thoughtful go at this, I think we can then make a strong case to the Legislature and to the public that we need extra dollars for specific reasons that make sense. Without that process, I don’t think we’re going to have a successful argument.

EBBOTT: I have a slight dissent. I think that we’ve been thinking about this for decades and studying it for decades. There may be some nuances of which we’re not aware, but I think we know a lot. And I don’t think the conversation ever gets started because of the cost. No one wants to talk about providing lawyers to poor people, because they think the cost is horrendous.

Now, we can spend $685,000 on a Web site for the Marquette Interchange, and we can spend $15 million a year to promote tourism in Wisconsin, which benefits one small slice of business people, but we can’t begin to talk about taxpayers providing lawyers for poor people because the cost is horrendous. Our estimates are that the cost is going to be above $40 million a year for equal justice under law.

SANKOVITZ: So $40 million covers just civil?

EBBOTT: Right. And the public defender ought to get more also. But to me the question is, when we talk about equal justice under law, are we serious, or are we just kidding around? If we’re kidding around, we ought to climb up the Supreme Court building and chip the frieze off the building.

My focus is very low income people, but the same is true for the working poor. People go into court and just get slammed all the time, because we don’t want to think about $40 or $50 million a year, and for taxpayers $40 million is $7.50. What’s that? Three cups of coffee or two beers? And if our estimates are low by 50 percent, then that’s $15 a year. …

I don’t see any way to do this except mandate it. I think the bar has done quite a bit, but it’s not the bar’s sole responsibility. It’s the whole society’s.

CONNOLLY: I agree with John on that.

SANKOVITZ: When you say $40 million, John, does that include what we already have, or is that a $40 million increase?

EBBOTT: That includes what we have.

SANKOVITZ: And so right now, the total of all the budgets or all the providers in the state is what, about $6 million?

EBBOTT: Probably around $10 million.

PEREZ: You really have to address the funding issue and address the coordination of services issue hand-in-hand, and make sure we’re not working in a system where different providers are competing for funds in a way that doesn’t make sense.

So looking at delivery and where the greatest needs are and how to address those is extremely important. Neither one can really be done first. They have to be joint efforts. One piece involves increasing funding, making the public understand why there’s a need to that. Then there’s the piece of making sure that the funds are being used to provide quality, efficient, excellent services to the people who are receivin
g them.

WLJ: Is this a discussion that needs to take place within the legal community and the courts? We’ve already said the Legislature’s not going to do it on its own.

CONNOLLY: I think that the courts, the bar and the bench need to have a better effort together. The judge talks about the idea that there is value in having a lawyer when you’re in court. And I think all of us sitting at this table might say that that’s a given. But I don’t think that it is represented to people who are of low income or who come into the courthouse without a lawyer. …

I think that the bar and the bench should be of one voice that, “Lawyers add value, and everyone who walks into the courtroom should have a lawyer.” …

The bar has a vested interest in coming to the table about that and not being falsely humble about the fact that I’m a lawyer, and I bring value by virtue of the fact that I’m here. I have a knowledge and an expertise. As a profession, we should be saying, everyone needs a lawyer. And the Court should be telling everyone that they need a lawyer. …

FORD: In answer to your original question about who should be involved in talking to the Legislature, I think it really goes beyond the bench and the bar. I think that the law schools should have a strong say in this and should take a stand. I think that there’s a large nonprofit set of institutions out there in society and government that deal with our clients and their needs on a daily basis in great numbers, and is very familiar with the value of a properly resolved dispute in a light that is complex and difficult and that society benefits from the resolution of that dispute.

EBBOTT: I’m hearing more and more of a recognition that we really need to provide attorneys. That brings us back to, how do we do that? That’s why we’ve been so involved in Civil Gideon or Civil Griffin. Maybe we will not succeed, but a constitutional right is the one way to make sure that that’s done.

Now under the law the judges in civil cases can appoint counsel for litigants where the judge believes that it serves the interest of the court. Once in a while that’s done, but everyone knows if there’s a judge that starts appointing on a routine basis, then the county treasurer comes in and says, “You’ve got to stop this because we can’t handle this; you’re driving us to bankruptcy.”

So that discretionary power of the judge is not going to do it. We need a constitutional right, where someone can come into court and say, I’d like counsel appointed for me.

WLJ: At the federal level has the U.S. Supreme Court addressed this in Lassiter v. Department of Social Services?

EBBOTT: Yes. That case was under the due process clause, whereas Griffin is equal protection clause. That’s the first civil case where the Court held out the possibility that maybe under certain circumstances, lawyers could be appointed in civil cases, but it set up this unbelievably bizarre double-balancing test, where you have the due process Matthews v. Eldredge balance, and then however you come out of that, then you have to balance that against your presumption against counsel.

How judges are going to do that, let alone lay litigants, is beyond me. So we are not looking to Lassiter because it’s a bad decision, it’s due process. Also, the current Supreme Court of the United States is probably not going to be enthusiastic or behind us.

BROWN: There’s a practical element to what Gwen raised about just how do we provide services? We have 13,000 active members in the state, probably a small fraction of whom are trained, qualified, capable, even remotely interested in helping with a lot of these poverty level legal issues.

Assuming we had the money, based on our poverty population, we may have 40,000 to 60,000 very low income people out there with legal needs every year. How do we serve them with that few lawyers? Do we need some way to efficiently sift through the issues to make sure people get directed to the right person?

SANKOVITZ: I think Jeff’s observation is one that simply can’t be avoided. We could throw $40 million at this problem and still not find enough lawyers, unless we could make it worth their while to do all of these kinds of situations, but people aren’t interested in doing it. Maybe we can find a group of people who are well qualified, well trained, willing to work for the money that would be available to pay for that, who would provide the assistance we need, and yet those people wouldn’t be qualified to take on a securities transaction or try a jury trial.

CONNOLLY: Wasn’t there a study that came out last year … It was from Harvard and they looked at legal needs. It involved sort of a private sector approach, a market approach, in understanding that the fuller solution to this was not merely a public funding of a cadre of lawyers who could provide services to the poor or near poor, but rather that there would be a meaningful financial pursuit for a lawyer who wants to provide assistance for these types of causes of action for these types of people.

Consumer law would be the current example. You can pursue this area of law, and you can get paid doing it, even though your clients could never afford you. But to understand that those types of market forces will enable us to have lawyers take on those kinds of cases on those kinds of clients.

SANKOVITZ: Bellow-Sacks is the foundation, and Richard Zorza (conducted the study). … Zorza says you can’t look at it through just one prism. He says that the market approach is just one of a number of approaches, because that worked great for consumer law. … But for benefits law, there’s nothing. … Nobody’s going to pay to take a benefits case.

CONNOLLY: Or a family case — family law would be a challenge.

FORD: Family law is a challenge. I think there are different approaches for different areas of law. For instance, benefits law, why would anybody ever do anything except identify clients who were needy and give them the services so they can get the benefits. And those services should absolutely be free.

On the other hand, there are areas of law, such as family law, which we do at Centro Legal where there is a way to have the clients contribute part of the cost of doing the case. There are areas of law where you can do fee shifting like the consumer law that you’re talking about. I think that a complex look at all of these things would first benefit the overall effort, and frankly make us, as a consortium of people who are interested in this issue, more convincing to society at large and to the Legislature.

And I think frankly we have to include in this analysis amongst ourselves and then the society at large, some sort of cost benefit analysis as well. We can’t always think about forcing the issue or imposing on society the choice that we as a profession make. We have to engage in a conversation with society on these issues.

PEREZ: I think that that’s an important thing to remember, because I think we all in this room certainly understand the stakes for peoples’ lives that these family law and consumer law and other issues have. I think that quite a lot of society and frankly, quite a lot of the bar doesn’t have an understanding of that.
I think that there’s a great deal that those of us who are involved in providing these types of services can do, both to educate the bar and educate society at large about what the costs are, what the impacts are. There needs to be sort of that public education side of this I think in conjunction with the sort of litigation advocacy side of it. …

FORD: If you look at the social benefit, then the next thing we have to look at is the cost of the service against that benefit. … I’m not sure there’s enough information even developed amongst ourselves. When I try to find information on the cost of a case, I have to go by anecdotal information about what the cost of a divorce case is in Milwaukee. I can’t find some overall reasonable estimate of what an average divorce case of a particular type is.

I think further effort on our part would make us more informed, and we being more informed will be more convincing to the people who make the decisions.

EBBOTT: I still need to know what the outcome of all of this is in terms of the cost benefit analysis. What’s the benefit of all of this education compared to the cost that those of us who are active are going to have to put into it.

What Laura says, I can see that having beneficial effect if there’s a right to counsel. The State is not going to pay lawyers to take a case at $200 an hour. If we get $125 an hour, we’re lucky. If we get $75, that’s probably good.

The benefit of the education I can see is to persuade attorneys that they ought to be taking these cases for $75 an hour, which is a lot easier to sell than you ought to take it for free. We have this core of volunteer attorneys, some of them take ten cases a year. … And the rest of the members of the bar don’t do that. I can see a concrete outcome in terms of developing many more lawyers in the bar being willing to take cases.

And if we did win Civil Gideon or if we had something similar, it wouldn’t all go to Legal Action or Centro Legal or Legal Aid Society. I think that there would be court appointments of private attorneys, certain places we might put together a contract bid and compete for a group of appointments under a contract, but it wouldn’t all go to us.

Where I have trouble in the cost benefit analysis and putting a lot of time into that, I just don’t see going to a majority of the Legislature and saying, “We’ve done this cost benefit analysis, or here are 40 compelling cases that show why you ought to put $40 million of state money a year into this function.” Politically, I don’t see where that gets us other than mobilizing more people in the bar to take cases.

Tony Anderson can be reached by email.