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Roundtable Discussion

By: dmc-admin//July 5, 2006//

Roundtable Discussion

By: dmc-admin//July 5, 2006//

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Civil Legal Services

Part II

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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.

Wisconsin Law Journal Editor Tony Anderson sat down with a group of six people to discuss the need for civil legal services for the poor. The panel included the judge leading the State Bar’s Access to Justice Committee, several legal service providers, attorneys engaged in pro bono and a member of the State Bar Board of Governors. Throughout the first part of that roundtable discussion, it was noted that an estimated 40,000 to 60,000 low income people have unmet legal needs each year. The estimated cost to provide legal services to low income civil litigants would be $40 million.

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. Panelists discussed those issues during the second half of that roundtable discussion.

WISCONSIN LAW JOURNAL: When the Supreme Court was looking at the WisTAF issue and implementing a $50 fee for attorneys, one of the things justices expressed was the desire to show that the legal community was taking steps to address legal services. How has that played out during the past year?

CHRISTOPHER L. FORD: It certainly is known by probably everybody who will be reading this, that it’s been controversial over the last year.

HON. RICHARD J. SANKOVITZ: My reaction in talking to people about this is that in one fell swoop, we’ve come up with something that’s too little and too much. It’s too little in the sense that it’s only…

JOHN F. EBBOTT: $760,000.

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.”

SANKOVITZ: Okay, $760,000, which compared to $40 million is too little. It’s not even what WisTAF was in need of before we came up with that fee. And it’s been too little because this concept that was just suggested hasn’t really played out. We haven’t done anything with it. We haven’t, as a profession, gone to the rest of the community and said, “Okay, we stepped up. We put $760,000 on the table. Now it’s your turn.” We haven’t done anything with it because we’re too busy fighting about whether it’s the right step to take.

On the other hand, it’s been too much. … If we have had such a conflagration over $50, thank goodness we haven’t gone to the rest of the community to talk about what we’ve done, because they’d look back at us and laugh. You lawyers are fighting over $50?

In the sense of having accomplished what we accomplished, we may have foreclosed future opportunities to do more because of the way it was done.

GWENDOLYN G. CONNOLLY: I have some pretty strong opinions about the whole WisTAF tax. But notwithstanding that, I think the impact of it has poisoned many discussions for the bar.

Last month multi-jurisdictional practice failed, and in part it failed because there were people who were looking at that question because of the WisTAF tax. Will these lawyers from out of state have to pay the WisTAF tax? It has engendered bitterness on a variety of topics: legal services for the poor, unauthorized practice of law. …

Insofar as advancing the ball on these types of issues, what has the bar done? … I would suggest that it has become divisive between bench and bar as it focuses on this WisTAF tax in particular.

I don’t think that ultimately, whatever the financial gain was and whatever the financial gain could be in the future if the tax goes up, it ultimately will have been worth whatever has been sacrificed. …

I don’t know that that’s going to be something you can take to the public and say, “Lawyers are really stepping up to the plate here.”

But then the question has to be turned around as why has this question been presented that only lawyers are doing this. This is a tax imposed only on lawyers. It wasn’t even imposed on the bench.

SANKOVITZ: Although some of us did voluntarily pay.

CONNOLLY: That’s fine, but I found it an interesting irony. …

SANKOVITZ: I think it’s fair for us to pay because we have a professional duty. We proclaim our monopoly over the right to provide legal services. One way to justify the monopoly is by saying we see to justice for all people. No other profession can make that claim. …

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.”

CONNOLLY: The premise of what you said, judge, is that we do have that niche. We hold that corner. Some would say the accountants actually have a fair portion of that corner and nobody’s doing anything about it. I could surrender my license and do exactly what I do, if I was a transactional lawyer and had my CPA. Then I wouldn’t have to worry about a whole host of things, including the ethics rules. I think those (perceptions) come into this conversation.

SANKOVITZ: That’s the point I made before. We think about ourselves sometimes as dealing with the marginalized of society, and sometimes we feel like we’re marginalized. …

It doesn’t feel like anybody’s listening, and yet we come up with an answer for this question — not to say I know what the answer is — but we come up with a principled answer, and that answer is also going to apply to multi-jurisdictional practice and unauthorized practice of law and unbundling, and ultimately to the real question that I think should haunt lawyers, which is, will we remain relevant to the profession?

FORD: I think that’s true. Getting back to your original question about WisTAF and the $50 surcharge, I have come to believe … that in fact the WisTAF effort was at least as much an effort to raise the conversation level about the issue of low income legal services as the attempt to fund it.

I think it’s up to us to make the effort to continue the conversation as it evolves. …

EBBOTT: But what’s the outcome of all of that effort? If your focus is on the profession, I suppose it’s one thing. And I don’t think the $50 was an effective way to raise the issue. I think the Equal Justice Fund’s (EJF) work is a much more effective way to raise the issue within the bar and among attorneys. …

To me the $50 was a way to get really vitally needed money for us. For us, that fund, in part, supports 11 attorneys and three paralegals and can serve a lot of people.

I think it’s an unfortunate backlash, but we weren’t getting a lot of voluntary contributions from the bar before the WisTAF assessment, and we weren’t getting a lot of voluntary hour contribution from the bar before the WisTAF assessment. …

The comments I hear around are, “Why are these people so upset about $50?” I know there’s an argument about wanting the right to pick our charities. My answer to that is — this is equal justice under law. This isn’t a choice between legal services to the poor and the Florentine Opera. This is totally different. This isn’t just a choice of charities.

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.”

JEFFERY L. BROWN: I was just looking this up, Lawyers in Wisconsin devoted roughly 40,000 hours of free legal services to low income people in 2005. That’s what we were able to find from the survey of our members. That’s a great number, but it could be much higher. …

It’s a large contribution to bring to the table — here’s what lawyers are doing, we’re not only paying the $50, we’re making voluntary contributions to EJF, we’re making voluntary contributions to Community Shares, the United Way to fund legal services, but we’re also spending something like 40 to 50 hours per lawyer per year representing poor people for nothing or a reduced fee. That’s a pretty big thing to bring to the table with someone who you’re trying to convince that they should kick in as well.

CONNOLLY: I think the State Bar did a study that … investigates sort of what the practice of law looks like. If you read that study, you realize that the average lawyer who works a lot of hours isn’t necessarily swimming in money, has a tremendous amount of overhead. …

The viewpoint that I think the greater culture likes to adopt is that lawyers are all working in “LA Law” or “The Practice” — that that’s the environment that lawyers are in or they’re all in silk stocking firms. That just contributes to this perception that lawyers are filthy rich and have lots of free time for their pursuits and all drive Porsches before they come to a meeting.

That’s not an accurate representation of the average lawyer in the state of Wisconsin. So for the adage that to whom much is given, much is expected or required, I would want to take a step back from that and say lawyers are doing a heck of a lot in their practices in this day and age.

Yes, there are these countervailing issues out there, and there are other needs that have to be addressed, and we are optimally placed to help address those issues. But it’s important to understand what it means for the average lawyer when they walk into the office every day.

EBBOTT: I don’t think lawyers are the proper focus. I think the (focus should be) society at large. What do doctors do? They don’t have any pro bono ethical obligation. How many pro bono hours do doctors provide? Lawyers do a lot more than doctors as a profession.

I still don’t get the outrage over $50, but I don’t
think that people like me ought to go after the bar. I’ve always said, it’s not just the responsibility of the bar. Lawyers have to do something, but it’s really the larger society; John Skilton said that about eight years ago. The chief justice has said that when she testified when we had an appropriation sitting before the Legislature. She said that it’s a societal responsibility.

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.”

I’d rather focus on attorneys going to their legislator and saying you need to support this. …

I can see the education of the bar in terms of mobilizing political support with legislators, but I can’t see a major focus on the bar to satisfy these needs.

WLJ: One of the things that came out of the discussion last year was the creation of the Access to Justice Committee. Let’s take a minute and look at how that fits into this discussion and where the committee is at this point.

SANKOVITZ: The interesting thing we have heard that makes us look forward to the end of the year when we produce our report, is that both sides on the WisTAF fee debate want our report. A lot of people already expect that this report will say things about the state of poverty that will be useful in arguments that have existed before our study came into existence.

We don’t know what our report is going to conclude, because we’re trying to be as open-minded as we can about the subject that we’ve been given to study. We’re not in a position to predict exactly how it’s going to turn out. Nevertheless, we know there are certain baseline expectations we can have. And I think the baseline … is that there are a lot of people in the state who need a lawyer and can’t get one because they can’t afford one.

So what we see the study doing is not simply confirming that baseline notion, but also fleshing it out. It’s one thing to say there are people who can’t afford a lawyer.

It’s another thing to say the people who can’t afford a lawyer have a particular need for a lawyer in, let’s say housing, as opposed to benefits, as opposed to criminal defense, as opposed to another field. So we need to know better what the picture is for where the needs are the greatest or the most unfulfilled.

Even after that’s done, that’s a very small piece of the overall strategy that this study fills. The larger strategy is to do something with it.

I think this gets us back to the point that John was making before. John, because of all of his efforts over the year, really thinks that this Hail Mary pass in the court of appeals on Civil Gideon is the only way that we have to go. … I can’t comment on whether it should prevail or not. I’m presented on a daily basis with having a Civil Gideon case of my own where I have to make a decision.

What I mean by characterizing it that way is — it’s one shot. You win, you’ve got a precedent, and we go from there. You lose, we’ve got a precedent and we go nowhere from there, at least in terms of mandating a change.

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.’”

The alternative is a legislative change. Before the study was convened, there was already a blueprint in place in Washington, in Illinois, in Minnesota, for organizing the campaign to get the Legislature to do the right thing about civil legal services. In each of those jurisdictions, the study was one tool that was used to get people to change their mind, with varying levels of success not only for the present but for the future.

But our hope would be that this study will then get the Legislature to say, “Not only we should do this because it’s the right thing to do, but we should do this because it’s a fiscally responsible thing to do.”

EBBOTT: Let me just point out that if we lose the Civil Gideon right … I think we’re only back where we are now. I can see some legislators saying, “Why should I appropriate money, because the Court said there’s no right to counsel?”, but that’s where we are now. … When we use the appeal, the lower courts are saying there’s no right to counsel in civil cases. So we’re going to be exactly where we are now if we lose that. But I agree that we can use the study that way.

SANKOVITZ: I don’t mean to say that it was a bad idea to take it on. I think that ultimately somebody has to do something. All I’m saying is, let’s not give up hope on the Legislature. … We make no bones about the fact that this study’s not going to do it by itself. The study’s going to have to persuade the opinion maker.

BROWN: It’s maybe the first or second step towards the larger goal of getting a greater consensus amongst all the decision makers who have the power to make a difference with funding.

FORD: I think that it’s a necessary effort that has to be made alongside the Civil Gideon effort; in fact, it’s irresponsible not to, if we care about providing legal services to people who don’t h
ave access. We have to try everything we can, and I think that the legal needs study and probably the additional conversation and efforts and lobbying efforts that will have to accompany that after the fact can only help and will not be wasted, even though that may be a Hail Mary in and of itself.

BROWN: We have the distinction right now of being one of only six states that provide absolutely no state funding of any kind or support for civil legal services to the poor. So we’re not in very good company anymore. So hopefully that has some persuasive value with those who still believe that this is a state that stands out in front rather than trailing behind.

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.”

WLJ: I want to get any final thoughts before we conclude.

CONNOLLY: Insofar as the clients that I see, I certainly see that there is an issue. … A very elderly couple came into my office who had been treated embarrassingly bad in a financial transaction. Their matter was reviewed by several lawyers who had all told them they had a great case, but it would cost too much to litigate the case, so they wouldn’t be able to help them.

Looking at this, I realized they had a great case in conventional torts and all those kind of things, contract issues, but they also had consumer claims. … There are causes of action that will help this couple.

It’s those types of consumers that I see who are injured and harmed and don’t even know the injury and harm sometimes until after someone sits down and looks at it. … That not enough lawyers know how to help them is part of the problem too.

Insofar as the larger question of how the bench and bar interact in this and move forward on this question, having been involved in activities with the State Bar of Wisconsin, I have certain sensitivity perhaps or reaction to what is understood about lawyers and what is expected of lawyers. Despite the negative rap that they sometimes receive in our society, they do have the keys to the courthouse, and they do have an obligation. But there has to be an understanding of what, on a day-to-day basis, the average lawyer deals with in their practice and what they’re capable of achieving.

EBBOTT: My last thought is my first thought — this is a fundamental basis of our democracy and it’s equal justice under law. It’s not something that just has to do with the profession or with the justice system. It has to do with our entire society and our entire country and our entire governmental structure. The republic is founded on the principle that it doesn’t matter what your station in life is, if you want justice, you’ll get justice, no matter how poor or how wealthy you are.

The case we’re relying on, Griffin, says, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” …

A lack of public funding is no argument at all. If we’re serious at all about equal justice under law, we have to provide the resources that anybody who needs a lawyer gets a lawyer no matter what their station in life.

BROWN: I’m optimistic that one of these Hail Mary passes will make it into the end zone. It’s fascinating for me that I recently stumbled across the minutes of the proceedings of the 1916 State Bar Convention where they were talking about this very issue. And extolling the virtues of lawyers who did legal aid work — at that time it was just the Legal Aid Society of Milwaukee — and how to expand that model or that level of service beyond Milwaukee to the rest of the state so that equal justice would mean something in the Hinterlands of early 20th century Wisconsin.

So shame on us if we can’t get our act together, with this much expertise to prove our worth as advocates to make one of these succeed.

FORD: All of us here at this table, and all of us at the bar come from our own experience as lawyers over a period of time. I have been a small practitioner for about four years, and then I spent about 15 years in the under-funded criminal justice system. …

Those of us who were in it have basically had to work very hard to try to squeeze a modicum of justice out of insufficient resources. We’ve had to find the middle line that was most palatable to us in very, very difficult circumstances.

I think that it will take all of us, those of us who have been working on the private side in small practices and large, people who have been dedicating their lives to the principle, the admirable and necessary principle of providing access to low income legal service providers.

Then we also have to try to find the middle ground that will really get the job done as best as possible. I think we can do that, and I think we have to use every effort we can, including Civil Gideon, the efforts of Equal Justice and all the different kinds of organizations, including particularly Centro Legal, which is pursuing a middle-ground approach of asking for some funding in a particular practice area from low income clients to help somehow provide more funds to meet an overwhelming pressing need.

SANKOVITZ: I think there are a lot of different potential solutions out there. And the problem is multifaceted. But one thing that I see in every realm that I look at when I study this problem, and when I look to some kind of future is the fact that there are honorable people who are worthy of the solution.

In my particular profession a lot more people do the work I do for the honor than they do for the money. And I know that’s also true in the realms that John works in.

But as I look at people who make a lot of money in this profession and people who make a little money
in this profession, one thing that appeals to all of them is doing the thing right.

The other thing I see as I look at all of these potential solutions and all the facets of the problems is, there is a good store of common sense if it can be brought to bear on the problem. And I think that that common sense exists in the Legislature. So I think when we try to answer the questions that Civil Gideon raises and unbundling raises and unauthorized practice of law raises and the need to represent the indigent raises, sooner or later, there’s going to be a group of honorable people who want the right thing done. And they’re going to appeal to the common sense of the Legislature, and I think that we’ll resolve this problem.

LAURA GRAMLING PEREZ: I think it’s very important for people in the legal community who are interested in this to be both nearsighted and farsighted and a little schizophrenic, which lawyers may be particularly suited to be. … We’ve talked about a lot of different efforts here, and sometimes those efforts appear to be at odds.

For example, efforts towards unbundling or providing very basic legal information without actual representation are extremely extraordinarily imperfect solutions to the problem we’re faced with now, and cannot in any way be viewed as solutions. Nevertheless, there are things that we can do now, while we continue to address the bigger questions and seek more perfect and better solutions.

We seek to do what we can for people who very badly need help now, with the very limited resources we have now, because we owe that to people and people need that. People can’t wait until there’s a time when the Legislature comes to its senses and starts to fund legal services at a higher level. We can’t become comfortable with the stopgap measures that we’ve learned to take, yet we need to continue using them, and we need to always keep using them as a way to keep pushing to do a little bit more all the time.

Click here for Part I.

Tony Anderson can be reached by email.

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