Plan for Delivery of Civil Legal Services to Low Income People in Washington State

EQUAL JUSTICE FOR ALL
ACCESS TO JUSTICE BOARD
2001 Sixth Avenue. Suite 500 ~ Seattle. WA 98121-2599
Phone: (206) 727-8282 Fax: (206) 727-8320

(Revised 11/95)

Hon. Susan R. Agid
Marlin J. Appelwick
Paul A. Bastine
Kenneth H. Davidson
Nancy L. Isserlis
Isabel R. Safora
Phyllis Selinker
Paul L. Stritmatter, Chair
Mary Alice Theiler
Joan Fairbanks, Coordinator

The Access to Justice Board has adopted a philosophy regarding the delivery of civil legal services to low income people. Embodied in a document which sets forth the goals of the optimal equal justice system entitled "Visioning Justice: Hallmarks of an Effective Statewide Civil Legal Services Delivery System," (Hallmarks), this philosophy is based on notions of fundamental fairness and the rule of law (summary of Hallmarks attached). It declares that the mission of Washington State's civil legal services delivery system is to:

* Protect the individual rights of low income clients;

* Oppose laws, regulations, policies and practices that operate unfairly against low income individuals and groups;

* Develop and implement laws,regulations, policies and practices that directly affect the quality of life of low income individuals and groups;

* Employ a broad range of legal advocacy approaches to expand the legal rights of low income individuals and groups where to do so is consistent with considerations of fundamental fairness and dignity; and

* Assist low income individuals and groups in understanding and effectively asserting their legal rights and interests within the civil justice system, with or without the assistance of legal counsel.

The Access to Justice Board (ATJ Board) believes that this mission can be most effectively fulfilled through a unified statewide service delivery system. However, the current delivery system can no longer be maintained due to Legal Services Corporation (LSC) efforts to extend all LSC funding conditions and restrictions to private and other public funds received by LSCfunded legal services providers. Under all legislative scenarios, these restrictions will attach to all funds -- IOLTA, state, local, public and private -- received by LSC grantees effective January 1, 1996.

These LSC restrictions will limit the nature, substance and scope of client representation, as well as who can receive legal services, in ways that are fundamentally inconsistent with the values and core capacities identified in the Hallmarks. Attachment A. They will interfere with professional decision making at many levels, undermine the ability of legal services attorneys to effectively represent their clients, and deny to legal services clients attorneys who can provide a full range of legal representation in the forums most appropriate to the clients' cases. Substantial relevant client representation will continue to be allowed under new LSC guidelines, and LSC funds should continue to be part of the overall effort to fund equal justice activities in our state. But, application of these LSC restrictions to all funds renders the current LSC-funded programs incapable of providing a full range of client services consistent with the articulated mission; and this is the impetus to reconfigure the current delivery system.

The Access to Justice Board determines it necessary and appropriate to recommend a restructuring of the civil legal services delivery system to strategically use non-LSC funds to complement client representational activities underwritten with LSC funds. The goal is to ensure continuing capacity of the system as a whole (i.e., staffed programs, volunteer attorney programs, law school clinics, other direct service providers, etc.) to provide a full range of legal services to the broadest spectrum of clients in need, consistent with the Hallmarks.

The ATJ Board recommends the creation of two separate but complementary statewide legal services programs operating in service of the common mission outlined in the Hallmarks. One program, as yet unidentified, will be the recipient of LSC funds; the other -- the statewide successor to the three existing legal services programs -- will provide legal services using nonLSC funds. Each program will utilize in-house staff and private attorneys to ensure continuity in the availability of a full range of civil legal services to low income clients throughout the state of Washington within the scope of, and limitations on, their respective resources.

The ATJ Board recommends that LSC award 1996 funds to a single statewide grantee. This grantee will use 1996 LSC funds to establish and maintain a statewide staffed service delivery presence and to assume primary responsibility for providing financial, staff and technical support to the state's local volunteer attorney programs. This grantee must meet numerous requirements as described in Attachment B, The Legal Services Corporation Request for Proposals, 1996, pp. 18 - 21. In addition, this program will serve as the primary client entry point into the legal services delivery system, employing existing and emerging technologies to expand and integrate client intake, screening and referral capacities to serve all primary service delivery components of the system.

In the period between now and January 1, 1996, the three existing legal services programs should assist in the development and initial staffing of this program, and timely transfer of pending client cases that can be handled consistent with LSC funding restrictions and ethical considerations.

As the establishment of this new statewide provider moves forward, the access to justice community should understand that this is a period of transition. Not all necessary tasks can be accomplished at once, and major tasks must be split into viable and manageable steps. The ATJ Board encourages the community to continue to assess what further organizational restructuring might be appropriate as we go through this transition.

The Access to Justice Board recommends that the boards of directors of Evergreen Legal Services, Puget Sound Legal Assistance Foundation, and Spokane Legal Services Center take action to restructure these three programs into a single statewide legal services program. (This program can be named as the boards desire, but will be referred to in this document as "Columbia Legal Services".) Columbia Legal Services should receive local and state funds, including IOLTA funds, and is charged with maintaining those activities not able to be carried forward by the LSCfunded legal services provider, including, but not limited to, providing relevant client services to distinct and disproportionately disadvantaged statewide client populations (e.g., migrant agricultural workers, Native Americans, senior citizens, residents of juvenile, correctional and long term care facilities, etc.); accepting referrals of cases from the LSC-funded provider or other LSC-funded service providers, where the nature of the advocacy required (i.e., class actions, legislative or administrative advocacy, challenges to constitutionality of statutes, welfare reform cases, etc.) falls outside of the range of activities allowed under LSC restrictions; developing and making available to the legal services and volunteer attorney legal services providers supplemental private bar capacity to handle cases that, because of LSC restrictions, the LSC-funded provider or private attorneys working in association with that program cannot handle; and providing statewide support, litigation assistance, technical assistance, and training to all components of the statewide civil legal services delivery system -- both restricted and unrestricted.

Volunteer Attorney Legal Services (VALS) programs are partners with direct service programs in providing access to justice for low income people throughout Washington. These programs, along with the statewide LSC-funded provider and Columbia Legal Services and the larger equal justice community, face several key tasks to preserve and expand this partnership. They must ensure sufficient funding for future operation, maintain effective lines of communication with local bar members and other local stakeholders during this time of major change, develop viable mechanisms that provide support as requested by VALS programs, help VALS Programs to develop mechanisms to maximize their efficiency and effectiveness, and assess other possible service delivery mechanisms, e.g., regional intake, screening, and referral. Because VALS programs are smaller entities and face survival problems if funding levels sink too low, development of an adequate funding base is essential. The ATJ Board recommends that funders do everything possible consistent with the availability of resources to assure continued funding for VALS programs, and that VALS programs be given assurance by funders that grant levels will be maintained at, or near, 1995 IOLTA/LSC grant levels, at least through 1996 to ensure continued operation of VALS programs, regardless of the actual funding source.

The ATJ Board recognizes that some current private bar volunteer attorney program activities will not be able to be carried out with LSC funds. These activities should be identified and segregated from the LSC-funded volunteer attorney program(s), and transferred to a non-LSC funded entity in a manner that preserves the capacity of the private bar program(s) to maintain core services and, where appropriate, independent local participation.

The ATJ Board believes that the current transition period also presents opportunities and imperatives for the state's three law schools and their respective clinical legal programs. As providers of additional needed client services, the law school clinical programs should be integrated into the overall service delivery system. The dialogue among the legal services and voluntary legal services providers and the law school clinical programs should continue, but refocus on opportunities to integrate the pedagogic needs of law students and high priority unmet legal needs of our state's low income residents.

The Hallmarks adopted by the ATJ Board apply to all providers. Client representation provided by all components of the legal services delivery system (e.g., staffed full-service legal services programs, other direct service providers, VALS programs, law school clinics) should strive to meet the Rules of Professional Conduct, and other applicable professional standards including, but not limited to, the ABA Standards for the Delivery of Civil Legal Services to the Poor (1986), and the emerging ABA Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means.

The impending changes in LSC funding amounts and the nature and scope of LSC restrictions, and the ATJ Board's decision to recommend the establishment of two statewide legal services providers, will have logical implications for other entities which provide funding and support for civil legal services in Washington State. The ATJ Board is sensitive to independent decision making prerogatives of these other funding entities, such as the Legal Foundation of Washington, regional Area Agencies on Aging, local United Ways, LAW Fund, etc. Nevertheless, the Board believes it appropriate to make recommendations to these entities as part of its overall recommendations relating to the reconfiguration of our states civil legal services delivery system.

Because the state filing fee funds are a resource that at this time allow flexible representation and do not affect the integrity of the unrestricted funds, the ATJ Board recommends that legislatively appropriated state funding be directed to Columbia Legal Services. The ATJ Board further recommends that restrictive legislative language that undermines the Hallmarks be eliminated and that the statutory commitment of these funds for specific categories of cases be removed. Columbia Legal Services should be able to provide services consistent with the needs of clients, rather than on the basis of legislatively preordained substantive case priorities.

The ATJ Board recommends that IOLTA funding in 1996 be directed to support direct client representation and advocacy by providers such as Columbia Legal Services which offer full service access to the justice system and such other client service providers with a practical need to maintain a separate identity. A similar recommendation is made with respect to other renewable non-LSC funds (e.g., Community Development Block Grants, United Way, LAW Fund, Older Americans Act, etc.). currently received by the three existing legal services programs.

In light of the LSC retreat from historic equal justice funding commitments, the Access to Justice Board acknowledges the critical need to develop new and expanded financial resources to support equal justice activities now and into the future. In this area, the ATJ Board recommends that the new LPO rule be aggressively implemented, and that all entities presently working to expand funding for civil legal services in our state (i.e., LAW Fund, local bar associations and bar foundations, the Legal Foundation of Washington, the Equal Justice Coalition, etc.), work cooperatively to expand the resource base to the benefit of the entire service delivery network.

This is a time for large reductions in staffing of LSC-funded programs. This is also a time of change for other providers in the access to justice community. As a result, it is difficult to make specific commitments beyond 1996 to the continuation of all of the activities discussed in this report. Clarity about the extended future of the delivery of civil legal services to the poor in Washington state will emerge as we proceed through this time of transition. The foregoing recommendations are adopted in contemplation of pending LSC legislation and will be revisited if the final legislation is substantially different than what was contemplated. Having provided an overview and explanation of the Board's thinking, the Access to Justice Board recommends the following.

1. A new statewide legal services entity, established separate and apart from the three legal services programs of Washington, bid for 1996 LSC funds. This entity will provide client services on a statewide basis, proposing the deployment of staff and private bar capacity and institutional integration, maximizing all available resources, and ensuring their best and highest use.

2. The Legal Services Corporation award 1996 Basic Field, Migrant and Native American funding to an entity that commits to providing statewide services, further ensuring a coordinated effort and the effective delivery of legal services in our state.

The designated LSC-provider establish a grantor-grantee relationship with local Volunteer Attorney Legal Services (VALS) programs whose primary activities are consistent with emerging LSC funding restrictions; and a primary component of this provider's Private Attorney Involvement plan be to underwrite the operational costs of, and provide technical assistance to, such local volunteer attorney programs.

4. The ATJ Board recommends that funders do everything possible consistent with the availability of resources to continue to funds VALS programs, and that VALS programs be given assurance by funders that grant levels will be maintained at, or near, 1995 IOLTA/LSC grant levels, at least through 1996 to ensure continued operation of VALS programs, regardless of the actual funding source.

5. The legal services and volunteer attorney legal services providers identify volunteer attorney program components and other private attorney involvement activities that are likely to be inconsistent with LSC funding restrictions (which are anticipated to accompany subgrant funding), and develop alternative institutional structures and capacity on state, regional and/or local level to ensure the continuing ability of volunteer attorneys to pursue appropriate client representation in conjunction with programs that are fiscally segregated from LSC-funded legal services programs.

6. The boards of directors of Evergreen Legal Services, Puget Sound Legal Assistance Foundation, and Spokane Legal Services Center restructure these existing LSC-funded programs into a single statewide program which maintains the full range of core capacities outlined in the Hallmarks, and which works in partnership with the LSC grantee to develop common state, regional and local client needs assessments and service delivery plans, and to develop and implement integrated client intake, brief service, referral, and case handling capacity. This restructured program should be responsible for:

* Enforcing civil and individual rights of clients through effective advocacy in all appropriate forums;

* Continuity of services to migrant farmworkers, residents of juvenile, corrections and long term care institutions, and Native American residents of the state;

* Identifying, developing and implementing plans to serve other client constituencies that are in need of specialized, focused representation;

* Legislative and administrative representation where necessary, appropriate and consistent with client needs;

* Class actions;

* Within the constraints of available resources,establishment of local, regional and statewide capacity to accept referrals and otherwise handle high priority cases that the LSC-funded providers will be unable to handle;

*In consultation with appropriate volunteer attorney providers, develop, fund and otherwise support private attorney involvement initiatives designed to increase the delivery system's capacity to represent clients on matters restricted or prohibited under applicable LSC rules.

*State support, training, and technical assistance to all persons involved in the delivery of legal services to low income clients, including staff of other LSC and non-LSC funded direct service providers, private volunteer attorneys, courthouse facilitators, etc.

7. The legal services and volunteer attorney legal services providers and other stakeholders further explore opportunities to minimize duplication of efforts, improve efficiency and effectiveness, and coordinate services among and between non-LSC funded and LSC-funded direct service providers in the restructured statewide delivery system, provided that, where legitimate and compelling reasons exist to preserve separate program identities, this Board should be prepared to make recommendations and to maintain the ability of such non-LSC direct service providers to provide legal services to eligible clients, to the extent that such services are consistent with the overall legal needs of clients and are delivered as part of the integrated service delivery system.

8. The LSC grantee establish a grantor-grantee relationship between itself and other existing direct service providers the activities of which are anticipated to be substantially consistent with anticipated LSC restrictions; provided that, where certain activities of existing non-LSC direct service providers would be inconsistent with LSC restrictions, but where the primary work undertaken by such providers is otherwise consistent with anticipated restrictions, capacity to engage in such non-conforming activities should be transferred to an appropriate non-LSC-funded legal services provider or office.

9. Both the LSC-grantee and Columbia Legal Services deploy staff and other resources on a generally proportional basis based on geography and Washington State poverty population, but with due regard given to the location of special populations, local and regional affinities, the availability of other local and regional resources, other relevant socio-geographic considerations, and the short-term need to maintain the greatest possible continuity of services to clients.

10. Where feasible, legal services providers and volunteer attorney programs utilize available and emerging technologies to establish local and regional intake, case screening and client referral systems that simultaneously serve all case handling components of the local or regional delivery system, and integrate specialty private bar providers into the intake and screening process.

11. To the extent authorized by state law, appropriated state funds be distributed to the restructured statewide non-LSC funded program (Columbia Legal Services).

12. The Legal Foundation of Washington distribute IOLTA funds to Columbia Legal Services and, where consistent with client needs, existing and projected case handling responsibilities, and other relevant criteria, to other appropriate service programs which are substantially engaged in activities that cannot be supported with LSC-restricted dollars.

13. To ensure continuity of client services and minimize unnecessary administrative costs, this Board encourage continuity of existing relationships between other public and private non-LSC funding sources (e.g., LAW Fund, local community development block grants, city and county general funds, funds made available under the Older American Act, United Way funds, etc.) and Columbia Legal Services.

14. Where possible, law school clinical and pro bono service activities be refocused and expressly integrated into the overall client needs-driven statewide civil legal services delivery system.

15. Within the constraints imposed by the overall level and mix of available funding, personnel, and private bar resources, the legal services delivery community utilize existing and emerging technologies to provide expansive geographic coverage and maximize local legal services delivery capacity and presence in areas outside of principal urban centers.

16. The equal justice community aggressively pursue additional state funding to make up for the service capacity losses resulting from LSC funding reductions, and also aggressively seek to remove from state enabling legislation (RCW 43.08.250, .250) language incorporating all LSC restrictions by reference and language limiting the categories of cases that can be handled with state funds appropriated pursuant to the authority contained in those sections.

17. Resources be committed by funders to maximize the timely implementation of the Supreme Court's rule requiring Limited Practice Officers to establish IOLTA-type accounts for the deposit of short term funds received in association with real and personal property closing services.

18. LAW Fund and other legal services-related entities (local bar associations and foundations, VALS programs, other direct service providers) engaged in fund raising work cooperatively in a common effort to maximize the total number of dollars raised and made available for equal justice activities undertaken through the integrated statewide civil legal services delivery system.