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May 1999
Strained to the Breaking Point:
The Current State of Washington State's Civil Equal Justice Delivery System1
by Jim Bamberger
Washington state's Access to Justice (ATJ) Network is a highly coordinated model public-private partnership designed to make the most effective and economical use of very limited resources to provide a continuum of legal services of varying intensities to nearly 1.2 million poor and vulnerable people.2 Operating under the umbrella of the Supreme Court's Access to Justice Board,3 and with the active support of the Washington State Bar Association, the Network consists of staffed legal services programs, specialty legal services providers, law school clinical programs, local bar volunteer attorney programs, courthouse facilitators, county law libraries, county clerk offices, court administrators, and a host of other individuals; community, educational and professional volunteers; and organizations.
By any measure, Washington state's civil equal justice delivery system is strained to the breaking point. The raw numbers tell part of the story: there are nearly 400,000 low-income households in Washington state.4 According to the 1994 American Bar Association (ABA) Legal Needs Study,5 47 percent of low-income households experience at least one civil legal problem per year.6 Low-income households experiencing civil legal needs had an average of 2.3 legal situations each.7 According to the ABA study, between 61 and 75 percent of the legal needs of people with low income go unmet.8
Translating these numbers to Washington state,9 we start with 400,000 low-income households. Assuming that 47 percent of these households experience a civil legal need each year, we find that about 188,000 households can be expected to have one or more civil legal needs each year. Carrying over the ABA Legal Needs Study's incidence rate of 2.3 legal needs per household, we conclude that Washington state's low-income population experiences about 432,400 independent occurrences of civil legal need each year. Between 264,000 and 324,000 of these are unmet, depending upon the definition of "unmet" legal needs.
Juxtaposed against the need is the current capacity of the civil equal justice delivery system. There are two primary gateways into the system, the Northwest Justice Project's Coordinated Legal Education, Advice and Referral program (CLEAR) and courthouse-based clerks, facilitators and law libraries.10 CLEAR is a statewide, toll-free intake system which provides low-income people with "one-stop shopping" for legal screening, case assessment, advice, information and, where appropriate, referral to a Network provider for direct representation in court or before an administrative agency. Courthouse-based clerks, facilitators and county law libraries are the walk-in point for many thousands of low-income people who have self-identified a need for assistance in a broad range of legal matters,11 most significantly in the area of family law.12 In addition to these two primary gateway systems, other community-based organizations and direct service providers work to help low-income people identify the need for civil legal assistance and provide referral to an appropriate provider entity.
The ATJ Network also includes two statewide civil legal services providers (Columbia Legal Services [CLS] and the Northwest Justice Project [NJP]), 23 private bar volunteer attorney programs, specialty legal services providers (e.g., Northwest Immigrants Rights, Legal Action Center, Tenants Union, Unemployment Law Project, etc.), clinical law programs at each of the state's three law schools, and human and social service entities. While working closely with CLEAR, some of these programs must maintain supplemental client intake and case acceptance procedures that enable them to serve their targeted client population (in the case of specialty legal services providers) as well as clients facing emergent legal needs and those who may be unable to meaningfully navigate a telephonic intake system.13
Still reeling from devastating federal cuts and exploding demand for client services,14 the staffed legal services programs presently maintain offices in 10 communities throughout the state,15 and have a cumulative staffed capacity of 78 full-time-equivalent attorneys (excluding the 18 attorneys and paralegals who are dedicated to staffing CLEAR). The largest regional presence is in Seattle, where 12 attorneys (the total number of attorneys employed by CLS and NJP) are employed to meet the equal justice needs of about 200,000 low-income people in King County — a ratio of one staff attorney for every 16,667 poor people,16 or one attorney for every 7,833 legal problems. Statewide, the ratio is one attorney for every 6,923 civil legal problems.17
Numbers go only so far in demonstrating the inadequacy of our civil equal justice delivery system. Every day, urgent requests for help are turned away by every kind of legal services provider. CLEAR staff help hundreds of people every day, but still cannot handle all of the requests.18 Staffed legal services programs are more severely curtailed as to the types of cases they can handle, leaving many thousands of clients nowhere to turn for help with important legal problems.
In the past, the ATJ Network counted on the staffed legal services programs to provide the largest proportion of direct legal representation. Now there is a huge "capacity gap" in the area of direct representation, the burden of which falls disproportionately upon local private bar volunteer attorney programs. Pro bono coordinators find themselves unable to keep up with the demand for help from clients. Moreover, with the advent of CLEAR there is a need for more volunteer attorney programs to refer cases requiring direct representation to the private bar, and this is proving difficult. To help meet some of the demand, these programs have turned to new service delivery approaches (substantive law clinics, discrete task representation, etc.) to leverage the limited capacity of their local private bars. As if these dynamics were not enough, courthouse facilitators are under siege as a result of the explosion in pro se litigation in both routine and complex contested matters. The same is true for county law libraries. Already taxed beyond their capabilities, libraries are unable to dedicate the time or resources necessary to maximize their capability to help meet the civil equal justice needs of their low-income consumers.
Rebuilding Equal Justice in Washington State: Revenue and Service Delivery Capacity Objectives
There was a time when minimum access for low-income people could be determined by a congressionally accepted Legal Services Corporation "equation" — two attorneys for every 10,000 eligible clients.19 This was a long time ago (1974-1980), when staffed civil legal services programs were almost the exclusive way to meet the civil equal justice needs of low-income people.20 Times have changed. Federal funding cuts, a burgeoning poverty-stricken population, increasing costs, the advent of new technologies, radical changes in the laws affecting poor people, the emergence of new state-based funding sources (IOLTA, DC-TED), a decade of experience with organized local bar volunteer pro bono programs, and an explosion in the number of pro se litigants (particularly in the areas of family and landlord-tenant law), have all worked to force a change in the way we quantify and develop the justice system's ability to meet the civil legal needs of low-income people. While continuing to serve a critical — even central — role, the staffed legal services programs are no longer the exclusive vehicle for delivering legal services to low-income people. Instead, they are an integral component of Washington state's new statewide Access to Justice Network.21 The vision articulated in the Hallmarks and State Plan, and the practical connectivity of NJP's CLEAR system, serve as the glue that holds the ATJ Network together and ensures that its members operate in an integrated and efficient manner.22
The design and implementation of the State Plan to create an integrated delivery network will guide all present and future planning to meet the civil equal justice needs of poor people. These needs will be met by an ever-increasing mix of individuals, institutions and organizations working together to provide clients with effective and timely diagnostic services, identification of appropriate resource(s) to address legal needs, and the practical ability to secure meaningful legal assistance from an appropriate service provider. Depending on the nature and intensity of the legal needs, clients will be able to secure help from a staffed legal services program, a pro bono lawyer, a courthouse facilitator, or CLEAR, or they may simply need to sit down at a county law library, public library or other place to obtain necessary legal information from the Internet.
We must always remember that no single component of the system can be counted on to comprehensively address the full continuity of client needs. The precise mix-and-match of local and state resources and capacities will necessarily differ by location.
The Access to Justice Board's Hallmarks and State Plan inform the planning of an effective delivery system. But they leave important questions unanswered. Foremost among these is the size, location and geographical deployment of civil equal justice capacities. The full continuum of civil equal justice capacities (client outreach, community legal education, brief service, self-help assistance and direct representation) must be meaningfully available regardless of where low-income people reside in Washington state. Low-income people in Walla Walla, Longview and Republic should have similar abilities to secure appropriate civil legal assistance as their counterparts in Spokane, Seattle and Olympia.
At the same time, there is a minimum level of capacity below which civil access to justice is no longer meaningfully available to those in need of help. It is obvious that we are far below this minimum level of capacity. Led by the Washington State Bar Association and the Washington Supreme Court, our equal-justice community has concluded that an incremental first step in the effort to rebuild an effective statewide equal-justice system will require not less than five million dollars per year in additional funding during the 1999-2001 biennium to make this initial step toward a revitalized equal-justice delivery system meaningful.
What will $5,000,000 per year in expanded statewide funding buy? A five-million-dollar increase could support a substantial increase in the number of legal services staff attorneys throughout the state. This will enable the programs to restore meaningfully relevant service capacity in places like Bellingham, Vancouver, Pasco, Longview and the Olympic Peninsula, as well as in the large urban centers where legal services staff attorneys are laboring under almost insurmountable odds. It will also allow for expanded utilization of private attorneys in the most geographically isolated areas of the state. Finally, it will allow the Network to complete the investment necessary to ensure that the CLEAR system fulfills its promise of full statewide geographic and constituency relevancy. By increasing funding to these levels, we will take a great leap forward in ensuring access to the civil justice system for the poorest and most vulnerable members of our state.23
Notes
1 Excerpted from the Final Report of the Pro Bono and Legal Aid Committee of the Washington State Bar Association to the Board of Governors of the Washington State Bar Association (May 1, 1998).
2 Statistics generated from the Census Bureau and trended to the most recent poverty information tracked by the state Office of Financial Management generate a base number of 915,000 individuals living at or below 125 percent of the federal poverty guideline in Washington state. In addition, there are about 176,000 non–census-based migrant and seasonal agricultural workers who, for the most part, have annual incomes at or below 125 percent of the federal poverty guideline and about 88,000 low-income residents of long-term care and correctional facilities.
3 The general design of the emerging delivery system is best captured in the Equal Justice Pyramid which is constructed under the Access to Justice Board's general oversight.
4 Assuming the 1990 census percentage of 2.3 individuals per low-income household is applied to the 915,000 census-based individuals with incomes at or below 125 percent of the federal poverty guidelines. This does not include non–census-based households.
5 ABA Consortium for Legal Services and the Public, Report on the Legal Needs of the Low-Income Public, ABA Publication No. 4290018 (Jan. 1994).
6 ABA Legal Needs Study, table 4-1, at 19.
7 Id., table 4-2, at 10.
8 The difference depends on the definition of "unmet need." If unmet need is defined as "legal needs for which low-income people did nothing or were dissatisfied with the outcome of their own efforts or those of non-legal third parties," then 61 percent of low-income legal needs are unmet. If unmet need is defined as "all legal needs that are reported but are not brought into the civil justice system, or are in the civil justice system without representation by an attorney or other legal advocate," then about 75 percent of all civil legal needs are unmet.
9 While a specific Washington state legal-needs study has not been undertaken, studies in Florida, Massachusetts, Missouri and other states come to the same general conclusion as the ABA study. Field experience reported by CLEAR, private bar volunteer attorney programs, and staffed legal services programs affirms the proposition that between two-thirds and three-quarters of low-income people's needs are not fully met.
10 There are additional specialty access systems for individuals with specific types of legal problems, most notably local domestic violence advocacy programs which help pro se victims of domestic violence secure judicial protection in accordance with the procedures set forth in RCW 26.50. In addition, CLS, NJP, local volunteer attorney programs and other direct legal services providers have developed systems to ensure that those who cannot effectively self-identify or self-refer (the so-called "hard-to-serve/hard-to-reach") have effective and meaningful access to the civil justice system.
11 In Spokane County, the family-law courthouse facilitator provides help to more than 5,000 pro se individuals each year. In Snohomish County in 1997, nearly 8,000 individual pro se litigants were assisted by the courthouse facilitator, and an additional 10,000 pro se litigants received assistance from the county's domestic violence advocate.
12 Clerks receive many requests for assistance and guidance across a wide variety of case types. Courthouse facilitators, on the other hand, are generally limited to helping pro se litigants in family law matters.
13 E.g., farmworkers, disabled individuals, refugees, etc.
14 The staffed programs also labor under the burden of fiscal, administrative and service delivery redundancies (e.g., dual fiscal and personnel administration, dual physical infrastructure in single locations, etc.) as a consequence of the federal government's effort to regulate activities of LSC grantees that are underwritten with non-federal funding sources. For more detail on this, see the ATJ Board's State Plan for the Delivery of Civil Legal Services in Washington State at 2.
15 Columbia Legal Services has regional and subregional offices in Everett, Seattle, Tacoma, Olympia, Yakima, Wenatchee and Spokane. Its offices range in size from four (Spokane) to 7.67 (Seattle) lawyers. Some offices (Wenatchee and Yakima) include both field-service staff and special-project (farmworker) staff. Including its farmworker offices, Northwest Justice Project maintains a staffed presence in Bellingham, Everett, Seattle, Tacoma, Olympia, Vancouver, Pasco, Yakima, Wenatchee and Spokane. The NJP's offices range in size from 1.5 (Bellingham) to four (Seattle and Spokane) lawyers.
16 This figure is trended from 1990 census data for King County. The consequences of this staffing level are only slightly mitigated by the presence of other legal services providers in the King County area.
17 See the earlier discussion of the ABA's study and the incidence of civil legal problems per poor household.
18 CLEAR handled more than 20,000 requests for civil legal assistance in 1998. About 50 percent of these required referral to a direct service provider; and, for the majority of these, there was no provider capable of accepting a referral from CLEAR.
19 This figure was embraced by the LSC Board appointed by President Ford in 1976, at a time when LSC-funded staff-attorney programs were seen as a near-exclusive source of civil legal services for poor people. The 2:10,000 figure was not envisioned as a goal, but as a benchmark for providing "minimum access" to justice for people in poverty, using a two-person office as the minimum level of staffing necessary that should be employed. Unfortunately, all too many programs (including the Northwest Justice Project) have been forced to operate staffed offices with staffing levels of less than two full-time-equivalent lawyers.
20 There was even a time when this so-called minimum access level of capacity was achieved in Washington state. In 1980-82, there were 133 civil legal services staff attorneys in 18 offices and three special projects serving an eligible poverty population of 650,000 people.
21 While not the sole measure of "minimum access" anymore, the 2:10,000 relationship nevertheless remains a relevant gauge for determining how far we are away from a system that even begins to meet the civil equal justice needs of the poor. With 96 attorneys (including CLEAR staff) serving a population of 1.2 million, the staffed legal services programs now operate at a level of two attorneys for every 25,000 eligible poor people.
22 The Network is the physical manifestation of the Access to Justice Board's State Plan for the Delivery of Civil Legal Services in Washington State. This plan, developed in concert with more than 160 stakeholder entities and organizations, was adopted in November 1995 by the ATJ Board in response to then-pending congressional action that would substantially alter the mission and focus of the federal Legal Services Corporation, and that would prove to have significant implications on the ability of our state's civil legal services providers to ensure the continued availability of a full range of civil legal services capabilities for all low-income people in Washington state.
23 Since its initial publication, the Pro Bono and Legal Committee Report, from which this article is excerpted, has served as the foundation of a broad-based and bipartisan effort to secure new resources for civil legal services. For further information, please contact the Equal Justice Coalition, P. O. Box 21026, Seattle, WA 98111-3026; telephone 206-447-8168; e-mail equalj@ejc.org.
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