Bar Journal - June 1, 2000
Common Themes: Future Challenges & Opportunities for Legal Services for the Poor & the Whole Legal Profession
By: Attorney John E. Tobin, Jr.
INTRODUCTION-FACING CHANGE TOGETHER
With the unwavering support of the private bar and the judiciary, New Hampshire's legal services system strives to bring to life our profession's highest goal, "equal justice under law." From the crucible of multiple funding crises and political attacks, we have forged an enduring and multi-faceted system to provide access to justice to the most poor and vulnerable among us. From our trial by fire over the past five years in particular, we have also learned lessons that may be useful to our colleagues across our profession as we all face the future together.
During those same five years the rest of the profession has likewise been faced with waves of technological and economic change. After providing a brief introductory look at the history and current structure of legal services for the poor in New Hampshire, this article will discuss a collection of ideas that can help legal services and our profession survive and thrive in the tumultuous times to come.
OUT OF ADVERSITY, AN ENDURING RECORD OF ADVOCACY FOR THE POWERLESS
In the past quarter century, operating on a shoestring, New Hampshire's legal services programs have helped our state's and needy citizens with legal problems that threatened their shelter, health care, and subsistence income, as well as their safety and dignity. Staff lawyers and paralegals, together with many hundreds of volunteers from the private bar, have handled tens of thousands of individual cases for disabled children, domestic violence victims, factory workers laid off in the midst of recession, elderly homeowners, nursing home residents and their spouses, the homeless, and other desperate and vulnerable citizens of our state.
Since 1971 New Hampshire Legal Assistance (NHLA) has provided the backbone of this effort, with community law offices across the state. For more than twenty years, the New Hampshire Bar Association's Pro Bono Program has been a national model by harnessing the remarkable commitment of the legal profession in our state to equal justice. Beginning in 1996 the Legal Advice & Referral Center has screened cases for Pro Bono and NHLA, while providing advice over the telephone to thousands of poor people from across the state.
Our legal services system has also made our poor and elderly clients' voices heard on many of the major issues that have dominated public policy debate in this state. NHLA brought the lawsuit that led to the closing of the Laconia State School and eventually catapulted New Hampshire from a position of shame to the role of national model in the de-institutionalization of the developmentally disabled. Our housing lawyers have successfully challenged exclusionary zoning, helped protect and create affordable housing across the state, and forged new statutory protections for tenants in the courts and in the Legislature.
In a recent case, working with a group of volunteer private attorneys on behalf of the elderly widows and widowers of Medicaid recipients, we successfully challenged the State's unlawful Medicaid collection practices in a case that may result in as much as $30 million in relief for our clients.
As welfare reform has unfolded nationally, our advocacy in the Legislature and with successive administrations has resulted in a welfare reform program in New Hampshire that is aimed at clearing away obstacles to gainful employment for our clients, instead of isolating and stigmatizing them as welfare recipients.
In the new world of electric and telephone deregulation, our advocates at the Public Utility Commission and in the Legislature have shaped statutory and regulatory protections for low-income consumers that are a creative blend of long-standing rules that were in danger of being swept away and innovations that will preserve access to these basic services.
Our legal services system has a reputation for high quality advocacy, both in individual cases and larger efforts, that continues to bring us referrals from lawyers, judges, and other social service providers across the state, who have come to expect that we will step in to seek justice for the poor and elderly. We have achieved this record in the face of a relentless series of political and legal attacks aimed at ending our very existence or eviscerating our power to be effective advocates. This long term trial-by-fire has taught us well that we must be creative and adaptable, and indeed, daring, in order to survive unfettered in our ability to be advocates for our otherwise voiceless clients.
COLLABORATION-THE KEY TO THE FUTURE
The overarching theme of the last five years of legal services' history is collaboration. The resources of three main legal services programs in New Hampshire, even in the aggregate, are very modest at best, less than one-third the size of the larger law firms in the state. We cannot afford to waste any time or effort that could possibly be saved by collaboration. In the past three years we have worked together in a number of important areas, including technology, staff training, and allocation of funding. Instead of each program doing separate staff training, especially for new staff, we work together to prepare training sessions and materials that are useful to all of our programs and other interested people in New Hampshire. Our programs have taken a common approach to technology, deciding together what software to use to create our client databases, keep track of funding, and employ for staff timekeeping. We have also made a number of joint approaches to funders for technology support and other needs
We are now planning to take this collaboration a huge step further in the fundraising arena by working with the Bar Foundation to create a joint fundraising program that will build on NHLA's annual attorney fundraising campaign. We are convinced that, working together, we can raise more money than any of our programs could gain on their own. NHLA and LARC are also in the final stages of creating a joint Board of Directors. Although the organizations must remain legally and functionally separate, we are seeking to create a set of common leaders who will help guide our programs toward an integrated future. Representatives of the Pro Bono program will also be part of this Board or leadership in some capacity.
Collaboration across organizational lines is not always easy. We need to make sure that all of the voices within our system are heard and that we don't rush to make changes that impede our ability to carry out our fundamental mission. However, we have found that collaboration enables us to be more efficient and is highly appreciated by our funding sources. We will continue to work together to evaluate the fundamentals of our delivery system, always keeping our clients' legal needs foremost in our minds.
We have also made important efforts to collaborate with organizations and individuals beyond the legal profession. In our growing domestic violence advocacy, we have worked closely with the local domestic violence crisis centers and the statewide domestic violence coalition. Without this collaboration, we would be much less certain that our clients obtain the other assistance they need as they rebuild their lives. The crisis centers appreciate the legal expertise we can provide that provides fundamental protection for the clients we share.
Likewise in our homeless project, we have learned a great deal about the homeless shelter system and the other social service agencies that deal with this most desperate population. Without these connections and this knowledge, our efforts to provide legal help to this population would most likely flounder because of communication and logistical problems. Again, we have learned a great deal about our clients and the problems they face, while being able to help them with legal problems that no other agency can handle. Similarly, in the elderly arena, our advocates try to maintain close connections with the local and statewide organizations and groups that serve and advocate for seniors. Our work is much better informed and more appropriately focused as a result of these connections.
What are the lessons of this focus on collaboration for the rest of our profession? I wonder if law firms in New Hampshire could learn to share costly resources like libraries, instead of creating many duplicative libraries within a few blocks of each other.
- Can they band together to get better deals on computerized research or office supplies?
- Can they provide training for new staff together instead of each firm doing it on its own?
- Could they even make collaborative proposals for dividing up the legal work of larger institutional clients?
More significantly, when looking outside the profession, can we do more to embrace partnerships with other professions and service providers? Our expertise is unique and very valuable, but our connections to potential clients are incomplete at best. If we work more closely with local or statewide organizations or businesses, we will understand their needs more clearly and be able to provide better services more efficiently. There are some in our profession who, for understandable reasons, are resisting closer ties with other professions. However, I think that we can work together to meet our clients' varying needs while preserving the legal profession's independence and integrity.
RESPONDING TO THE CHANGING NEEDS OF OUR CLIENT COMMUNITY
New Hampshire's demographics are changing and the problems of poor people are likewise evolving. For legal services to remain relevant and effective, we have had to respond to, and indeed anticipate, these changes. For instance, New Hampshire is becoming more ethnically diverse, especially in Manchester and Nashua. Five years ago NHLA did not have any Spanish-speaking staff. Now we have five fluent Spanish speakers. I would urge law firms in Manchester and Nashua law firms to consider hiring Spanish-speaking attorneys, so that they will be able to serve this new group of New Hampshire residents, many of whom could be paying customers.
New Hampshire's changing demographics also create new legal problems. With funding from the U.S. Department of Housing and Urban Development, NHLA has created a Fair Housing Project to represent people who are facing housing discrimination. Some of this discrimination our clients face is based on ethnicity but a great deal of it is based on their physical or mental disabilities, or family status. With the enactment of the Americans with Disabilities Act, disabled people have broad legal rights that did not exist before. Our attorneys have had to master this new area of the law, but we are now able to enforce these new legal rights on behalf of a variety of clients. Because of the very tight housing market that has developed in New Hampshire, the importance of combating housing discrimination for our vulnerable clients has increased. Our development of this capacity has been timely and significant as we work to meet our changing client community's evolving legal needs.
As noted above, we have sought and obtained new funding to focus on homelessness and domestic violence. Both of these problems have existed for generations, but awareness of their scope and devastating affects has increased. We have also found that domestic violence and homelessness create such broad crises in our clients' lives that they are unable to take other steps to stabilize and improve their situations. Therefore, our new focus on these issues with special projects has been especially important. We will continue to work to plan for and deal with other emerging trends in our client community.
The legal profession as a whole will need to take this same approach in order to remain relevant. This approach requires the ability to step back and take the long view and then the willingness to learn new substantive law. More importantly, we must find new ways to identify and connect with newly visible or emerging categories of potential clients. In the past decade many in our profession have appropriately focused their efforts on understanding and cultivating the companies and individuals who are leading our society's technological revolution. However, it is important not to overlook the many other needs and opportunities that are also developing as New Hampshire and the nation evolve.
PROVIDING ACCESS TO A FULL RANGE OF SERVICES
One of the core issues in the various legal services funding disputes has been whether the Congress can put sharp limits on the kinds of legal work that legal services advocates can do for poor people. An enduring core principle of our legal services system in New Hampshire is that poor people, like any other segment of the population, should be given access to the full range of legal services they need. The legal problems that disrupt the lives of poor people, like those affecting any clients, can sometimes be solved with simple information but often require extensive individual representation, and, occasionally, access to the legislative process or complex litigation.
With limited resources, no one organization can provide this full range of services in every area of the law affecting poor people. Instead, we recognized long ago that we should share this responsibility through a division of labor among the partners in our system. Again, creating and maintaining such a system calls for a serious collaborative effort. The Bar Association's Pro Bono program has a bank of volunteer lawyers with vast experience in family law and growing expertise in housing, and consumer issues. NHLA and LARC continue to have attorneys with extensive knowledge of public housing, government benefits and health care programs. Coordinating this shared system in the face of new client needs and funding uncertainties will remain a challenge. Because our resources are still very small, we cannot come close to meeting all the legal needs of the poor people of New Hampshire, but a coordinated system helps us get closer to that goal.
In the broader legal community, lawyers are struggling to provide a range of services in the face of the increasing complexity of almost every specific area of practice. Are there new ways that small firms as well as larger ones can work out explicit arrangements for working together, short of full merger, to meet the range of legal needs in their local communities? Obviously, such collaborative proposals could raise conflict of interest concerns, but if different firms or individuals do different kinds of work, independence could be preserved. Everyone's clients would be directed to the right place, which would make them inclined to return to the network the next time.
DIVERSIFICATION-DECREASING DEPENDENCE ON ONE FUNDING SOURCE (CLIENT)
Twenty years ago the federal Legal Services Corporation provided close to 90 percent of legal services funding in New Hampshire. Now LSC funds are only 20 percent of our system's funding at most. With the support of the Bar Foundation's IOLTA program, a state appropriation for our North Country office and more than 20 other funding sources, including 10 United Ways across the state, we have diversified our funding. Many of these funding sources have imposed significant reporting and accounting burdens that we have had to learn to manage. However, our computerized software, especially developed for legal services programs like ours, has made an enormous difference in our ability to absorb and meet these multiple administrative requirements.
In taking this huge leap toward diversification, we have gone a long way toward protecting ourselves from future disasters in the event that any one of these funding sources disappears. In many ways, an effort to diversify funders, or paying clients, works against the effort to develop an efficient division of labor among the providers of legal services. A diversification effort can be a difficult stretch for a lawyer or law firm that is already struggling to preserve a general practice. However, given our rapidly changing economy, it makes sense for all of us to be thinking about how we protect ourselves from the devastating economic effects when one particular funding source or client suddenly vanishes.
NEW CHALLENGES IN RECRUITMENT AND RETENTION
The heart and soul of legal services in New Hampshire has always been the dedication and skill of our staff and volunteers. Without highly competent staff and a large group of dedicated volunteers, legal services would collapse. At NHLA our salaries have always been far below those of large firms and in the mid-1990s fell far behind those of the Public Defender, Attorney General's Office and other public institutions. We needed to address this disparity in order to continue to retain and recruit skillful advocates for our clients who deserve no less.
In taking action to narrow this disparity (our starting attorney salary was $23,000 and is now $31,000) we have consciously moved away from a view of legal services as a program that is structurally akin to the Peace Corps. Instead, we want to look at other models in the non-profit sector, such as colleges or hospitals, which are not static and must respond to changing conditions, but which are managed and staffed with the expectation that they will be permanent players in New Hampshire's public life.
With limited funds, we must be creative in our attempts to keep our experienced leaders and bring in the next generation of legal services advocates. With the assistance of the New Hampshire Bar Foundation, we have created a law school loan assistance program under which lawyers in legal services will receive forgivable loans, the proceeds of which they can use to pay a portion of their law school debt. This program is already helping in our recruiting efforts. It has also enabled us to keep some of our existing staff.
While the burden of law school loans falls especially hard on public service programs with lower salaries, the law school loan problem will gravely harm the whole profession over the long term. Our profession will be diminished immeasurably if the law school debt problem discourages talented people who are not from wealthy families from undertaking legal careers, and if it forces law school graduates to take only the best-paying jobs because of their debt burden. We have begun to address this issue for legal services, but the profession will need to deal with it more broadly.
Across the profession we must find other ways to encourage talented people to join and remain part of our community. In legal services we have found that being flexible about part-time work, providing generous benefits, and working to preserve a collegial atmosphere cannot entirely out-weigh lower salaries but do make our jobs more attractive for the high quality people we are seeking. The legal profession as a whole is highly competitive internally and is also losing some its best and brightest people to the business sector. We will have to become more flexible in the material and non-material benefits we provide to those in our ranks if we wish to maintain our high standards.
ACCOUNTABILITY AND MEASURING THE VALUE OF OUR WORK
Like many sectors of the legal profession, legal services has been under ever increasing scrutiny about our cost effectiveness and accomplishments. With multiple funding sources have come many layers of evaluation. Our budgets are open to thorough examination and hard-nosed judgment by all of these funders. Quite simply, we have to be very creative and resourceful in how we spend their money. For instance, we conducted an aggressive search to find health insurance for our employees that would be significantly less expensive than offered by New Hampshire's major providers. Our spending on technology has been carefully thought out and very targeted to meet our needs without unnecessary extra expense.
Even with our modest salary increases over the past several years, our cost per hour for delivering legal services remains far below the market rates. This quantifiable efficiency has helped convince funders who receive many compelling requests that the money they give us to spend on legal services for the poor is money that is spent efficiently.
Some of our funders have taken accountability to a new level through a concept called "outcome measurement." These funders want to know not simply what services we have provided or in what quantity but, rather, what benefits have actually accrued to the client. These questions are forcing organizations like ours to ask hard questions about the value of the work we do to the people who we are serving. These funders are not interested in our own analysis of how valuable legal services are or how skilled our advocates are. Instead, they want to know what benefits the clients actually receive. While these questions pose a challenge, they have given us an opportunity to demonstrate the enormous value of legal services.
For instance, we have demonstrated that just in our disability benefits advocacy, which constitutes only about 8 per cent of our caseload, has generated income for our clients that, on an annual basis, is nearly equivalent to our entire budget. When we add the value of the health insurance our clients often obtain when we win their disability appeals, our disability work alone creates a return for our clients that equals or exceeds our entire budget. We can now tell a local United Way that the $30,000 they gave us has produced, just in disability cases, $100,000 in benefits for members of their community. Needless to say, they are more inclined than ever to support our work.
Similarly, if lawyers can take the time to calculate the benefit to their clients of the work we do, those clients will be more likely to appreciate this work and become repeat customers. I recognize that the value of some of the most important work that lawyers do cannot be quantified so readily. The value of a restraining order to a battered woman is enormous on a level far beyond the monetary. However, even in family cases we can calculate the value of child support received for a year or housing preserved. I am convinced that across our profession we can only gain by calculating the worth of our services to our clients in their own terms and then providing them with this information.
FOSTERING AN ATMOSPHERE OF PROFESSIONALISM
At the Bar Association's Conclave on Professionalism in 1998, eighty lawyers and judges strove to define the elusive but crucial concept of professionalism. They settled on the following list of attributes and ingredients:
- Steward of the legal profession and system of justice
- Personal integrity and accountability
- Not money-driven
- Respectfulness and civility
- Good judgment
- Passion and objectivity
- Broad, compassionate world view
- Community service
New Hampshire's legal community and judiciary have created an atmosphere of professionalism in New Hampshire that has helped our state's legal services programs for the poor to flourish. The Pro Bono program, with participation from a cross section of the profession in every corner of the state, is a cornerstone of that system. NHLA and now LARC would not exist and cannot function without the support and cooperation of the broader legal community. It is the steadfast professionalism of New Hampshire's legal community that has created that support.
All of us in the legal profession will need to protect and transmit these values in the years to come. Taking the time to teach them and talk about them is as important as any other training or self-education we ever undertake. We must create an atmosphere in every corner of our legal community that fosters the components of professionalism. These values, this core of idealism and service, make being a lawyer different and, in my view, more important than any other profession.
In legal services without large monetary rewards to offer, it is has been especially important for us to create a collegial organizational culture that helps to sustain and inspire our staff. The lawyers who participate in the Pro Bono Program bring those gifts to their work. One of our greatest challenges is to continuously reinvigorate that commitment. However, it is clear to me that lawyers in all parts of our profession who find ways to live out those values in their daily work are the most energized and fulfilled lawyers among us.
In that spirit, I must pose a challenge for our legal community that is based both on idealism and concern for our profession's long-term self-interest and, indeed, survival. The legal profession must help the larger society find a way to redirect legal resources more evenly across social and economic lines. At present the profession is highly competitive for corporate business and those more affluent individuals. Despite our growth, our new-found stability and all of our efficiency and dedication, the current legal services system in New Hampshire does not have the resources to meet all of the legal needs of New Hampshire's poor.
At the same time, the legal needs of the working poor and middle class are being addressed incompletely at best. The number of lawyers is growing but these new resources in our community are not being directed where they are needed and where there is much meaningful and rewarding work that needs to be done. Instead, an ever-larger group of lawyers is competing for the same business. Our grand challenge is finding a way to match the urgent unmet demand for services among the poor, the working poor and the middle class with the growing supply of lawyers. Both the continued vitality of the ideal of equal justice and the health of our profession are at stake. I am convinced that, working together, and looking beyond the legal community for partners and allies, we can solve this problem.
Attorney John E. Tobin, Jr. is Executive Director of New Hampshire Legal Assistance, Manchester, New Hampshire.