1996 Should Connecticut Create a Commissi0n for Legal Services?
| Pages | 391 |
| Publication year | 2021 |
70 CBJ 391. 1996 SHOULD CONNECTICUT CREATE A COMMISSI0N FOR LEGAL SERVICES?
In his "white paper" entitled "The Survival of Legal Services for the Poor in Connecticut", Professor George Schatzki summarizes a March 18, 1996 conference on legal services and notes:
Participants in the symposium expressed over and over again the need for some new organization or group to assume responsibility for studying and implementing the ideas that [were expressed in Mr. Schatzki's report], as well as other ideas that will develop in the future. Such a group might study, organize, persuade others, implement, and -- perhaps - oversee the provision of legal services for the poor.(fn1)
That paper, intended only as an objective summary of what happened at the seminar, stopped short of advocating that a single group be formed for all legal service activities. Indeed, it indicate that before getting to any implementation stage, fundamental issues such as source of empowerment, composition, and breadth of authority would have to be carefully examined. This paper also stops short of advocating a separate commission for legal services. Rather, in the interest of providing a framework for discussing such a concept, it examines, using possible models, the reasons for having (or not having) such a group.
From the March 18, 1996 Conference, from testimony given by legal service groups before state and federal legislatures, and from discussions with judges, lawyers, and other users of the system, several relatively uncontested points can be made about
the future of legal services in Connecticut
Federal funding for legal services will remain, at best, a volatile resource dependent more on political considerations than on demonstrated need.
Other resources, all within the state, will remain less volatile than federal resources, but will still be somewhat unpredictable and also subject to variables not directly related to need. (For example, IOLTA funds, now entrenched as a major funding source, will continue to depend on interest rates, bank-community relationships, and alternative priorities for their use as may be determined from time to time by the Connecticut General Assembly).(fn2) Nonetheless, it would seem much easier to control and manage funding generated within the state than to rely predominantly on federal funding.
Except for the banks, whose role in legal services will remain passive, founders are likely to assert varying degrees of interest and control over the activities of legal service agencies. These interests will range from objective concerns about budgets, efficiencies, etc. to more subjective concerns (e.g., types of cases, right to lobby).
The public is under-informed about the need for and content of "legal services." Thus, the provision of adequate legal services lacks any substantial base of public support and therefore does not strike an elected official as being an attractive political issue.
Although all of the legal service agencies appear to work well together in sharing resources, meeting to discuss common problems, and supporting common legislative goals, there are also some irreducible inefficiencies that come with their multiplicity.(fn3)
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Lobbying efforts in the General Assembly have produced mixed results. Some legislators clearly recognize and support the concept of legal services; others vigorously oppose the prospect of having state agencies sued by lawyers who are supported financially by state funds (or state- authorized funds).
A large number of legislators - probably a clear majority - are, like the public, under-informed about legal services. The lobbying effort, understandably, is usually done ad hoc; members of legal services agencies call upon leaders of the bar to testify with little advance warning and limited supporting materials.
In a vacuum, legislators will often look to leaders of the Connecticut Bar Association to determine the "position" of the state's legal community on a given issue. Although the Bar Association has been strongly supportive of legal service agencies in general, its positions on legal services issues necessarily have developed reactively; there is little opportunity for focused, continuing advocacy such as exists, for example, with major industries doing business in the state.
These considerations, and others, led many people at the March, 1996 seminar to conclude that some kind of organized effort was needed, as one participant stated, "to investigate the various possibilities raised at the conference, and to act as a sponsor for legal services in the state." Below we discuss alternative ways in which such a group could be empowered and made accountable to others. Before examining such "models," however, we need to examine whether the gut feeling of the conference participants is warranted: what specific goals such an organization might seek to accomplish and what problems it might cause for existing legal services efforts in this state.
From the foregoing summary, and the more detailed review presented in Mr. Schatzki's report, it is painfully clear that the provision of legal services to the poor and needy in this state lacks any overarching, principled policy. Virtually all funding sources are volatile; the resources for providing services are highly
decentralized and perforce inefficient; no coherent process seeks to match demand with supply in any concrete, predictable way.
Regardless of what one may feel about the current system for providing legal services, there can be little intelligent debate about the need to have some system. When Congress and the General Assembly pass laws creating special rights among the poor and needy, as they have done countless times in countless ways, it is hypocritical to deny them a proper means of accessing those rights when they are arguably being denied. In many cases, of course, the provider of social services is the administrative branch of the very government that gave rise to the right to services; in other cases the obligation is imposed on the private sector. But in either event, the implicit (and often explicit) means of enforcing those rights - at least when other efforts have failed - is the judicial system. And in this complicated society, accessing that system means not only having a lawyer, but a lawyer who is reasonably knowledgeable about the myriad laws and regulations that surround the legal rights of the poor and needy and their means of enforcing those rights. We cannot expect that representation to be performed solely by members of the private bar in their off-duty time; a significant portion of the work must be done by paid lawyers who have chosen to specialize in what is generally known as "poverty law."
A. Funding Resources
In Connecticut, as throughout the rest of the country, the technique for providing poverty law expertise has been to create one or more legal service agencies, subsidized in part by government money and in part from private sources of funds. For 1995, the budget for such services in Connecticut was $12,500,503. Support from governmental sources was about 37%. The remainder, largely provided from private funding, included IOLTA accounts (36%), the United Way (5%), the private bar (8% (including in-kind services)), and foundation grants (3%).(fn4)
For each of these revenue sources, a separate control exists. The Legal Services Corporation oversees federal funding.(fn5)
State funding is, of course, under the jurisdiction of the Connecticut General Assembly. IOLTA funding is, by statute, given to...
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