WORKING DRAFT

SUMMARY OF TEXAS STATE PLANNING PROCESS

In 1998, the Legal Services Corporation (LSC) asked its Texas recipients to join with other legal service providers and stakeholders in the delivery of legal services to the poor to participate in a state planning process to examine, from a statewide prospective, what steps should be taken in Texas to develop a comprehensive, integrated statewide delivery system.

LSC encouraged the development of a statewide civil legal services delivery system which would be responsive to the most compelling needs of eligible clients, ensure the highest and most strategic use of all available resources, and maximize the opportunity for clients throughout the state to receive timely, effective and appropriate legal services. In accordance with prevailing professional norms, such a system should:

l identify and address the most important legal needs of eligible clients, as determined by appropriate needs assessments, taking into account the diversity of persons and needs in the state and its various communities;

l strive to provide low-income persons throughout the state broad and equal access to legal services regardless of such obstacles as disability, geographical isolation, culture and language;

l provide high quality legal services to clients throughout the state, regardless of regional distinctions in demography, the economy, or the presence or absence of other local resources to provide or support the provision of legal services to low-incomes persons;

l encourage innovation in the delivery of legal services accompanied by appropriate assessment of results;

l minimize duplication of capacities and administration and make the best use of resources available to the delivery system as a whole and its component parts; and

l have the capacity and flexibility to respond effectively and efficiently to new and emerging client needs and other changes affecting the delivery of legal services to the poor.

On June 8, 1998, Frank Newton, President of the State Bar of Texas and Richard Royds, Chair of the Texas Equal Access to Justice Foundation sent a letter inviting all interested parties and persons to be involved in this process. A planning process was developed and participants were asked to develop a state plan to create a comprehensive, integrated statewide delivery system. Meetings occurred throughout 1998 and 1999. The 1999 Interim Texas Plan: Planning for the Delivery of Civil Legal Services in Texas, was submitted to the Legal Services Corporation for review in October. The principal issues reviewed in the plan are: intake, advice and referral systems; use of technology by legal services providers; access to the courts, self-help and preventive education; coordination of legal work, training, information and expert assistance; private attorney involvement; resource development; system configuration; leadership within the system; ethical considerations in the delivery of legal services to the poor and equal access and restricted funds.

The planning process has continued and five key issues have been identified for continued review and action:

l Coordinated System: Includes improved communication and collaboration among public and private providers; coordinated or unitary intake; regional coalitions working on prioritized issues collectively; and housing local providers together (Regional Justice Centers).

• Universal Access: Emphasizes providing actual access; working to remove restrictions; universal access (no client group excluded); and more aggressive advocacy on impact issues.

• Statewide Leadership: Fosters increased support from the Bar and Judiciary; increased public support; and marketing/public education.

• Adequate Resources: The need to improve the current attorney-per eligible-client ratio through improving financial resources available to legal services providers, both restrictive and non-restrictive.

• Maximizing the Use of Resources: Ensures that all providers have state-of- the-art technology; maximum use of technology; pooling purchasing power; and coordinating with non-legal resources.

Planning in Texas has been a good thing. Those of us who provide civil legal services for the poor have been forced to examine a number of complex and harsh issues. In 1997, Texas ranked 47^th out of 50 states and the District of Columbia when we received $11.23 per poor person for civil legal services from all sources of funding, according to the State Planning Assistance Network, a joint American Bar Association-National Legal Aid Defender Association project. In 1998, Texas received $11.01 per poor person for civil legal services from all sources of funding, and moved up in ranking to 46^th out of 50 states and the District of Columbia. However, Texas has the second highest state-wide poverty population of any state in the country, with a poverty population of 3,515,000 according to 1990 census data.

With respect to IOLTA funds specifically, in 1998 Texas generated $1.91 per poor person in IOLTA funding, resulting in a ranking of 28^th out of 50 states and the District of Columbia. When funds raised through other state, local and private resources are added together, in 1998 Texas raised $.73 per poor person, which resulted in a ranking of 47^th out of 50 states and the District of Columbia.

In 1998, four states raised more funds through IOLTA than Texas did from all sources of funds (Connecticut $22.54 per poor person; Massachusetts $22.22 per poor person; New Jersey $15.20 per poor person, and New Hampshire $12.52 per poor person). Fifteen states raised more funds from state, local and private resources than Texas did from all sources of funds (Maryland $43.67 per poor person; Vermont $41.69 per poor person; Minnesota $31.77 per poor person; Hawaii $30.24 per poor person; Massachusetts $27.73 per poor person; New York $27.58 per poor person; Alaska $27.46 per poor person; Connecticut $23.45 per poor person; Kansas $20.72 per poor person; California $17.64 per poor person; New Jersey $16.51 per poor person; Pennsylvania $13.79 per poor person; Washington $12.55 per poor person; Maine $11.81 per poor person; and Florida $11.16 per poor person).

A leading consultant in the planning process, John Arango of Algodones Associates, has advised the State Planning Committee that states funded under $16.00 per poor person should focus on raising funding levels as their first priority.

Many gaps exist in developing a comprehensive, integrated statewide delivery system in Texas. A lack of adequate funding prevents many poor people in Texas from receiving the access to the justice system that the poor in other, better funded states enjoy. In addition, many poor people in Texas are under represented, in that they receive advice from a legal services provider when they would in fact prefer to receive representation on a legal matter. The fundamental purpose of a state civil legal assistance system is to enable low-income persons to address their unmet needs effectively. To achieve this fundamental purpose, the system must meet the following objectives:

Many low-income persons do not recognize that they have a need that could be addressed through the legal system. The civil legal assistance system should educate and inform low-income persons within a state to enable them to:

1. Recognize their legal rights and responsibilities and unmet legal needs,

2. Address their legal needs effectively;

3. Take action to prevent legal problems from arising.

 

Even when low-income persons recognize that they have a legal need and are aware of their legal rights and responsibilities, many will not be aware of all possible methods for solving their legal problems, protecting their legal rights and promoting their legal interests.

Some options involve preventative steps, self-help and collective actions that do not involve the formal use of the legal system. Other options involve using alternative dispute resolution, negotiation and the judicial and administrative adjudicatory systems. Still other options include community economic development, other transactional assistance and advocacy before administrative agencies and legislative bodies.

Low-income persons need to be aware of the range of options available and the pros and cons of exercising particular options so that they can choose the option that best meets their needs.

Low-income persons also need to know about all available legal assistance providers and how to access those providers.

1. Low-income persons should have access to all legitimate legal tools, including a full range of high quality legal services so that they can:

a. Anticipate and prevent legal problems from arising;

b. Solve their legal problems;

c. Protect their legal rights;

d. Promote their legal interests;

e. Oppose laws, regulations, policies and practices that operate unfairly against them;

f. Enforce and reform laws before legal problems arise; and

g. Improve their opportunities and quality of life.

2. In addition, access is essential for individuals and groups who are politically or socially disfavored, as well as for all constituencies with distinct and disproportionately experienced legal needs, such as Native Americans, migrant farm workers, prisoners, mentally disabled, others residing in institutions, immigrants, elderly and persons with disabilities.

3. The system also must seek to eliminate barriers to access because of geographic isolation, language, disability, age, race, ethnicity and culture, inability to communicate, and inaccessibility or location of provider facility.

Restrictions on the provision of legal services by the Legal Services Corporation and the Texas Equal Access to Justice Foundation also limit access to the justice system. In Texas, equal access for the poor does not include the following:

(1) Access to legislative bodies where the laws are being written;

(2) Participation in administrative proceedings where the rules are being written;

(3) Use of Rule 23 of the Federal Rules of Civil Procedure or Rule 42 of the Texas Rules of Civil Procedure (pertaining to class actions);

(4) Reimbursement of attorney fees in successful lawsuits;

(5) Any access at all for the poor who are in jail or prison at the time;

(6) Any access for the poor falsely accused of a drug offense where the local housing authority has based its eviction on that ground;

(7) Any access, using any source of funding, for undocumented aliens;

(8) The ability to challenge unconstitutional "welfare reform statutes" and rules;

(9) Bringing civil rights actions to contest discriminatory voting districts in cities, counties and school districts; and

(10) In some cases, suing any governmental entity.

Most states use money raised within the state to provide for the gaps within a comprehensive legal services system. In most states, legal services restricted by LSC funds are being provided to the poor using unrestricted state funds. The effects of the LSC restrictions are compounded in Texas because the Texas Equal Access to Justice Foundation imposes restrictions on IOLTA and BCLS (filing fee) funds that are the same as, and in some cases more restrictive than, the LSC restrictions.

Those of us that provide civil legal services to the poor in Texas can testify at great length about the effects of the restrictions imposed by the Legal Services Corporation and the Texas Equal Access to Justice Foundation on poor Texans and their attorneys, who seek to obtain equal access to a justice system that cannot be equally accessed due to these restrictions. A recent report by the Brennan Center for Justice in its Access to Justice Series entitled "Restricting Legal Services: How Congress Left the Poor With Only Half a Lawyer" forcefully recites the difficulties these restrictions have presented for poor people in Texas and throughout the nation.

If Texas is to have a first rate comprehensive, integrated statewide delivery system for the provision of legal services to the poor, it must find solutions to and resolve the issues reviewed by the State Planning process. In particular, it must resolve the dual dilemma of inadequate funding for the delivery of legal services to the poor and limitations and restrictions on poor persons access to the justice system.

The next step is to develop action plans for the five key issues identified. The Texas Lawyers Care staff has begun that process by synthesizing ideas that have been conceived through state planning efforts overtime:

I. COORDINATED SYSTEM

Action: Develop recommended intake guidelines which address:

hours of operation

use of technology

conflicts

required travel limits

response time lines, etc.

Actors: State Planning Group (SPG) committee, Texas Lawyers Care (TLC) staff

Action: Provide access to a regularly maintained comprehensive referral database which includes eligibility criteria and case priorities, if possible.

Actors TLC, SPG committee (Bruce Bower)

Action: Develop and make available, at no or low cost, a uniform case management system.

Actors: SPG committee, TEAJF staff, SBOT Board Legal Services Committee

1. Action: Work with Supreme Court to relax BCLS all-funds restriction.

Actors: Supreme Court, TEAJF, SPG committee (Scott Ozmun)

2. Action: Review IOLTA restrictions and make recommendations regarding revisions.

Actors: Supreme Court Commission, TEAJF board, SBOT Legal Services to the Poor in

Civil Matters Committee (LSPCMC)

1. Action: Develop a fund without restrictions to support the provision of services which are prohibited by primary Texas funding sources. Sources of funding to be explored will include, among others:

pooling individual program unrestricted funds

Litigation Section funds

revising attorney dues statement to include voluntary contribution opt-out

Actors: TEAJF, LSPCMC, SBOT leadership, SPG committee (Jim Comstock-Galagan, Julie Oliver, Marci Rosenberg, Shea)

2. Action: Develop guidelines for use of unrestricted funds.

Actors: TEAJF, LSPCMC, SPG committee (Jim C-G, Julie O., Marci R., Shea)

1. Be represented by at least one justice in state planning process

2. Appoint Supreme Court Access to Justice Commission with the following charges:

a) Identify and pursue legislative and other funding options.

b) Identify and pursue legal system reforms that would improve access to justice by the poor.

c) Study IOLTA restrictions and advise Supreme Court on revisions that would improve access to justice.

3. Promote the high priority status of legal services to the poor.

1. Be represented by members of the Board leadership, Board Legal Services Committee, and Standing Committee on Legal Services to the Poor in Civil Matters Committee in the state planning process.

2. Provide strong leadership in legislative advocacy for legal services funding and in other resource development efforts.

3. Include access to justice issues in any campaign to restore public trust in the legal profession.

4. Aggressively address the commitments made to the Supreme Court on January 27, 2000 and in the Pro Bono Marketing plan.

A. Financial Resources

1. Legislative opportunities

Action: Determine the most appropriate legislative funding options and aggressively pursue those in the 2001 legislative session and beyond. Options to be considered should include:

Crime Victims Compensation funds

general revenues

punitive damages

loan repayment for legal services attorneys

2. Non-legislative opportunities

Action: Identify and pursue non-legislative resource development options, including:

voluntary dues statement opt-out provision

law firm fellows placed with legal services providers

Actors: Supreme Court Access to Justice Commission, SBOT leadership, State Bar LSPCMC, provider coalition (a la Lone Star Justice Fund).

3. Pro Bono

a) Action: Aggressively implement Pro Bono Marketing Plan.

Actors: State Bar LSPCMC, State Bar leadership

b) Action: Hold law firm pro bono summit for large firms and corporate law departments to educate them on innovative access to justice strategies and to elicit increased commitments to pro bono services, modeled after the HBA pro bono summit in 1999.

Actors: Supreme Court, ATJ Commission, State Bar leadership, local bar leaders

3. Reduced Fee Panels

Actions: Develop suggested standards for the operation of reduced fee panels for persons that are of low-moderate income or less, establish reduced fee panel project to supplement lawyer referral services at the State Bar and at local bars with LRS.

Actors: State Bar leadership, State Bar Lawyer Referral and Information Service Committee, State Bar LSPCMC, local bar associations

1. Identify technology goals and develop standards and a technology plan for the legal services to the poor delivery system in Texas.

2. Gather necessary infrastructure information .

3. Develop plan for coordinated purchases.

4. Seek funding from Commerce Department.

5. Seek support from technology industry for affordable implementation of plan.

6. Seek additional funding, as necessary.

Actors: SPG Technology Sub-committee (David Hall), State Bar Technology Vision Group, Commerce Department grant application group (Jonathon Vickery).