Copyright 1999 Federal News Service, Inc.
Federal News Service
SEPTEMBER 29, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
3137 words
HEADLINE: PREPARED STATEMENT OF
JOHN
PICKERING
WILMER, CUTLER & PICKERING
BEFORE THE
HOUSE JUDICIARY COMMITTEE
COMMERCIAL AND ADMINISTRATIVE LAW
SUBCOMMITTEE
BODY:
Mr. Chairman and Members
of the Subcommittee:
I am John Pickering, a lawyer in private practice with
the Washington, D.C. firm of Wilmer, Cutler & Pickering. I submit this
testimony at the request of the President of the American Bar Association,
William G. Paul of Oklahoma City, Oklahoma, to voice the Association's views
with respect to the operations of the Legal Services
Corporation and its importance to ensuring equal justice for all.
The American Bar Association, the world's largest, voluntary professional
organization with more than 400,000 members, is the national representative of
the legal profession, serving the public and the profession by promoting
justice, professional excellence and respect for the law.
I testify today in
my capacity as a member of the American Bar Association s Standing Committee on
Legal Aid and Indigent Defendants. This Standing Committee serves the ABA by
examining issues relating to the delivery of civil legal assistance and criminal
defender services to the poor. It maintains close liaison with state and local
bar and legal aid/defender leaders, providing information and developing policy
on civil legal aid and indigent defense. It advocates for and works to ensure
the availability of legal aid and defender services for indigent persons through
a variety of activities and projects.
I also testify today based on my
direct, personal involvement in the provision of legal services for the poor. I
formerly chaired the ABA Commission on Legal Problems of the Elderly and, to
this day, I continue to represent on a pro bono basis low-income elderly
residents of the District of Columbia. My law firm also wrote the amicus curiae
brief on behalf of AARP in support of Interest on Lawyer Trust Account (IOLTA)
programs in Phillips, et al. v. Washington Legal Foundation, et al., 118 S.Ct.
1925 (1998).
My firm and I have long been involved in providing pro bono
legal services for the poor. Last year, my firm received the ABA's Pro Bono
Publico award and just last month I was awarded the ABA Medal, the highest award
given by the ABA, in recognition of my leadership role in providing legal
services to the poor and the elderly.
Today, I emphasize what I said in my
acceptance speech when I received the ABA Medal: despite the efforts of my firm
and others throughout the country, the legal problems of the poor cannot be
addressed without a strong, well-funded Legal Services Corporation.
The Legal Services Corporation Plays A Vital Role in the Justice
System
For a quarter of a century, the Legal Services
Corporation has been a lifeline for Americans in desperate need. For
poor Americans, LSC- funded legal services programs have been there at times
when they had nowhere else to go.
* For a 20-year-old, battered wife and
mother of three small children, Alabama Legal Services obtained a protective
order against her abusive husband and represented her in court when the husband
filed for divorce in another county. Legal Services represented the wife in both
counties and successfully obtained the support she needed to obtain a drivers'
license, employment and custody of her children. The husband was also ordered by
the court to pay $542 per month in child support.
* For an ill, elderly
North Florida woman confined to a wheelchair, legal aid prevented foreclosure on
her house after she contracted with an unscrupulous home improvement company.
The contractor promised to make her bathroom wheelchair-accessible and take care
of her home repair needs. The contractor never finished the job and left her
$27,000 in debt on a house that was close to fully paid.
* For a
47-year-old woman in Wheeling, West Virginia, funding from the Legal
Services Corporation literally saved her life. Without help from the
Wheeling legal aid office, which receives LSC funding, her Medicaid eligibility
would have been withdrawn - and that could have been fatal for this impoverished
dialysis patient.
* For Lucy Johnson, 55, of Syracuse, New York, the local
LSC-funded program helped at a time when the power company planned to cut off
electricity to her building because the building management failed to pay its
own bills and filed for bankruptcy. "The building is home to many elderly and
asthmatic patients who depend on respirators and other medical equipment, and
they wanted to know how they would survive without electricity," she says. Legal
Services of Central New York worked out a plan to keep the electricity on and
ensure the utility was paid.
* "I had, literally, run for my life. I was
battered and bruised. I had taken my kids and myself and fled to a woman's
shelter. We had nothing. I was in fear for my life. Who would help a woman who
had nothing but two kids? That's when I found Legal Aid," says a client of Legal
Aid of Western Oklahoma.
These are just a few of the millions of people
legal aid lawyers help every year. The Corporation, formed in 1974 with
bipartisan Congressional support and the endorsement of the Nixon
Administration, was created to ensure that all Americans have access to a lawyer
and the justice system for civil legal issues regardless of their ability to
pay. Today, this is more important than ever. Despite the booming economy, the
need for legal services by low income Americans has never been greater. More
than 35 million Americans continue to live in poverty, and another 10 million
live on the brink of poverty, making more than one in five Americans eligible
for LSC-funded representation. Studies show that only 20 percent of the legal
needs of the poor are being met.
At the same time, in a recent national
public opinion survey, 47 percent of Americans stated that the legal system
treats minorities and the poor unfairly. Nearly 90 percent of respondents
thought affluent individuals and corporations had the upper hand in court. The
ABA is very concerned that the current perception of bias will eventually erode
confidence in our system of justice. The ABA is focused on expanding access to
legal services, through pro bono work and efforts to increase public
understanding and perception of the justice system. In May 1999, delegations
from all 50 states, led by their respective chief justices, met in Washington to
address the issue of ensuring public trust and confidence in the justice system.
A key factor in strengthening public trust and confidence is ensuring access to
our justice system for all Americans. The Legal Services
Corporation plays a vital role in this effort.
The Corporation has
bipartisan support in Congress and across the nation. On August 4, 1999, for the
fourth year in a row, a strong bipartisan majority, including you, Mr. Chairman,
and a majority of your Subcommittee, voted to restore funding for LSC after its
budget had again been slashed by the House Appropriations Committee. The
business community supports the Legal Services Corporation.
When LSC was threatened with termination in the 1980s, the CEOs of Fortune 500
companies banded together and informed Congress just how important access to the
justice system was to their employees.
Again this year, a group of
Fortune 500 general counsels lobbied Congress to increase funding for LSC after
its funding had been cut by the House Appropriations Committee. These general
counsels represent leading American corporations, including Shell Oil, Eastman
Kodak, Georgia-Pacific, Colgate-Palmolive, General Motors, Ford Motor Company
and Dupont.
Americans strongly support spending their federal tax dollars to
provide legal assistance to low income individuals and families. An August 1997
Louis Harris poll reported that 70 percent of those queried believed federal
dollars should be used to pay for civil legal aid to the poor in such cases as
child custody, adoption and divorce. A June 1999 Harris poll reported that 80
percent of those surveyed believed federal funds should pay for legal assistance
to low income victims of domestic violence.
LSC-funded programs make an
important difference in the lives of countless numbers of low-income individuals
and families. While LSC enjoys wide bipartisan support in Congress and across
the nation, a vocal minority seeks to eliminate or reduce program funding. Over
the past few months, the Legal Services Corporation and several
of its local program grantees have again come under attack, in particular about
the accuracy of the case reporting statistics provided to Congress.
LSC's
Case Service Report (CSR) System
Before commenting on LSC's efforts to
improve its Case Service Report (CSR) system, I would like to address some of
the inaccuracies circulating about LSC's CSR statistics. These statistics
provide a snapshot of the number and types of cases LSC grantees handle during a
given calendar year. Each of some 260 local grantees provides this information
to LSC, which in turn, compiles the data and conveys these statistics to
Congress as part of LSC's annual budget process.
Last year, the LSC's own
independent Inspector General (IG) conducted audits which indicated that the
1997 statistics provided to LSC by a selected group of programs may have been
inaccurate. The LSC IG, in accordance with the Inspector General statute, timely
reported his findings to Congress. Thus, LSC had identified this problem on its
own and was taking steps to correct it. Unfortunately, LSC's opponents used this
situation to grossly distort what really happened. LSC opponents argued that the
inaccuracies in the case service reporting were a deliberate attempt to mislead
Congress.
A subsequent audit by the General Accounting Office (GAO) verified
the results of the LSC IG's own audits. Results showed that while there were
problems with the CSR system and the statistics that system produced, there was
no evidence of fraud, misuse of federal resources, or deliberate overcounting of
cases by any programs. Local programs have no financial incentive to overstate
the number of cases handled because local program funding is not tied to the
number of cases handled or reported. Funding is based solely on the low-income
population living within a service area.
The errors with the CSR statistics
stem from the LSC's 20-year-old case reporting system, which the current LSC
management inherited from its predecessors and has not yet had time to fully
examine and reform. As you know, in 1996, Congress made significant changes in
the scope of and the delivery of legal services provided by LSC. Over the past
several years, LSC President John McKay, the Board of Directors and LSC staff
have worked diligently to implement these changes in the Corporation mandated by
Congress.
Inaccurate reporting of information by some local programs is an
appropriate concern -- not only for Congress but also for the Corporation.
However, it is important to note that it was the Corporation that identified
this problem and brought it to the attention of Congress. While more needs to be
done, it is clear that the Corporation is moving expeditiously to clarify CSR
guidelines for its program grantees.
The Legal Services
Corporation is desperately needed. I urge the Subcommittee not to
overemphasize a minor reporting problem that has no impact on LSC's funding or
the service provided to clients across the country. Regardless of the number of
cases reported, millions of clients are being served, while millions more must
be turned away because of inadequate funding. It would be overreacting to reduce
or eliminate funding for this program when the combined efforts of the legal
services programs, the private bar and countless individual lawyers are only
able to serve 20 percent of the legal needs of the poor.
Recommendations for
Changes to the CSR System
The House Appropriations Subcommittee on Commerce,
Justice, State and the GAO have examined LSC's CSR system and have made
recommendations that include revising the system itself, providing more training
to legal services providers who must comply with the CSR system, and changing
procedures to ensure the uniform collection of data and reporting of statistics.
In its report to accompany the FY 2000 spending bill, the House
Appropriations Subcommittee on Commerce, Justice, State directs the Corporation
to make improvements in the accuracy of these submissions a top priority. The
Subcommittee further directs the Corporation to provide additional guidance to
grantees on the definition of a case, as that term is used in the case service
reports. Finally, the Subcommittee would gradually advance the deadline for LSC
to submit its annual case report to Congress, from July 1 to May 1 by the year
2001.
The practice of law and the delivery of legal services to the poor
have changed substantially over the past 20 years, and the ABA supports LSC's
efforts to adapt its case reporting system and other guidelines accordingly.
Consistent with the request of the House CJS Appropriations Subcommittee and the
recommendations of the GAO, the ABA encourages LSC to make appropriate changes
in its CSR guidelines, to provide clear information to grantees on reporting
criteria and to more accurately capture the type of services provided to program
clients.
The CJS Appropriations Subcommittee directed LSC to differentiate
between the number of cases disposed of by telephone referrals to private
attorneys and the number disposed of by entry of a settlement agreement or a
court judgement. The ABA endorses such a differentiation because, while a
telephone referral may or may not rise to the level of a "case," it is
nevertheless a valuable service provided to a constituent.
As the CJS
Appropriations Subcommittee notes, not all matters end up in court, thanks to
legal services intervention. Legal services programs encourage the swift
resolution of disputes with minimum conflict; only about 10 percent of matters
handled by programs are resolved through litigation. The CSR system must
recognize and count as a case all such matters, whether or not they end up in
litigation.
Many LSC grantees are also adopting new approaches to using
their limited funding to serve the maximum number of clients. Some are using
advice "hotlines" or other innovative new approaches to provide service to more
clients. The CSR system should be designed to capture information about services
provided through such new delivery techniques, with appropriate safeguards to
ensure that callers are eligible for service and receive assistance with a
specific legal problem from a qualified employee.
The ABA also encourages
LSC to clarify guidelines for determining when a client has more than one case.
As in the private practice of law, it is commonplace for one low-income client
to bring more than one case to a legal services office, e.g., a family law
client may present several distinct legal problems. The guidelines should
provide clear direction concerning when each matter should be considered a
separate case and should be counted accordingly.
While the ABA supports
LSC's efforts to update its CSR, we caution Congress and LSC not to create an
overly burdensome reporting process. Having accurate data is very important.
However, the local legal aid programs are already severely underfunded and the
lawyers overwhelmed with clients. The lawyers in the field must continue to
concentrate on serving the poor; it would be a disservice to the clients to
require legal aid lawyers to spend substantially more time filling out forms and
less time actually practicing law.
Other LSC Initiatives to Improve
Performance and Accountability
We believe that the Corporation is committed
to carrying out its mission, as mandated by Congress. Beginning in 1996,
Congress imposed several restrictions on the type of cases legal services
programs could accept and on the clients they could serve. The Corporation has
fully implemented those restrictions established by Congress, including shutting
down programs found not to be in compliance, and has instituted several
initiatives that have significantly increased its performance and
accountability.
For the past several years, LSC has devoted itself to
enforcing the 1996 restrictions, as well as fostering statewide planning
processes designed to increase efficiencies in the delivery of legal services to
the poor in each state. The ABA supports LSC's efforts to encourage state
planning for improving the delivery of legal services to the poor and has
encouraged each state and local bar association to participate in the
examination of systems and structures for providing legal services to the poor,
and in ensuring that the state is making the most effective use of available
resources.
The Corporation has accomplished many things over the past
several years: enforcing Congressional restrictions and successfully defending
the constitutionality of the restrictions when challenged, structuring a new
competitive bidding process, and engaging in comprehensive state planning. Yet,
LSC's leadership administers and monitors the distribution of its federal
appropriation with a very lean staff and budget -- only 3% of its annual
appropriation is used for national administrative costs. The remaining 97 % is
allocated to separate local, non-profit corporations around the country, which
provide direct services to clients.
Conclusion
Since 1996, LSC's
leadership has worked closely with Congressional leadership in both the House
and the Senate to ensure that the Corporation and its local grantees are focused
on meeting the basic legal needs of the poor.
The Legal Services
Corporation is a model private-public partnership. The core federal
funding provides for client intake and screening, referral of cases, handling
emergency matters, training pro bono lawyers, and handling cases when no private
lawyer can do so. LSC leverages and facilitates the utilization of private
resources -- both in-kind, pro bono services and private funding. LSC, through
its local programs, efficiently delivers legal services to the poor, at the very
cost effective rate of less than $300 per case, even with the adjusted case
service reporting figures. Most important, we must not lose sight of the good
work that LSC lawyers nationwide do in providing legal services to those in our
society who are the most vulnerable and who may not otherwise have the benefit
of legal assistance. The focus of LSC's efforts and those of Congress must
remain on reducing the unmet legal needs of the poor. It is critical that we
continue to improve the delivery of legal services for the poor and work for
adequate funding for LSC so victims of domestic violence can get the help they
need, patients can receive the health care they are entitled to and other poor
people can obtain assistance with their basic legal problems.
END
LOAD-DATE: September 30, 1999
