Remedy for an Ailing Civil Justice System: Preventive Legal Care

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We’ve come to recognize the value of preventive medicine as a society. We know that patients do better and our government saves money when people get annual check-ups and screenings, diabetics have access to regular treatment and women receive proper prenatal care, so that we are able to avoid the costly and sometimes deadly issues that arise if we wait until they arrive in the emergency room. What would it look like if we took the same approach for legal help?

What if we recognized that people are more likely to be able to stay in their homes if they have access to adequate legal assistance for wrongful evictions or foreclosures, rather than spending millions of taxpayer dollars on shelters once people have lost their homes and have nowhere else to turn? In Massachusetts, the Boston Bar Association (BBA), which I currently lead, recently released a Task Force report that shows that taking a preventive approach to legal issues, in the same way we do for public health, would help families, save government funds and ensure fairness in our justice system. That is, investing in civil legal aid programs can pay dividends by avoiding back-end costs, just as a vaccination or medication can keep a patient out of the emergency room.

The BBA reportwhich represents the work and opinions of legislators, judges, business leaders, academics, and legal services representativesis the result of 18 months of intensive research into the problems and unseen costs that arise because so many people don’t have access to adequate legal assistance. We started by surveying judges, and the responses were alarming. As an article in The New York Times pointed out, this problem is not confined to Massachusetts, although there are valuable lessons for other states in what we learned through our study.

Across the various regions and court departments, judges reported a rise in unrepresented litigants, particularly among low-income and moderate-income people. Nearly 90 percent of judges surveyed said that their courts are being bogged down, staff are spending more time assisting self-represented litigants, and evidence is being presented improperly in court because not enough people have access to a qualified lawyer when they need one.

We need to listen to our judges at the frontlines. They’re telling us that the proper and efficient administration of justice is in jeopardy when we leave so many people to their own devices in our courts.

How many people are we talking about? Our Task Force undertook an extensive statewide survey of legal services providers in Massachusetts and discovered that 64 percent of qualified applicants – those who meet the income eligibility requirements and face legitimate legal problems – are turned away simply because there isn’t adequate funding to take them on as clients. This figurea total of 54,000 people annually—represents a significant increase from 50 percent in 2007—and is partly because growing poverty means that there are more people than ever who can’t afford the legal assistance that they need.

Another key reason that civil legal aid programs are unable to keep up with the growing demand for their services is the drastic decline in their primary funding source, the Interest on Lawyers Trust Accounts program (IOLTA). IOLTA gives the interest generated from client funds being held by lawyers to civil legal aid programs to support their services. But the economic downturn has devastated IOLTA funding across the nation; in Massachusetts, we saw it drop from $31.8 million in 2007 to an estimated $4.5 million this year. Although the economy may have rebounded in terms of growth, interest rates remain at historic lows since the financial crisis and are unlikely to return to prior levels anytime soon—making clear that IOLTA is an unreliable and inadequate source of funding.

We need to make the case that ensuring that every American has access to justice is not only a just cause, but a sound investment that is worth our resources. Economists who conducted independent evaluations as part of our Task Force report found that greater funding for legal assistance actually saves taxpayer money and supports the economy.

We have long argued that providing legal assistance is the right thing to do for the neediest among us, those who are struggling to deal with issues that go to the heart of their families and livelihoods, like housing and personal safety. But we can now argue that it is also the fiscally prudent thing to do. That’s what we’ll be showing policymakers in Massachusetts – and we hope that our approach can be a model for the rest of the nation.