published Wednesday, September 15th, 2010

Legal aid shortfall


by Monica Mercer
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    Staff Photo by Allison Carter/Chattanooga Times Free Press - Russell Fowler sifts through documents while at work on Monday morning. He is the associate director and an attorney at Legal Aid of East Tennessee, located in Chattanooga, Tenn. on McCallie Avenue.

The woman with a master’s degree in alternative medicine fidgets as she waits to talk to a lawyer at Legal Aid of East Tennessee on McCallie Avenue.

Still trying to salvage a small business, she makes $420 a month with a part-time job and remains saddled with $178,000 in student loan debt. None of it can be discharged in bankruptcy, but she hopes at least to get rid of $18,000 in consumer debt now that creditors have started to sue her.

She doesn’t want her name to be used. It was “totally embarrassing,” she says, to realize finally that her education and failed acupuncture clinic probably never will change her fortunes.

“Here I am with this degree, and I’ve been living in poverty for the last 10 years,” the woman said.

Living below the federal poverty line might have been the only positive part of her situation that day, at least when it came to getting an attorney.

That’s the main requirement for people seeking free legal help in this country, without which the woman would have had no hope of paying the $2,000 or so it would have cost her to file for bankruptcy through a private lawyer.

Her situation is why Legal Aid of East Tennessee and hundreds of other legal aid clinics across the nation exist. They largely are the only lifelines for people who face the double whammy of poverty and the chronic legal battles of the poor — fighting crooked landlords, fighting to keep the lights turned on, fighting to keep creditors at bay — that are almost impossible to win without a lawyer.

“We’re the legal equivalent of a medical emergency room, minus the bright neon signs and the controversy surrounding health care,” said Russell Fowler, a lawyer and Legal Aid of East Tennessee’s associate director.

But the state of legal aid in Tennessee and in the rest of the nation is just as dire as the health care situation, legal experts say, leaving legal aid clinics like Chattanooga’s constantly scrambling for funds and resources and unable to serve most of the people eligible for their services.

Fowler said the strain only has grown as the economic crisis lingers, bringing in unlikely clients who once prospered. This year, a former college professor walked through legal aid’s doors, he said.

“A lot of people think it’s the same poor people we’re always helping — the single mother who lives on welfare,” Fowler said. “But today we’re helping the ‘new poor.’ They don’t fit the profile of the poverty client. They’ve worked all their lives, played by the rules, yet all of a sudden there’s no work, the house is being foreclosed on and the car is getting repossessed. The fear is paralyzing.”

Fowler said he and his staff constantly battle the notion that everyone is entitled to legal assistance when a dispute arises. Not true — the U.S. Constitution guarantees legal representation only for those accused of crimes. Millions who fight civil legal battles every day usually must pay for lawyers out of their own pockets.

And because private legal assistance is so expensive, those struggling financially are unlikely to get proper help even when they have valid legal claims, Fowler said.

It’s a dilemma that led the Tennessee Supreme Court to announce in late 2008 that fixing the state’s legal aid crisis would become its No. 1 strategic priority. The goal is the same in 2010, with the court recently declaring the lack of access to legal help “one of the most pressing issues” facing Tennessee’s court system.

“The lack of civil legal services can be so devastating to people,” Tennessee Supreme Court Justice Janice Holder said in an interview with the Times Free Press in late June. “We think in terms of lack of health care as having consequences that are life threatening. But in truth, the inability to access the legal system in a meaningful way can have every bit as devastating an effect as the absence of health care.”

UNABLE TO MEET DEMAND

The woman filing for bankruptcy that day was lucky, legal aid lawyers said. She not only met the basic requirement of living in poverty but also the “emergency requirement,” because she had to be in court within days to answer to her creditors.

Those are the types of details the legal aid lawyers must contemplate every day when deciding whom to represent. They simply do not have the manpower, Fowler said, to help everyone who is qualified.

Statistics gathered by the Tennessee Supreme Court back up the claim.

There are only 81 legal aid lawyers who work full time in one of Tennessee’s five legal aid centers. Twenty-seven work for Legal Aid of East Tennessee, serving a client base of 300,000 out of the approximately 1 million residents statewide whose low incomes qualify them for free legal help.

It means the state’s full-time legal aid lawyers every year wind up accepting only one in five cases brought by people seeking their services, a Tennessee Supreme Court study found.

The rate of service is similar on a national level, according to several studies examined by the state’s top court.

Holder said the figures for Tennessee don’t count the “thousands of people” who fall just outside the income guidelines but still are unable to afford lawyers when faced with life-altering events.

Even then, lawyers are forced to rank and prioritize the “life-altering” aspects of a case when choosing which to accept, Fowler said. Poor parents, for example, show up at their offices every day, needing help with a divorce or help trying to get visitation with their kids.

“That’s certainly devastating to these people, but their livelihood at that very moment isn’t threatened,” Fowler said.

As a result, such cases rarely receive the full attention of one of Fowler’s staff members.

Legal Aid of East Tennessee Executive Director David Yoder, who is based in Knoxville, said that’s the hardest part of the job — turning people away.

“We have to do it too often, and we know they don’t have any other place to go,” Yoder said.

Cases that usually get pushed to the front of the line deal with domestic violence or the loss of shelter, government benefits or income, as with the woman who had to file for bankruptcy on an emergency basis.

Tonja Wilkes of Chattanooga was a recent client who had to be in court within days when she first contacted Legal Aid of East Tennessee. She needed help with a former landlord who had sued her for more than $5,000 in unpaid rent.

She said she and her partner, who had lost a 20-year career after being laid off, might have ended up homeless because of the lawsuit.

“I knew this lawsuit was crap, and I had the papers to prove it,” Wilkes said.

What she didn’t have was the money to pay a lawyer.

Chattanooga legal aid attorney Emily Ahlquist, who took Wilkes’ case, works mainly in housing law and says it is a “normal occurrence” in Chattanooga for landlords illegally to lock out tenants, accuse them of not paying rent and demand other fees not required in lease agreements.

“This happens a lot to poor people, and unfortunately [landlords] get away with it,” Ahlquist said. “And most times the victims have been impoverished for so long they don’t even attend their own court hearing. By then it doesn’t matter. The plaintiff doesn’t even have to make the case. The judgment goes against them.”

But Wilkes fought, and Ahlquist proved that the landlord lied about having a verbal agreement regarding rent.

“But I don’t think [Wilkes] would have won without help,” Ahlquist admitted.

PROFESSIONAL HELP CRITICAL

Hiring a lawyer is not a requirement in the nation’s court systems. People can represent themselves, but the inability to pay an attorney means justice might not be carried out fully, legal experts say.

That’s why lawyers don’t even represent themselves when they’re sued, Fowler said.

“It’s too complicated. It’s too technical,” he said.

The national push for legal aid began in the early 1970s with the creation of the Legal Services Corp., which, at first, almost fully funded every legal aid clinic in the nation. Most of the money went straight to the salaries of legal aid lawyers, who typically make considerably less than $100,000 a year and a fraction of what they would make working in private practice.

But by the late 1970s, Congress chose not to reauthorize the federal agency, and its existence today depends on a yearly appropriations bill with all kinds of stipulations attached to the financial aid it delivers.

Federal funding was cut drastically in the mid-1980s and again in 1995 amid political wrangling and controversy over the concept of legal aid. Today there is constant speculation as to whether Legal Aid of East Tennessee will have enough money to pay its attorneys.

Yoder, a lawyer, said his main job now is that of full-time fundraiser. The federal government gives the clinic just $13 per case it works on, which is about half of what the funding was in 1981 when adjusted for inflation. Yoder must seek funds from more than 40 other private sources to make up the shortfall, he said.

Being able to employ more legal aid lawyers and paralegals is the answer, Yoder said, and legislation is pending to reauthorize the Legal Services Corp. and ramp up funding.

But private lawyers who are willing to donate time also are critical, since they can fill the gaps when legal aid’s staff attorneys can’t take cases.

The Tennessee Supreme Court actively is working to elevate pro-bono efforts and will hold a summit in January to explore how to make it easier for private attorneys to donate their time.

The court also is considering making it easier for retired lawyers to keep up their licenses to practice, as well as changing rules that would allow lawyers to litigate just certain parts of a case rather than committing to a case full time.

Legal aid “is not a liberal issue, this is not a conservative issue. This is an issue of basic democracy in a country where the judicial system is meant for everyone,” Fowler said. “Any lawyer will tell you that if you don’t have a lawyer in court, you don’t have access to justice.”

Contact Monica Mercer at news@timesfreepress.com

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eeeeeek said...

Scary article... especially the part that some one has a degree in alternative medicine.

Critical thinking should be a required course.

http://whatstheharm.net

September 15, 2010 at 9:22 a.m.
whatever said...

Even the best thinkers can fail, make mistakes, or otherwise get in trouble.

September 15, 2010 at 4 p.m.
harrystatel said...

Where's all the lawyers in Chattanooga who always cry for the poor and indigent (while raking in big bucks)? Why aren't they doing pro-bono work for Legal Aid?

You can't walk in downtown Chattanooga without stepping on a lawyer.

Oops. Mustn't point out the hypocrisy.

Harry Statel http://harrystatel.wordpress.com

September 15, 2010 at 6:09 p.m.
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