State Bar of Texas | Supreme Court of Texas Revisits Status of Legal Services



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October 2004

Supreme Court of Texas Revisits Status of Legal Services



CLOCKWISE, FROM TOP LEFT Sister Liliane Alam, executive director of Las Americas, testifies before Texas Supreme Court Justices (left to right) Dale Wainwright, Harriet O’Neill, and Nathan Hecht. n Helaine Barnett (left), the president of the Washington, D.C.-based Legal Services Corporation, with Texas Lawyers Care Director Emily Jones. n Former State Bar President Bill Whitehurst (left), the chair of the ABA Standing Committee on Legal Aid and Indigent Defendants, with former Texas Supreme Court Chief Justice Jack Pope, who presided over the Court when the IOLTA program was created n At a reception following the hearing to celebrate the 20th anniversary of the Texas Equal Access to Justice Foundation, Justice Harriet O’Neill, the court’s access-to-justice liaison, presented the 2004 Harold F. Kleinman Award to Chief Justice Thomas R. Phillips for his “exceptional and outstanding leadership to ensure access to justice for low-income Texans.” n Former Texas Supreme Court Justice Deborah Hankinson commends John R. Jones, the founding chair of the ATJ Commission for his “commitment beyond the call of duty to access to justice for all.” Former State Bar Executive Director Tony Alvarado (not pictured) also received a Kleinman Award.

Four years ago, the Supreme Court of Texas conducted its first hearing on the status of legal services to the poor in civil matters, a hearing that led to the creation of the Access to Justice (ATJ) Commission. Last month, the court held a follow-up hearing to assess the progress that has been made and the challenges that remain.

Before a packed courtroom, 22 witnesses commended the court for its efforts and updated the justices on the continuing hurdles to ensuring access to justice for all Texans.

Helaine Barnett, the president of the Legal Services Corporation, the federal program that administers grants to regional legal services providers, said it was an honor to appear before the court. “We appreciate this court’s leadership,” she said. “You have set an example of judicial leadership and provided a template for other states. Yet while immensely grateful for the support we have received, we would be remiss if we didn’t point out that federal funding has fallen far short of the increase in the eligible population. At best, we are meeting 20 percent of the need.”

Barnett said that LSC is devising ways to cope with the rise in demand and that it had stepped up its standards through competitive processes and increased scrutiny of the efficiency and quality of the legal services it supports.

“The center for action now resides with you in the states,” she told the justices. “The establishment of the Texas Access to Justice Commission is an outstanding example.”

Barnett referred to the growing pains that resulted from the LSC-mandated consolidation of nine legal services corporations in Texas into three: Texas RioGrande Legal Aid, Legal Aid of NorthWest Texas, and Lone Star Legal Aid. “These are three big programs,” she said, “even by Texas standards.”

Former State Bar President Jim Sales, the new chair of the ATJ Commission, said those attending the hearing recognize that access to justice is a core value of our society. “It is the underpinning of the rule of law,” he said. “Lawyers hold the keys to the courthouse, so those who are in need require representation in order to drive through the door.”

Sales said the commission had made great progress, but that much remained to be done. “This issue is a societal issue, not a lawyer issue,” he said. “But as lawyers, we must take a leadership role.”

In the past three years, the number of low-income Texans has increased from three million to 3.7 million, but funding has been static or decreased dramatically. Ten years ago, the Texas IOLTA program brought in $10 million per year. In 2004, it is expected to bring in $2.9 million.

“That is severe; that is significant,” Sales said. “The reality is that the number of underserved Texans continues to rise; resources are stagnant or decreasing at alarming rates; many areas, especially rural areas, are underserved; and at the end of the day, legal services providers are called on to do more with less.”

Sales said there is no quick fix for the problem, so the commission has undertaken a five-year strategic plan with realistic objectives that are economically feasible.

The first goal is to establish a statewide endowment. “There is no predictability in funding,” Sales said. “What we need is a stable fund. That is critical.” The commission aims to create a $20 million endowment within the next five years.

The commission is organizing a blue-ribbon committee of in-house counsel to identify funding for the endowment and more volunteers for the effort. “Corporate counsel will be a critical component,” Sales said.

The commission also plans to expand the delivery of legal services to underserved areas. Sales expects to work with TYLA to explore ways to utilize its network of local affiliates. “It is a daunting challenge, but TYLA has boundless energy, a can-do creed, and a record of accomplishment unmatched in the United States,” he said.

“This court has been incredibly supportive,” Sales said. “I beg you to continue that support.”

State Bar President Kelly Frels addressed the court on behalf of the 73,000 members of the State Bar of Texas. “Last year, Texas attorneys donated 900,000 hours of pro bono legal services and 700,000 hours of reduced-fee legal services,” he said. “They contributed $5 million in out-of-pocket expenses and $1.13 million through the dues statement. Does that mean we shouldn’t seek more? Absolutely not.”

Frels provided a demographic overview of the State Bar membership to illustrate why areas are underserved and where the commission and the State Bar might focus their efforts. “The five largest counties are home to 67 percent of Texas attorneys,” he said. “Another nine percent live out of state. In other words, 76 percent do not live in small or rural areas. In addition, 11 percent of State Bar members are government attorneys.

Since government employees cannot use public funds for private purposes, it has been interpreted to not allow government lawyers to do legal services work, nor can they use government equipment off the clock. We’re working with the Legislature to expand the public purpose.”

Like Sales, Frels believes corporate counsel should be better utilized. “Nine percent of Texas attorneys are corporate counsel,” he said. “An exciting trend since the last legal services hearing before this court has been the number of programs created for business lawyers. There are more and more ways for non-litigants to get involved in legal services.”

Frels said the State Bar committed $80,000 in its budget and raised $11,000 in matching funds for a student loan repayment program for legal services attorneys. “We’re bullish on where we’re headed,” he said.

Former Texas Supreme Court Justice Deborah Hankinson addressed the commission on behalf of three organizations she is involved in: the ATJ Commission, Texas Equal Access to Justice Foundation, and ABA Standing Committee on Legal Aid and Indigent Defendants.

“I hope as a result of this hearing that the court will publicly reaffirm its support for legal services to the poor,” she said.

Hankinson described the court as a guiding light. “But for this court’s intervention four years ago, I don’t know where we would be,” she said.

“We have met with success, but we are not anywhere near solving the problem. In 2001, we ranked 48th among states in support for legal services; today, we rank 42nd. There is one attorney for every 337 Texans, but there is only one legal services attorney for every 11,762 poor Texans.”

Hankinson said the legal services community in Texas must continue to recognize the need for partnerships and avoid unrealistic expectations.

“Finally, in any state, it depends on how strong the judiciary is. When this court takes its rightful place at the front it cannot be underestimated,” she said. “You really do make a difference.”

Former State Bar President Bill Whitehurst, the chair of the ABA Standing Committee on Legal Aid and Indigent Defendants, echoed Hankinson’s comments.

“The most positive thing we’ve had is this court,” he said. “It was a Texas Supreme Court justice who introduced the IOLTA concept. The problem will only be solved if this court gets involved. Not just involved on the surface, but engaged like Justice Hankinson was during her time on the court and Justice Harriet O’Neill is today. I meet with legal services providers across the country and the Texas Access to Justice Commission is looked on as a leader.”

Legal services providers, representatives from the Texas Bar Foundation, the Houston Volunteer Lawyers Program, and a variety of other organizations also spoke at the hearing. To request a tape of the hearing, contact Texas Supreme Court Clerk Andrew Weber at (512)463-1312.

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