Florida Legal Aid Funding Proposal Fails

With another funding proposal stymied, just how should states fund Legal Aid?

I’ve written before about how funding for public defenders is at a crisis point in some states. And I’ve written about how even prosecutors’ offices are now feeling the pinch. But what about legal aid funding?

Well, it’s suffering too. And unfortunately for Florida legal aid attorneys, a petition to bolster legal aid funding there was recently rejected by a 4-3 decision of the Florida Supreme Court.

In June 2014, 522 Florida lawyers petitioned the Florida Supreme Court to increase annual bar dues from $265 to $365. With over 80,000 attorneys “Eligible & In Good Standing,” that $100 increase would have yielded an additional $8 million in legal aid funding each year (the petition includes more lawyers and estimates $10 million) — not a pittance.

And the petitioners demonstrated that the funding need was there: As of 2012, 3.2 million Floridians lived below the poverty line. As of 2013, Florida foreclosure rates were three times the national average. And as these trends increased, legal services staffing and caseloads in Florida decreased due to the lack of legal aid funding — including an 88% decrease in IOTA (“interest on trust accounts,” referred to as IOLTA in many states) funds since 2008.

The petition went on to argue that many other states were facing the same funding issues, and that some of these had adopted increased bar dues to address these issues.

A divided Florida Supreme Court, though, rejected the proposal. Acknowledging the dire need for legal aid funding, the court’s four-justice majority nevertheless issued a per curiam decision essentially deferring the question of where that money would come from. And the court had a passably good reason for the deferral — in November 2014, Florida had convened a “Florida Commission on Access to Civil Justice” tasked with tackling the question of how to fund legal aid — whether through a bar-dues increase or some other mechanism entirely — among other questions.

Three justices, though, disagreed. Justice Lewis wrote that the decision means that the court has “simply delayed help” for those who need it now. He concluded: “One positive step at a time and one authorization at a time is far better than waiting until committees and commissions make recommendations that may or may not be fulfilled.” And Justice Quince, joined by Justice Perry, issued a short dissent on the theme that in a “time of crisis,” lawyers ought ”to dig just a little bit deeper” to support those in need.

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The decision is surely disappointing for those who support legal aid. All things considered, though, I think there’s got to be a fairer funding mechanism available in Florida than bar dues. And hopefully the state’s Commission on Access to Civil Justice will find it.

Back when interest rates were higher, IOTA/IOLTA funds made a lot of sense as a funding mechanism — they didn’t come from lawyers, nor even directly from lawyers’ clients. These funds are kind of an extraneous product of the legal system, so it was (and is) reasonable to use them to fund the needs of people on the outskirts of that system. But when the economy takes a hit and legal need spikes, these funds dry up fast. They’re not ideal.

LSC (Legal Services Corporation) funds make sense too, in the same way that state school aid does: take a pot of money generated from everyone, and dole it out each year according to where it’s most needed. But, to stick with that school funding metaphor, the LSC funds are just an equalizer — you still need that backstop of something (relatively) reliable like property tax revenues.

Using bar dues as that backstop just doesn’t quite square with the relationship between lawyers and legal aid — it’s like levying a fee on professional dog walkers to pay for rabies vaccines for dogs. A fairer funding source is something like court filing fees. After all, it’s often litigants that create legal need. And that’s why court filing fees are a very common way to pay for legal aid.

So let’s hope Florida finds some other means to pay for its legal aid programs. Lord knows there’s plenty of need out there.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.