Public Interest

Florida Access To Justice Commission Issues Initial Recommendations

This is what happens when you rely on commissions to solve problems.

By Sam Wright on October 13, 2015 1:04 pm

You may remember that, back in July, the Florida Supreme Court rejected a proposal to bolster legal aid funding. The proposal, in the form of a petition to the court, requested that annual bar dues be increased from $265 to $365 — a change that would have netted something on the order of $10 million in additional legal aid funding. But, in a 4-3 decision, the court denied the petition and instead more or less deferred to the pending recommendations of a newly formed task force called the Florida Commission on Access to Civil Justice.

Now the Commission has issued its interim report, and the report’s recommendations to the court are… meh.

Overall, the interim report is pretty straightforward — it discusses the general problem of Florida’s justice gap, discusses how the Commission’s various subcommittees have set out to solve that problem, and then issues a series of five recommendations to the court. Those recommendations are only meant to be “early, concrete accomplishments” on the way to a more detailed “long-term comprehensive response.” Even so, they’re not too inspiring.

The first recommendation affords a representative taste of the report’s overall meh-ness: “The Commission recommends support of the continued development of the Statewide Gateway Portal and approval of a pilot project, subject to obtaining adequate funding.” What’s the Statewide Gateway Portal? According to the Commission, “the gateway portal will serve as an online connector to existing information/resources, self-help, advice, and/or representation.” Taking a bit of context from the body of the report, what the Commission is really requesting with Recommendation Number One is authorization from the court to launch a self-help web page, provided the Commission can identify some source of funding for actually developing the site.

Given that the central issue here is underfunding, that doesn’t strike me as an auspicious start.

The second, and perhaps even more milquetoast, recommendation is to “approve the Commission’s adoption of the Conference of Chief Justices/Conference of State Court Administrators Resolution 5: Reaffirming the Commitment to Meaningful Access to Justice for All.” What’s Resolution 5? It sets an “aspirational goal of 100 percent access to effective assistance for essential civil legal needs.” Given the choice between $10 million in additional legal aid funding and an aspirational goal, guess which one I’d take.

The third recommendation has a bit more potential: the Commission recommends that the court change the rules governing attorney admissions to allow more people to serve as “emeritus attorneys” — primarily retired practitioners, judges, or law professors — and to expand the scope of work emeritus attorneys are allowed to do. In legal aid land, more boots on the ground are always a good thing, so this makes sense.

The fourth recommendation is for the court to “authorize the Commission to create a Florida Civil Legal Resources Access Website,” and provide for maintenance of the website. Apparently this website — a wiki-style listing of various resources relevant to legal needs — would be a part of the Statewide Gateway Portal proposed in the first recommendation, as (prepare yourself for some deep bureaucracy here) the Commission’s “Sub-sub Committee on Resources” issued a sub-sub report concluding that the proposed website’s “resource listing is fundamental to the operation of the Access Portal concept.” So I think it’s safe to roll this one into Recommendation Number One — and recognize that this report is definitely designed by committee.

The fifth and final recommendation may have some real potential — it’s to “authorize the Commission to develop a specific proposal for a cy pres rule in Florida.” The report explains the backdrop for the cy pres proposal:

Class action litigation may result in a defendant providing settlement funds for distribution among members of the class. After the distribution, there may be a residue of undistributed funds. Under the cy pres doctrine, a court may issue an order providing for residual funds to be distributed to charities or not-for-profit organizations. These awards are commonly referred to as cy pres awards. Eighteen states have court rules or statutes providing for legal aid organizations to receive class action residuals.

An appendix to the report lists some states’ success with routing class action residuals to legal aid programs: it says California legal aid programs received over $9 million in 2012, that the number for Illinois was over $5 million in fiscal 2013, and for Washington over $6 million in 2013.

The Commission looked into the cy pres funding possibility that’s been pioneered in other states, saw potential, and asked the Court to give its blessing to turn that research into a concrete proposal — that’s exactly what it ought to be doing.

Query whether it’s enough, though. It’s unclear how stable cy pres funding will be — or how much it will actually provide to legal aid. The Commission’s Funding Subcommittee did consider another funding source — legislative appropriations (which fund legal aid in a majority of states) — but closed off its consideration with this line: “At this time, the subcommittee does not have any recommendations related to legislative funding.”

And, maybe I missed it, but the Commission does not appear to have considered other sources of funding, like court filing fees and fines (also a source of funding in a majority of states) or pro hac vice fees (also a common source of funding). Nor does it appear to have considered changing the line item on its bar dues form from opt-in to opt-out.

All in all, then, it’s hard to get too excited about this report. It’s worth remembering, though, that it is just an interim report. The Commission acknowledges that it has plenty more work to do. And even though neither the Commission nor the Florida Supreme Court has asked me my opinion, I’m going to exercise my prerogative as a person writing on the internet and weigh in anyway: I recommend that the court take a look at this chart and pay far more attention to the legal aid funding sources other states have relied on as staples for years. Websites and aspirational goals are great and all, but when it comes to closing the justice gap, they’re no replacement for regular, predictable funding of actual full-time legal aid lawyers.

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 [email protected].