Perhaps no one in the legal profession would be surprised to hear that a "justice gap" exists in Wisconsin. What may surprise you is the number of Wisconsinites who fall into that gap.

More than 500,000 of our state’s residents face serious civil legal problems without any legal assistance, according to the findings of a State Bar of Wisconsin study, “Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs,” issued in March 2007.

Although these half-million-plus people have different circumstances, they share a commonality: None can afford to hire an attorney when they need one. Many earn too much to qualify for help from legal services agencies that serve the poor. Others meet these agencies’ income restrictions, but still get turned away. Wisconsin’s two federally funded providers of legal assistance to poor people have enough funding to assist only 20 percent of those who qualify for help.

Who Are These People?

Whatever the causes, the upshot is that 500,000 Wisconsinites go it alone when they confront a civil legal problem. Among them are chronically unemployed people, homeless people, and elderly people barely getting by on Social Security – those who typically spring to mind when we think of “poor people.”

But, as the Bar study reveals, these aren’t the only ones faced with dire legal needs and no ability to pay for legal help. The report states that the justice gap in Wisconsin includes “people who are already sacrificing health insurance to pay the rent, prescription drugs to keep up with the mortgage, groceries to cover child care, and the like. There is simply no room in a family budget overwhelmed by choices like these to pay for legal help.”

Take, for instance, one Wisconsin dairy farmer who, during a rough year, accumulated $12,000 in credit card debt. Usually in the spring he borrowed from his local bank to get capital for seed and other expenses and then paid off the loans in the summer. But, because of his credit card debt, the bank refused his latest loan application. He faced losing his farm, home, and livelihood.

Also facing a desperate situation was a man who supported his family by working as a manual laborer. His employer supplied a small apartment, enabling the family to get by on a low income. Then the worker fell while on the job, fracturing his spine. He filed for worker’s compensation, which infuriated his employer/landlord, who tried to evict the man and his family. They faced joblessness and homelessness.

Indeed, the people who need, but can’t get, legal help range from those in the lower income strata who are struggling to climb out of poverty, to those on the edge of the middle class who are just one misstep away from financial disaster. Among the low-income people surveyed for the Bar study:

• 42 percent were homeowners.
• 37 percent were high school graduates, while 53 percent had technical school or some college education, had completed a four-year college degree, or had done post-graduate work.
• Only 8 percent were unemployed, and 10 percent were disabled. The rest were working full or part time (34 percent) or were self-employed (4 percent), retirees (32 percent), homemakers (5 percent), or students (7 percent).

“Many of the poor people in our state own their homes and pay their taxes,” points out Richard Sankovitz, Milwaukee County circuit court judge and chair of the State Bar’s Access to Justice Study Committee. “They’ve put down roots in their communities. And they’re facing legal problems without any legal assistance. That’s not right.”

Another finding stood out for Madison attorney and State Bar president-elect Tom Basting when he read the study report. “The first thing that struck me,” he says, “is that Wisconsin is so far behind its surrounding states in funding civil legal services for the poor. I didn’t realize that until this report came out.”

The state does fund programs that assist elderly or disabled people who have trouble obtaining or keeping government benefits. These programs received $3.8 million in the 2005 state budget. In addition, the state gives small amounts of money to other programs, but limits that funding to specific types of legal help.

For general civil legal services, Wisconsin provides no money. Meanwhile, Ohio allocates $14 million for general civil legal services. The figure is $12 million in Minnesota and $7 million in Michigan. A proposal before the Illinois legislature would boost funding there from $3.5 million to $5 million. Only five states besides Wisconsin do not fund civil legal services: Alabama, Alaska, Idaho, South Dakota, and Wyoming.

Will the situation improve in Wisconsin? The State Bar’s study of the justice gap is an attempt to spur action.

Why Another Study?

The State Bar is not the first group to conduct a statistical study on the justice gap. For instance, on the national level, the American Bar Association (ABA) published a study in 1994, Legal Needs and Civil Justice: A Survey of Americans. And in 2005, the Legal Services Corporation issued Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-income Americans.

Since 2000, Wisconsin is the eleventh state to complete a study, according to Bob Echols, state support director of the ABA Resource Center for Access to Justice Initiatives. Various studies’ findings have been highly consistent, he notes. Which raises the question: What is the purpose of doing another one?

“I think the phrase ‘bringing it home’ encapsulates it,” Echols says. “When people are presented with data showing that it’s their neighbors and people in their communities who are experiencing problems, it becomes much more real.”

The impetus for the Wisconsin study partially sprang out of the Wisconsin Trust Account Foundation (WisTAF) controversy in 2004. The state supreme court decided to assess a mandatory $50 fee on each Wisconsin attorney to raise legal services funds – an assessment the Bar had opposed.

“In the course of the conversation with the Wisconsin Supreme Court,” Sankovitz notes, “the question was raised about just how big the [legal services] problem is and how much the WisTAF assessment would help solve it, if at all. The court and the State Bar agreed there needed to be a study.”

But a more compelling motivation for the Bar study stems from what’s happened in other states, according to Sankovitz. “Each of those studies has turned into concrete action,” he says. “In Illinois, for instance, the amount spent on legal services went from zero to $3.5 million. Our expectation is that, if we follow through on our study’s recommendations, we can change the sorry state of affairs in Wisconsin.”

Hard Data

The linchpin of the Bar’s study was a telephone survey conducted in April 2006. The Bar hired a professional survey firm, Gene Kroupa & Associates in Madison, to survey 1,122 low-income households across the state. Participants invested 20 to 30 minutes to complete the survey over the phone.

The survey targeted two low-income groups. See Figure 1. The first consisted of people with household incomes at or below 125 percent of the federal poverty guideline (FPG). That translated into an income in 2005 of $24,188 or less for a family of four. Eleven percent of all Wisconsin families fall into this group.

The second group had household incomes from 125 percent to less than 200 percent of the FPG, which in 2005 translated into an upper limit of $38,700 for a family of four. In Wisconsin, 21 percent of families are in this income range.

Below are a few highlights of the survey’s findings:

• 45 percent of households had confronted at least one serious civil legal problem in the previous year.
• Problems were more prevalent for families with children under age 18. Two-thirds of these families had faced a legal issue in the preceding year.
• Of those who had a civil legal problem, 80 percent had received no legal assistance.
• Among those who had to appear in court, only 39 percent had a lawyer representing them, while 63 percent of these respondents said the other side had an attorney.
• 50 percent of urban respondents had a legal need, compared to one-third of rural respondents.

Respondents were asked what types of legal problems people had encountered in the previous year. See Figure 2. Two types of problems surfaced most often: getting or keeping public benefits and financial or consumer-related issues. For each, 18 percent of respondents had confronted the problem, out of those who had had a legal need in the previous year. Unpaid medical bills ranked as the top financial/consumer issue.

The next three most common types of legal problems concerned employment (10 percent), wills (8 percent), and family law (8 percent). From there, the needs ran the gamut of civil legal problems.

“As a legal aid lawyer, I would recognize benefits disputes as a common problem. But consumer and financial issues were right up there in frequency. That was somewhat of a surprise to me,” says James M. Brennan, chief staff attorney for the Civil Division at the Legal Aid Society of Milwaukee and a member of the Bar’s Access to Justice Study Committee.

For Brennan, such a finding reinforces the notion that unmet legal needs affect a wider group than many observers might think. “The study uncovered people who could be our neighbors and our relatives,” he notes, “not just a small, geographically concentrated group of dependent and impoverished victims.”

As a 30-year veteran of legal services work in Milwaukee, Brennan describes the survey results as “the best information I’ve seen on the legal needs of low-income folks here in Wisconsin.” The study will be an invaluable tool for shaping policy, he adds, because it presents hard data, not only personal anecdotes.

“If the tragic stories don’t move people,” he notes, “and if what they see in their communities and in the courts doesn’t move them, then maybe a statistically valid, comprehensive survey will.”

Increased Costs or Savings

The study committee’s report makes the case that providing legal services to poor people costs less than failing to provide those services. Prevention or early intervention costs much less than fixing a bigger problem later.

“One thing you find with solving a legal problem,” Sankovitz points out, “is that it’s often the key that unlocks other problems” such as issues concerning access to health care, housing, employment, and so on.

Few studies have examined the costs-versus-benefits question as it relates to access to justice. But research in 2006 at the U.W.-Madison La Follette School of Public Affairs sheds some light. It looked at the costs and benefits of providing legal assistance to domestic violence survivors. The researchers found that a $1 million investment in such assistance would yield more than $9 million in benefits, by reducing the money spent for medical care, mental health care, property damage, lost productivity, and lost quality of life.

Similar data comes from the Wisconsin Department of Health and Family Services program that provides legal help to elderly or disabled people having problems with public benefits. For every $1 spent on the program, $7 comes back to Wisconsin citizens in the form of federal and state benefits and private insurance coverage.

Those dollars flow back not only into citizens’ pockets, but also into local economies across the state. The person who receives the benefits is able to pay medical bills, buy groceries, pay rent, and so on.

“This can make a big difference in the economy of the state,” Sankovitz notes, “because often the benefits we’re talking about are federal benefits. We’re always hearing how Wisconsin trails in bringing federal money back into the state. One effective way to do that is to help people gain or regain access to federal benefits.”

This sort of costs-versus-benefits data, although limited, caught the attention of Deborah Hankinson, a Dallas attorney and former Texas Supreme Court justice. She was instrumental in launching the Texas Access to Justice Commission in 2001, and she now chairs the ABA’s Standing Committee on Legal Aid and Indigent Defendants.

Hankinson says the inclusion of the cost-versus-benefits data sets Wisconsin’s access to justice report apart from others she’s read. “I have always believed that there is a serious cost of not funding legal aid – far greater than the cost of funding it,” she says. “I’m very interested in that piece in the Wisconsin study. I think it’s extremely useful information.”

Who’s Paying Now?

The study also examined the current status of funding for legal services for Wisconsin’s low-income people. The biggest chunk comes from the federal government, and much of that is distributed through the Legal Services Corporation (LSC). Wisconsin’s share of LSC funding in 2005 was $4,044,955. Other federal funding brought the total federal share up to about $9 million in 2005, and 65 percent of that went to Legal Action of Wisconsin and Wisconsin Judicare.

But LSC funding overall has plummeted since 1980. The Congressional appropriation for national allocation in 1980 was $300 million; the 2005 amount was $335 million. When adjusted for inflation, the real buying power of that 2005 LSC funding fell by about 50 percent in comparison to the 1980 level.

Wisconsin, like other states, has felt the pinch and it’s exacerbated by other federal actions, points out Gary Sherman, a Port Wing attorney, former State Bar president, and now a member of the Wisconsin Assembly.

“Back in the early 1980s, President Reagan led a complete revamping of the way Social Security disability is done,” Sherman explains. “Ever since then almost everybody is denied benefits in the initial application. You have to appeal, and if you appeal you win about 85 percent of the time. They’re gambling on keeping costs down by a substantial number of people not appealing.”

Yet, the federal government sent nearly $2 million into Wisconsin in 2005 to fund legal help for people with disability benefits problems.

Other sources for legal aid funding in Wisconsin in 2005 included $2.4 million in grants, $4.4 million raised from various “other” sources, and just over $4 million from state government. Almost all of the state funds, however, go to the state’s elderly and disability benefits programs.

Included in the “other” category of funding sources in 2005 were $411,000 from IOLTA (Interest on Lawyers’ Trust Accounts) and $135,000 from the Equal Justice Fund, which includes contributions from lawyers, law firms, and other businesses. The new Public Interest Legal Services Fund (the WisTAF assessment) begun in 2006 brought in another $776,000.

Lawyers also give their time. The State Bar’s pro bono survey found that in 2005, Wisconsin lawyers reported donating 40,000 hours in free legal services to poor people, the equivalent of the work of 22 full-time legal aid attorneys and a contribution worth more than $6 million at market rates.

Owning the Problem

Discussions about the funding shortfall for legal aid for the poor often circle around to the suggestion that attorneys should do more. Sherman recalls his visits to Washington, D.C. years ago, along with other state bar presidents, to rally support for increased federal funds for legal aid. Most Congressional members from Wisconsin were sympathetic, he recalls. “Except for one,” Sherman adds. “That was Jim Sensenbrenner, who consistently said that if the bar perceives there’s a problem representing the poor, then they should represent the poor.”

It’s a fairly common view, and one the Bar’s study, not surprisingly, refutes. “The problem of the poor lacking access to lawyers and the courts is a societal problem, not the legal profession’s problem,” Sankovitz contends. “But, in fact, lawyers are the only ones who are taking any leadership to solve it.”

The Bar study challenges Wisconsin to step up to the plate. A good start, the study urges, would be for the state to fund general civil legal services, as so many of its neighboring states already are doing.

Sherman cautions, however, against making direct comparisons, because Wisconsin’s economy and tax base aren’t identical to those of its neighbors. Minnesota, for instance, allocates $12 million for general civil legal aid, but it also has a higher per-capita income and larger tax base than Wisconsin, he says.

Competition for state dollars is fierce. “We have a great many unmet needs here in Wisconsin,” Sherman says. “We’re between a half billion and a billion dollars short of meeting our constitutional obligation to provide adequate funding for public education. We’re several billion short if we try to address comprehensive health care, which is the number-one concern of voters when I go out and knock on doors.”

He is not, Sherman emphasizes, arguing that the state can’t fund civil legal services for low-income Wisconsinites. In fact, he agrees that the state should help fund solutions. And as the Doyle administration gradually digs out of the severe budget deficit it inherited, he sees better prospects for state funding. Governor Doyle has proposed $1 million in the new budget to fund specific legal services.

“But if the state puts money into legal services for the poor,” Sherman contends, “that ought to be on top of a lot more federal funding. Otherwise we’re treading water. We can’t have the federal government constantly shifting the burden for everything back to the states.”

Still, Sherman believes the battle for legal services for poor people is one worth fighting. His main advice to the Bar is to be in it “over the long haul,” he says. “You’re going to make progress.”

Hankinson echoes that sentiment, based on what she’s seen in Texas and other states. Persistence is key, as is taking “a comprehensive approach,” she says.

“This is a societal problem that demands continuity and critical mass,” Hankinson explains. “The kicker is you don’t get that by being a committee of something. You have to bring everybody to the table – the executive branch, legislature, judiciary, law schools, legal aid programs, the Bar – all the stakeholders. You build that network so you can get the problem-solving going.”

The State Bar of Wisconsin now aims to support this kind of comprehensive approach, based on the Access to Justice Study Committee’s work. A June Wisconsin Lawyer article will look at the committee’s recommendations and the Bar’s proposed actions.