Who's Providing Legal Counsel to Wisconsin's Poor?

by Hannah C. Dugan

In some corners of this state, individual attorneys still take in the like of chickens and venison for legal assistance provided to poor, but proud, clients. That puts into perspective the eye-popping attorney fees featured in headlines of late. Most attorneys negotiate fees based on the prevailing market rates to cover overhead and personal income. However, even fees calculated on this fair and reasonable basis can prove to be a financial strain for middle-class people, a budget struggle for working-class people, and unbudgetable by poor people.

Fulfilling the promise of equal justice and achieving access to the courts too often only is made meaningful by retaining legal counsel. The bar has found and fought for ways to make resources available for low-income persons to have access to lawyers. This article outlines how lawyers, individually and collectively, provide civil legal counsel to Wisconsin's poor. It presents the allocation and distribution of such resources and describes some of the client eligibility standards and limitations and services provided under several Wisconsin nonprofit law firm models. Further, it briefly discusses the court's attorney-appointment authority for indigents. This overview of such poverty law representation criteria will assist private and government attorneys in assessing appropriate client referral and in identifying gaps that their current or future civil legal work might fill.

Who is Poor?

Due to several factors, measuring poverty rates is a sticky wicket, fraught in recent years with controversy about the validity of census statistics, the methods of analyzing those statistics, and the adequacy of poverty measurement tools.1 Whether a person experiences periodic "poverty spells" or is "chronically poor" doesn't much matter if a legal problem arises when a person is without funds. Mary Naifeh, in an article in the 1998 U.S. Census Bureau Current Population Reports, writes, "Reflecting diverse viewpoints, 'War on Poverty' proponents may emphasize how many individuals experience any episodes of poverty and the duration of the episodes, but 'Welfare Reform' advocates may focus primarily on persons who are chronically poor. Both groups are likely to examine transitions in and out of poverty."2

Federal Poverty Thresholds. The official basis of poverty measurement is amazing, given how many significant decisions are based on it. The current official federal poverty thresholds, used mainly for statistical purposes, were developed in 1963 based on the assumptions of one person in the Social Security Administration who reviewed a 1955 Department of Agriculture Household Food Consumption Survey. The survey provided that families of three or more persons spent about one-third of their after-tax income on food. The "economy food plan" cost, developed by the Social Security Administration, was tripled to arrive at the poverty threshold for a family of three. This procedure did not assume budget amounts for any other category of consumption except food.

Originally, household income measurement was affected by family size, and the households were differentiated statistically - for example, by farm and nonfarm status, the household head's gender, the ratio of adults to children, the aged/nonaged status - creating a matrix of 124 poverty thresholds. While the poverty thresholds were calculated on the basis of after-tax income data, they were applied to income data that used a before-tax definition of income. In 1969, the thresholds were calculated according to the Consumer Price Index, in an effort to ensure that the poverty guidelines would not get higher in real terms as the real income of the general population rose.3 The poverty thresholds are used mainly for statistical purposes.

Federal Poverty Guidelines. The Federal Poverty Guidelines (F.P.G.) are a simplification of the federal poverty thresholds and are used for the administrative purposes of determining financial eligibility for certain federal government, state government, and nongovernmental programs. They are updated annually, issued by the Department of Health and Human Services, and published in the Federal Register.4

Wisconsin's Poverty Profile. According to the 1990 U.S. Census, 508,545 persons in Wisconsin were living below the poverty threshold, representing 10.7 percent of the state's population, and a 2 percent increase of poverty in Wisconsin compared to the 1980 census. Of these statistics, females and members of racial minority groups, across the board, experience disproportionate poverty rates relative to their percentages of the population.5

Using the F.P.G. as a measurement of eligibility for legal assistance is specious. Looking at the 2001 F.P.G., a family of two would be below the poverty guidelines if its annual income is $11,610. This income must cover the basic necessities of living. If the household consisted of a parent and child, with the parent working full-time at minimum wage, the family still would fall below the F.P.G. Under this standard, hiring an attorney becomes both a low priority and a perceived luxury.

Of the 508,545 included in Wisconsin's poverty population in 1990, the estimated number of low-income persons needing legal services is 203,418.6 By American Bar Association standards, the estimated number of low-income Wisconsinites receiving civil legal services from some source should have been 40,684, leaving a gap in the provision of legal services to 162,734 persons.7 However, in 1999, no more than 20,000 low-income Wisconsinites received direct representation civil legal assistance from Wisconsin Trust Account Foundation (WisTAF) grantees. Law firms and lawyers without WisTAF grants provide substantial (but uncalculated) hours of pro bono representation to several thousand of the remaining estimated 183,000 low-income persons not receiving, but needing, civil legal assistance. But the point is clear: Even if the bar collectively met the ABA-estimated standards in Wisconsin, an unacceptably high number of poor people are left without the option for legal representation.

The ABA Needs Study confirms that low-income persons straddling the poverty guidelines have a greater number of legal needs (that, when once met, can lift them out of poverty) than the very poor, who more often have one major legal hurdle (that, when once cleared, can substantially transform life circumstances).

The disproportionate, geographic distribution of attorneys in Wisconsin also affects attorney access for poor people. The three counties where Wisconsin lawyers are most heavily concentrated - Milwaukee, Dane, and Waukesha - contain 7,657 of the practicing bar (including government attorneys unavailable for hire). That is, 49.95 percent of practicing attorneys list a State Bar membership address in 2.7 percent of the state's counties.8 These same three counties hold an estimated 32.25 percent of the state's population (1,693,253 Wisconsinites), and an estimated 37.6 percent of its poverty population (191,498 persons).9

Put another way, 50.05 percent of in-state lawyers practice in 69 counties in which an estimated 62.4 percent of the poverty population resides. Attorney access even for paying clients is minimal in some counties; for example, Florence County includes two practicing attorneys, while an estimated 10.7 percent of its estimated population of 5,136 falls below the poverty guidelines.

State Resources for Representing Indigent and Low-income Persons

Nonprofit Law Firms. In 2000, in law firms exclusively dedicated to providing legal aid to low-income persons, about 80 civil legal assistance staff attorneys served clients in Wisconsin.10 Put into context, Wisconsin residents generally average one private practicing attorney for every 590 residents; Wisconsin's estimated poverty population averages one civil legal assistance staff attorney for every 6,741 poor persons.11 It is no surprise that in many instances the gap between available lawyers and client needs increasingly is being filled by nonlawyer advocates.12

Access to legal representation for the poor is further hampered by the amount of funding available for such services. In Wisconsin, civil legal funding available for legal services is $13.47 per low-income citizen, placing Wisconsin as the 38th lowest of the 50 states for such funding.13

Pro Bono Representation. A chief resource for representing the poor is the service of private and government attorneys providing pro bono legal representation. Pro bono publico is a long-standing professional ethic and tradition in the practice of law. To date, Wisconsin has not adopted mandatory pro bono, nor adopted mandatory pro bono reporting requirements or voluntary pro bono reporting systems.14 Statistics, therefore, are not available for the amount of pro bono hours spent serving the legal needs of the poor. In 1994, the Wisconsin Supreme Court requested all Wisconsin attorneys to complete a pro bono activity survey. The results confirmed that when attorneys do engage in pro bono activity, they commit a substantial amount of time and other professional resources to such representation.15

The pro bono publico tradition, deeply embedded in the legal profession, is outlined aspirationally in the Rules of Professional Conduct SCR 20:6.1 and sworn to by every Wisconsin lawyer who pledges, in the Attorney's Oath, SCR 40.15, to "never reject from any consideration personal to myself the cause of the defenseless or oppressed or delay any person's cause for lucre or malice." Government attorneys and the judiciary have some limitations in providing pro bono publico service due to conflicts related to their offices.16 Private attorneys establish their own standards and, in more recent years, some law firms have incorporated pro bono publico firm-wide standards, credits to billable hours, and even requirements in associates' and partners' periodic evaluations.17 Similarly, law schools nationwide increasingly are incorporating pro bono programs; some are debating whether to condition graduation upon demonstrated law student pro bono activity.18

Fee Arrangements. Individual attorneys also provide services to low-income persons at reduced-fee rates, by adjustment of total bills after completion of matters, through waiver or reduction of retainer fees, and by otherwise adjusting fees based upon a client's circumstances. The private bar also represents low-income people who are eligible or subscribe to group and prepaid legal service programs,19 and those whose case types serve as a means of eligibility, for example, civil rights representation by the American Civil Liberties Union-Wisconsin Chapter, and immigration counsel by Catholic Charities Legal Services to Immigrants in Milwaukee.

Organizational Resources. For years, local bar associations have run projects, programs, Law Day events, hotlines, and lawyer referral services to provide information to pro se litigants, and to make referrals for legal assistance. The State Bar of Wisconsin's recent online addition, www.legalexplorer.com., is an example of bar outreach. In addition, Volunteer Lawyers Projects panels are available in each of Wisconsin's 72 counties, organized to refer screened indigent and low-income clients to private attorneys for civil legal services.20 Other pro bono panels are maintained by the federal district courts, the ACLU-Wisconsin Chapter, and several State Bar of Wisconsin practice sections (for example, the Appellate Practice, Business Law, and Environmental Law sections).

The State Bar governance structure includes the Committee on Legal Assistance as one of only four standing committees, thereby emphasizing that, institutionally, providing legal assistance to the poor is one of the State Bar's primary purposes.21 The State Bar also supports the Office of Pro Bono Coordinator, which serves as a clearinghouse for client inquiries statewide, and which assists individual attorneys, law firms, law schools, and local bar associations with their pro bono initiatives and activities.22

Funds Targeted for Civil Legal Assistance. In 1986, Wisconsin incorporated an Interest on Trust Accounts (IOTA) program. Codified as the Wisconsin Trust Account Foundation Inc. (WisTAF),23 it was created for law-related charitable and educational purposes. WisTAF collects interest from attorney trust accounts and maintains and allocates such funds, usually annually.24 The funds are distributed pursuant to grant applications accepted for WisTAF board review, with funds expended pursuant to SCR 20:1.15 "to provide legal aid to the poor."25 WisTAF has proven to be an important resource for serving the poor. During its 13 distribution cycles, WisTAF has distributed $17,087,500, including allocating $1,722,000 for 2001 to nonprofit law firms or law-related programs throughout Wisconsin.26

The state's most recent biennium budget for the first time included a budget line for civil legal services. The allocation is highly targeted, restricted, and requires matching amounts. Nevertheless, it signals recognition by the state of the importance of supporting civil legal assistance.27 In the current biennium budget, the State Bar is lobbying aggressively for continued inclusion of a civil legal assistance budget line and, indeed, an increase in the budget amount.

The Equal Justice Coalition Inc. (EJC) is an independent, free-standing, recently incorporated nonprofit entity.28 Its broad-based board includes lawyers, business people, academics, and others who advance the EJC's mission: to implement short-term and long-term strategies to maximize the amount of resources, financial and otherwise, available to low-income persons in the state. The EJC collects donations and allocates funds to WisTAF, which, in turn, determines fund allocation for direct legal aid, according to its powers and duties as outlined in SCR 13.03.

Some Wisconsin local bar associations distribute limited grants for such law-related activities, for example, the Dane County Pro Bono Trust Fund and the Milwaukee Bar Association Foundation Inc., while other in-kind support is available through non-profit law firm sponsorship of poverty law-related fellowships.29

Other Resources. Means for reducing poor litigants' legal costs (thereby avoiding delay or injustice) include: petitions for waiver of costs and fees30 and for waiver of transcript costs,31 and the limited payment of costs by attorneys representing indigents.32

Institutionalized Sources of Civil Legal Assistance to the Poor

During the last 13 years, WisTAF has provided funds to 36 different grant applicants for legal aid to the poor and for law-related activities. The goals of these legal assistance providers and law-related programs vary, as do their program designs. Below are overviews of four attorney-based law firm models providing direct legal assistance to low-income clients. While legally incorporated as nonprofit entities, they nevertheless are distinguished correctly from other WisTAF recipients as "law firms."

Two Legal Services Corporation-funded models. Four law firms in Wisconsin receive Legal Services Corporation (LSC) funds33: Legal Action of Wisconsin Inc. (LAW),34 Western Wisconsin Legal Services Inc. (WWLS),35 Legal Services of Northeastern Wisconsin (LSNEW),36 and Wisconsin Judicare.37 The service delivery model for LAW, WWLS, and LSNEW is similar; the service model for Judicare is discussed separately.

While not exclusively supported by federal funds, these legal services providers in 1999 received $4,783,010 from LSC for low-income representation in Wisconsin.38 These legal services law firms receive substantial, targeted-fund contracts for which they must follow proscribed regulatory conditions including income/asset eligibility assessments39 and the alien and immigration status of a potential client.40 LSC-funded programs must adopt and submit written priorities for the types of cases and matters to which the staff will limit its commitment of time and resources.41 The code also provides restrictions on the types of cases and matters that an LSC-funded program may undertake. Serious consequences, including loss of funding, may occur for breaches of the restrictions, such as representation in certain eviction proceedings and in undertaking class actions.42

LSC-funded Staff Models. The LSC-funded LAW, WWLS, and LSNEW programs all accept clients at 125 percent or below the F.P.G., unless otherwise provided in their programs. For example, they all provide services under the Older Americans Act and therefore do not have income guidelines for those client populations.

LSC basic field grants provide for case service priorities in public benefits, housing, medical benefits, access to medical care, family law, and a series of special projects directed to targeted populations, for example, victims of domestic violence, the elderly, and Native Americans. The service model design includes an application of the LSC regulatory eligibility standards and restrictions, an assessment of whether the client fits in a priority area, and assignment of the case to either staff attorneys, supervised paralegals, or referral to pro bono attorneys included in the firms' Volunteer Lawyers Projects.

LSC-funded Attorney Referral Model. Wisconsin Judicare is a compensated pro bono delivery system relying upon private practitioners to represent clients at reduced fees. Its service model encompasses 33 rural counties and includes substantial Native American populations and nation jurisdictions. Although also funded by LSC funds, the program model is designed differently to address the substantial geographic coverage, as well as the markedly fewer attorneys practicing in these 33 counties relative to the other service areas in Wisconsin.43

Judicare has a very limited number of staff attorneys who provide some representation. The bulk of representation in Judicare's service area is provided by members of the private bar who contract with Judicare to provide legal services for nominal fees. After an eligibility determination, Judicare issues a Judicare card to a client who, in turn, selects a participating attorney. After consultation, the attorney requests coverage for additional representation costs and Judicare reviews the request for approval of coverage. At the conclusion of the representation, the attorney submits the final billing to Wisconsin Judicare. The nonstaff attorneys are reimbursed at the rate of $40 per hour (tribal advocates at $25 per hour) with set, maximum, per case reimbursement rates, as provided in Judicare's program, designed and approved by LSC. This "contract" model is the most feasible means of service delivery in these counties where attorneys, even at a reimbursed rate, still may not be able to cover overhead costs.

Non-LSC Legal Aid Model. Non-LSC-funded nonprofit law firms have direct service models that are not unlike LSC-funded programs: providing quality legal representation without cost to low-income persons. They do not face the limitations of LSC funding restrictions, giving them some additional autonomy. However, they do not have the substantial, legal-services-targeted LSC awards; therefore, they must compete for funding with the host of other nonprofit entities, and abide by restrictions set by foundations and other funders.

The Legal Aid Society of Milwaukee Inc., which was organized as part of the legal aid movement at the end of the 19th century, started as a membership group, with $1 per year dues supporting the Society administration. Milwaukee's Society initially was a volunteer effort with referrals for free, individualized, direct services representation by a designated firm which "contracted" to accept cases and "payment" from the civic-minded, member organization. Eventually, the volunteer referral model evolved to an attorney-staff model - consistently setting and resetting its priorities since 1916 according to client and local needs. Funding has evolved from in-kind and Society member dues support to the mix of fundraising events, donation appeals, restricted and unrestricted foundation support, and eventually incorporating even fee-for-service contracts, for example, public defender services in the 1970s and guardian ad litem services contracts since the 1980s.

To be eligible for Milwaukee Legal Aid representation, a client's net income generally must not exceed 100 percent of the F.P.G., followed by an assessment of liquid assets. Currently, the delivery model includes prioritizing practice areas by case type, which includes cases involving basic legal needs of family, economic benefits, consumer, health, housing, civil forfeiture defense, and discrimination law. The service model also includes special projects for targeted populations, for example, the elderly, persons with AIDS, the homeless, victims of domestic violence, and low-income taxpayers. Because Milwaukee Legal Aid does not receive LSC funds, it is not subject to any of the federal funding restrictions regarding representation of immigrants/aliens or pursuing class action matters. During the last decade, it increasingly has directed its resources to pursuing major law reform and class action litigation.

Non-LSC-funded, "Mixed" Services Model. Another service model is found both at Madison's ABC for Health and Milwaukee's Centro Legal Por Derecho Humanos.44 Both nonprofit law firms provide some services without cost, based on income assessment according to the F.P.G. The firms' "free" work is supported through foundation support and donations and other fundraising strategies. However, when a client's household income exceeds 150 percent of the F.P.G. or involves specific types of cases, the law firms employ sliding fee and fixed fee scales in payment for retained legal representation.

In general, these types of "mixed" services models often extend representation to clients with household incomes up to 250 percent above the F.P.G. These higher income "caps" address the needs of persons who likely cannot afford counsel at market rates, but can retain competent counsel at the relatively manageable reduced-fee rates this service model employs. Fees are set to accommodate clients' circumstances and case types, for example, 1) a fixed per-case amount; 2) an initial amount with a fixed per-court-appearance amount; and 3) fee amounts based on individually negotiated, specified "unbundled" services. Under this model, for example, a divorce case client may contract to pay a fixed fee (depending upon whether the case is contested or involves minor children), or fees based on the number of hearings attended, or fees based on the chosen lawyer services of counsel, advice, and preparation of the petition (and opting to complete the action pro se).

The reduced-fee components of mixed service models provide clients with some certitude of the costs they will face, encourage client-based decision making and a sense of "ownership" over the matter, and generally increase the access of clients to some affordable, or free, attorney representation. The law firms under these models are able to provide free services, expanded services with fees to represent in additional areas of practice, maximize attorney resources through "unbundled" representation, and diversify the funding base of the firm while, arguably, increasing the client's sense of choice. The mixed services model altogether requires staff to balance caseloads between fee-based cases and free services, requires careful monitoring of the income stream to avoid putting a nonprofit status at risk, requires institutionalization (and the associated costs) of billing practices and systems, and may affect foundation and donor support, either positively or negatively.

Court Appointment in Civil Cases

In criminal law cases, defendants have a right to counsel under both the U.S. and Wisconsin constitutions, and the right to have such counsel appointed without costs if the defendant cannot afford counsel. There are U.S. Supreme Court-recognized limitations on the right to appointed counsel in civil actions: generally, presumption of such appointment only exists when an indigent may be deprived of physical liberty if the indigent "lost the case."45 The court also has inherent power to appoint counsel to serve the interests of the circuit court,46 to meet a need for the fair presentation of a case (even though the state constitution or statutes don't provide for counsel appointment), and to serve due process concerns. So, in some civil matters the court will appoint counsel but only pursuant to an individualized determination of the necessity for appointment. The courts, through a Fourteenth Amendment due process-based analysis, must balance the private interests at stake, the government's interest, and the risk that procedures used will lead to erroneous decisions, and then "the net weight of these elements is balanced against the presumption that a right to counsel exists only when personal freedom is jeopardized."47 Counsel appointment for indigent litigants has been considered in cases involving civil contempt,48 civil commitment proceedings,49 CHIPS cases,50 and termination of parental rights cases.51

The absolute right to appointed counsel in civil proceedings is not recognized by the court; however, if the deprivation of liberty interests or important personal liberties are at stake, counsel at public expense in certain civil proceedings can be furnished. Expansion of such appointment authorities to other civil proceedings is the subject matter of law review articles, not current court deliberations.52 Attorney costs in such cases currently are paid by the counties at various hourly rates.53

Conclusion

This article has outlined poverty law resources in Wisconsin. The resources meet some, but not the substantial, access-to-justice needs of the poor. Other states have explored and even adopted other resource strategies - that is, mandatory pro bono and its cousins; voluntary or mandatory pro bono reporting; pro bono "buyout"; civil legal Gideon funds (using, for example, distribution of punitive damage and class action cy pres awards; and "service taxes" on for-profit legal services); substantial state funding, filing fee surcharges; and fee-shifting statutes in challenges involving eligibility for government-administered entitlements and benefits. All of these potential resources have been met with understandable controversy, and some indeed have generated more resources.

For the time being, Wisconsin's most reliable access-to-justice resource remains the same: attorneys who undertake cases pro bono, who absorb cases into the cost of their practices, who chose careers in legal aid and legal services offices and other nonprofit entities, who lobby for state and federal funding for what is a public good and public responsibility. And those generous and proud attorneys who accept chickens and venison.

Endnotes

1 See, The Hidden Side of the Clinton Economy, Atlantic Monthly, Oct. 1998, at 18; David M. Betson, Poor Old Folks: Have Our Methods of Poverty Measurement Blinded Us to Who Is Poor?, (Univ. Notre Dame), Nov. 1995. In 1995, the National Academy of Sciences/National Research Council reported to Congress a proposed new approach for developing an official poverty measure for the United States, which to date has not been adopted.

2 Mary Naifeh, "Trap Door?, Revolving Door? Or Both?" U.S. Census Bureau Current Population Reports (Washington, D.C.), July 1998, at 70.

3 During the 1980s, 76 poverty thresholds were eliminated, reducing the matrix from 124 to 48. Constance F. Cadre & Robert T. Michael, Measuring Poverty: A New Approach, (Washington, D.C.: National Academy Press, 1995).

4 Many government programs use the guidelines to determine eligibility for many government benefits. However, in general, public programs, for example, SSI and Earned Income Tax Credit Program, use their own guidelines to determine program eligibility.

5 U.S. Census Bureau, Census Historical Poverty tables, CPH-L-162 Persons by Poverty Status in 1969, 1979, and 1989 by State.

6 At any one time, 40 percent of all low-income persons are in need of civil legal services. Legal Needs and Civil Justice: A Survey of Americans, Consortium on Legal Services and the Public, American Bar Association, 1996, and its Final Report on the Implications of the Comprehensive Legal Needs Study, 1996.

7 ABA study, supra, in which it was estimated that only 20 percent of all low-income persons actually received assistance.

8 Total number of licensed attorneys throughout the state is 15,329.

9 The state estimates are calculated from U.S. Census statistics found at http://quickfacts.census.gov.qfd/states/55000.html. The county-based estimates are calculated from U.S. Census statistics found at http://quickfacts.census.gov/qfd/states/55/55133.html. Figures also are based on information included in the Notice of Proposed Availability of FY2001 Competitive Grant Funds, Legal Services Corporation, 750 First St., Washington, D.C., April 21, 2000.

10 These numbers reflect the number of staff attorneys (not full-time equivalent) and include staff attorneys who are responsible for both administrative duties and caseload representation. Included in this total are the following WisTAF-grantees: ABC for Health, Centro Legal Por Derecho Humanos, Legal Action of Wisconsin Inc., Western Wisconsin Legal Services Inc., Legal Services of Northeastern Wisconsin, Wisconsin Judicare, and the Legal Aid Society of Milwaukee Inc.

11 Estimates are based on the 2000 U.S. Census Bureau estimated Wisconsin population of 5,326,000. U.S. Census Bureau, Population Estimates Program, Population Division, U.S. Census, Washington, D.C. 20233. . This number is divided by the January 2001 record of 9,027 in-state private practitioner attorneys filing trust account statistic reports (excluding attorneys who are publicly employed, serving as corporation counsel, or "not practicing"). Wisconsin's total estimated poverty population for 1999 is 539,300. .

12 See, State Bar of Wisconsin Paralegal Practice Task Force Report, June 2000.

13 The State Planning Assistance Network (SPAN), a partnership between the ABA and the National Legal Aid and Defender Association. In comparison, Minnesota ranks 7th nationally on the amount of legal services funding and spends an average of $43.16 per low-income person for civil legal assistance funding. SPAN statistics are based on LSC-funded law firms; other nonprofit law firm resources and spending averages are not included in these calculations. SPAN Update: A Guide to Legal Services Planning, State Planning Assistance Network of the American Bar Association and National Legal Aid Defender Association, January, 1999, at 50.

14 For a discussion of the advantages and disadvantages of such systems see, State Pro Bono Reporting: A Guide for Bar Leaders and Others Considering Strategies for Expanding Pro Bono (Washington, D.C.: ABA Standing Committee on Pro Bono and Public Service, April 1999.)

15 Commission on the Delivery of Legal Services: Final Report and Recommendations, (Madison, Wis.: State Bar of Wisconsin, June 1996) at 39.

16 See, State Bar of Wisconsin Government Lawyers Pro Bono Task Force Report, (Madison, Wis.: State Bar of Wisconsin, April 1996); Hon. Judith Billings, and Jenny M. McMahon, "Expanding Pro Bono: The Judiciary's Power to Open Doors," Dialogue, American Bar Association, Spring 1998, Vol. 2, No. 2 at 1; Wisconsin Code of Judicial Ethics SCR 60.05(2) and its commentary, discussing the judiciary's unique positions to contribute to the improvement of the law and the legal system. Oxholm, Carl, "A Rule to Show Cause on the Courts: How the Judiciary Can Help Pro Bono-Part II," Dialogue, American Bar Association, Spring 1999, Vol. 3, No. 2 at 3.

17 For law firm models, see the State Bar of Wisconsin Pro Bono Handbook for Law Firms. A copy is available from the State Bar, (800) 728-7788.

18 See, Deborah L. Rhode, "Cultures of Commitment: Pro Bono for Lawyers and Law Students," Researching Law, American Bar Foundation, Vol. 10, No. 2, Spring 1999. Marquette University Law School opted for its voluntary Pro Bono Society, induction into which occurs upon graduation after meeting select and strict service criteria.

19 SCR 11.06. GPLSP is provided pursuant to a plan of an organization or attorney to provide legal services for enrollees eligible for the plan, irrespective of income level.

20 For over a century, organized programs have facilitated the referral and "attorney-matching" of poor clients. During the last 20 years, the number of programs has burgeoned, coincident to regulatory focus of mandatory Private Attorney Involvement expenditures by LSC-funded entities. "In 1980, the ABA identified 80 pro bono programs. Today, there are more than 900 programs." Billings, Hon. Judith, "From the Chair...," Dialogue, American Bar Association, Spring 1999, Vol. 3, No. 2 at 3. The Volunteer Lawyers Projects of Wisconsin's LSC-funded programs report 2,500 panel members. "SPAN Update: A Guide to Legal Services Planning," State Planning Assistance Network of the ABA and National Legal Aid Defender Association, January 1999, at 76.

21 SCR 10 Appendix, Article IV, Standing Committee, Section 5.

22 The current State Bar pro bono coordinator is Deborah Kilbury Tobin, (608) 250-6177.

23 SCR 13, Stats. WisTAF is a Wisconsin nonstock, nonprofit corporation. The WisTAF board of 15 members operates without pay but with the assistance of paid staff.

24 SCR 20:1.15 requires attorneys to maintain property for safe keeping and to outline provisions for such safe keeping. Included in the rules is a requirement that interest accruing on the pooled interest bearing trust account, net of any transaction costs, shall be paid to the WisTAF, which is then deemed to be the beneficial owner thereof.

25 WisTAF also may expend funds to programs that benefit the public as may be specifically approved from time to time by the supreme court for exclusively public purposes and to pay reasonable and necessary expenses of the board and the administration of the program, including employment of staff. SCR 13.03(2)(a) 2 and 3.

26 Pursuant to statute, WisTAF allocates funds on two tiers: direct legal aid to the poor and law-related public education programs. WisTAF receives a small percentage of its funds from sources other than interest on trust accounts. Most recently, it has received funds from the Equal Justice Coalition.

27 Codified as section 49.1635 of the Wisconsin Statutes, the grant provides applicants with federal Temporary Assistance to Needy Families (TANF) program matching funds. The grant project, administered by WisTAF in conjunction with the Wisconsin Department of Workforce Development, allocates and monitors up to $100,000 per annum in the biennium budget.

28 The concept of establishing the EJC was included in the project implementation goals identified by the Delivery of Legal Services Commission convened by the State Bar of Wisconsin in 1994.

29 Such opportunities are highly competitive and often national in scope, for example, the Skadden Fellowships and National Association for Public Interest Law (NAPIL) Fellowships.

30 Wis. Stat. § 814.29.

31 State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 454 N.W.2d 792 (1990).

32 SCR 20:1.8(e)(2).

33 The Legal Services Corporation, established pursuant to Congressional Act in 1977, grants federal funds to applicant-legal services providers pursuant to proposed program models and in compliance with federal regulation. Legal Services Corporation Act, Pub. L. 93-355(1977) authorizing legislation, amended and reauthorized subsequently. LSC regulations are provided at 45 CFR Ch. XVI, Part 1600, et. seq. Other government, private, foundation, and fees-for-service contracts also are administered by these law firms. However, receipt of LSC funds distinguishes these firms from entities that do not receive LSC funds.

34 With offices in Milwaukee, Madison, Kenosha, and Racine, LAW provides civil legal services in Milwaukee, Racine, Kenosha, Walworth, Rock, Green, Waukesha, Jefferson, Dane, Dodge, and Columbia counties, and administers the LSC-migrant assistance grants statewide.

35 With offices in La Crosse and Dodgeville, WWLS provides legal services to Lafayette, Grant, Iowa, Sauk, Richland, Crawford, Vernon, Juneau, Monroe, La Crosse, Jackson, Trempealeau, and Buffalo counties.

36 With offices in Green Bay and Oshkosh, LSNEW serves clients in Sheboygan, Fond du Lac, Green Lake, Marquette, Adams, Waushara, Winnebago, Calumet, Manitowoc, Outagamie, Brown, Kewaunee, Ozaukee, Washington, and Door counties.

37 Wisconsin Judicare has an office in Wausau, and serves 33 Wisconsin counties, including Pepin, Eau Claire, Clark, Wood, Portage, Waupaca, Shawano, and Oconto and counties north of these.

38 "SPAN Update: A Guide to Legal Services Planning," State Planning Assistance Network of the ABA and National Legal Aid Defender Association, January 1999, at 50.

39 45 CFR Ch. XVI, Sec. 1611.3. The maximum annual income of clients may not exceed 125 percent of the F.P.G. A recipient who exceeds that standard but does not exceed 150 percent of F.P.G. may be provided legal assistance if one is seeking to secure benefits provided by a governmental program for the poor. 45 CFR Ch. XVI, Sec. 1611.4. In addition, a person's circumstances may allow eligibility if one or more of the factors set forth in section 1611.5(b)(1) are present. A person also could be considered eligible for program services even if the person's gross income exceeds 150 percent of the F.P.G. if the person's gross income is primarily committed to medical or nursing home expenses. 45 CFR Ch. XVI, Sec. 1611.5(a)(1)(B). Maximum asset ceilings, including both liquid and non-liquid assets, minus certain exemptions, must be used in determining eligibility for services. The ceilings may be waived in unusual, extremely meritorious situations. 45 CFR Ch. XVI, Sec. 1611.6.

40 All client files must include a signed form attesting to an applicant-client's U.S. alien status. 45 CFR Ch. XVI, Sec. 1626, et. seq.

41 45 CFR Ch. XVI, Sec. 1620.1 et. seq.

42 Including discouraging fee generating cases (45 CFR Ch. XVI, Sec. 1609), restrictions on lobbying (45 CFR Ch. XVI, Sec. 1612), restrictions on legal assistance with respect to criminal proceedings (45 CFR Ch. XVI, Sec. 1613), and restrictions to collaterally attacking criminal convictions (45 CFR Ch. XVI, Sec. 1615) and litigation on behalf of prisoners (45 CFR Ch. XVI, Sec. 1637); eviction proceedings and class actions are restricted by 45 CFR Ch. XVI, Secs. 1633 and 1617, respectively.

43 In these counties, 1,301 attorneys are licensed "active," "nonjudicial," and have not reached "emeritus" status. This number (from a total of 15,329 attorneys in these categories statewide) means 8.04 percent of the bar (including government attorneys unavailable for hire) practices in 46 percent of the state's counties.

44 ABC for Health focuses primarily on various aspects of health law; Centro Legal provides civil and criminal legal services with an emphasis, but not an exclusive requirement, on providing services to Spanish-speaking persons.

45 Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).

46 Chiarkas v. Skow, 160 Wis. 2d 123, 13, 65 N.W.2d 625 (1991).

47 Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d. 411 (1996), analyzing the application of Lassiter v. Dep't of Social Services, 452 U.S. 18, 24 (1981), and Piper v. Popp, 167 Wis. 2d 633, 650, 482 N.W.2d 353 (1992).

48 State ex. rel. Maas, 75 Wis. 2d 542, 249 N.W.2d 799 (1977).

49 Wis. Stat. §§ 51.20(3), 977.05(5)(i), 977.05(6)(i).

50 Wis. Stat. §§ 48.23, 48.23, 938.23(1)(a).

51 Wis. Stats. § 48.23(2); In re Termination of Parental Rights to M.A.M., 116 Wis. 2d 432, 342 N.W.2d 410 (1984).

52 Some states have codified appointment of counsel, for example, Ind. Code Ann. § 34-1-1-3 (court "shall assign [to an indigent] an attorney to defend or prosecute a case"); MO. Ann. Stat. § 514.040, VA. Code Ann. § 141.183, and W. VA. Code § 59-2-1 (court may assign counsel to poor persons). Actions involving children's interest and their contractual limitations, and collateral attacks are examples of areas that appointment of counsel for indigent persons in civil matters raise the same due process and fairness issues with substantial rights at risk. Ross, Catherine, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 Fordham L. Rev. 157 (1996); Hawkins, Susan, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, 64 Fordham L. Rev. 2075 (1996); Medine, David, The Constitutional Right to Expert Assistance for Indigents in Civil Cases, 41 Hasting L.J. 281 (1990).

53 The draft compilation of actual court-appointed attorney and guardian ad litem costs during calendar year 1999 under Chapters 48, 55, 880, 767, and "other appointments" totaled $10,154,540.64, with recoupment of such costs in calendar year 1999 being $2,040,349.33. Draft report of the Director of State Courts as required under Sec. 768.19(5)(i). See Olmstead v. Circuit Court, 2000 WI App 261 (filed 16 Nov. 2000), for a current interpretation of appointment authorities and GAL payment under Wis. Stat. section 767.045(6).

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