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45–653 PDF 2008

S. HRG. 110–655 

CLOSING THE JUSTICE GAP: PROVIDING CIVIL 

LEGAL ASSISTANCE TO LOW–INCOME AMERICANS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

MAY 22, 2008 

Serial No. J–110–95 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Benjamin L., a U.S. Senator from the State of Maryland ...................... 1 

prepared statement .......................................................................................... 143 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 154 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 175 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 197 

WITNESSES 

Barnett, Helaine M., President, Legal Services Corporation, Washington, 

D.C.; accompanied by Jonann C. Chiles, Member, Board of Directors, Legal 

Services Corporation, Little Rock, Arkansas ..................................................... 4 

Boehm, Kenneth F., Chairman, National Legal and Policy Center, Falls 

Church, Virginia ................................................................................................... 21 

Diller, Rebekah, Deputy Director, Justice Program, Brennan Center for Justice, New York University Law School, New York, New York ......................... 27 

Franzel, Jeanette M., Director, Financial Management and Assurance, U.S. 

Government Accountability Office, Washington, D.C. ...................................... 24 

Joseph, Wilhelm H., Jr., Executive Director, Maryland Legal Aid Bureau, 

Inc., Baltimore, Maryland ................................................................................... 19 

Livingston, Lora J., Judge, 261st District Court (Texas), Austin, Texas, and 

Member, Standing Committee on Legal Aid and Indigent Defendants, 

American Bar Association ................................................................................... 15 

Wallace, Jo-Ann, President and Chief Executive Officer, National Legal Aid 

and Defender Association, Washington, D.C. .................................................... 17 

QUESTIONS AND ANSWERS 

Responses of Helaine M. Barnett to questions submitted by Senators Sessions 

and Grassley ......................................................................................................... 35 

Responses of Jonann C. Chiles to questions submitted by Senator Sessions ..... 103 

Responses of Jeanette M. Franzel to questions submitted by Senator Sessions 106 

SUBMISSIONS FOR THE RECORD 

American Bar Association, Thomas M. Susman, Washington, D.C., letter and 

attachments .......................................................................................................... 108 

Associated Press: 

August 15, 2006, article ................................................................................... 116 

January 18, 2008, article ................................................................................. 120 

Barnett, Helaine M., President, Legal Services Corporation, Washington, 

D.C.; accompanied by Jonann C. Chiles, Member, Board of Directors, Legal 

Services Corporation, Little Rock, Arkansas, statement .................................. 123 

Boehm, Kenneth F., Chairman, National Legal and Policy Center, Falls 

Church, Virginia, statement ................................................................................ 134 

Boozer, F. Vernon, Chair, Maryland Legal Services Corporation, Baltimore, 

Maryland, statement ............................................................................................ 139 

Diller, Rebekah, Deputy Director, Justice Program, Brennan Center for Justice, New York University Law School, New York, New York, statement ...... 146 

Franzel, Jeanette M., Director, Financial Management and Assurance, U.S. 

Government Accountability Office, Washington, D.C., statement ................... 156 

Page

IV 

Goldsmith, Sharon E., Esq., Executive Director, Pro Bono Resource Center 

of Maryland, Baltimore, Maryland, statement .................................................. 169 

Joseph, Wilhelm H., Jr., Executive Director, Maryland Legal Aid Bureau, 

Inc., Baltimore, Maryland, statement and attachments ................................... 177 

Kepplinger, Gary L., General Counsel, General Accountability Office, Washington, D.C., statement ........................................................................................ 189 

Livingston, Lora J., Judge, 261st District Court (Texas), Austin, Texas, and 

Member, Standing Committee on Legal Aid and Indigent Defendants, 

American Bar Association, Washington, D.C., statement ................................ 199 

National Conference of Bar Presidents, Chicago, Illinois, letter ......................... 212 

National Organization of Legal Services Workers, Local 2320, International 

Union, United Automobile, Aerospace & Agricultural Workers of America 

(UAW), Detroit, Michigan, statement ................................................................. 215 

U.S. Senators in support of an increase in Legal Services Corporation funding, Washington, D.C., joint letter ...................................................................... 225 

Wallace, Jo-Ann, President and Chief Executive Officer, National Legal Aid 

and Defender Association, Washington, D.C. .................................................... 230 

West, Kirt, former Inspector General, Legal Services Corporation, Washington, D.C., statement ........................................................................................ 245 

(1) 

CLOSING THE JUSTICE GAP: PROVIDING 

CIVIL LEGAL ASSISTANCE TO LOW–INCOME 

AMERICANS 

THURSDAY, MAY 22, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 2:15 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Ben Cardin, presiding. 

Present: Senator Cardin. 

OPENING STATEMENT OF HON. BEN CARDIN, A U.S. SENATOR 

FROM THE STATE OF MARYLAND 

Senator CARDIN. The Committee will come to order. 

First, let me thank Senator Leahy for allowing me to chair today’s hearing on ‘‘Closing the Justice Gap: Providing Civil Legal 

Assistance to Low-Income Americans.’’ 

Let me first apologize for being a few minutes late. The Senate 

is voting on the farm bill, the veto override, and that is going to 

be the last vote of the week. So I appreciate your patience in the 

starting of this hearing. 

I also from the beginning want to thank particularly Senator 

Kennedy. We all, of course, hold Senator Kennedy in our prayers. 

The discovery this week about his illness has been a blow to all of 

us here on both sides of the aisle, and there has been a tremendous 

outpouring of support. We know that he will continue to fight, but 

we miss him. 

In planning this hearing, I talked to Senator Kennedy, who gave 

me a lot of good advice as to what we should be doing. He is an 

ardent supporter of bridging the justice gap in America and wants 

to do everything he can to provide additional help to those today 

that do not have adequate access to our legal system, and I thank 

Senator Kennedy for that. He, of course, chairs the Committee that 

has primary jurisdiction over the Legal Services Corporation, and 

obviously his leadership in this area is indispensable. I also want 

to acknowledge the work that is being done on the Appropriations 

Committee that has been involved in many of these issues. 

As I pointed out, the purpose of today’s hearing is to establish 

a record in the Judiciary Committee on a matter that is very important to the work of our Committee, and that is, how well are 

we meeting the needs of those people who are otherwise unable to 

get adequate legal representation in dealing with access to our jusVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
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tice system? And I would hope that today’s hearing would focus on 

that so that we would have a good chance to make an assessment 

of where we are and where we need to go. 

The LSC Board completed a report that documented the justice 

gap in America. That report is titled, ‘‘The Current Unmet Civil 

Legal Needs of Low-Income Americans.’’ It was a reflection of what 

they discovered in 2005, and what that report pointed out—and I 

must tell you, I was a little bit surprised because I did not think 

the circumstances were as positive as that report pointed out, 

which was not very positive—is that one out of every two eligible 

individuals who seek legal assistance are denied services because 

of budgetary reasons. That means that we have a large gap in 

meeting our responsibilities. 

That report was done in 2005. It pointed out pretty clearly that 

that is those who seek help, and a large number of individuals do 

not even bother to try to get help to deal with their legal needs. 

So the gap is much larger than 50- percent failure in meeting 

needs. 

And then when one understands that the eligibility—the number 

of people who are eligible for legal services has increased since 

2005, we have had major disasters since that time that add to the 

need for people having access to our legal system, including, of 

course, Katrina. We are suffering through a difficult economic time. 

The number of foreclosures are at an all-time high. That adds 

again to the circumstances of need, taking us well beyond where 

we were in 2005. And since 2005, the resources made available for 

civil legal needs have certainly not been keeping up with those additional challenges. 

As has been pointed out in the reports that have been made 

available to our Committee, there have been several States that 

have done an assessment as to where we are in meeting the needs 

of low-income families, and those reports show that the gap could 

be as high as 80 percent—in other words, one out of five people 

who need help who are eligible for services are getting those services. I think that is a shocking number, and we need to do something about it. 

We have a responsibility, and I must tell you, I have gone 

through this a great deal with the different interest groups, and it 

is clear to me that the legal profession has a responsibility. The 

legal profession is charged with the access to justice, and the legal 

community must do more. 

It is clear to me that State and local governments must do more. 

They have direct responsibility for the welfare of their citizens, 

have certain standards that must be met, and State and local governments must do more. 

But it is clear to me that the Federal Government must do a lot 

more in order to meet these needs. We have a responsibility, as the 

senior partner in administering the institutions of Government, to 

make sure that the legal system is available to all of our citizens. 

That responsibility, in my view, has not been met. 

In 1981, the Legal Services Corporation statute was passed, and 

that statute authorized $321 million of Federal funds to meet the 

needs of civil legal services for the poor. Presumptuously, that 

would be what we thought the needs were in 1981. The staff has 

3 

prepared a chart that I will ask them just to show which will tell 

us where we have been since 1981. In fiscal year 2007, the amount 

went to $348 million. But as you can see the blue lines on that 

chart, the amount of funds that the Federal Government has provided has not kept up with the inflation, and the red line is the 

inflationary number. 

If we just adjusted the amount of moneys that were provided in 

1981 to provide the same level of service adjusted for inflation 

using 1981 dollars, we should be at $678 million to the Legal Services Corporation. So we need to do much better at the national 

level than we are doing today. 

My own experiences on how we should deal with this are really 

learned from what happened in Maryland during the 1980s. During 

the 1980s, I was asked to chair a commission to study where we 

were in Maryland and what we could do to try to improve the situation. All the stakeholders sat on the commission, and we studied 

the circumstances in Maryland and found that there was a shocking gap between needs and services, where only one out of four 

were really being met with their needs. 

So we set out to do something about it, and we asked all of the 

players to do more. We had many recommendations which have 

been enacted into law. One of those was to have our two law 

schools that are located in Maryland start clinical programs and 

have experiences available for every law student to understand 

their responsibility for poverty law. 

I remember talking to Governor Schaefer at the time, and Governor Schaefer agreed to put a substantial amount of money in the 

State budget in order to implement that recommendation. He did 

that based upon the commitment that the bar would do more and 

lawyers would do more and the private sector would do more in 

order to close the gap. And today we have robust clinical programs 

in both of our law schools, which are providing direct services to 

the vulnerable population as well as training the lawyers of the future to be more sensitive to their responsibilities. 

We attempted to have lawyers do more, and we succeeded. The 

Maryland pro bono program is much more robust than it was in 

the 1980s. I see Herb Garten, who is in the audience, a member 

of the Board. It is a pleasure to have Herb here. He was instrumental at the Bar Association in Maryland in stepping up and carrying out their responsibilities. We asked the private sector to do 

more. We asked lawyers through their IOLTA program to do more. 

And we made a major difference. 

So I think we can do a much better job both through the direct 

services that are provided through the Federal Government 

through grants as well as by the major stakeholders assuming a 

greater responsibility, including the lawyers. 

So today’s hearing, the purpose of which is to establish a record, 

a record for this Congress, I hope, to use to develop a game plan 

to address the gap that exists today, develop a strategy to close 

that gap so that our justice system that we showcase around the 

world is truly available to all of our citizens. 

[The prepared statement of Senator Cardin appears as a submission for the record.] 

4 

With that, I will turn to our first panel of witnesses. As is the 

custom of the Judiciary Committee, I am going to ask the two panelists if they would stand in order to take the oath. Please raise 

your right hands. Do you affirm that the testimony you are about 

to give before the Committee will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Ms. BARNETT. I do. 

Ms. CHILES. I do. 

Senator CARDIN. Thank you, and let the record show affirmative 

response. 

Our first of two witnesses, is Helaine Barnett, who is the President of Legal Services Corporation, comes out of an experience in 

legal aid work which we are very proud of, and she is accompanied 

by Jonann Chiles, who is a member of the Board of Directors and 

recently appointed from Little Rock, Arkansas. 

We will start with President Barnett. 

STATEMENT OF HELAINE M. BARNETT, PRESIDENT, LEGAL 

SERVICES CORPORATION, WASHINGTON, D.C.; ACCOMPANIED BY JONANN C. CHILES, MEMBER, BOARD OF DIRECTORS, LEGAL SERVICES CORPORATION, LITTLE ROCK, ARKANSAS 

Ms. BARNETT. Thank you and good afternoon, Senator Cardin. 

First of all, Senator Cardin, we want to thank you for holding 

this hearing today and for giving us an opportunity to talk about 

LSC’s ground-breaking report on the justice gap in America and 

the work that LSC-funded programs are doing to serve the civil 

legal needs of the poor. Your long-standing public support and hard 

work for civil legal aid in Maryland, your chairmanship of the 

Maryland Legal Services Corporation, and your association and 

friendship with Herb Garten, whom you recognized today, are well 

known. Now we are able to thank you for your national leadership 

on this important issue. 

I am honored to be the first career legal aid attorney to hold the 

position of President of the corporation in its 34-year history. I 

know first-hand what our work means to the lives of our clients 

and have a deep personal commitment to providing high-quality 

civil legal services to eligible low-income Americans. 

Fifty million Americans are eligible to receive civil legal aid from 

LSC-funded programs, including more than 13 million children. 

The stark reality today is that the need for civil legal aid to protect 

basic human needs is much greater than the resources available. 

As you noted, in September of 2004, the Legal Services Corporation Board of Directors asked LSC staff to document the extent to 

which civil legal needs of low-income Americans were not being 

met. LSC conducted a year-long study culminating in the 2005 report ‘‘Documenting the Justice Gap in America: The Current 

Unmet Civil Legal Needs of Low-Income Americans.’’ 

The study established that for every client who received service, 

one eligible applicant was turned away for lack of adequate program resources. All those committed to a civil society know that 

turning away half of the people who seek legal assistance is not acceptable. Equal justice under law is a bedrock principle and these 

numbers do not reflect equal justice. 

5 

LSC’s ‘‘unable to serve’’ study documented only those who actually sought assistance from an LSC-funded program, but as you 

know, Chairman Cardin, the need is much greater. Many eligible 

people do not contact the program either because they are unaware 

they have a legal problem, they do not know that the program can 

help them, or they do not know that they are eligible for free civil 

legal assistance. 

And while our study is now more than 2–1/2 years old, there 

have been nine additional statewide legal needs studies and reports 

published since our study, and they have all confirmed that the 

justice gap findings are a reality and, if anything, are understated. 

Furthermore, the number of people sliding into poverty who need 

legal assistance is doubtlessly increasing as a result of the 

subprime mortgage foreclosure crisis, the recent rash of natural 

disasters across the country, and the general economic downturn 

and rising costs of such essentials as energy, gas, and food. 

Whether someone has lost their home to foreclosure or flooding, 

or whether their monthly income can no longer provide for life’s necessities, more and more Americans will soon be turning to legal 

services programs for help in getting back on their feet. 

So what is the strategy to close the justice gap in America? The 

Corporation is developing long-term strategies involving strengthening local, State, and national partnerships. Our grantees work 

hard every day to ensure efficient use of the funding that is available, and they will continue to do so. 

Technology is a vitally important tool to help expand access to 

justice and provide self-help options for those that we are unable 

to directly serve. Technology improvements allow LSC grantees to 

deliver more assistance and is part of the strategy. 

Private attorney involvement is another important element of the 

strategy. The LSC Board has taken a leadership role and is using 

LSC’s national voice to encourage a culture of expanded private attorney involvement as an effective tool for providing legal services 

to more persons in need. Last year, private attorneys handled more 

than 97,000 cases for LSC-funded programs, and we are working 

in partnership with the ABA on ways to expand private attorney 

involvement. 

While these are important elements of the strategy, technology 

and private attorneys alone cannot close the justice gap. 

Our Justice Gap Report concluded that just to serve those who 

actually sought help and were eligible to receive it, LSC’s funding 

from the Federal Government would have to more than double, as 

would State, local, and private funding. Recognizing the political 

and fiscal realities at the time, the Board elected to request from 

Congress that the Federal increase be spread over 5 years. 

Nationwide, LSC encourages its grantees to leverage their Federal dollars, working with their partners in State equal justice communities, and this has resulted in significant increases of State, 

local, and private funds between 2005 and 2007. 

However, while State, local, and IOLTA funds have expanded, 

State budget deficits and the drop in interest rates are placing 

some of those increases at serious risk. 

Mr. Chairman, as we have discussed, LSC is improving both our 

governance and our oversight. As you know, the Government AcVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
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countability Office issued two reports, one in September 2007 on 

the Corporation’s governance and accountability, and another in 

January 2008 on our grants management and oversight. We appreciated both of these reviews of our policies and practices and cooperated fully with GAO throughout the audits. Further, we accepted all of the recommendations and have made it a top priority 

to address the recommendations of both reports and have implemented or gone beyond nearly all the recommendations. We welcome the opportunity it has presented to help us do our job even 

better. In my written statement, I have provided a full accounting 

of our progress to date. 

In conclusion, the Justice Gap Report is as compelling today as 

it was when it was released in September of 2005. While the statistics are daunting, numbers alone do not tell the whole story of the 

impact that the lack of resources for providing high-quality legal 

assistance has on the lives of low-income individuals and families. 

For those millions of low-income Americans who are trying to 

keep a roof over their heads, who are trying to escape an abusive 

or life-threatening relationship, who are trying to keep their families together and safe, civil legal assistance is not just an abstract 

concept but a service that helps save lives and provides safety, security, and a path to self-sufficiency. It all flows from our founding 

principle of equal access to justice established in the Preamble to 

our Constitution and reiterated in our Pledge of Allegiance. 

As U.S. Supreme Court Justice Lewis Powell said, ‘‘‘Equal Justice under Law’ is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our 

society...it is fundamental that justice should be the same, in substance and availability, without regard to economic status.’’ 

That is the mission that LSC and our grantees across the country try every single day to fulfill. 

Thank you. 

[The prepared statement of Ms. Barnett appears as a submission 

for the record.] 

Senator CARDIN. Thank you very much for your testimony. 

Ms. Chiles, do you want to make a statement or do you just want 

to respond to questions? 

Ms. CHILES. Senator, I will be happy to respond to questions. I 

do not have a prepared statement. However, I would like to echo 

Ms. Barnett’s thanks to you for convening this hearing. 

Senator CARDIN. Take as much time as you want on that. 

[Laughter.] 

Ms. CHILES. We appreciate your recognition of the justice gap 

and your dedication to working to closing the justice gap. I am here 

to assure you on behalf of the Board that we are dedicated to closing the gap through the efficient and effective use of the resources 

that are available to us. 

Senator CARDIN. Thank you very much, and I am going to have 

a couple questions for you. 

Let me first start with the 2005 report. It indicated that one out 

of every two eligible individuals who seek services are unable to receive those services, and I want to put a face on it. Can you tell 

us what happens to those individuals? Do you have any idea where 

7 

they go or what type of cases we are talking about, what type of 

people we are talking about that are turned down for services? 

Ms. BARNETT. The individuals who sought assistance sought in 

the areas of our program’s priorities. When our programs are unable to assist them, perhaps there can be a referral to a bar association or pro bono panel; perhaps they go pro se to the courts on 

their own. But in large measure, we all know that when we are not 

able to assist them, they have nowhere else to go. 

Senator CARDIN. There is not a huge safety net out there beyond 

your grantees. What type of cases are we talking about? 

Ms. BARNETT. We are talking about the core matters that our 

grantees represent nationwide, whether they are family law cases, 

keeping families intact; whether they are keeping safe and habitable housing; whether they are preventing foreclosure; whether 

they are assisting with needed medical care; whether they are providing benefits to disabled persons. 

Senator CARDIN. Senator Kennedy, as I have indicated, is taking 

a lead effort on these issues, including trying to get the appropriations level at a higher amount, along with Senator Harkin. If you 

were to receive extra funding—and staff has made—I was asking 

for a copy of the letter. The letter was dated May 21st and actually 

is signed by a good number of members—by a majority of the Members of the Senate asking for additional funds. 

Where are your priorities? Where would these additional funds 

be used if you got additional funding beyond the current level? 

Ms. BARNETT. Well, as you, I am sure, are aware, we have asked for $471 million for fiscal year 2009, and 95 percent of that would 

go to the local programs based on the statutory formula of the poor 

person population in their geographic area. 

The additional money would go for technology initiatives since 

we believe that is an important strategy with regard to help closing 

the justice gap. We also have asked for additional money to continue our loan repayment assistance program, which we think is 

critically important to attract young lawyers to legal aid programs 

and to retain high-quality staff. In addition, we have less than 4 

percent going to grants management and administrative oversight. 

We feel we do need additional oversight staff, particularly to implement those changes and recommendations we have adopted from 

the GAO report. 

Senator CARDIN. Could you just tell us how much of your budget 

goes for administrative purposes? 

Ms. BARNETT. Less than 4 percent. 

Senator CARDIN. But that also includes the oversight that you 

are required to do with the grantees? 

Ms. BARNETT. It is. In fact, ‘‘administration’’ is a term that we 

hope we can change. It really has to do with grants oversight and 

management. And, yes, that goes—less than 4 percent, and that 

does cover the staff that we need to provide both the oversight for 

compliance and program quality to ensure it. 

Senator CARDIN. Well, just to make an observation, that is certainly a relatively small percentage of the funds, and I applaud you 

on that. Clearly, as the GAO report pointed out, but as this Committee has said, we want to make sure that there is proper supervision to make sure the funds go for their intended purpose. So you 

8 

need to have an adequate staff in order to do that, so it is difficult 

with the amount of funds that have been made available. 

Let me just read you one of the demographic information that 

has been made available to us, that for low-income persons there 

is one attorney for every 6,800 in civil legal needs. In the general 

population, it is one out of every 525. So just looking at the number 

of lawyers that are prepared to handle the civil legal needs of lowincome families versus the number of lawyers available to the general public, there is a huge difference, 13 times more attorneys for 

the general public than for low-income families. 

Do we really have equal justice with that type of a disparity on 

those attorneys that are handling these matters? 

Ms. BARNETT. Well, we don’t believe we do have equal access to 

justice right now with the current level of funding. That is part of 

the reason we are asking for additional funding where the great 

bulk of it goes to the program, to hire staff, to deal with their salary needs, to get more staff. We do believe that private attorney 

involvement can be expanded and enhanced. We do believe that 

through technology we can make available more pro se initiatives. 

We do believe that we encourage our programs to leverage their 

Federal dollars and work in State access-to-justice communities to 

increase both the local, State, and private funding as well. 

So, without at least a doubling of the Federal commitment and 

a doubling of the local, State, and private sources, there will not 

be enough attorneys to represent those who desperately need it. 

Senator CARDIN. So that brings me to your request. Your request 

you said was four hundred and? 

Ms. BARNETT. Seventy-one. 

Senator CARDIN. Four hundred and seventy-one million. Does 

that represent a minimum access dollar amount, or is that the 

pragmatic number that you would hope could be made available? 

Ms. BARNETT. When we made our report to the board of directors, they said, recognizing political reality and fiscal constraints, 

that it would be prudent to ask for the doubling of the Federal 

commitment over 5 years. So the original idea was to ask for a 20- 

percent increase each year. Of course, we have not gotten 20 percent, and we recognize it is going to be a much longer process than 

5 years. But the $471 million request is based on 20 percent of the Senate’s allocation in their bill last year for basic field, so it has a rationale behind it. 

Senator CARDIN. So to double the budget in 5 years was the— 

Ms. BARNETT. Was the original concept, and obviously we well 

recognize it is going to take quite a bit longer than that to accomplish. 

Senator CARDIN. Ms. Chiles, let me, if I might, ask you to comment on the GAO report as to how well it was received by the 

board, what the board has done in response to it, whether you accept their recommendations that should be made, and whether you 

are taking steps to implement those changes. 

Ms. CHILES. Yes, the board has accepted the GAO report, embraced the GAO report, and worked diligently over the course of 

the past 6 or 7 months to address the concerns raised in the GAO 

report. I can, if you would like, go through briefly each of the recVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
9 

ommendations that the GAO made to the board and to management, and I can tell you what has been done to date. 

Senator CARDIN. If you could do that briefly, that would be helpful. 

Ms. CHILES. Feel free to interrupt me if I am not brief. 

In August of 2007, the GAO issued a report entitled ‘‘LSC Governance and Accountability Practices Need to be Modernized and 

Strengthened.’’ There were four recommendations made to management. There were eight recommendations made to the board. The 

first recommendation— 

Senator CARDIN. I think we have the recommendations in our 

file, so if you could just perhaps tell us how you have responded 

to it, it might be more helpful to us. 

Ms. CHILES. OK, very well. We have enacted a Code of Conduct, 

which applies to the board, officers and employees. We have instituted training on that Code of Conduct. 

LSC has instituted a Continuity of Operations Plan. That plan 

will be tested in July. 

The LSC examined whether the Government Accounting Standards Board should be adopted as a financial standard for LSC, determined that that was appropriate, and have continued to operate 

under those standards. 

Fourth, the GAO recommended that LSC management conduct 

and document a risk assessment program and implement—well, I 

should say conduct and document a risk assessment and thereafter 

implement an appropriate program to deal with risk assessment. 

And to date, management has researched risk management programs and best practices, identified the risk environment for the 

Corporation, and begun an office-by-office risk assessment. 

When this assessment is finished, an appropriate policy will be 

enacted and followed at the Corporation. The institution of a risk 

assessment and management program will do much to address the 

concerns that have been raised by the GAO in both the first report 

and the second report. 

The GAO made eight recommendations to the board in the first 

report. They recommended that we establish an Audit Committee 

or an Audit Committee function. That has been done, and I believe 

that that is going to be a very useful tool within the Legal Services 

Corporation for addressing, again, the risk issues identified by the 

GAO. I think it is also going to be a very helpful tool for communication between the Board, management, and the Inspector General’s office. 

Also in response to the GAO report, the board has adopted charters for three of its subcommittees. The board is currently looking 

at creating a charter for its Operations and Regulations Committee 

and its Governance and Performance Review Committee. We are 

working to take—we are working to determine what the appropriate allocation of responsibilities is between those two committees, and that is why we don’t have those two charters finished yet. 

We do expect to have those in place in August, our next meeting. 

The GAO recommended that the board develop and implement a 

procedure to evaluate key management processes, including processes for risk assessment, mitigation of risk, internal controls, and 

financial reporting. And this recommendation is going to be taken 

10 

care of largely, I believe, by the creation and operation of the Audit 

Committee. 

We have established a shorter timeframe for issuing LSC-audited 

financial statements, and still pending is the establishment of an 

orientation program for new members, training for new members, 

the creation of a Compensation Committee function, and the evaluation of the performance of the board, each board committee, and 

each board member. And, again, the reason those last three to four 

recommendations have not been accomplished yet is because the 

board is still discussing the proper allocation of those responsibilities within the board, with Operations and Regulations or Performance Review. 

Senator CARDIN. Can you give us just a timeline as to when— 

I take it you are going to act on those recommendations, you intend 

to do that? 

Ms. CHILES. Yes, sir. We intend to act as quickly as possible. In 

fact, we intended to act on those recommendations in our August 

meeting. Questions arose about the right way to go about dealing 

with these last recommendations; hence, the addition of these 

items to our next agenda, our next board meeting agenda. 

Senator CARDIN. Do you anticipate at the next board you will be 

able to act on those issues? 

Ms. CHILES. Yes, sir. Yes, sir. 

Senator CARDIN. Thank you. 

Ms. CHILES. And I would be happy to report back to you about 

what we do. 

Senator CARDIN. If you would, we would appreciate that. Keep us 

informed on that. It would be helpful to us. 

Ms. CHILES. That covers the first GAO report. 

The second GAO report was issued in December 2007. It was entitled ‘‘LSC Improved Internal Controls Are Needed in Grants 

Management and Oversight.’’ Four recommendations were made to 

management, one recommendation was made to the board. 

The first recommendation to management is that it followup on 

each instance of improper use of Federal moneys. That has been 

done and is still being done by the office—well, by Legal Services 

management working together with the Inspector General’s office. 

And when we receive—when the board receives a report on the examination of those grantees who are identified specifically in the 

GAO report, we plan to conduct a case study using those instances 

to determine how those situations could have been addressed and 

can be addressed in the future should they arise. 

The second request, the second full request from GAO to LSC is 

that the management develop and implement policies and procedures for information sharing amongst the Office of Inspector General, the Office of Program Performance, and the Office of Compliance and Enforcement, and that they coordinate their visits to 

grantees. That is being done. As we speak today, that is being 

done, and it will continue to be done. It is being done in practice, 

and it has been taken care of through the drafting of updated policies and procedures within the Corporation. 

The third of four recommendations to management was that LSC 

management develop and implement an approach for selecting 

grantees for internal controls and compliance reviews based on 

11 

risk-based criteria; and also that that approach use information results from oversight and audit activities consistently. Again, this 

gets back to the issue of coordination and communication within 

LSC and with the Inspector General’s office. And I can represent 

to you as a member of the ad hoc committee which was formed by 

the board to address some of these issues—well, to address in particular the issues of communication and coordination that we have 

made great strides in the past 6 to 7 months in the areas of communication and coordination. And the Legal Services Corporation 

is stronger because of it. 

The last recommendation to the Corporation from the GAO is 

that LSC develop and implement procedures to improve the effectiveness of the current LSC fiscal compliance reviews by revising 

its guidelines, and those guidelines have been updated. And if you 

have questions about specific changes to the guidelines, management would, I am sure, be more than happy to give you that information. 

The last recommendation, which was addressed to the board, was 

that the board develop and implement policies that delineate organizational roles and responsibilities for grantee oversight and monitoring, including grantee internal controls and compliance. And 

that has been done and is continuing to be done. That was accomplished primarily through the creation of an ad hoc committee on 

the board, a three-member committee made up of Mr. Garten, 

Sarah Singleton from New Mexico, and myself. Sarah was the designated liaison to management. The ad hoc committee had several 

briefings from the OIG and from OPP and OCE. We have had one 

public meeting. We gave a report to the entire board at our last 

board meeting in April. 

In response to that report, the board, the entire board of the 

Legal Services Corporation, adopted a very clear and detailed statement of the roles and responsibilities of each of the oversight entities at the Legal Services Corporation. And I am pleased to report 

that that document was the result of very hard work on the part 

of LSC management, the Office of—excuse me, OPP, OCE, and the 

Office of Inspector General. We have a new Inspector General, Jeffrey Schanz, who is a pleasure to work with. 

Senator CARDIN. Well, thank you for that pretty thorough reply. 

Ms. BARNETT. Mr. Chairman, would it be possible for me just to 

elaborate on one or two of the management recommendations and 

the action that was taken? 

Senator CARDIN. Sure. 

Ms. BARNETT. With regard to the followup of the nine instances 

that GAO identified during their program visits, I did refer eight 

of them to the Office of the Inspector General, and the Office of Inspector General has completed the field work at all eight of them 

and has reported to us that for the eight sites reviewed and based 

on the OIG’s preliminary analysis, management of the grantees 

have adequately addressed the GAO recommendations and are implementing additional controls to prevent those issues from reoccurring. 

I also sent an advisory in March to all LSC-funded programs reminding them of the need for accurate documentation and the regulations regarding unallowable costs, specifically stressing the proVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
12 

hibition on the use of LSC funds for alcohol and lobbying, the need 

for written policies governing salary advances, and a reminder of 

the regulation governing derivative income. 

We kept one of the programs that was identified by GAO because 

we had already begun an Office of Compliance and Enforcement review. And I can report to you that LSC is taking action to terminate the current grant and replace it with month-to-month funding, 

with strict special conditions that require monthly action and reporting to LSC. And should the program not be able to meet those 

special conditions, LSC will terminate the month-to-month funding 

and seek a different provider through new competition. 

And, finally, I would just point out that with regard to our revised fiscal component, we now, as part of our expanded Office of 

Compliance and Enforcement onsite fiscal reviews, are specifically 

looking for specific documentation, contract service arrangements, 

employee interest-free loans or salary advances, lobbying fees, late 

fees or penalties due to lack of good financial management, derivative income, and alcohol purchases. So we have improved, based on 

the GAO recommendations and what they have reported to us, our 

fiscal review. And we have finally gone beyond the recommendations and addressed the timeliness of our reports. All reports for 

2007 have been provided to all grantees in either draft or final 

form. We have set in our new manuals new timelines. Within 60 

days after a program visit, they will get a draft report, for the most 

part, and 90 days thereafter. 

So we have even gone beyond, I believe, the recommendations to 

improve our oversight. 

Senator CARDIN. Well, thank you. I appreciate that. And if you 

will keep us informed as to the further actions taken, we would appreciate it. 

I want to return to the capacity within the legal system. When 

I chaired the Maryland Legal Services Corporation, one of the most 

glaring problems we identified was the gap on salaries for those 

that are in Legal Services versus private practice and other fields 

of public interest law. And I really do admire those lawyers who 

go into public interest law at any level, whether it is in the criminal justice system or whether it is in the civil side. 

We had legislation before this Committee last year that dealt 

with loan forgiveness, and I know that we looked at the disparities 

within public interest then, and it was the legal aid lawyers who 

were at the bottom. Although the salary levels for public defenders 

and prosecutors should be higher, they were higher than those that 

are in the legal aid bureaus. 

When I was at the Maryland Legal Services Corporation, 1 year 

we made that our priority. We decided we were not going to expand 

any new opportunities until we could adjust the salary levels of 

those attorneys that were providing the services in order to try to 

keep experienced lawyers helping meet these needs. 

I am interested as to whether you have looked at that issue with 

the different grantees as to whether there is a commitment to try 

to deal with the salary disparity for those that are in the civil legal 

field in public interest law. 

Ms. BARNETT. The Legal Services Corporation, Mr. Chairman, 

has a 3-year pilot program for a loan repayment assistance proVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
13 

gram, and we have a total of 82 participants in 24 programs initially getting $5,000 a year for 3 years, and this past year we got 

a $500,000 appropriation, and we are raising it to $5,600 for 3 

years. 

Our evaluation of the first year of the program definitely demonstrated what I think is no surprise to anyone in this room, that 

loan repayment assistance programs definitely helped young people 

go to legal service programs and remain there, as well as permitting the programs to help recruit and retain high-quality staff. 

You have so rightly pointed out that legal aid attorneys are the 

lowest paid of any public sector attorneys, with an average starting 

salary of $37,000, graduating with an average debt load of more 

than $80,000. 

When I mentioned that 95 percent of the increased appropriation 

would go to the LSC programs, it is our assumption that some programs would use some of that money for salary adjustments as 

well as other infrastructure needs. 

Senator CARDIN. I am certain that happens. One of my suggestions might be that there actually be a strategy, if there is again 

a commitment—if Congress were to make a commitment to double 

the funds going to LSC, it seems to me that one of the priorities 

should also be certain understandings as to how that money is 

going to get to improve the career opportunities for legal aid attorneys. I think that would be a beneficial part of a tangible accomplishment. It is not just providing a wider variety of services, which 

we need to do, or taking in more numbers. It is also retaining quality attorneys to meet these needs. 

Ms. BARNETT. We are having in June a conference of all our executive directors, and salary is one of the workshop issues in our recruitment and retention session that we will be focusing on. We 

will have all 137 LSC-funded programs represented, and this will 

be a good forum to have that discussion. 

Senator CARDIN. I have one last question, which is—the critics 

of LSC often point out that you have a model that in litigation both 

sides should have attorneys. Now, I happen to think that makes 

common sense to have lawyers on both sides of an issue. But my 

question is: Have you been able to demonstrate that when you have 

proper legal representation in matters that could be in litigation, 

there is a stronger possibility that these cases or probability that 

these cases can be resolved absent a lengthy trial; whereas, when 

you don’t have adequate representation, sometimes you have unnecessary litigation? 

Ms. BARNETT. Our statistics nationwide show that only about 10 

percent of the cases handled by all LSC-funded programs actually 

go to trial; that, in fact, a lot of what we do is preventative, a lot 

of what we do is being able to settle and negotiate a correct resolution for our clients without the necessity of a lengthy trial. And 

Jonann Chiles and I were discussing this in the taxi coming over 

here. Perhaps you will share the story of the Tennessee client. 

Ms. CHILES. I thought this was a good example of how our grantees educate their clients to become effective advocates for themselves. We were told about an incident from Tennessee where a client went into a grantee’s office to set up a meeting with a lawyer 

for the purpose of talking about how to deal with an eviction notice 

14 

from her landlord. The women went home—she made her appointment. She went home carrying a flyer in her hand from the grantee, and in that flyer was a list of her rights and duties as a tenant 

and the obligations of a landlord under Tennessee law. 

When the woman got home, her landlord was there with the police waiting to evict her. She held up her pamphlet and told the 

landlord, ‘‘Well, you haven’t met A, B, C, and D, and until you do 

those things, my lawyer says that you can’t evict me.’’ Well, the 

landlord looked at the pamphlet, and the police officer looked at 

the pamphlet, and everyone agreed that she had not had her due 

process and she could not be evicted yet. 

I thought that was a good example of a client being educated and 

empowered to represent themselves effectively. 

Senator CARDIN. Well, thank you for sharing that with us. Again, 

I thank both of you for being here, and I thank you for your testimony. 

Ms. BARNETT. Thank you so much. 

Ms. CHILES. Thank you. 

Senator CARDIN. The second panel, let me introduce the second 

panel. Then I will ask you all to remain standing to take the oath. 

The second panel will consist of the Honorable Lora Livingston, 

a judge from the 261st District Court in Texas, and a member of 

the Standing Committee on Legal Aid and Indigent Defendants, 

American Bar Association; Jo-Ann Wallace, the President and CEO 

of the National Legal Aid and Defender Association, from Washington, D.C.; Wilhelm Joseph, the Executive Director of the Maryland’s Legal Aid Bureau, Baltimore, Maryland, the person who we 

are very proud to have here, who I have had the honor to work 

with on legal service issues over the years and who does an outstanding job for the people of our State; Kenneth Boehm, Chairman 

of National Legal and Policy Center from Falls Church, Virginia; 

Jeanette Franzel, the Director of the Financial Management and 

Assurance Team, U.S. Government Accountability Office—that is 

GAO—Washington, D.C.; and Rebekah Diller, Deputy Director of 

Justice Program, Brennan Center for Justice, New York University 

Law School in New York. 

Would you all please raise your hands? Do you affirm that the 

testimony you are about to give before the Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

Judge LIVINGSTON. I do. 

Ms. WALLACE. I do. 

Mr. JOSEPH. I do. 

Mr. BOEHM. I do. 

Ms. FRANZEL. I do. 

Ms. DILLER. I do. 

Senator CARDIN. Thank you. The record will reflect that there 

was an affirmative reply to the oath, and we will start with the 

Honorable Lora Livingston. 

15 

STATEMENT OF LORA J. LIVINGSTON, JUDGE, 261ST DISTRICT 

COURT (TEXAS), AUSTIN, TEXAS, AND MEMBER, STANDING 

COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS, 

AMERICAN BAR ASSOCIATION 

Judge LIVINGSTON. Thank you very much, Senator Cardin, for 

letting me visit with you this afternoon about this very important 

issue. I will just briefly for the record continue with my introduction. 

My name is Lora Livingston. I am a State court judge. I live in 

Austin, Texas. I am a general jurisdiction trial court judge there, 

but I am submitting this testimony at the request of the President 

of the American Bar Association, William Neukom of Seattle, 

Washington—he could not be here today—to voice the association’s 

views with respect to closing the justice gap that you so eloquently 

talked about earlier at the beginning of this hearing. It is the association’s goal to ensure justice for all and to ensure, most importantly, access to justice for all Americans, not just those who can 

afford a lawyer. The ABA strongly believes that this objective can 

be and must be largely achieved by strengthening the Legal Services Corporation because it is the entity in our system of justice 

that really is the linchpin to ensuring access to the legal system 

for all Americans. 

The ABA is the world’s largest voluntary professional organization with more than 413,000 members. It is the national representative of the legal profession, and it serves the public and the profession by promoting justice, professional excellence, and respect 

for the law. We are an association that is firmly rooted in the rule 

of law and believe in its precepts. 

I started my career as a legal aid lawyer. I was what we call a 

‘‘Reggie.’’ I was part of the Reginald Heber Smith Community Lawyer Fellowship program, and my assignment was in Austin, Texas. 

That is how I got to Texas from California, where I am from. 

I spent about 6 years in the legal aid office in Austin, Texas, 

doing basic poverty law work, and I then went into private practice 

and then later became a judge. 

I am here on behalf of President Neukom and the ABA and also 

on behalf of the Standing Committee on Legal Aid and Indigent 

Defendants. We call that committee within the ABA ‘‘SCLAID’’ for 

short. SCLAID is chaired by former Texas Supreme Court Justice 

Deborah Hankinson. She could not be here today and so asked me 

to provide this testimony on her behalf. 

We have five judges on SCLAID, and I think that that should 

demonstrate to you and signal just how important SCLAID is within the ABA and the importance of this work, ensuring access to justice for all, because it includes so many members of the judiciary 

on the committee. 

The ABA has a long history of involvement in access-to- justice 

initiatives. Ms. Barnett talked about Supreme Court Justice Lewis 

Powell and his work serving the ABA when he was President and 

calling back in 1964 for a major expansion of the Nation’s legal 

services work for the poor, and that ultimately led to the creation 

of the LSC program. 

The ABA strongly opposed past efforts to eliminate the efforts to 

reduce access to legal services for the poor and since then has been 

16 

very involved in securing bipartisan support for not only LSC but 

for access-to-justice initiatives in general. You referred earlier to 

the Senate letter, dated yesterday, that is signed by, I believe, 55 

Senators, and we are still working on getting more signatures on 

that letter. But in addition to that letter, you should also— 

Senator CARDIN. Let us know when you have 60, please. 

Judge LIVINGSTON. Great. Even better. See, your information is 

more up-to-date than— 

Senator CARDIN. No, no. I said let us know when you get to 60. 

Judge LIVINGSTON. Oh, let you know. OK. All right. 

Senator CARDIN. That is a key number around here. 

[Laughter.] 

Judge LIVINGSTON. That is the number we are shooting for. That 

is our goal, and we will definitely let you know when we achieve 

that milestone. 

In addition to that important letter, though, I should also tell 

you that there is a letter signed by all 50 State bar presidents, the 

State bar presidents of the District of Columbia Bar, as well as the 

bars in the Virgin Islands and Puerto Rico. This is an important 

issue to every State bar association in this country and some of its 

territories. I cannot underscore more significantly than that the 

widespread both partisan, bipartisan, and nonpartisan support for 

legal services to the poor in America. 

LSC, I want to tell you, is the essential linchpin in our comprehensive system of delivery of legal services to the poor in this 

country. It is the most significant entity that we have in the administration of justice in this country, and it is the one, probably 

perhaps most important part of the overall system of justice. It is 

the one that funds most of the work that is done out in the field, 

and certainly there are partners—you have talked about IOLTA 

programs. There are certainly partnerships on the State and local 

level. There are grant funds that are nongovernmental funds that 

support legal services throughout the country, but LSC funds really 

are the linchpin to this comprehensive system of justice in our 

country, and that is why strengthening its work and providing additional funding for the work that it does is so important. 

The Preamble to the U.S. Constitution states among the first 

enumerated functions of government that we are to establish justice. It is first. It is part of our fabric in this country, and we have 

to, it seems to me, at all levels of Government, certainly within the 

judiciary, certainly as the Senate, support it as best we can. 

You have heard some stories, and you talked earlier about putting a face on legal services. I have got lots of stories, but I know 

that we are short on time, and I will not tell you all of them. But 

I want to tell you about one from Texas just briefly, if I might, and 

that involves—you know about the Katrina disaster and so forth, 

but since 2005, LSC programs have closed more than 10,000 

hurricane- related cases through the end of 2007. That is phenomenal work in light of a major disaster, and it just begins to tip 

the iceberg of the very hard work that field programs have been 

conducting not just in response to a disaster, but that is the kind 

of hard work you get from every field program in this country. 

Without that work, people will go hungry, people will be evicted, 

people will not get the benefits that they need that they are entiVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
17 

tled to, that the Government provides for them and guarantees to 

each one of them. And that is why LSC needs the support, as much 

of it as you can give them, as much of it as we can give them on 

the State level, as much as we can do locally, as much as we can 

do in each individual community where poor people reside. And it 

is our responsibility as a government to do so. It is our responsibility as a legal profession to do. And we look forward to the partnership with the Senate in making that a reality. 

Thank you very much for your time this afternoon. 

[The prepared statement of Judge Livingston appears as a submission for the record.] 

Senator CARDIN. Thank you for your testimony. 

Jo-Ann Wallace? 

STATEMENT OF JO-ANN WALLACE, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NATIONAL LEGAL AID AND DEFENDER 

ASSOCIATION, WASHINGTON, D.C. 

Ms. WALLACE. Good afternoon, Senator, members of the staff. 

Good afternoon and thank you for the opportunity to speak to you 

today about the justice gap in America. 

NLADA, the National Legal Aid and Defender Association, is a 

national organization committed to equal access through the delivery of excellence and civil and defender legal services. Our members are civil and defender advocates who provide legal assistance 

to people who otherwise could not cannot afford attorneys, corporations, and others who care about equal justice. 

As has been stated, the Constitution recognizes that the establishment of justice is essential to the very creation of our Government. In passing the Legal Services Corporation Act, Congress recognized that there cannot be justice in America if a person’s ability 

to access it depends on how much he can afford. 

The delivery system that was instituted more than three decades 

ago established the Legal Services Corporation as the linchpin of 

a national system. That model, which remains true today, is fundamentally sound. But as you have now heard repeatedly, by any 

measure it is woefully underfunded. Federal funding for LSC in effect has been reduced by over 53 percent from its 1980 level. Statebased studies put the unmet need anywhere, as you noted, from 70 

to 90 percent. At a minimum, one out of two people who need legal 

assistance must be turned away by LSC providers. 

While the dollars to support legal services have steadily decreased, the legal need, as you have heard, is increasing. Veterans 

returning, the mortgage lending crisis, the storms, the skyrocketing 

cost of life essentials are but some of the factors that are driving 

the need for services upward. In short, we are in a growth industry 

when it comes to demand and a recession when it comes to resources. 

But while running the numbers is alarming, the picture is even 

more sobering when we remember that every one of the two that 

gets turned away represents a person with a face and a name and 

a right to expect justice in our democracy. 

‘‘Collette’’ was one of the lucky ones. When Hurricane Katrina 

struck New Orleans in August 2005, Collette lost her house and 

moved with her son, ‘‘James,’’ to stay with friends in Missouri. 

18 

When that arrangement fell apart and Collette became homeless, 

the State took James and placed him in Missouri’s foster care program. 

Determined to regain custody of her son, Collette moved to New 

Orleans, the only place she could call home. She successfully applied for a HUD grant, but the money, the grant money, was delayed for months. All the while Collette was traveling back and 

forth to St. Louis to attend custody hearings and to spend a few 

hours with her son, James. At each hearing Collette was asked, 

‘‘What progress have you made to rebuild your home?’’ 

So Collette began rebuilding her home herself, paying for materials gradually with wages that she earned from part-time jobs. 

When staff from Legal Services of Eastern Missouri learned of 

Collette’s plight, they put her in contact with a State-based organization whose volunteers helped Collette to renovate and refurnish 

her home. They connected her with mental health services for trauma survivors. And, finally, they convinced the court that James belonged with his mother. 

Elsie Williams is another one of the lucky ones. Ms. Williams is a 70-year-old retired factor worker who lived on the $530 a month 

that she got from Social Security. So when the sofa bed that she 

had could not support her anymore, she did not have the money 

to replace it, and she could not afford the prosthetics that she needed as a cancer survivor. So for the first time in her life, Ms. Williams took out a loan. 

Ms. Williams could not read the fine print of the contract that 

she signed. She did not know that she had agreed to sign over her 

monthly checks to the loan company or to let them charge her a 

95-percent interest rate on that loan and to tack on numerous 

other legal and illegal charges. And so she did not understand why, 

when she went to the bank in the next few months, her Social Security money was not there. 

But Ms. Williams found a young woman who had been willing to give up a job making more than $100,000 a year as a real estate 

attorney. She wanted to follow her dream to help people as an attorney with an Atlanta legal aid program. With the attorney’s assistance, Ms. Williams got her Social Security checks back. 

As these stories illustrate, the efforts of legal aid lawyers support 

better life outcomes for millions of people, and as the last example 

also illustrates, those efforts often come with significant personal 

sacrifice. I cannot tell you the exact starting salary of that young 

attorney in Atlanta. What I can tell you is that she took a substantial pay cut to go work for legal aid. 

As a means of stretching scarce dollars to meet the ever growing 

demand for assistance, LSC programs have historically paid salaries that are the lowest of any sector of attorneys. Legal aid programs across the board this is true of. According to a 2006 report, 

the median salary for entry-level civil legal aid attorneys is a little 

more than $36,000. The lawyers making that entry-level salary 

usually face law school debt of between $80,000 and $120,000. The 

convergence of these factors has extracted a significant price over 

time due to costs of turnover and difficulty filling vacant position. 

NLADA is most appreciative of recent Federal legislation that attempts to address this problem, but that additional investment in 

19 

the attorney work force must also be supported with increased Federal support for LSC if you want to ensure the availability of the 

next generation of lawyers dedicated to serving the public interest 

and also if you want to maximize the availability of funding for direct services. 

The final point I would like to make also goes to the issue of costeffectiveness. Equal access to justice cannot be administered efficiently when Legal Services are not able to use the same tools and 

strategies that other lawyers use to serve their clients. Congress 

should remove those restrictions on legal aid attorneys that are inconsistent with the purposes of the LSC Act, starting with the restrictions upon the LSC programs, what they can do with State, 

local, and private funds available to them. 

In closing, I would like to thank the Committee again for shedding light on this important issue. We would urge Congress to recommit to equal access for justice by embarking on a course to expand funding and eliminate the restrictions that hamper the effectiveness of the public- private partnerships that are necessary to 

eliminate the justice gap. 

Thank you. 

[The prepared statement of Ms. Wallace appears as a submission 

for the record.] 

Senator CARDIN. Thank you for your testimony. 

Mr. Wilhelm Joseph? 

STATEMENT OF WILHELM H. JOSEPH, JR., EXECUTIVE DIRECTOR, MARYLAND LEGAL AID BUREAU, INC., BALTIMORE, 

MARYLAND 

Mr. JOSEPH. Good afternoon, Senator Cardin and staff gathered 

here, and thank you, Senator, for hosting the hearing, and thank 

you for your outstanding record of leadership on this issue in Maryland and now on the national level. And please allow me to convey, 

through you, my best wishes for the recovery and good will of Senator Kennedy. It is a particular honor for me to have been given 

this opportunity to appear before you. 

I am humbled to be presenting before this august body, to address you on a subject that is very personal for me. In 1965, I was 

a young man with a solid high school education and a burning desire to pursue a higher education. At that time I was living in Port 

of Spain, Trinidad, the place of my birth. I was a member of a very 

poor but proud family with a strong work ethic and without the 

funds to support furthering my education. Today I am here as a 

testament to the generosity and support of many individuals and 

institutions in this great country who extended a helping hand to 

me. For this I am deeply grateful. Starting with a track scholarship 

and other assistance later, I have earned an undergraduate degree 

from a historically black university, a law degree from a reputable 

university law school, and a graduate degree from one of this country’s leading institutions. For this and many other blessings I am 

very grateful. 

Currently, I am most fortunate to be a member of a partnership 

in Maryland, the Legal Aid Bureau, whose mission is to provide the 

best civil legal assistance possible to low-income persons. That 

partnership comprises the judiciary at all levels—the private bar, 

20 

individuals and firms; the Maryland State Bar Association; governing bodies at the State, county, and city level; various funding 

sources including our IOLTA program, represented here today by 

Herb Garten and Susan Erlichman; the Maryland Legal Services 

Corporation; foundations; and, of course, the federally funded Legal 

Services Corporation. 

In Maryland, this partnership approach to addressing the civil 

needs of the State’s low-income is encompassed in three letters of 

the alphabet: S for sensible, E for enlightened, and C for compassionate. Our work is motivated by a shared intolerance for injustice 

and a willingness to help others pick themselves up by their own 

bootstraps. In Maryland, we face the same challenges that have 

been already outlined here today and that have been clearly set 

forth in my written submission. That is the challenge of addressing 

overwhelming needs with too few resources. This is a national crisis. In my opinion, it requires a national response. 

In Maryland, we do leverage our LSC resources. We receive 

about $3.9 million from LSC. When I arrived in Maryland in 1996, 

our total funding was $9 million, and the funding then from LSC 

was around the same three-point-something million. Today, in 

Maryland, our budget will be $22 million, a testament to that partnership I referred to earlier. 

Maryland Legal Aid Bureau represents the helping hand that 

catches thousands of vulnerable, unfortunate people before they fall 

off the precipice and through the trapdoors of circumstances that 

otherwise would cause them to fall into the quicksand of poverty 

and crisis, and go deeper and deeper. 

Our clients are people who have recently suffered setbacks, such 

as loss of a job, unexpected illness, disability. They are vulnerable 

children, victims of abuse and neglect, elderly citizens, victims of 

domestic and family fractures, and low-wage workers. 

Allow me to offer one illustration. Let’s take a look at a fairly 

common legal aid family, and I ask the staff, get a pen and a piece 

of paper. I want to take you through a very short exercise. 

Consider a family of three—two young children with one parent 

with a job that pays just above minimum wage, say $7 per hour. 

At that rate of pay, gross wages on 40 hours a week, 32 weeks a 

year, would bring them $14,560—way below the LSC eligibility 

guideline for a family of three, which is at $22,000. After the compulsory deductions for Social Security, et cetera, that wage earner’s 

take-home pay is closer to $13,000. 

Now, here is where the rubber hits the road. A quick look at a 

sample budget for that family will reveal the following: Rent, approximately $800 a month; food, $400 a month; child care, $400 a 

month; transportation, maybe $400, maybe a whole lot more with 

the gas prices; utilities, $150 per month; clothing, household repairs, et cetera, $150 per month. A very modest budget. Without 

health care being mentioned, those total expenses come to $2,300 

per month, annually $27,600. Even with available subsidies for 

housing, food stamps, and utilities, this family will be in a crisis. 

Meeting $27,000 in expenses on a $13,000 budget is impossible. 

These people will try to survive by periodically failing to pay this 

particular bill or another—rent, utilities, et cetera. 

21 

These choices have consequences that bring them to the door of 

legal services for help. These circumstances also create an environment that is more conducive to domestic violence, abuse, and even 

criminal behavior, in order to make ends meet. In Maryland alone, 

there are over 500,000 such persons trying to subsist below this 

level of poverty. In 2007, with the coalition and partnerships, the 

Legal Aid Bureau helped some 53,000 of them. Combined with the 

efforts of other providers including over million pro bono hours rendered by private attorneys, we helped only a total of 101,000 persons with their civil legal needs statewide. 

Senator Cardin, we need a fundamental change at the national 

level with regard to this question, this crisis of justice in America. 

This crisis on a daily basis contributes to suffering, despair, hopelessness, and robs our community of the full potential of all the 

members who now subsist at intolerable and embarrassing levels. 

We need a substantial increase in financial resources to meet new 

regularly, steadily increasing costs of doing business, recruiting, 

training, retaining qualified staff, paying for rents, utilities, supplies, communication, equipment, furniture, et cetera. Help us to 

help others pick themselves up by the bootstraps. Help us to help 

those without boots. 

Thank you. 

[The prepared statement of Mr. Joseph appears as a submission 

for the record.] 

Senator CARDIN. Thank you very much for your testimony and 

for your service. 

Mr. Kenneth Boehm? 

STATEMENT OF KENNETH F. BOEHM, CHAIRMAN, NATIONAL 

LEGAL AND POLICY CENTER, FALLS CHURCH, VIRGINIA 

Mr. BOEHM. Thank you. Good afternoon, Senator Cardin. My 

name is Ken Boehm, and I serve am the Chairman of the National 

Legal and Policy Center. From 1991 to 1994 I was Assistant to the 

President and Counsel to the Board of the Legal Services and prior 

to that headed the Department of Policy Development at Legal 

Services Corporation. It is an honor to appear before you today to 

share some of my views, which will be distinctly different than 

many of the other views you are hearing, but for that reason I especially want to present them. 

For today’s topic, I would like to focus on two observations. 

First, we really are interested in closing the justice gap, and that 

is what we have to focus on, and closing that gap should involve 

a much broader approach than simply increasing the appropriation 

to a troubled Federal program by five-fold. As has been pointed out, 

page 19 of ‘‘Documenting the Justice Gap in America,’’ the 2005 

legal needs study done by LSC, they recommended an increase to 

$1.6 billion, which is a fivefold increase. 

My second observation, which I will also get into a little bit, is 

that the Legal Services Corporation model has been plagued with 

many problems from the beginning, and if we are truly interested 

in solving this problem and not doing these incremental Band-aid 

approaches, we should think far beyond just giving extra money to 

the Legal Services Corporation. 

22 

As I am sure you know, the Legal Services Corporation has not 

been authorized since 1980. That is when its first reauthorization 

expired. That is 28 years through Republican and Democrat Congresses, Republicans and Democrats in the White house, without 

reauthorization. That is almost unique for Federal programs to go 

that long without any kind of consensus for reauthorization, and 

there is a reason for that. 

Turning to ‘‘Documenting the Justice Gap in America,’’ the study, 

there are some limitations to it. It was done by LSC and the programs, and the conclusion was give us five times our budget and 

that will be a good start toward solving the problems. That is not 

unusual in Washington for programs that want more money to simply ask for more money and give a study that is tailor-made to 

show that would solve the problem. But I think we have to think 

far beyond that. We have to look at alternatives that, in fact, may 

be more cost-effective, alternatives that are already being done by 

market and other forces, alternatives to deliver justice not just to 

poor people but middle-class people who can’t afford the growing 

costs of being involved in a civil lawsuit. 

It has been said here numerous times that LSC is the linchpin 

of providing legal assistance to the poor. It shouldn’t be overlooked, 

the fact that for every 1 hour of service by a Legal Services Corporation-funded lawyer, there are 5 hours of pro bono, five private 

attorneys in private practice doing their responsibility, as they are 

supposed to be if they are in private practice. And so there are 

many other ways, of course, that legal services are given to the 

poor. 

Outside of contingency fee funds in cases of personal injury, we 

have a growing trend—that has actually happened over the last 20 

years—for an increase in the jurisdictional dollar amount of cases 

in small claims court. As I said, it has already been happening, 

these cases. I am sure as anyone here who has spent any time in 

small claims court can say, they are fact-based. There is no lawyer 

generally needed. 

We also have seen a vastly greater increase in mediation, including mediation without lawyers, even though the American Bar Association feels that you should have lawyers in these mediation 

types of cases. And this is very, very helpful. People who study mediation say you get a faster result, it is more cost-effective. And 

sometimes the parties actually have a meeting of the minds—that 

is what mediation is all about—and you actually have a much better result on all fronts than if costly litigation is needed. 

Another area that needs to be looked at is increased use of ombudsmen. As somebody who has followed Legal Services’ policies for 

the last 15 years, this is happening at the State level, at the local 

level, through the Older Americans Act. There is Federal funding 

for volunteer ombudsmen for long-term care. Many, many different 

examples. In European countries, developing countries, Japan, Australia, Canada, ombudsmen are widely used to develop justice. We 

should ask ourselves—we know we are the most over-lawyered 

country in the world with something approaching a million lawyers 

out there. How does the rest of developing world solve their legal 

problems if they do not have as many lawyers per capita as we do? 

Well, the way they solve them is they make many of these less seVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
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rious legal problems, problems that can be solved in some way 

other than litigation and expensive lawyers, and we should look at 

those models. 

The key question is: Is our goal increased access to justice? Or 

is it just increased federally funded lawyers and lawsuits? The alternatives generally are faster. They are more cost-effective. And 

all too often the burden really falls—the burden of some of this litigation falls on other people who cannot afford it. I will give you a 

very brief example. 

A 70-year-old Ohio vegetable farmer named Russell Garber was 

sued by LSC-funded lawyers under a Federal law did not apply to 

small family farmers. As a matter of principle, he hired a lawyer 

to defend him. He couldn’t afford a lawyer. He had to borrow and 

go into hock at age 70 to do it. The case was dismissed by a Federal judge in a strongly worded decision very critical of the Legal 

Services lawyers for bringing a case that did not apply in his instance. Instead of accepting their defeat, the lawyers from the 

Texas Rural Legal Assistance instead appealed to a three-judge 

panel. The three-judge panel affirmed the dismissal, and Mr. 

Garber won. His legal bill: $107,000. 

Now, I talked to Mr. Garber this morning just to see how he was 

doing 4 years after that. He was up at 5. He was doing his chores. 

He is not retiring. He has a $107,000 legal debt. 

My question is: Is that justice? We are supposed to be promoting 

justice, not just funding for a Federal program. 

There are better approaches. They are outside what was in this 

study. They are outside generally what the bar looks like, because 

a lot of them don’t involve funding with lawyers. They involve 

other ways of justice, as I listed. 

The LSC model is deeply flawed. Not just have we had two fairly 

critical GAO reports just in the last year, there were two other 

back-to-back critical GAO reports in 1999 when GAO said they had 

widespread and significant problems with their case reporting. 

They were reporting to Congress. LSC disputed that and said, Oh, 

we have solved it, we have taken care of it—much as you have 

heard they have solved these GAO problems. GAO then did a second study in 1999 and found that they had not solved the problem, 

and their case numbers finally went way down because they were 

counting in one case, one program, 10,000 phone calls by non-lawyers as ‘‘legal cases.’’ 

Well, that is not fair to the taxpayer. It is not fair to poor people. 

And it is just not the way our Government should run. 

If you look at just the last 2 years—and we have documented 

hundreds of abuses over the years. But if you look at just the last 

2 years, you have the back-to-back GAO investigations; you have 

a strained relationship with the LSC IG, and Congress. There have 

been three full-time LSC IGs prior to the current one. All three left 

after severe feuds with the LSC Board. The last one, Kirt West, 

was about to be fired before three Members of Congress—two Senators and a Congressman—wrote a letter to the LSC Board saying, 

‘‘Don’t fire the IG while he is investigating you.’’ That is a very, 

very—I do not know of any other Federal program that has had 

three consecutive IGs go out of business. They have had negative 

publicity based on use of limos, overpriced hotels. This was the AsVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
24 

sociated Press and CBS Evening News. These were not conservative critics. And, in fact, program lawyers, the ones that we have 

heard who operate on very, very low salaries and are really giving 

their all to the program, were appalled to see that Legal Services 

had limos for their board members and were paying for first-class 

air travel and all sorts of other thrills that really do not belong in 

a Federal anti-poverty program. 

My only thought is as you look at ways to meet the legal needs 

of the poor, think beyond just let’s pour more money on this program. Think to are there some structural changes that could be 

done that help all people, not just the poor—the middle class who 

can’t afford lawyers, the Russell Garbers of the world who can’t afford lawyers—help all people get access to justice. 

When the Framers said access to justice, they were not referring 

to Legal Services Corporation. That did not come until the 1970s. 

They wanted access to justice. I think what the Framers had in 

mind and what the saying on the Supreme Court facade means is 

we need to have a society with laws and institutions that allow 

people access to justice. And if that does not necessarily suit the 

needs of the American Bar or the Legal Services Corporation, well, 

I think we really should be after justice and not that. 

And as I say, if I could make one recommendation, it would be 

this: that there be a real study, perhaps an independent study, by 

leading thinkers, and there are some good books that have been 

published. Just recently, there is one out by a Stanford law professor that looks to these alternatives out there, and let’s see if that 

isn’t a more cost-effective way to deliver access to justice. 

Thank you very much. 

[The prepared statement of Mr. Boehm appears as a submission 

for the record.] 

Senator CARDIN. Thank you very much for your testimony. 

Ms. Jeanette Franzel? 

STATEMENT OF JEANETTE FRANZEL, DIRECTOR, FINANCIAL 

MANAGEMENT AND ASSURANCE, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C. 

Ms. FRANZEL. Good afternoon, Senator Cardin. I would like to 

ask that my written statement be submitted for the record. 

Senator CARDIN. Without objection, all the written statements 

will be included in the record. 

Ms. FRANZEL. Thank you. I am very pleased to be here to discuss 

our recent GAO reviews that have been mentioned throughout this 

hearing on Legal Services Corporation’s governance, accountability, 

and grants management practices. 

The Legal Services Corporation, or LSC, has the important mission of making Federal funding available to provide legal assistance in civil matters to low-income people throughout the United 

States. Today I will discuss LSC’s organizational framework and 

funding and highlight the key findings from our August 2007 report on LSC’s governance and accountability and our December 

2007 report on LSC’s grants management and oversight. 

The sum of these two reports represent a comprehensive, top-tobottom review of the LSC structures and processes that are needed 

25 

to increase assurance that LSC programs are carried out effectively 

and that funds are used in accordance with intended purposes. 

First, regarding LSC’s framework and funding, LSC is a very 

unique organization. It was established by a Federal charter in 

1974 as a federally funded, private, nonprofit corporation. Despite 

its status as a private corporation, the vast majority of LSC’s funding is from Federal appropriations. LSC uses its funding to provide 

grants to legal service providers, or grantees, who serve the lowincome members of the community who need services. LSC received about $350 million in appropriations for fiscal year 2008 and 

has 137 different grantees. 

LSC distributes its funding to grantees based on the number of 

low-income persons living within a service area, so grantees are the 

entities actually spending the funds and providing legal services to 

clients. LSC management is responsible for ensuring that these 

grant funds are used for their intended purposes. Thus, LSC is responsible for its own activities and internal controls and for providing oversight and monitoring of grantees and their internal controls, their use of grant funds, and compliance with laws and regulations throughout their operations. 

LSC’s Board of Directors plays a significant role in LSC’s governance and is responsible for providing leadership and direction to 

LSC’s management and overseeing LSC’s operations. Since 1988, 

LSC has been under the oversight of an Office of Inspector General 

which has statutory authority to carry out audits and investigations of LSC programs, and LSC now has a new IG, as we have 

heard. 

In the areas of governance and accountability, we found that 

LSC’s practices had not kept up with evolving reforms that have 

impacted other types of organizations. I do want to emphasize that 

LSC’s board members did show active involvement in LSC oversight through their regular board meeting attendance and participation. Also, in our discussions with individual board members, we 

found them to be highly committed to their responsibilities and 

very receptive to the suggestions that we were making and the improvements that need to be made in governance. 

We made recommendations in the following areas to help 

strengthen LSC governance: establishing basic charters and responsibilities for the board and its key committees and putting 

those in writing; employing orientation, training, and performance 

assessment processes for the board and for its members; adding 

functions normally handled by boards of directors, such as audit 

committees, ethics committees, and compensation committees, to 

help oversee those areas impacting LSC’s accountability and codes 

of ethics; and finally, very importantly, periodically evaluating key 

LSC management processes, such as risk assessment and mitigation, internal control, grantee oversight, and financial reporting. 

We also found that LSC management practices had not kept up 

with recent developments for other types of organizations. LSC 

management itself had not implemented a systematic or formal 

risk assessment process and had not established comprehensive 

policies or procedures regarding conflicts of interest and ethics. In 

addition, LSC had not established a continuity of operations program. 

26 

In the area of grants management and oversight, which is really 

the heart of where LSC funding is applied in LSC operations, we 

found weaknesses that left grant funds vulnerable to misuse. Specifically, we found that the scope of LSC’s monitoring of grantees’ 

fiscal compliance was limited. In addition, LSC did not use a structured or systematic approach for assessing risk across its 137 different grantees in order to guide the timing and scope of grantee 

visits and oversight activities. 

We also found that oversight feedback to grantees was often 

slow. As of September 2007, LSC had not yet issued reports to 10 

of the 53 grantees that it had visited during 2006. Without such 

communication, grantee managers do not have information that 

they need about deficiencies and corrective actions that are needed 

to help protect their activities in their own program. 

We also found poor fiscal practices and improper expenditures at 

9 out of the 14 grantees that we visited, and I would like to stress 

that these were very limited reviews that we did. During our limited reviews, we identified issues that LSC could have identified 

with more effective oversight. We found systemic issues involving 

payments that were made without sufficient supporting documentation, and in those cases, it was impossible for us to determine whether the expenditures were accurate, allowable, or appropriate. 

We also found improper expenditures and potentially improper 

expenditures at grantees using grant funds, including travel expenses, loans to employees, alcohol purchases, lobbying fees, questionable contractor payments, and improper use of LSC funds resulting from a real estate transaction. 

As a result of our review, we made a total of nine recommendations to LSC’s board and eight recommendations to LSC management. Both LSC’s board and management expressed a commitment 

to taking corrective action to implement our recommendations. 

LSC’s most recent progress report indicates that it is starting to 

take action on many of our recommendations and is planning action on the rest. LSC plans to provide us with a final update by 

September 1, 2008, and we look forward to receiving that report 

and reviewing LSC’s progress. 

I want to emphasize, however, that some of these corrective actions will take time to fully and properly implement, and many of 

these actions will need to be continually evaluated through an LSC 

ongoing risk assessment and monitoring process, which we are recommending also be put in place. 

In conclusion, LSC serves a key mission, which is being highlighted during the current period of economic hardship for many 

workers and their families who need legal services they could not 

otherwise afford. Effective governance, internal controls grantee 

oversight, and diligent and proper performance by grantees are all 

critical to LSC’s mission, the effective use of its appropriated funding, and its ability to serve the legal needs of low-income people. 

Maintaining sound internal controls and governance will be key to 

maintaining trust and credibility of LSC’s mission and operations 

going forward. 

That concludes my statement, and I would be happy to answer 

any questions that you have. 

27 

[The prepared statement of Ms. Franzel appears as a submission 

for the record.] 

Senator CARDIN. Thank you very much. 

Ms. Rebekah Diller? 

STATEMENT OF REBEKAH DILLER, DEPUTY DIRECTOR, JUSTICE PROGRAM, BRENNAN CENTER FOR JUSTICE, NEW 

YORK UNIVERSITY LAW SCHOOL, NEW YORK, NEW YORK 

Ms. DILLER. Thank you, Senator Cardin. On behalf of the Brennan Center for Justice, I would like to thank you for holding this 

hearing today and permitting me to testify. The Brennan Center 

for Justice is a nonpartisan think tank and advocacy organization, 

and for the last 10 years, we have been deeply involved through 

litigation, research, and advocacy in promoting equal access to the 

courts. 

I am going to depart from my written testimony a bit and just 

speak about some of the issues that have come up during this 

panel. 

First, I would just like to say that I agree with Mr. Boehm that 

certainly we can look at other models for closing the justice gap 

and for improving access to courts in this country. I think expanding small claims court jurisdiction and things like that are very 

useful. But I think we have to be very honest that that is just not 

going to close the justice gap. 

When you look at the types of cases that legal services programs 

handle, primarily housing court cases, family court cases, those are 

cases where the other side has a lawyer, and in order for there to 

be any type of fairness in the proceeding, the legal services client 

needs to have a lawyer as well. So we can talk about these other 

matters that may complement efforts here to close the justice gap, 

but they are simply not going to fix the fact that when you have 

one side represented, if the other side is not represented, you have 

a very unfair proceeding. 

One study that I cite in my testimony found that when a side 

is represented by a lawyer, they are five times more likely to prevail in litigation than when they are unrepresented, so that gives 

you a sense of the real difference that a lawyer makes. 

The other thing I will just address is the fact that the justice gap 

study, while it was produced by the Legal Services Corporation, is 

consistent with every other study and in some ways understates 

the problem that every other study has found about the legal needs 

of low-income people going unmet. So it is not just LSC studies. It 

is the study of every access-to-justice commission that looks at the 

issue. 

The Brennan Center itself I can tell you did a study on a local 

level where we looked at New York City housing court and we 

looked at how many tenants were represented, and we found that 

76 percent were unrepresented, and that is in contrast to the landlord side of the proceedings where most observers estimate that 

about 90 percent have a lawyer. So the fact that low-income people 

go unrepresented is pretty irrefutable. 

The other thing I will just note is that when you look at how the 

U.S. compares to other developed countries, it is very interesting, 

because while I am not really able to speak to the number of lawVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
28 

yers or lawsuits, what I can tell you is that we fall way behind in 

terms of funding for civil legal aid. England spends about 11 times 

as much per capita on legal services as we do; Germany and 

France spend about as 2 times as much. So while there may be 

fewer lawsuits or lawyers, certainly when low-income people have 

legal needs there, they are much more likely to be represented. 

The other thing I will just say is that to the extent that there 

is an assumption that, you know, somehow there is a self-interested effort here by lawyers to generate more business for lawyers, 

I think the salary quotes that we have heard from several witnesses really underscore the fact that no one is going into the legal 

services business for the money. So if we were really here for an 

effort to generate business for lawyers and provide funding for 

more and more lawyers just for that sake itself, we would not be 

talking about legal services. People go into legal services because 

they want to do good work, and they often do so at great financial 

sacrifice. 

The other thing I will address here today is one step that the 

Congress could take which would not cost a penny, but I think 

would go pretty far toward helping improve the justice gap problem 

that we have talked about, and that is to eliminate the restriction 

on State, local, and private funds that is attached to the LSC appropriation every year. We have talked a lot about the involvement 

of State and local governments as partners, of IOLTA programs as 

partners, of private donors as partners. But what the Federal Government has done is it has said to local nonprofit organizations, if 

you take one penny of our money, we are going to restrict how all 

your other funds are spent. 

This is way out of line with how every other Federal grantee is 

treated. The normal course is to certainly restrict how Federal 

funds are spent, but not to tell grantees and others, like State governments, how they can spend their funds. 

What is happening as a result of this restriction is that the Federal Government is actually deterring partners from getting involved in the civil legal aid delivery system, deterring private 

funders from giving to legal aid programs because their funds will 

be restricted. It is deterring State governments and State actors 

from contributing to LSC-funded grantees. And it is also creating 

waste in the system. I will give you an example from Oregon. 

Oregon State justice planners did not want their State funds to 

be restricted by the Federal Government, so they set up two systems of legal aid delivery that run parallel to each other. That 

means two sets of rent payments ever month, two sets of computer 

networks, copy machines. All the overhead that one office has now 

has to be borne by two offices. And the programs there calculated 

that if they did not have to operate separately due to the restriction on State, local, and private funds, they would save about 

$300,000 a year. That same $300,000 a year could go toward opening a new office in an underserved rural area of the State and serving more clients in their bread and butter legal services needs. 

We have seen the impact of this restriction in particular in the 

subprime crisis and in efforts to defend homeowners against predatory lenders. One of the things it does is it tells legal services attorneys that they can’t seek attorneys’ fee awards even when such 

29 

awards have been authorized by consumer fraud statutes. And this 

means that their bargaining power is reduced when litigating in 

these cases. Wrongdoers do not have to pay fees that have been authorized by statute. And they are also depriving programs of potentially another source of revenue that could go to serve yet more 

homeowners in need of help. 

I will stop there and take any questions. 

[The prepared statement of Ms. Diller appears as a submission 

for the record.] 

Senator CARDIN. Thank you for your testimony, and I thank all 

six of you for your testimony. It certainly helped complete our 

record here. Both Ms. Diller and Ms. Wallace spoke about the restrictions in the LSC law, which I am glad you both mentioned. It 

just seems to me that there are easier ways for priorities to be determined than putting legal restrictions in the statute itself. 

You went through, Ms. Diller, a list of the restrictions and mentioned them. Did you mention them in priority order? Do you believe that outside funding is the most problematic restriction that 

LSC has? Or just there is no rhyme or reason to the list? 

Ms. DILLER. Well, I would say the restriction on other funds is 

the most problematic because of the way that it ties up the money 

that comes from other sources, the way it distorts the planning 

that local communities can do about how they construct civil legal 

aid delivery systems. It deters other funds from coming into the 

system. So I do think that is the most problematic, and I would 

just point out that to the extent Congress has concerns about how 

its money is spent, it can certainly regulate that. But this is really 

outside the norm with the way that any other nonprofit grantee 

type of organizations are treated. 

Senator CARDIN. Ms. Wallace, you mentioned that same restriction. I do not believe you mentioned other restrictions. Is that the 

area that you think is the most important for Congress to take a 

look at? 

Ms. WALLACE. We agree that the restrictions generally present 

problems, but certainly agree that that particular restriction is one 

of the most problematic, and it is one of the ones that should be 

prioritized for a number of reasons. If we really are going to close 

the justice gap, we need to make the partnerships that are going 

to be required to do that as effective as possible. And that restriction really does hamper our ability to do that and hampers programs’ abilities to do that. Not only that, but as was pointed out, 

we think that it is a pretty easy fix. So that is a good place to start. 

Senator CARDIN. Mr. Boehm, you talked a little bit, particularly 

in your statement, about the advantages of pro bono. Do you favor 

a requirement that all lawyers participate in pro bono? 

Mr. BOEHM. I would think there would be constitutional, if not 

ethical, problems with requiring it. It is a duty of the profession, 

and the profession—I think you have to look at a profession as a 

regulated monopoly, and people who are able to practice law privately have a responsibility. It comes with the very notion of a profession. And I think this should be every kind of suasion short of 

absolute requirement to the degree they should be publicly shamed 

if they do not, if they are in private practice and offering that. And 

I think also, by the way, lawyers who work for the Federal and 

30 

State governments, lawyers who now have problems doing that sort 

of thing, should be allowed to do it. And I think there ought to be 

a waiver for certain types of legal services when attorneys who are 

in different States from which they were admitted to the bar would 

like to do some volunteer work. Right now, you have to be admitted 

to the bar, which can be a problem in some cases. 

Senator CARDIN. You raise some very legitimate points, but if we 

could work out the issues that you have referred to, would you 

favor a legal, enforceable obligation for attorneys to participate in 

pro bono, with the caveats that you have already mentioned, and 

others? 

Mr. BOEHM. Yes, the main one is that if you force somebody to 

do that, it almost gets to—I have seen this debated. This has been 

debated by leading people on both sides. The Federalist Society had 

a series of debates. Mr. Alex Forger, who is the former LSC president, took the position it should be legally enforceable. 

I think there are a lot of steps you can take right up to that line 

that go very, very close to requiring it, and a number of States 

have done it. I will give you some very quick examples. There is 

increased reporting requirements. In some States you have to go 

into great detail. Certain firms have made it firm policy. There is 

any number of things you can do, and there are some proposals, 

there are policy proposals out there for certain types of tax credits 

in a very limited way to further increase pro bono. 

There is no shortage of lawyers per se. There is a shortage of pro 

bono. 

Senator CARDIN. Judge Livingston, why hasn’t the bar association taken a more affirmative view on the requirements for pro 

bono? 

Judge LIVINGSTON. I think they have, in fact. I think that there 

are a number— 

Senator CARDIN. To make it mandatory. They have not taken 

steps to try to make it mandatory. 

Judge LIVINGSTON. They have not taken steps to make it mandatory for some of the reasons that Mr. Boehm has pointed out and 

more practical ones, perhaps, about lawyers not feeling—feeling an 

obligation, certainly, to the profession and to the community to participate in pro bono, but I don’t know that involuntary servitude is 

really the way to go. At least, that has been the argument framed 

by some in this debate. I disagree with that. I think that we could 

certainly do— 

Senator CARDIN. When I got out of law school— 

Judge LIVINGSTON.—more than we are doing. 

Senator CARDIN. When I got out of law school and walked past 

a courtroom, a judge grabbed me and said I would handle this case. 

I guess I could have told the judge no if I never wanted to go before 

his court again. But I handled the case. Is that— 

Judge LIVINGSTON. Let me suggest— 

Senator CARDIN.—involuntary servitude? 

Judge LIVINGSTON. I don’t think it is. I mean, I am in favor of 

mandatory pro bono personally. But I will tell you that as a representative of the profession, it is not a popular notion. 

I will also tell you, though, that the profession has certainly 

stepped up. I bet when you went to law school that law firms, big 

31 

law firms that are paying these top- dollar salaries that are elusive 

to legal aid lawyers, those law firms traditionally have not allowed 

billable hour credit for pro bono work. Now that is a reality. So 

that is one very simple way that law firms have been responsive 

and have been out front encouraging the associates in their firms 

to participate in pro bono. 

There are a number of initiatives in every State and local bar association that I am familiar with that not only encourages pro 

bono, but actively recruits pro bono lawyers, they participate in the 

pro bono organized activities of the bar. They have—we just left 

Minneapolis at the Equal Justice Conference, which used to be 

called the ‘‘pro bono conference,’’ where there were a number of 

strategies discussed about ways that you can increase the interest 

among lawyers in doing pro bono, in actually helping them in carrying out their pro bono responsibilities as members of the profession. And there are just untold and millions and millions of examples of the profession stepping up to the plate to take this responsibility, not just in doing it but in reporting it and encouraging young 

lawyers in their firms to do so as well. It is an effort that we take 

seriously. 

Senator CARDIN. The results are inconsistent among the States. 

Judge LIVINGSTON. I am sorry? 

Senator CARDIN. It is inconsistent among the States. 

Judge LIVINGSTON. It is definitely inconsistent. It is inconsistent 

in communities within a State. 

Senator CARDIN. That is true also. There have been more aggressive steps taken in some State over other States. I am not aware, 

though—maybe I am wrong about this—that the American Bar Association has taken a firm position that there is an obligation for 

attorneys to handle pro bono, that there should be reporting requirements in every State, that there should be specific programs 

in law schools to sensitize lawyers to enter pro bono programs. 

There is a whole list of things that they have done. I am not aware 

that the ABA has actually come out and said that every State 

should adopt these or try to make this a standard practice within 

the canons of ethics of attorneys. 

Judge LIVINGSTON. Well, the canons of ethics that our association 

recommends do include taking the responsibility seriously and certainly encourages it. The Center for Pro Bono is one example of 

that. There is information in my written remarks about a website 

reference that you can go to to find out about all the initiatives 

going on at the Center for Pro Bono. 

So there are a number of efforts, and I would say—I never want 

to disagree with a Senator, but I would certainly want to say that 

the association is on record absolutely encouraging States, encouraging State bar associations, encouraging local bar associations, 

and encouraging every single lawyer that is a member of the profession, certainly a member of the association, to engage in pro 

bono activities and to report that. 

Senator CARDIN. Well, there is a big difference between encouraging and taking it to the line, and I would suggest beyond the line 

that Mr. Boehm is suggesting, in which you have the information 

in front of you about every attorney in your State as to what they 

are doing. And that is what we do in Maryland. Every lawyer must 

32 

report their pro bono activities. If you want to practice law in 

Maryland, you have got to do that. 

Judge LIVINGSTON. Fabulous. 

Senator CARDIN. Well, why doesn’t the bar association work to 

require that in every State? 

Judge LIVINGSTON. Well, I think that— 

Senator CARDIN. My point is this. My point is this. The request 

is being made for the Federal Government through the taxpayer 

support to provide a greater level of activity to meet this gap. I 

support that. But the bar association also must take this to the 

next level. This is a partnership. 

Judge LIVINGSTON. I agree. 

Senator CARDIN. I will not forget the lesson I learned from Governor Schaefer when I went to him and asked him for more State 

money. The first question he asked me: ‘‘What are the lawyers 

doing?’’ I think that is a legitimate question. 

Judge LIVINGSTON. I agree. 

Senator CARDIN. And I happen to agree with the point that pro 

bono is a very, very valuable part of filling this gap. 

Judge LIVINGSTON. I totally agree. 

Senator CARDIN. We need to do a lot more. 

Judge LIVINGSTON. I totally agree. I don’t disagree with anything 

you said about how lawyers have to step up. What I am telling you, 

Senator, is that lawyers have stepped up. That does not mean we 

can’t step up further. It does not mean we can’t take a more active 

role. It does not mean we can’t be more aggressive. The American 

Bar Association is totally 100 percent committed to all of the efforts 

that you have outlined, all of the suggestions that have been made 

here today, and this is not the only forum that we have heard 

them, certainly. And we will certainly look at all of those. We have 

been looking at them. That is what the Center for Pro Bono does. 

That is what the Pro Bono Committee does. That is a very important committee of the association. We recognize at annual awards 

ceremonies the work of pro bono lawyers throughout the country in 

local bars, in State bars, that are doing just enormous—giving an 

enormous effort of their time and energy and staff time and money 

toward this effort. And so lawyers do take this responsibility seriously, the association takes this responsibility seriously. 

And while I agree that certainly more could be done, I want you 

to understand and appreciate the fact that the association is doing 

quite a bit to promote pro bono and to encourage pro bono among 

all of the members of the profession. 

To the extent that we can do more, we will take that challenge 

and continue to work on it with your recommendations in mind. 

Senator CARDIN. Thank you. I appreciate that response. I really 

do. 

Our commission came out with a recommendation for mandatory 

pro bono, and I thought it was an ethical commission, Mr. Boehm. 

I did not think we were trying anything that was unconstitutional 

or unethical. 

Ms. Franzel, is there anything more that you would like to see 

from the Legal Services Board in regards to how they are reacting—I know you want to see the final products, but is there anything that is of concern to you as to how they are currently reVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
33 

sponding to your request? I know that you have not completed the 

information, but are they on track to responding to the suggestions 

that you have made? 

Ms. FRANZEL. Yes. I am very encouraged by the response. I do 

want to caution that many of the really difficult initiatives are in 

the planning stages or the initial stages, and so it will be really important to take a look at things like risk assessments and grantee 

oversight—those are the big-ticket items—and take a look at them 

over the next year or so. 

Some of the other structural issues can be taken care of very 

quickly, such as restructuring the board and its responsibilities, 

and I am very pleased to see that those are already in process. 

And, of course, we will want to see how all of this is implemented. 

Senator CARDIN. Thank you. 

Mr. Joseph, on the salary levels, I haven’t check the legal service—the Legal Aid Bureau as to their salaries recently. Are you 

having trouble in retaining attorneys? Is there a major gap in 

Maryland on the payment to legal aid attorneys versus other areas 

of public interest law? I know we are not competing with the large 

law firms, but in other areas of public interest law. 

Mr. JOSEPH. All of the above. Generally in Maryland we are very 

aggressive about that. In 1996, our starting salary for lawyers was 

$25,000 a year, and it had been frozen for 7 straight years. A lawyer who worked there for 7 years—and we had many—had not gotten a single penny increase. This year, we are starting lawyers at 

$45,200. But even that puts us between $9,000 and $10,000 behind 

the State attorney—I know because my daughter works there—behind the Attorney General, behind public defenders. And what happens is that we are aggressive about recruiting the most committed 

and the most competent. And as soon as they show their wares in 

the public, they get recruited and folks try to snatch them, and 

they go. 

So it is a difficulty. We do things to try to compensate for that. 

We have a nice liberal vacation schedule. We try to give leave for 

child care, different innovative ways to compete in the marketplace. 

I think Mr. Boehm doesn’t really understand what it is to run 

a legal aid program. It is a business. We have 300 employees, 140 

lawyers, 13 physical locations around Maryland. We can’t rely on 

$3.9 million from the Legal Services Corporation, so we have hundreds of individual contributors. We have to have a program observing that. We have lawyers who form a separate Equal Justice 

Council, lawyers from all the big law firms and small law firms. 

All they do is raise money for legal aid. We have pro bono hours 

being donated. Yet we touch a little piece of the need out there. 

I think I demonstrated that when you live on a budget of poverty, every single day, every year, you will have the need for advice, for counsel, and sometimes representation. Mr. Boehm waved 

his hand at numbers, about somebody who got a small piece of information on the phone. Let me tell you, sometimes a piece of information that lasts 1 minute can give you the peace of mind that 

makes a difference in your life. Rich clients know it, too. They call 

their lawyers to get one piece of advice, and poor folks do it, too. 

I support all the GAO ideas of efficiency and improvement. I support all the ideas of alternatives. We have mediation, we have evVerDate Aug 31 2005 14:05 Dec 18, 2008 Jkt 045653 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45653.TXT SJUD1 PsN: CMORC
34 

erything. We still don’t meet it. This is a serious crisis. The magnitude in numbers of people living in poverty is overwhelming. The 

frequency of the need for legal services is overwhelming. The complexity of the issues. I don’t want a patent lawyer handling a complex housing issue. I don’t want an entertainment lawyer trying to 

navigate complex Medicaid rules. No. It is going to be a very difficult time matching skills and need in a time-specific situation. 

Senator CARDIN. Thank you for that response. By the way, I 

want you to engage the private community in the funding of legal 

aid. I want the law firms involved in the funding of legal aid. I 

think that is a healthy situation. And I think it is a lot easier to 

get the law firms and the private sector involved when the Government is a partner and the Government is a meaningful partner. 

And when you see the erosion of the Government support, it, I 

think, makes it more difficult to get the other partners to contribute and to provide the pro bono services that are necessary in 

order to meet the access-to-justice issues. So I want to see all the 

players, and that is why I do believe the bar must figure out new 

ways to energize lawyers to help fill this gap, because lawyers do 

have a special responsibility here. I do believe it is an ethical issue 

for attorneys to be involved in pro bono activities, and the failure 

to do so to me is an ethical violation of the oath of an attorney. 

Let me again thank you all for your help on this panel. I can assure you there is tremendous interest on this Committee. I have 

talked to most of the members of the Committee, and they are very 

much interested in getting involved as we try to develop strategies 

to meet this gap. There is not a uniform position here. There are 

different views. But I think there is a genuine desire to close this 

gap. And we certainly will be working very closely with the Health 

and Education Committee and with the House Committees to try 

to develop a strategy. 

Clearly, this needs more legislative attention, and I am hopeful 

that as Congress goes through the remainder of this year and next 

year, we will look toward ways that we can elevate the effectiveness of the Federal participation in these programs, obviously 

through additional resources, but we think there may be other 

ways that we can be helpful. 

The record will remain open for 1 week for additional materials. 

I ask the witnesses to respond to members’ questions in a timely 

manner if they are submitted by the members of this Committee, 

and without objection, statements from Senators Leahy and Feingold will be included in the record. 

The Committee will stand adjourned. Thank you. 

[Whereupon, at 4:15 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.] 

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