Final Report
May,
2003
Hon. Joy Flowers Conti, Tri-Chair
Jeffrey A.
Ernico, Esq., Tri-Chair
Clifford E.
Haines, Esq., Tri-Chair
Alfred J.
Azen
Robert D.
Beck, Esq.
Jack L.
Bergstein, Esq.
Joseph A.
Campagna, Jr., Esq.
Catherine C.
Carr, Esq.
Edward F.
Chacker, Esq.
Michelle
DeBord, Esq.
Hon. Toby
Lynn Dickman, Esq.
Joseph J.
Dougherty, Esq.
Lawrence J.
Fox, Esq.
Carlene Ruth
Gallo, Esq.
Maureen P.
Kelly, Esq.
John
D. Killian, III, Esq. |
Eugene
Joseph Malady, Esq.
Jeffrey P.
Lewis, Esq.
Representative
Kathy Manderino
Nancy Potter
Matthews, Esq.
Samuel W.
Milkes, Esq.
Leslie Anne
Miller, Esq.
Joseph A.
O’Brien, Esq.
Elizabeth C.
Price, Esq.
Robert V.
Racunas Esq.
Hon. Sylvia
H. Rambo
James H.
Rowland, Jr., Esq.
Louis S.
Rulli, Esq.
Paul A.
Tufano, Esq..
David
Unkovic, Esq.
Darlene R.
Wong, Esq.
Lawrence V.
Young, Esq.
Daniel
Joseph, Esq.–Board of Governor’s Liaison
David Keller
Trevaskis, Esq.–Staff Liaison since October, 2001
Diann
Stinney, Staff Liaison, 1998-2001
Dale
Schell, Administrative Assistant
|
Preamble for Report of the
Delivery of Legal Services to the Needy II Task Force
The Pennsylvania Bar
Association’s Delivery of Legal Services to the Needy II Task Force has spent the
past five years working to enhance the state of pro bono legal services and the delivery
of legal services to the poor in the Commonwealth of Pennsylvania. From the drafting of the 1998 Interim Report to
the Pennsylvania Bar Association, the Task Force has strived to move forward with several
specific proposals to address the ongoing critical need for civil legal aid for the
neediest among us in Pennsylvania.
The Task Force met as a large group
in person more than ten times during its existence and conducted numerous large and small
group conference calls to carry out its work. Three subcommittees of the Task Force reviewed,
discussed, made and implemented policies concerning various aspects of Pennsylvania’s
pro bono efforts and formal legal services to the poor.
There have been great successes
during the term of the Task Force. The PBA
has hired a full-time Pro Bono Coordinator and staffed a Pro Bono office; the Access to
Justice Act has been passed and more than three-and-one-half-million dollars in new
funding for legal services will be collected this year; and the Supreme Court has funded
an IOLTA Pro Bono Grant competition for the past two years through a voluntary
contribution solicited from lawyers in their annual licenses that has helped 20 counties
establish or strengthen local pro bono efforts.
There is still much that needs to be
done. The purpose of this report is to note
not only all that has been accomplished by the Task Force, but to record all that still
needs to be done. The report is produced for
the Board of this Association and for the Legal Services to the Public Committee
that will carry on the mission of this Task Force.
PENNSYLVANIA BAR ASSOCIATION
DELIVERY OF LEGAL SERVICES TO THE NEEDY II TASK FORCE
REPORT AND RECOMMENDATIONS
In
the spring of 1998, then Pennsylvania Bar Association President Leslie Anne Miller
convened the Delivery of Legal Services to the Needy II Task Force to review the unmet
civil legal needs of the poor, and to develop recommendations that would bring about
meaningful change to this critical situation. The Honorable Joy Flowers Conti, now on the
federal bench as a judge for the United States District Court for the Western District of
Pennsylvania, but in 1998 a private practice attorney from Allegheny County, joined fellow
private practice attorneys Jeffrey A. Ernico of Dauphin County and Clifford Haines of
Philadelphia County, as tri-chairs of the Task Force.
Charged with the mission of improving civil legal aid in Pennsylvania, the
tri-chairs worked with President Miller to pull together a highly diverse and talented
Task Force dedicated to fulfilling the mission of “Equal Justice for All” and
the duty to the poor of the Bar. They called upon leading members of the executive,
legislative and judicial branches of the government, practicing attorneys from all areas
of the state representing a wide variety of legal practices, interests and concerns, and
project directors of local legal services programs, to lend their vision, experience and
leadership to the mission of the Task Force.
To
a large extent, the Task Force was charged to follow up on the 1989 efforts of a similarly
chartered Task Force that was chaired by Joseph Jones, Sr., a past President of the
Pennsylvania Bar Association. The 1989 Task
Force documented the great unmet civil legal needs of the poor in Pennsylvania and
proposed many recommendations to help alleviate the pressing demand for help. The Pennsylvania Bar Association’s Board of
Governors and House of Delegates adopted all of the recommendations of the 1989 Task
Force. Although that first Task Force enjoyed
great success,
a number of significant recommendations were never implemented.
The defining principle of our legal system is the promise of equal
justice under law for all. Yet, despite this promise, there is a crisis of unmet civil
legal needs among the poor in Pennsylvania and throughout the nation. The second Task Force thoroughly reviewed
the work and status of the recommendations of the previous Task Force and decided on a
series of goals for attacking this crisis.
The
first goal was to secure an additional $10
million funding base for civil legal aid for the neediest Pennsylvanians. The Task Force sought to achieve that goal by the
following means:
1)
Increase the attorney registration fee by approximately $50 for the 53,000 actively
licensed attorneys to raise nearly $3 million annually.
2)
Secure an add-on of $5 dollars on all new civil filing fees and a surcharge of $4
on mortgage and deed filings to raise more than $7 million annually.
3)
Make concerted efforts to obtain cy pres awards and other supplemental funding of
the delivery of legal services to the poor to raise $1 million annually.
The second goal
focused on establishing effective pro bono programs in all 67 counties of Pennsylvania. The Task Force noted in 1998 that, as a result of
the cooperative efforts of the bar associations and their leadership, established pro bono
programs existed in all but 14 county bar associations across the Commonwealth. Nevertheless, the Task Force found most of the
existing pro bono programs to be falling short of fulfilling the needs for pro bono
attorney volunteers to adequately address existing client caseloads. In 1998, more than one third of all Pennsylvania
counties had from no participation to less than 20% local attorney participation in pro
bono efforts. Many additional counties
reported poverty caseload backlogs at unacceptable levels.
Consequently, the Task Force identified a need to find ways to recruit and retain
more pro bono attorney volunteers virtually throughout the Commonwealth.
The Task Force
identified four key areas for concentration of present and future recruitment of attorney
volunteers. They were 1) the organized bar
associations; 2) the courts; 3) law schools, and 4) senior members of the bar. Each of the foregoing areas were addressed by
subcommittees of the Task Force and the Task Force developed some concrete recommendations
relating to efforts the PBA could initiate to help the organized bar associations to
develop more programs and recruit more volunteers.
Although
the Task Force was able to collect some information on the level of pro bono activities by
Pennsylvania attorneys on a county-by-county basis, the available information proved quite
limited and easily became dated. Without
a reliable and effective tool in place to gather and measure the efforts of individual
attorneys in addressing their ethical responsibility under Rule 6.1 of the Rules of
Professional Conduct, the Task Force believed it would be impossible to realistically
measure the pro bono efforts of Pennsylvania lawyers.
The Task Force
noted that one of the recommendations of the 1989 Report of the first Task Force for Legal
Services to the Needy was “to require all licensed attorneys to report annually to
the Court what they did in the preceding year to satisfy the obligation to render public
interest legal services under Rule 6.1 of the Pennsylvania Code of Professional
Conduct.” This recommendation on
reporting was not implemented through the efforts of the first Task Force; members of the
second Task Force believed
that a simple
provision could be added to existing attorney annual registration forms to provide the
important information.
The Task Force presented eight recommendations to the PBA House of Delegates and
all eight were approved by the House in May of 1999; the eight recommendations were:
1.
The Pennsylvania Bar Association hereby establishes a program to encourage and
coordinate the development and expansion of pro bono programs in each county of this
Commonwealth, and to administer a pro bono program itself for counties that are unable to
do so themselves.
2. The
Pennsylvania Bar Association hereby establishes a program to coordinate Pro Bono
Assistance Teams to assist counties without existing pro bono programs to establish such
programs, and at the request of the local county bar association, to evaluate and make
recommendations concerning existing pro bono programs, to help improve those programs, and
to share “best practices” of pro bono programs from wherever they exist.
3. The
Pennsylvania Bar Association calls upon the leaders of the judiciary at all levels of the
court system to commit themselves to an active role in the discussion and furtherance of
pro bono representation of the poor, and encourages the law schools to instill a pro bono
ethic in their law students.
4. The
Pennsylvania Bar Association encourages the deans of Pennsylvania’s law schools to
assure that all law students are educated about the responsibility of and benefits from
the pro bono representation of the poor, and encourages the law schools to instill a pro
bono ethic in their law students.
5. The
Pennsylvania Bar Association encourages senior members of the bar to become more active
and lead the way in their local county pro bono programs.
6. In order
to implement recommendations 1 through 5, the Pennsylvania Bar Association recommends to
the Supreme Court of Pennsylvania the addition of an add-on charge of $5 to each mandatory
continuing legal education credit for the primary purpose of facilitating the pro bono
representation of the poor by attorneys. Through
a program established by the Pennsylvania Bar Association, funds from this add-on would be
directed to programs designated by the principal local bar association in the county where
the attorney paying the fee has his/her principal office.
These programs shall provide lawyers with opportunities to fulfill their
professional responsibility to provide pro bono legal services for the poor or provide
professionally staffed legal services for the poor. For
out-of-state attorneys, the designation would be directed by the Pennsylvania Bar
Association. The add-on charge shall apply
only to the annual mandatory credits and is waived on all additional, non-bankable
credits. The charge is also waived when a
non-profit provider waives tuition costs to a speaker or attendee and further is waived on
all credits for attorneys during their first five (5) years of practice.
7. To
supplement the add-on to MCLE credits to facilitate the representation of the poor, the
Pennsylvania Bar Association modifies its existing policy as adopted by the House of
Delegates in 1990 and hereby commits itself to the passage of legislation that will
increase filing fees for all first filings, for which fees are presently charged,
including filings in the appellate civil courts and trial courts by $5 and in the district
justice, and municipal courts by $4, and by increasing filing fees for deeds, mortgages
and property transfers by $4, with the revenues generated thereby allocated to the
delivery of legal services to the poor through the Pennsylvania Legal Services.
8. The
Pennsylvania Bar Association directs its staff to establish a program whereby attorneys
general, trial lawyers, and the judiciary itself, are educated of the judiciary’s
authority under the cy pres doctrine to direct class action residuals and other unclaimed
funds to support professionally staffed poverty law offices.
The successes of the Task Force and the opportunities for the Legal Services to the
Public Committee in carrying forward the Task Force’s mission are best observed by
looking at each recommendation and reviewing its status as of this report.
Recommendation One
The Pennsylvania Bar
Association hereby establishes a program to encourage and coordinate the development and
expansion of pro bono programs in each county of this Commonwealth, and to administer a
pro bono program itself for counties that are unable to do so themselves.
The PBA Pro Bono Office was opened in the fall
of 2001 with the hiring of David Keller Trevaskis as full-time Pro Bono Coordinator and
Dale Schell as half-time Pro Bono Administrative Assistant.
The PBA Pro Bono Office has surveyed every county
about its Pro Bono activities and has worked with local and statewide legal services
programs to establish, expand and strengthen pro bono programs in each county. Although the PBA Pro Bono Office fields a number
of requests for civil legal aid each week, providing local contact
information for persons seeking such aid and connecting legal services providers with
local pro bono attorney contacts, there is currently no centrally administered pro bono
program at the PBA.
The PBA Pro Bono Office and the Legal Services
to the Public Committee have worked with Pennsylvania Legal Services on a computer
information project called ProBono.Net that will eventually allow attorneys from across
the Commonwealth to sign up for Pro Bono cases and access legal materials. A similar model for clients seeking support is
also being developed.
To encourage the growth of Pro Bono programs
across the Commonwealth, the Pro Bono Office and the Legal Services to the Public
Committee have held annual pro Bono Conferences as part of the PBA Annual Meeting the past
two years. The Pro Bono Office has also, in cooperation with
Pennsylvania Legal Services, held more than two dozen Pro Bono Ethics CLE workshops across
Pennsylvania.
Recommendation
Two
The
Pennsylvania Bar Association hereby establishes a program to coordinate Pro Bono
Assistance Teams to assist counties without existing pro bono programs to establish such
programs, and at the request of the local county bar association, to evaluate and make
recommendations concerning existing pro bono programs, to help improve those programs, and
to share “best practices” of pro bono programs from wherever they exist.
Pro
Bono Assistance Teams have worked successfully in such areas as the joint Wyoming-Sullivan
judicial district where these two counties, showing no pro bono participation at the start
of the Task Force in 1998, now boast 100% attorney involvement. The difficulty in getting a similar foothold in
another county, despite repeated overtures, shows the major limitation of the Team
approach—it works well when local attorneys are receptive to organized pro bono
service, but it cannot easily overcome strong local opposition to such efforts.
The
Pennsylvania Bar Association calls upon the leaders of the judiciary at all levels of the
court system to commit themselves to an active role in the discussion and furtherance of
pro bono representation of the poor, and encourages the law schools to instill a pro bono
ethic in their law students.
Ongoing efforts to have the leadership of
the courts and the law schools in Pennsylvania support civil legal aid for the neediest
among us continue. From Supreme Court
Justices
to entire county Court of Common Pleas benches, more and more judicial
leaders are calling for pro bono service. All of the Pennsylvania law schools receive
IOLTA grants to support civil legal aid outreach by their students, though only the
University of Pennsylvania School of Law requires public service for graduation.
Recommendation Four
The
Pennsylvania Bar Association encourages the deans of Pennsylvania’s law schools to
assure that all law students are educated about the responsibility of and benefits from
the pro bono representation of the poor, and encourages the law schools to instill a pro
bono ethic in their law students.
There are educational outreach
opportunities at each Pennsylvania law school. The
Miller Center at Pennsylvania State University’s Dickinson Law School is a model for
the type of program envisioned by this recommendation.
Recommendation Five
The Pennsylvania Bar Association encourages senior
members of the bar to become more active and lead the way in their local county pro bono
programs.
Senior attorneys have been asked by PBA leadership and members of the Task
Force to provide direct legal service to the poor. Older
lawyers have also been sought to mentor younger attorneys who perform pro bono work. There are no statistics available about the
involvement of senior attorneys.
Recommendation Six
In order to
implement recommendations 1 through 5, the Pennsylvania Bar Association recommends to the
Supreme Court of Pennsylvania the addition of an add-on charge of $5 to each mandatory
continuing legal education credit for the primary purpose of facilitating the pro bono
representation of the poor by attorneys. Through
a program established by the Pennsylvania Bar Association, funds from this add-on would be
directed to programs designated by the principal local bar association in the county where
the attorney paying the fee has his/her principal office.
These programs shall provide lawyers with opportunities to fulfill their
professional responsibility to provide pro bono legal services for the poor or provide
professionally staffed legal services for the poor. For
out-of-state attorneys, the designation would be directed by the Pennsylvania Bar
Association. The add-on charge shall apply
only to the annual mandatory credits and is waived on all additional, non-bankable
credits. The charge is also waived when a
non-profit provider waives tuition costs to a speaker or attendee and further is waived on
all credits for attorneys during their first five (5) years of practice.
The PBA sought a five dollar per credit of
CLE to be devoted to Legal Aid. Since each
attorney is required to take 12 credits, the annual charge would have been $60. However, the CLE Board rejected the concept before
it was transmitted to the Court, and the PBA leadership transformed the request that was
sent by letter to Chief Justice Flaherty to the mandatory assessment per attorney. PBA leadership left it to the Court to determine
how the assessment would be made (by CLE credit or otherwise). The Court determined to follow through with a
voluntary assessment that has resulted in nearly $150,000 being collected since 2001.
To supplement the add-on to MCLE credits to facilitate
the representation of the poor, the Pennsylvania Bar Association modifies its existing
policy as adopted by the House of Delegates in 1990 and hereby commits itself to the
passage of legislation that will increase filing fees for all first filings, for which
fees are presently charges, including filings in the appellate civil courts, trial courts
by $5 and in the district justice, and municipal courts by $4, and by increasing filing
fees for deeds, mortgages and property transfers by $4, with the revenues generated
thereby allocated to the delivery of legal services to the poor through the Pennsylvania
Legal Services.
The
Access to Justice Act, Act 122 of 2002,was
signed into law by Governor Mark Schweiker on October 2, 2002 and took effect November 1,
2002. It adds a small surcharge on the filing
of legal papers in courthouse offices in order to generate sorely-needed additional funds
to help low-income Pennsylvanians get civil legal aid.
This surcharge will help assure access to justice for those who need, but cannot
afford civil legal assistance. The Bill
passed with strong bipartisan support in the House and Senate. The state’s Judicial Computer system is also
funded by the new surcharge. This is used to
support the statewide computerization of the Pennsylvania Courts. The Access to Justice Act comprises about 10-20%
of the funding generated under this Bill, with the vast majority of funds going to
statewide computerization. By passing this
Bill, Pennsylvania joined 27 other states using surcharges to help fund legal aid.
There is a $10 surcharge. Initially,
$9 of the surcharge will go to the courts; $1 to legal aid.
The legal aid portion will increase to $2 in four years. Based on recent data, it
is estimated that the portion of the filing fee surcharge dedicated to civil legal aid
will initially raise $3.8 million annually to help ensure access to justice for those
unable to afford legal representation.
Recommendation
Eight
The Pennsylvania Bar Association directs its staff to
establish a program whereby attorneys general, trial lawyers, and the judiciary itself,
are educated of the judiciary’s authority under the cy pres doctrine to direct class
action residuals and other unclaimed funds to support professionally staffed poverty law
offices.
materials on Cy Pres have been collected and are
available for dissemination. Presentations to
the groups above will be made through the Legal Services to the Public Committee’s
Development Subcommittee.
Appendix A....................... Task
Force Reports
Appendix B....................... Minutes
Appendix C....................... IOLTA
Pro Bono Grants
Appendix D....................... Legal
Services to the Public Committee
Appendix E....................... Task
Force I 1990 Report
Appendix F....................... Task
Force II Subcommittee Reports
Appendix G....................... 2003
County Pro Bono Survey Summary
Appendix H....................... Samples
of Civil Legal Aid Requests
Appendix I....................... ProBono.Net
Appendix J....................... Pro
Bono Conference Materials
Appendix K....................... Pro
Bono Ethics CLE Traveling Roadshow
Appendix L....................... Chief
Justice John P. Flaherty Letter
Appendix M....................... Dauphin
County Judges Letter
Appendix N
Summary of Pennsylvania Law School Public Service Programs
Appendix O
Miller Center – Description
Appendix P
Access to Justice Act
Appendix Q
Cy Pres Materials
The duty of the Bar to
provide civil legal aid for the poorest Pennsylvanians is clear:
The Constitution of Pennsylvania, Art. I, Sec. 11, states:
“All courts
shall be open; and every man for an injury done him in his lands, goods, person or
reputation shall have remedy by due course of law, and right and justice administered
without sale, denial or delay.”
Rule 6.1 of the
Pennsylvania Supreme Court’s Rules of Professional Conduct, states, in part:
“A Lawyer should render public interest legal
service. A lawyer may discharge this
responsibility by providing professional services at no fee or a reduced fee to personas
of limited means and by financial support for organizations that provide legal services to
personals of limited means.”
The Comment following Rule 6.1 adds, in part:
“The rights
and responsibilities of individuals and organizations in the Unites States are
increasingly defined in legal terms. As a
consequence legal assistance in coping with the web of statutes, rules and regulations is
imperative for persons of modest and limited means, as well as for the relatively
well-to-do.”
“Every
lawyer, regardless of professional prominence or professional work-load, should find time
to participate in or otherwise support they provision of legal services to the
disadvantaged. The provision of free legal
services to those unable to pay reasonable fees continues to be an obligation of each
lawyer as well as the profession generally, but the efforts of individual lawyers are
often not enough to meet the need. Thus, it
has been necessary for the profession and government to institute additional programs to
provide legal services. Accordingly, legal
aid offices, lawyer referral services and other related programs have been developed, and
others will be developed by the profession and the government. Every lawyer should support all proper efforts to
meet this need for legal services.”
The Pennsylvania Bar Association Articles of Incorporation state as one of the
organization’s purposes:
“To
see that no one, on account of poverty, is denied his or her legal rights.”
The Task Force Subcommittee on the Role of
Organized Bar Associations recommended the establishment of Pro Bono Review Teams across
the Commonwealth to both 1) assist the counties without existing pro bono programs to
establish pro bono programs and 2) review and evaluate existing pro bono programs for
purposes of assisting those programs in improving the level of volunteer participation and
introducing innovative new ideas to improve on the overall delivery of pro bono services.
The Subcommittee
on the Role of the Courts developed ten recommendations encouraging the members of the
Bench to become an integral part of the local and statewide recruitment of pro bono
volunteer attorneys.
The Subcommittee
on the Role of Law Schools submitted a report addressing some of the issues which Law
Schools were facing with regard to the promotion of volunteerism among their students and
student organizations and made eight recommendations on how to confront those issues.
The Subcommittee
on the Role of Senior Members of the Bar contacted Senior Bar member groups and discussed
a variety of ways in which Senior members of the Bar could effectively participate in pro
bono programs. Some ideas considered included
1) the use of senior attorneys in brief advice consultations either by telephone or in
routinely scheduled mornings or afternoons at a local legal services program office; 2)
acting as second chair with younger attorneys in any number of pro bono cases; 3) serving
as paralegals if they had not maintained active licensure; and 4) in assisting the local
bar leadership in the recruitment of attorney volunteers.
Appendix F contains
the reports of these Subcommittees.
The Task Force proposed that the Supreme Court of
the Commonwealth of Pennsylvania incorporate as a part of the annual registration
requirement for all attorneys, a series of questions designed to establish the level,
nature and extent of the pro bono contribution of every licensed attorney in Pennsylvania. Each attorney, registering for a license to
practice law, would report the extent of his or her pro bono activity for the previous
calendar year in terms of hours spent doing pro bono work.
Additionally, each attorney would state the amount of monetary contributions he or
she had made to organizations providing legal services for the poor in the previous
calendar year. The Task Force envisioned
providing an hourly fee conversion for the hours of pro bono work provided. That figure, added to the actual dollars donated,
would reflect the total contribution of the Bar to civil legal aid in Pennsylvania.
The Task Force
adopted a definition of “qualifying pro bono activity” for the purpose of this
reporting requirement. The definition would
be a part of the registration form and would read as follows:
(footnote 8
continued)
Qualifying pro
bono services are defined to include the following services:
Professional
services rendered in civil matters, and in those criminal matters for which the government
is not obligated to provide funds of legal representation, to persons who are financially
unable to compensate counsel;
Activities
related to improving the administration of justice by simplifying the legal process for,
or increasing the availability and quality of legal services to poor persons; and
Professional
services to charitable, religious, civic and educational organizations in matters designed
predominantly to address the needs of poor persons.
In submitting the
annual registration application, every attorney would indicate a number of hours and
dollar amount on the registration form for the year immediately preceding registration. Under the proposal, no minimum number or amount
would be necessary to complete the form and no sanctions will be imposed for reporting
zero in each category. Failure to provide
answers to the questions, however, would result in the suspension of an attorney’s
license for failure to register until the information was provided. Each attorney would be advised that a misstatement
of fact could be considered a material falsehood.
| 
Calendar