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TCL > April 2008 Issue > Building a Bridge to Justice in Colorado—ATJ Commission Holds Hearings

The Colorado Lawyer
April 2008
Vol. 37, No. 4 [Page  49]

© 2008 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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Departments
Access to Justice

Building a Bridge to Justice in Colorado—ATJ Commission Holds Hearings
by Inga Causey

Access to Justice (ATJ) articles provide information about poverty law and other areas of the law as they relate to low-income clients; report on the ATJ Commission and local and national ATJ committees; and may include testimonials from lawyers about their pro bono experience. Readers interested in contributing an article on legal services, pro bono, and ATJ topics should contact Kathleen Schoen at kschoen@cobar.org.

The Colorado Access to Justice (ATJ) Commission is an independent entity that was formed in 2003 with the support of the Colorado Supreme Court, the Colorado Bar Association, and the Statewide Legal Services Group. The mission of the ATJ Commission is to develop, coordinate, and implement policy initiatives to expand access to and enhance the quality of justice in civil legal matters for persons who encounter barriers in gaining access to Colorado’s civil justice system.

About the Author

Inga Causey is a private attorney practicing in Edwards, Colorado. Causey also is a current member of the Colorado Access to Justice Commission—ihc@ihcauseyllc.com.

"Except for the few that legal services lawyers can represent, poor people have access to American courts in the same sense that the Christians had access to the lions when they were dragged, unarmed, into a Roman arena."1

Colorado faces a serious crisis in civil legal representation of the indigent. Many Coloradans who need legal assistance to secure or maintain health care, housing, custody, or other necessities do not receive help because there are too few lawyers at Colorado Legal Services (CLS), Colorado’s statewide legal aid program. The Colorado General Assembly’s annual funding for civil legal services for the poor is limited to a $500,000 appropriation to provide legal services to victims of family violence.2 Not only is this level of state funding well below the national average, it has not increased since 2002.3

This article compares Colorado’s access to justice deficit with the national deficit. It discusses the 2007 Access to Justice (ATJ) Commission hearings in Colorado that assessed the civil legal needs of the state’s indigent, and suggests recommendations for bridging the access to justice gap.

ATJ Hearings to Assess Needs

In an effort to close the gap in legal assistance in Colorado, Colorado’s ATJ Commission took the lead from other states such as Massachusetts, Texas, Washington, and Mississippi,4 and held ten public hearings to assess the civil legal needs of the indigent in Colorado. During two months, hearings were held in Delta, Durango, Grand Junction, Colorado Springs, Pueblo, Fort Collins, Greeley, Breckenridge, Boulder, and Denver. In addition to members of the Colorado ATJ Commission and local ATJ committees, panelists who participated in the hearings included members of the Colorado Legislature, representatives of other elected officials, Colorado Supreme Court justices, Court of Appeals judges, district and county court judges, and Colorado Bar Association leaders. Testimony was provided by legal services clients, low-income individuals with legal needs who did not receive legal assistance, attorneys who provide civil legal services to the poor, judges, and employees of organizations that serve the indigent.

The hearings addressed the civil legal needs of vulnerable individuals and populations and resulted in a published report entitled, "The Justice Crisis in Colorado—A Report on the Legal Needs of the Indigent in Colorado."5 Confirming what prior studies already have indicated, the hearings reflected that Colorado is failing to provide adequate legal services to its communities. The hearings also achieved something unprecedented and profound in Colorado—they put faces to these distressing statistics. The Appendix to this article provides summaries of testimony at some of the ATJ hearings around the state. Listed below are several of the most significant findings derived from the hearings.

> Low-income individuals do not automatically have access to free legal assistance in civil matters, as they do in virtually all serious criminal matters in Colorado.

> Most civil legal assistance for the indigent in Colorado is provided by CLS. During the last twenty years, the number of CLS lawyers has been cut in half, while the number of poor people has increased by approximately 75 percent. In 1980, there was one legal services attorney for every 4,839 eligible clients. Today, there is one CLS attorney for every 16,890 eligible individuals.6 As a result, most low-income individuals in Colorado are unable to get civil legal assistance when they need it. It is estimated that only one indigent person in five who needs civil legal help will receive some legal assistance.

> Colorado’s only state funding for civil legal services is a $500,000 appropriation from the Colorado State General Fund to the Family Violence Justice Fund, to provide civil legal services to victims of family violence. The amount of this funding has not increased since July 1, 2002. Colorado ranks fortieth in state funding for civil legal services for the indigent,7 and would need to provide another $1.82 million in state funding to reach the national average.8

> Individuals who do not have lawyers present a special challenge for judges. Judges cannot represent parties, and often do not get all the information they need from unrepresented parties to make a correct and just decision. The situation is exacerbated where one of the parties is represented by an attorney and the other is not.

The Colorado Supreme Court has made great efforts to encourage participation by private attorneys to assist in meeting the legal needs of the poor. The Court has implemented programs designed to assist parties who do not have lawyers, such as the Colorado Supreme Court Pro Bono Legal Services Recognition Program.9 The private Bar also plays a significant role in providing legal services for low-income individuals. However, assistance provided by volunteer lawyers is no substitute for an adequately funded system of providing civil legal services to the indigent.

> The impact of not having a lawyer can be devastating. For example, it has been documented10 that the availability of a lawyer is one of the most important factors in determining whether a victim of domestic violence will return to an abusive relationship. Access to legal services can prevent more severe and costly legal and societal problems, saving money in the long run.11

Availability of Legal Services

The Legal Services Corporation (LSC) provides more than 50 percent of free legal services to the nation’s poor. In 2005, programs funded by LSC were unable to serve 1,085,838 qualified applicants.12 A 2005 LSC report stated that "[f]or every client served by an LSC funded program, at least one eligible person seeking help will be turned down."13

Qualified applicants include only those who earn less than $12,763 per year (approximately $1,000 per month) for one person or $25,813 per year (approximately $2,000 per month) for a family of four.14 It should be noted that the LSC statistics on the number of people not provided legal assistance do not include those eligible people turned away from non-LSC-funded programs, people who received partial help, and people who needed help but failed to ask for it.15

2005 LSC Study

In 2005, the LSC conducted a study on the availability of legal services in America and correlated its findings with the 1994 American Bar Association (ABA) study.16 The ABA study concluded that 20 percent of low-income Americans who sought legal assistance in the United States received help.17

The LSC analyzed a sampling of nine states and found that "low-income households experience a per-household average of legal needs ranging up to more than three legal needs per year."18 Further findings from those nine states indicated that:

[O]nly a very small percentage of the legal problems experienced by low-income people (fewer than one in five) is addressed with the assistance of a private or legal aid lawyer, . . . a large percentage of low-income people experiencing a problem with a legal dimension do not understand that there may be a legal solution, . . . and the majority of low-income people either do not know about the availability of free legal services or do not understand that they are financially eligible for them.19

The LSC study further indicated that the individuals in those nine states sought and received help in only 9 percent to 18.1 percent of the cases.20

The 2005 LSC report, "Documenting the Justice Gap in America" states:

Overall, [the] studies demonstrate[d] that only a very small percentage of the legal problems experienced by low-income people (less than one in five) are addressed with the assistance of a private or legal aid lawyer.21

There are more than 19 million low-income households in the United States.22 The studies in the nine states indicate that low-income people experience at least 20 million legal problems per year (with a possibility of up to 60 million legal problems per year).23 At a minimum, at least 16 million legal problems experienced by low-income people per year are not being addressed with the assistance of a lawyer.24 The actual number is very likely in excess of 16 million.25

Not only are the legal problems numerous, the number of legal aid lawyers has decreased dramatically. There is one legal aid attorney for every 6,861 low-income people in the United States.26 In contrast, there is one private attorney for every 525 people in the United States ("more than ten-times the ratio of legal aid attorneys").27

Access to Justice in Colorado

The problem is even more critical in Colorado, as the gap between those seeking legal assistance and the availability of attorneys to assist exceeds the national numbers. In 1978, there were eighty-two lawyers employed by the Colorado legal aid system.28 Currently, CLS employs only forty-one lawyers.29 According to records on file at CLS, there are 692,505 people in Colorado whose incomes qualify them for legal services.30 That means there are 16,890 individuals who are eligible for legal assistance for every CLS lawyer. In 2006, approximately forty lawyers provided legal assistance in more than 6,000 cases.31 Northwest Legal Services, for example, which is a CLS-funded entity and provides services to Eagle, Lake, Clear Creek, and Summit Counties, received 1,462 applications for legal services in 2006 and provided assistance to only 139 applicants (or less than 9 percent).32

CLS Cases

Due to lack of funding and limitations imposed by the U.S. Congress,33 only certain types of cases are handled by CLS. CLS limits its cases to the following: (1) parenting and dissolution cases in which there is domestic violence (not involving post-decree matters);34 (2) consumer law; (3) income maintenance; and (4) limited other cases, such as housing and homelessness, finance, and health and elder law.35 However, even with these limitations, CLS still is not able to manage all the cases involving these issues and turns away one person for every case it accepts.36 Although the need is great, CLS is unable to provide representation in most private evictions, divorces, or custody actions not involving violence, child support, adoptions/guardianships, or consumer cases (identity theft, sales fraud, or defective goods).

Other Congressionally imposed prohibitions on CLS include accepting fee-generating cases, filing class-action suits, representation of undocumented people (except in certain cases where the person is a victim of a crime and is seeking protection), and legislative and administrative advocacy.37 Even with local pro bono programs nobly attempting to cover some of the cases, many low-income people are not able to obtain legal assistance.

Funding

In 1981, the federal appropriation to legal services in the United States totaled $321,300,000, which in 2005 terms, adjusted for inflation, would equate to $687,063,000.38 However, the federal contribution to legal services in 2007 only amounted to $348,500,000.39 This "real dollar decline in the federal contribution means that in large portions of the country the justice gap is wider than it was twenty-five years ago."40 Because studies now indicate that fewer than one in five low-income individuals are receiving legal assistance, the federal baseline share needs to be at least five times greater than it is now—or $1.6 billion—to serve all of those qualifying individuals who currently are requesting assistance.41

In comparison to the United States, other industrial democracies invest two-and-a-half times (France and Germany) to seventeen times (England) as much of their gross national product to provide access to justice for their lower income populations.42 As a result,

[t]he U.S. would have to raise its present combined public investment of approximately $600 million to $1.6 billion to match that of France and Germany, despite the fact the courts in both of these countries use an inquisitorial process which is less dependant on lawyers. To match the three major Canadian provinces, federal, state and local governments in the U.S. would have to combine to invest something over $3 billion a year in civil legal services, to match the Netherlands $3.5 billion, or to match New Zealand $4.25 billion. Finally, if the United States were to demonstrate as great a financial commitment to equal access to justice as England, it would be investing over $10 billion a year on civil legal services for its lower income population.43

In Colorado, state funding amounts to a mere $500,000, which is restricted in its distribution.44 The state of Colorado spends only $1.29 per poor person on legal services.45 Even though Colorado is one of the richest states in the nation, it ranks fortieth in state funding for legal services.46 In other states, total average funding from all sources (LSC, lawyer cash contributions, and grants) is $31.27 per poor person.47 The total in Colorado is $24.32 per poor person. For Colorado to become average in state funding, the state would need to increase its funding by $1.82 million.48

The Future of Access to Justice in Colorado

The ATJ Commission hearings presented many important findings. For example, income limitations restrict the provision of legal aid to those in the private arena who often are in danger or need of basic assistance such as sustenance, clothing, and shelter—things most people take for granted. Failing to provide services leads to social governmental dependence and increased costs to society.49

The Colorado ATJ Commission analyzed and reviewed the testimony and questions in these hearings. The Commission has published its report based on the data compiled from the hearings.50 This report is the Commission’s first step toward increasing funding for legal services in Colorado and will serve as a basis for the creation of new programs that will work to resolve basic legal needs of low-income people in Colorado communities.

The ATJ Commission is optimistic that the solutions developed in partnership with the judiciary and policymakers will make for valuable and lasting contributions toward building a bridge to justice in Colorado. The Commission hopes that the mark left on society by this work will be long-lasting in Colorado, elevating the programs and funding to help those in need for many years to come.

Notes

1. Earl Johnson, Jr., quoted in Becker and Gibberman, On Trial! 17 (Philosophical Library, 1987).

2. "General Fund Appropriate to the Family Violence Justice Fund," Colorado Judicial Branch press release (April 6, 2007), available at www.courts.state.co.us/exec/media/pressrelease/2007/FamilyViolenceJusticeFundPR.pdf.

3. For national statistics, see the Legal Services Corporation’s (LSC) 2005 report, "Documenting the Justice Gap in America, the Current Unmet Needs of Low Income Americans" (LSC Report) 12 (Sept. 2005), available at www.lsc.gov/justicegap.pdf. For Colorado statistics, see the Colorado Access to Justice (ATJ) Commission’s 2008 report, "The Justice Crisis in Colorado—A Report on the Civil Legal Needs of the Indigent in Colorado" (ATJ Report) (Jan. 2008), available at www.cobar.org/index.cfm/ID/20267/DPWAJ/Colorado-Statewide-Hearings-Report.

4. Information regarding these other ATJ Commissions can be found on the American Bar Association (ABA) website at www.abanet.org/legalservices/sclaid/afjresourcecenter/atjmainpage.html.

5. ATJ Report, supra note 3.

6. Id. at 13.

7. Information about amounts of funding and comparisons to other states was calculated by the ABA’s ATJ Support Committee and is based on year 2005 funding, the last year in which a comparison was made for all states. This information may be accessed at www.abanet.org/legalservices/sclaid/atjresourcecenter/home.html.

8. ATJ Report, supra note 3 at 13.

9. See www.courts.state.co.us/supct/probono.htm.

10. See Minnesota State Bar Association (MSBA), "‘With Liberty and Justice For All’—Legal Aid, Essential to the Justice System, March 2003" (MSBA Report), available at www2.mnbar.org/committees/lad/aid-essential-mar03.pdf.

11. Id.

12. LSC Report, supra note 3 at 7.

13. Id.

14. 2007 Colorado Legal Services (CLS) income guidelines are available at www.coloradolegalservices.org/CO/StateHelp.cfm/County/%20/City/%20/demoMode/%3D%201/Language/1/State/CO/TextOnly/N/ZipCode/%20/LoggedIn/0.

15. LSC Report, supra note 3 at 8.

16. "Comprehensive Legal Needs Study," conducted by the Institution for Survey Research at Temple University, available at www.ATJsupport.org in the ATJDoc.Library.

17. Id. at 18.

18. Id. at 9.

19. Id. at 12-13.

20. Id. at 12.

21. LSC Report, supra note 3 at 13.

22. LSC Report, supra note 3 at 13, citing U.S. Census Bureau statistics.

23. Id.

24. Id.

25. Id. Figures are calculated by analyzing data from individuals who sought and/or received legal assistance from a legal aid attorney. See also LSC Report, supra note 3 at 12.

26. LSC Report, supra note 3 at 18, citing U.S. Census Bureau statistics.

27. Id.

28. LSC, "Narrative Program Directory" (July 1978), available at www.rin.lsc.gov/rinboard/rguide/pdir.idc.

29. ATJ Report, supra note 3 at 3; testimony of Jonathan Asher, CLS Executive Director, at ATJ Commission hearing in Delta, Colorado (Oct. 9, 2007).

30. Information on file at CLS offices, 1905 Sherman St., Ste. 400, Denver, Colorado.

31. Testimony of Manuel Ramos, Director of Advocacy Focus, at ATJ Commission hearing in Boulder, Colorado (Nov. 7, 2007).

32. Telephone interview with Pat Craig, Director of Northwest Legal Services, in Colorado Springs, Colorado (2007).

33. ATJ Report, supra note 3 at 8.

34. Post-decree cases are those involving the parties after the divorce decree has been issued by the court. These often involve the failure of one party to comply with the divorce decree with regard to paying child support, parenting time, or relocation of one parent.

35. ATJ Report, supra note 3 at 4.

36. Asher, supra note 29.

37. Information included in presentation by CLS at ATJ Commission hearings throughout the state.

38. Id.

39. Houseman, "Civil Legal Aid in the United States: An Update for 2007" 13 (Center for Law and Social Policy, Aug. 2007), available at www.clasp.org/publications/civil_legal_aid_2007.pdf.

40. LSC Report, supra note 3 at 18.

41. Id. at 19.

42. National Equal Justice Library, "Comparative Statistics About Equal Access to Justice In Different Countries," available at www.equaljusticelibrary.org/international/comparative.asp (last modified Jan. 16, 2002).

43. Id.

44. Colorado has appropriated this amount since 2000. In 2004, however, no funds were appropriated.

45. LSC Report, supra note 3.

46. Id.

47. Id.

48. Id.

49. MSBA Report, supra note 10.

50. ATJ Report, supra note 3.

_____________________________________

Appendix

Access to Justice Commission Hearings
Summaries of Public Testimony

In an effort to gather data about Colorado’s access to justice gap, the Colorado Access to Justice (ATJ) Commission conducted ten hearings in several Colorado locales in 2007. The hearings included public testimony from attorneys who provide civil legal services, judges, and representatives from local organizations that service the poor. The ATJ Commission panelists also heard testimony from legal services clients and low-income community members who did not receive assistance.

Durango Hearing: October 10, 2007

> Kim Jones works with Alternative Horizons, a provider of legal services to victims of domestic violence who are turned away by Colorado Legal Services (CLS). She testified that prior to 2006, Alternative Horizons was able to provide services to all who qualified. In 2006, however, its federal funding was not renewed, and now Alternative Horizons will not be able to assist many people in need.

> Arthur Jacobs, a CLS attorney, testified that in 2006, legislation was passed to prohibit CLS from drafting wills without charge for the Bureau of Indian Affairs. Jacobs testified that:

Overall, CLS would have the capacity to serve many more qualified clients on a broader spectrum of cases with additional funding and resources. For the size of the area we serve, the local CLS has a massive shortage of funding and attorneys, which hinders its ability to reach a large segment of the indigent population.

He emphasized that with increased funding, CLS would have enough work for an additional eight attorneys.

Pueblo Hearing: October 18, 2007

> Jesse Allen (not his real name) informed the panelists that he and his son were victims of domestic violence. He testified that when his son was born, his wife was in prison. He has been a single, full-time parent of his son since his birth. When Allen’s son was 6 months old, his wife was released from prison and began using drugs. She became extremely physically abusive. Allen received assistance from CLS. He was able to obtain a divorce and full custody of his son. Allen stated that he believes CLS literally saved their lives and legally protected him from his physically abusive wife.

> Robin Sanchez, a mother of five, testified that in attempting to better herself, she attends Pueblo Community College as a full-time student and works twenty hours a week. She recently had to go to court concerning the custody of two of her children. Sanchez tried every option available to get an attorney, including contacting CLS. However, she was unable to obtain assistance; as a result, she did not have an attorney when she went to court. The children’s father was able to afford an attorney. Her parenting time was decreased substantially from three to four times per week to one day every other week. Sanchez stated that she felt as though she was being punished for going to school and trying to make a better life for herself and her children. She believes that had she been able to afford representation, this would not have happened. The intense stress has had a negative impact on Sanchez’s school work, her job, and her other three children.

> Roberto Silva, managing director of the Pueblo CLS office since 1999, testified that in 2002 there were eleven employees working at the office. In 2007, due to reductions in funding, the office could afford to employ only seven people. Silva informed the panelists that in 2002, his office was not able to meet the needs of their community; with the diminished funding and staff, it is further from achieving this goal.

Silva stated that many times, his employees provide legal services that can save the life of the client. For example, several years ago, his office had a client who likely would have died absent medical treatment. The client could not afford the required treatment, which was estimated to cost more than $100,000, and Medicaid refused to pay. A CLS lawyer was able to get the decision reversed. The client received medical treatment, which ultimately saved his life.

> Anne Willis, a case manager at Posada, an organization that provides help to homeless people, also appeared before the ATJ panelists. She testified that only one in ten people she refers to CLS actually receives assistance. Willis continues to refer only people who are in danger and fearing for their lives.

Fort Collins Hearing: October 30, 2007

> Debra Wagner, managing attorney for CLS in Fort Collins, testified that in the previous three months in Larimer County, fifty-six eligible clients were turned away. Nineteen of these individuals were victims of domestic violence. Wagner stated that there was not enough funding to provide services even to these severe cases.

> Victoria Lutz, Executive Director of Crossroads Safehouse, spoke to the hearing panel in Fort Collins about a 2003 report that found that "legal services significantly lowers the incidence of domestic violence."1 Information in the report indicated that legal services significantly help to lower the incidence of domestic violence more than safehousing or transitional housing, job skills training, or any other service.

> Rosemarie Fritz, an employee with the Alternatives to Violence organization, testified that 50 percent of homeless people are homeless because of domestic violence. These victims are involuntarily subject to a critical cycle of violence and homelessness and many, in desperation and necessity, return to their abusers. The significant gap in legal services results in a domino effect of other problems, such as an increase in welfare recipients, social assistance, medical costs for the entire family, and further legal actions, both criminal and civil.

__________

1. Tiefenthaler and Farmer, "Explaining the recent decline in domestic violence," 21 Contemporary Economic Policy 158–72 (April 2003).

Breckenridge Hearing: November 6, 2007

> Mary Smith (not her real name) found out that her husband was sexually molesting her 13-year-old daughter. She immediately fled with her six children, two of whom were witnesses to the molestation and beaten by her husband. Smith applied for legal assistance and did not qualify financially, even though she could not afford a lawyer on her own. A local attorney volunteered to assist her in her capacity as a victim in the criminal matter, as well as in her dissolution of marriage action. Smith stated that she doesn’t think she would be alive had it not been for the protection she received from legal aid attorneys. She also commented that many people are too intimidated to ask for assistance and therefore do not receive the help they need. Smith is an example of the impact financial thresholds required by legal services has on access to justice.

> The reduction or elimination of federal funding, as well as funding by large private donors, was common testimony at the hearings. Pat Craig, Director of Northwest Legal Services, said that her organization lost funding from the United Way because United Way did not believe that such services were necessary to the community.

> Deb Baldwin, a staff member with the Eagle County Resource Center, stated that the Center has experienced reduced local and federal funding and was forced to turn to other resources to save its programs.

Boulder Hearing: November 7, 2007

> Audrey Zapp testified that she was a "proud" 82-year-old woman. In 2001, her husband, a World War II veteran and pension recipient, passed away. He had always advised her not to worry when he died, because the government would take care of her and continue to pay his pension. After his death, she received a letter from the Veterans Affairs (VA) asking her to fill out a medical form and subsequently received payments. However, a few months later, she received a letter stating that she had been paid too much money and owed the VA several hundred dollars. Because Zapp was unable to come up with the funds, the VA withheld her pension payments. Zapp relies on the VA pension to help with her daily expenses, so she became reliant on Social Security payments to subsist. When the withholding appeared to be permanent, Zapp applied for legal services and qualified. She was assigned a lawyer who helped her fill out the correct forms and got her pension reinstated.

> Judge Roxanne Bailin began her career as a lawyer for CLS in Trinidad. From 1974 to 1977, CLS had five lawyers in the Trinidad office. Today, there is not an office in Trinidad. Judge Bailin observed that in the last eight to ten years, the number of people who are representing themselves in court has dramatically increased. She estimates that as many as two-thirds of the people who appear in domestic relations cases are without representation.

Judge Bailin stated that in some areas, the courts have hired court facilitators to help usher people through the court process; however, they are overloaded and cannot do more than assist people in filling out the correct paperwork. Many places in the state do not have these facilitators to help.

Judge Bailin also stated that many of the people seeking assistance are poor and may not speak English. Safehouses in the area assist in some cases, but they cannot directly advocate for these individuals. Most judges try to remain impartial and try to ensure that these people are heard. Without an advocate, a judge may be required to make a decision with incomplete information. For example, in a recent divorce case, after both sides had testified, the wife asked Judge Bailin, "Does it matter that he beats the children?" If the woman had remained silent, the judge would have made an improper ruling. This supports the fact that individuals need lawyers to assist them through the legal process.

 

© 2008 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2008.


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