On January 8th, Emerge Miami provided us all with some thankful updates on Florida’s access or lack of access to justice within the our court systems. Take a look and share your thoughts.
Florida’s Access to Justice Crisis
By Leah Weston
In a landmark ruling in Gideon v. Wainwright, the United States Supreme Court enshrined the individual right to counsel under the Sixth Amendment. Gideon clarified that the Sixth Amendment, which provides for “the assistance of counsel” for all “criminal prosecutions,” requires courts to appoint lawyers for criminal defendants who cannot afford one. Writing for a unanimous Court, Justice Hugo Black concluded that:
Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime… That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.
What Gideon did not do, however, was extend that Sixth Amendment right to civil legal cases. Non-criminal legal cases comprise the bulk of all cases in our legal system and touch many areas of our lives. You can lose your home, your job, your family, and your livelihood in many types of legal proceedings because you cannot afford legal assistance. Unable to afford a lawyer, thousands of Americans who are not trained in the practice of law are forced to navigate an extremely complex legal system and represent themselves pro se, often against opposing parties who do have legal representation, like creditors, landlords, and, the government. Having access to a lawyer helps prevent the most vulnerable individuals and families, those who live at the edge of their means, from becoming destitute or homeless.
What happens when you cannot afford a lawyer?
For those who work a minimum wage job ($7.83/hour in Florida), especially in an expensive city (like Miami), it is already a major challenge to make ends meet each week, much less afford additional unanticipated expenses. At the same time, low wages can actually create numerous legal problems. Low-income families are at greater risk of losing their homes to foreclosure or eviction. These families are broken apart when a parent, sibling, or cousin faces deportation due to the complexities of U.S. immigration law. They experience personal tragedy like death and divorce. They lose their jobs or become too sick to work and must seek public assistance. The list goes on and on, and all of these events require interaction with the legal system.
According to the Bureau of Labor Statistics, lawyers earn an average of approximately $63/hour. Put another way, a lawyer’s average hourly rate is eight times higher than the minimum wage in Florida. Unable to afford the typical cost of a lawyer, thousands of people turn to legal aid attorneys, legal services organizations, and private lawyers willing to offer their services pro bono.
Civil legal aid organizations provide pro bono legal representation for low-income individuals and families in a wide variety of cases–landlord/tenant and other housing issues, foreclosure, divorce, child support, immigration, consumer issues, health care, public benefits (e.g. food stamps, Social Security/Disability), and much, much more. Legal aid programs provide help to those who cannot afford legal representation during some of the most difficult circumstances of their lives. Civil legal aid is a crucial social service that helps lift people out of poverty, prevents people from losing their homes, keeps families together, and so much more.
The legal aid funding crisis in Florida
Right now, legal services organizations and the clients that they serve in Florida are in the midst of a major crisis. While some legal services agencies receive federal funding from the Legal Services Corporation, many do not accept federal funds because of the numerous crippling restrictions that come with federal dollars. Moreover, federal money for legal aid is never safe, as it is constantly subject to the political whimsies in the United States Congress.
Since 1981, many legal aid organizations in Florida have secured funding through an innovative mechanism called IOTA, which stands for Interest on Lawyers’ Trust Accounts. Lawyers and law firms who hold money for clients–for example, holding money in escrow for a real estate transaction–must place them into a separate bank account which accrues interest. Any leftover interest from those accounts is used to fund legal services organizations through the Florida Bar Foundation.
This funding mechanism worked well when the economy was thriving. But in 2008, when the American economy crashed, interest rates fell to practically zero. Seven years later, the economy is finally beginning to bounce back, but the interest rates remain at historic lows. As a result, IOTA funding has diminished by 88 percent–from $44 million a year to a meager $5 million for the entire state of Florida.
The impact of these historically low interest rates has been devastating for legal services organizations and the clients that they serve. Moreover, Governor Rick Scott has vetoed funding for legal aid organizations from the state legislature on four separate occasions, making it absolutely clear that he has no desire to help the most vulnerable Floridians. Thanks to Governor Scott, Florida maintains the honorable distinction of being one of only three states that allocates ZERO state funding to civil legal aid. (The other two are Idaho and Wisconsin).
So it’s no wonder that Florida ranks among the ten worst states in the country in every measure of access to justice. There great infographics available at the National Center for Access to Justice, which created the Justice Index, an empirical study of how states measure on various access to justice issues.
If Florida remains on this disastrous track, I predict there will be no legal aid organizations left in five years. Thousands of needy individuals and families will not obtain the legal services they need. Access to the legal system will become a luxury available only to the most affluent. Such a state of affairs is not only unfair–it is un-American.
Legal aid lawyers in Florida work arduously every day to ensure that the most vulnerable citizens have a fair shot in our legal system. Unfortunately, legal aid lawyers have not been as successful in communicating with the public about what they do and why it is important. Creating a more fair legal system is in the broader public interest and cannot be solely the responsibility of the Bar to undertake.
For the sake of my clients, and all of the Floridians who may need a legal aid lawyer in the future, I implore more non-lawyers to rally for civil legal aid. Write to your representatives in the Florida House and Florida Senate. Write to Governor Rick Scott and tell him that, as a Floridian, you think that civil legal aid is a fundamental service for all. The legal aid organizations that have helped thousands of people without thought of reward need your support now more than ever.
Click here to sign up for the Soul Of Miami email list.