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Wednesday, Sep 19, 2018
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Floridians’ inability to afford lawyers a ‘crisis,’ says Bar president

TAMPA — Florida Bar President Ray Abadin says the inability of the majority of Floridians to afford legal representation is at “crisis proportions.”

“Not having professional legal representation can have dramatic adverse consequences in any situation,” Abadin said. “It can be devastating to one person; it can have life implications for families. Not having a lawyer can be a very serious thing.”

Abadin sits on the Florida Commission for Access to Civil Justice, which recently submitted its first report to the state Supreme Court offering suggestions for addressing the need, including a possible way to fund legal services.

Senior Judge Emerson R. Thompson Jr. said the problem has gotten more severe in recent years when the economy took a downturn and interest rates plummeted. Thompson, the immediate past president of the state Bar Foundation, said the foundation’s main source of funds to pay for legal aid, interest on attorney trust accounts, sank from $22 million to $5 million.

At the same time, thousands of Floridians faced foreclosure proceedings, threatened with losing their houses and needing legal representation.

“It is not just a lawyer legal problem,” Thompson said. “It is a social community problem... It’s a problem that should be addressed by the Florida Legislature to get a continuous source of funding for legal services.”

Although state statistics were unavailable, nationally, it is estimated that 80 percent of low-income people can’t afford lawyers in civil matters such as divorces, wills, child custody and mortgage foreclosure cases. Those people are forced to represent themselves in court, which can be a risky proposition.

And legal aid societies, which provide free legal representation to the poor, are perennially short on resources. Even without that, they cannot represent middle-class people whose income disqualifies them from free legal aid but is not enough to pay for lawyers.

Richard C. Woltmann, president and chief executive officer of Bay Area Legal Services in Tampa, said his office screens calls from some 60,000 potential clients each year from Hillsborough, Pasco, Pinellas, Manatee and Sarasota counties.

“We do not have the resources to handle 60,000 applications,” Woltmann said. “We screen and we triage. We accept those cases that are the most egregious and those cases where if we intervene we will have a significant, positive impact on the client’s life.”

In the end, they can accept about 10,000 of those 60,000 applications for representation, Woltmann said.

“We’re turning them away because we do not have the resources to serve them,” Woltmann said. “Some of those folks would be turned away anyway. If we had the resources, some of those people would be helped. There’s so much need that I would say we would help thousands more.”

The largest category of cases the office handles is family law cases involving issues of domestic violence or children at risk, Woltmann said. “We don’t handle a divorce because people can’t get along with one another, although people, of course, need an attorney to get on with their lives.”

Susan Miles Whitaker, staff attorney for the Legal Information Center of Bay Area Legal Services, gives guidance to people representing themselves in Family Court in Hillsborough County.

In March, the program, which started in October 2000, is projected to see it’s 100,000th visitor. People who seek help have different questions with various levels of complexity, Whitaker said. Some want a divorce and need to know which forms to fill out. Some need to seek a change in child support.

Whitaker is not allowed to give legal advice at the center for a few reasons. For example, the visitors might not meet the income requirements to receive free legal services. And if she gave legal advice, she would be considered the visitors’ attorney and would be subject to various rules, including a requirement that she make sure she hasn’t advised people on the other sides of the disputes.

She said she frequently sees people who really need, but can’t afford, a lawyer. A common example is men who come in wanting a DNA test for a child for whom they have been ordered to pay child support.

“That’s a situation I see all the time,” she said. But if the man just files a request for DNA in the child support case, he will be denied. He has to open a new case for what is called “disestablishment of paternity,” Whitaker said.

That can be a complicated endeavor; it involves more than just a form and more than just the petition created by the Supreme Court for such cases.

In addition, the law for such cases has a list of factors that disqualify someone from seeking such an order. For example, if the person has ever filed a petition for visitation, he is not allowed to obtain a disestablishment of paternity, Whitaker said.

“In my view, there’s a tremendous need for legal advice,” Whitaker said.

Yet, a recent report cites anecdotal evidence that cases in which litigants represent themselves - known as pro se cases - have increased, especially in family court.

“I think it is known to everybody now who has studied the issue and is looking at the issue that we need to address this as urgently as possible by creating different ways that consumers can take advantage of the Internet and technology to access their legal system and resolve their legal problems,” Abadin said.

Among the suggestions made by the Commission is the creation of a gateway Internet portal to connect people with resources such as hotlines, law libraries, legal aid organizations and court self-help centers.

The report also calls for allowing law professors and retired judges to serve as “emeritus attorneys” in some cases, advising people at no cost in legal situations that are not expected to result in litigation.

Finally, the report suggests raising money for legal aid by designating funds left over after class-action settlements are distributed to the plaintiffs covered by the lawsuits.

No one is sure how much money that would raise, but it could potentially be millions of dollars statewide.

Attorney John Yanchunis, who runs the Consumer Class Action section of the law firm of Morgan and Morgan, said in one class-action case he settled against the Bank of America, there was $500,000 left over that he was able to direct to the Florida Bar Foundation to fund legal aid.

In the last six or seven years, Bay Area Legal Services has raised about $1 million in such awards, known as cy pres, Woltmann said.

Yanchunis and Woltmann said the rules now allow the money in such situations to be distributed where the parties direct the fund toward something related to the litigation. So in a case involving unsafe automobiles, for example, the parties might agree to send leftover settlement money to a foundation that promotes highway safety.

Woltmann said Bay Area Legal Services has tried to raise awareness in recent years, promoting the idea that cy pres awards be directed toward legal aid for the poor.

“If you have an attorney involved in a class action and if he knows about cy pres and knows about your program, you might get it,” Woltmann said. “It’s haphazard. We did an education campaign to let them know legal services now receives cy pres awards, but I think it’s hit and miss.”

Woltmann said Bay Area Legal Services’ annual budget is about $7 million, which is raised through a variety of sources. In the past, the most significant funding source was the Florida Bar Foundation. Because of the issue with interest rates, that source shrank.

“In 2011, we got about $1.2 million,” Woltmann said. “In 2015, we got about $145,000 from Florida Bar Foundation.”

Thompson said the cy pres money would help, but the amount would be unpredictable, depending on the number and types of class action lawsuits settled in a given year.

He noted that lawyers are encouraged to donate free legal service to the community. “Lawyers are tremendously good at that because they have a special calling,” he said. “No other profession does that. None.’’

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Twitter: @ElaineTBO

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