Roundtable: Funding Strategies
Fordham International Law Journal
Maria L. Imperial
z yy zz Copyright c 2000 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Nye Thomaszz; y
Led by moderator Maria L. Imperial, the panelists discussed funding strategies for legal
services for the poor. Each panelist gave an overview of funding mechanisms in their home country
(Canada, Lithuania, the United States, Australia).
APRIL 7, 2000
Maria L. Imperial, Executive Director,
City Bar Fund, Inc., New York
Lorna Blake, President, National
Association of Interest on Lawyer Trust
Accounts Programs,New York
Maria Dakolias,* Counsel, World Bank
andJudicialReform Unit, Washington,
Daina Petrauskaite, Ministry ofJustice,
Simon Rice, Director,Law Foundationof
New South Wales, Sydney, Australia
Nye Thomas, Policy Director,Legal Aid
Ontario, Toronto, Canada
MS. IMPERIAL: Before we start, I would like to tell you
what our goal is of the roundtable. Initially, we were thinking
that the goal was to just share information about funding
mechanisms so that everyone could learn a little bit. But as Simon
pointed out yesterday to me, you could have all stayed home and
read a book or gone on the Internet and found out about all
these different funding mechanisms. So we are going to push
you so that you could really learn more about funding and see
what the limits of the strategies are and maybe come away with
some opportunities for you to take back to your countries.
We realize that there's no such thing as a one-size-fits-all
approach. You cannot just transplant what you are learning here
to your country; you have to take into consideration cultural,
political, and social considerations.
Each person was chosen on the panel because they
represented a different funding mechanism or perspective. The first
person I would like to start with is Nye Thomas, because,
historically, Ontario was known as the Cadillac of legal services.
England was the Rolls Royce.
* Please note that the opinions expressed here are those of this author and not
necessarily those of the institution for which she works.
But that was, unfortunately, historically, and there have
been a lot of changes in Ontario. So I thought that as a legal
services provider, Nye could tell us what the situation is like in
Ontario in terms of funding.
MR. THOMAS: Thank you, Maria.
My remarks will largely be about government funding and
the transition that legal aid in Ontario has gone through in the
last few years. Back in the mid-1990s, we were known as the
Cadillac of legal aid plans because of our very rich criminal, civil,
and poverty law services. Financial eligibility was quite
expansive. As a result we were thought to be a model for legal aid
plans around the world.
Let me give you some sense of where we were in the
mid1990s: We had open-ended funding that was demand-driven.
There was no cap on our budget. Essentially, if a person was
eligible for legal aid, they were issued a certificate. We had a
very generous legal aid plan that, in a sense, mirrored the other
welfare programs we had in the Province. Services were
delivered, at least for criminal and family law, almost exclusively by
the private bar through a classic judicare program.
Almost as soon as we were described as the Cadillac of legal
aid plans, unfortunately, the wheels fell off. Our costs rose to
the point where, in 1995, our budget was approximately
CDN$350,000,000 a year. That is for both criminal and civil
services, and that is for a population of about 11,000,000 people.
Just five years earlier, the budget was approximately half of
that. In response to the increasing costs, the provincial
government, which is our primary funder, imposed capped funding on
us; essentially limiting our budget and forcing us to figure out
how to spend the money.
The result was a series of brutal and, in retrospect, quite
crude service cuts to the number of certificates that were issued
by the plan. At one point during our peak years, we were issuing
over 230,000 individual judicare certificates to clients across
Ontario. As a result of the budget cuts and our funding restrictions,
that number was reduced in a space of two years to about 86,000.
Most of those cuts were in fact in the civil law and family law
Since then, there has been a crisis in legal aid in Ontario.
The culmination of this crisis was the transfer of administration
for the program from the Law Society of Ontario to a new
independent statutory agency modeled roughly on the British Legal
Today we have a budget of about CDN$260,000,000 for
criminal and civil services. That budget is fixed. We are not
allowed to run deficits. We are not allowed to spend any more
than that. Of that CDN$260,000,000, approximately
CDN$160,000,000 is for civil services, primarily in the areas of
family law, poverty law, and for immigration and refugee
services. This works out to approximately about US$110,000,000,
for civil services or approximately US$10 per capita.
Our administration, as I said, is now under a new statutory
agency. We are governed by a board which has legal consumer
representatives and management/business representatives. Our
statute says that we are not allowed to have a majority of lawyers
on our board, and we are very explicitly told to deliver our
services on the basis of client need.
Our delivery models have been reconfigured quite
significantly as a result of our new funding restrictions. Whereas
formerly our family services and non-poverty civil services were
delivered by way of judicare, we have now opened up a series of
staff offices. We have significantly expanded our duty counsel or
duty solicitor program, and we are also beginning to work more
closely with community agencies, the effect of which will be to
decentralize the provision of summary legal advice and
information out into the community.
Other consequences of our funding restrictions are very
strict financial eligibility rules, very strict priority rules, and very
strict limits on the amounts of money that our judicare lawyers
can bill Legal Aid. Essentially, we have gone from a completely
open-ended system to one which is now very heavily managed in
just about every respect.
What are the lessons we have learned from this? First of all,
we learned an important lesson aboutjudicare. We have learned
that you can run judicare on a fixed budget but, it requires very
sophisticated management, management which we are still only
in the process of learning ourselves.
Second, when it comes to government
funding-government funding, of course, is inherently a political decision-we
have learned inadvertently of the tremendous importance of
developing political allegiances with the private bar, the judiciary,
and the government bureaucrats who are responsible for
overseeing our program. A major advantage to our judicare
program is that we have a wide constituency of lawyers ready to
argue in favor of legal aid funding. The down side, of course, is
that they tend to be resistant to any move away from a classic
judicare program, so we struggled to open up even the few staff
offices that we have.
Third, we have learned that there are both advantages and
disadvantages to linking civil and criminal legal aid. The first
advantage doesn't so much have to do with funding but rather
has to do with the independence of the program. We have
found that people, at least in our political tradition, find it easier
to appreciate the importance of independence for a criminal
legal aid program. It is understood that it is inappropriate for the
government to both conduct prosecutions and be directly
involved in the provision of defense. This is a concept which is
intuitive for legal professionals, but it's often hard to sell to those
who make funding decisions. In our experience, the joining of
the criminal and civil sides has allowed us to avoid some of the
problems that we have heard about in the United States
regarding government interference in the provision of civil legal aid
Fourth, we have discovered that it is difficult to argue in
favor of civil legal aid funding on the basis of promoting access
to justice alone. As a result, we have talked about the
instrumental benefits to providing civil legal aid in terms of improved
efficiency of the courts. In family law, we talk about the importance
of maintaining family integrity, or about promoting services to
victims of domestic violence, and also about the importance of
legal representation in promoting self-sufficiency of families and
thereby avoiding their being on social assistance.
Finally, in terms of funding pressure on civil legal aid, we
have learned that it is extraordinarily important to assess and
identify client needs as early as possible and as well as possible in
order to direct people to the most cost-effective service
MS. IMPERIAL: Davia, I know you just passed a law last
month in Lithuania changing your system of delivering civil legal
services or establishing a system. Can you describe the system
that is going to be developed?
MS. PETRAUSKAITE: Thank you.
As you mentioned, Lithuania has just started to create a
system for providing civil legal aid services for poor people.
Exemptions from legal expenses are set forth in the Civil
Procedure Code of the Republic of Lithuania, but legal expenses do
not cover compensation for professional legal assistance. So the
legal reform is ongoing, and the law on state-granted legal aid,
which provides free legal assistance for poor people in civil and
administrative cases as well, was adopted last week and will come
into force on the first of January 2001. Until this time, the
government needs to prepare and adopt some bylaws to implement
the new system in Lithuania.
This law proposes to set up a state public funding model.
The funding depends on the type of legal aid. The following
types of legal aid shall be provided: primary legal aid, state legal
aid, and legal aid provided by public institutions.
Primary legal aid means legal information and legal advice
appointed and financed by a municipality. Municipalities
should have agreements with barristers and are responsible for
reimbursement for services of barristers pursuant to those
State legal aid covers representations in proceedings
appointed by a court and financed by the state. We are planning to
use the same mechanism, the same model, for funding as we
have now in criminal cases. The money from the state budget
will be distributed to courts through the Ministry of Justice, and
barristers will receive reimbursement in courts where the legal
aid was provided.
The legal aid provided by public institutions are: legal
information, legal advice, and representation in proceedings. In
Lithuania, we have few law clinics. This law is a legal basis for
the creation of new law clinics; because although clinics existed,
there was no legal basis for this. Public institutions shall be
supported in accordance with the procedure described by the law
on charity and support.
Another new institution we have in Lithuania that just
started last week is the Public Attorney's Office. The Public
Attorney's Office will be mainly financed from international funds
and partly from the state; we will see which model is the best for
MS. IMPERIAL: Thank you.
Lorna, could you describe the IOLTA model?
MS. BLAKE: I would be happy to.
IOLTA stands for Interest on Lawyer Trust Accounts. It is a
program that began in 1981 in the state of Florida. It is actually
an idea that was imported from our neighbors to the north,
The model allows lawyers to take client funds which are
nominal or short-term-either nominal in amount or held for
such a short period of time that practically they could generate
no interest for the individual client-and to pool those funds in
an IOLTA account. The interest on those funds goes to a
second charitable institution or a charitable organization in each
state that then distributes the money in grants to legal services
for the poor. Any client funds that are larger than nominal or
held for a long period of time should be handled by the lawyer
according to how the client directs and according to their
lawyers' ethical obligations. But, these nominal and short-term
funds formerly generated float for the banks, and didn't serve
any public purpose. So the IOLTA model has variously been
described as sort of magic or alchemy or something that, in a way,
almost creates something from nothing.
The programs in this country are created by courts and state
legislatures. They exist in all fifty states and in the District of
Columbia. Last year, they generated US$140,000,000 for legal
services for the poor in this country. Just to show you in terms of
dimensions, the Legal Services Corporation, which is federally
funded, is roughly US$300,000,000, so IOLTA programs have
become a significant supplemental source of funding.
The purposes of the programs vary from state to state in
their details, but for the most part, eighty percent of these funds
go to fund civil legal services for the poor in the United States.
Other functions that the IOLTA programs support are law
schools, scholarship, and law-related programs, and then various
different programs that improve the administration ofjustice in
their states. In some states, also, law-related education programs
are funded by a percentage of the money.
The whole concept came about because of severe funding
cuts to the federally-funded legal services program, so this is a
program that was created to fill a need. It is not a principal
vehicle for funding legal services. It has always been viewed as a
supplemental source of funding. It has, however, become
increasingly influential in many states.
The programs vary in size from states where the IOLTA
funds are as low as US$300,000-500,000 to states where it is as
high as US$12,000,000-14,000,000. So the variation from state to
state can be quite tremendous.
The IOLTA model has proven vulnerable to a couple of
different issues. One is constitutional challenges. That has been
an issue for the models in the United States. Challenges have
been brought variously in Florida, Massachusetts, California, and
most recently in Texas, where a victory was handed down by a
Texas trial court judge who dismissed all the constitutional
claims against the program, which we are very pleased by. That
decision will be appealed, but we are hopeful that there will be a
good outcome to that.
Because they are created state by state, IOLTA programs
can be buffeted about somewhat by state and local politics. So
the same issues that attend the politicization of legal services
funding at the federal level can in fact affect programs at the
Finally, the other major issue for IOLTA programs is that we
are dependent on a banking model, or product, that is
somewhat outdated. Most IOLTA programs derive their money from
the NOW account product, which allows non-profits to earn
interest on checking accounts. For IOLTAs, the owner of the
interest is the charitable organization, the IOLTA program, and
the owner of the principal is the lawyer and the client.
These accounts, at the onset of IOLTA development in this
country, were paying 5-7.5%. Today the effective net yield for
most states is under 1%. And at that, we generate
US$140,000,000. There is a huge amount of principal in these
accounts. But increasingly low interest rates and high service
charges have eroded the net yield for IOLTA programs in this
country. It is something that the national IOLTA community is
taking a look at, trying to determine how we can improve the net
yield that the banks offer us on these accounts, because it just
doesn't take a very astute mathematician to figure out that if we
could even inch it up 1% or 2%, we would double or triple the
amount of money we can give out.
MS. IMPERJAL: Thank you. Maria, can you tell us about
some World Bank initiatives?
MS. DAKOLIAS: The objective of the World Bank is, as
you know, to alleviate poverty, and we provide loans or credits to
developing countries for economic and social development. We
are a lender of last resort and we lend at the request of the
government. We recently began efforts in legal and judicial reform
in the early 1990s. We currently have thirteen free-standing
legal and judicial reform projects and about twenty or so more in
the pipeline that are now being prepared.
We work directly with the governments to develop these
projects. We try to look at the legal and judicial framework as a
whole, look at the problems and the priorities, and develop a
dialogue. We look at court fees; whether lawyers are required in
cases; the efficiency aspects, whether there is adequate legal aid,
howjudges are appointed and disciplined, and the like. The
dialogue that we have with the government, with civil society, with
the judiciary, and with the bar, is to develop activities that could
be funded under a project. We discuss a holistic program and
legal services is only one aspect. We look at the judiciary, ADR,
access to justice, training of lawyers and judges, the media and
the public as well as law reform.
One example that might be of interest is Ecuador, where
there were only four public defenders in the city of Quito for a
population of 2,000,000, and a study that said that over seventy
percent of the marriages involved domestic violence. In that
project, legal services for poor women was included and the
results so far are positive. A demand driven fund for civil society
organizations was established by the government so that these
groups could apply to receive funding for activities related to
access to justice.
We also established a fund that groups could apply to
receive funding. This fund has resulted in programs to train
mediators in rural populations where courts are six hours away,
establishing legal clinics in law schools, training for families of
prisoners on the legal process, and increasing public awareness
of children's rights. This is an example of the new areas
financed by the Bank. Principally, in the early 1990s, we
concentrated on legal and judicial reform relating to private sector
development, and these programs have evolved to include access to
justice. We do have many challenges ahead in this area.
MS. IMPERIAL: Thank you. Simon?
MR. RICE: Thank you. Can I start with a couple of caveats
that may make you wonder why I'm here? The first is that the
Law Foundation, of which I am the director, doesn't provide
legal services. We're not an example of anything useful to you in
that regard, but we are a research, policy, and community
development organization whose business it is to promote access to
justice. One of the areas we are concerned with is promoting
the provision of legal services, so we know about how they work
and how they're funded. I am here because of that
understanding we have.
The other caveat is that although I am here to speak to you
about the private funding of legal services, it doesn't happen in
Australia. So I have to tell you about what does happen in
Australia. If you found private funding of legal services there, you
wouldn't be surprised, since you find it in America. When you
find something you expect, you don't ask any further, but when
it's not there, you want to know why. I can tell you why I think
we don't have significant levels of private funding in Australia,
and that might be useful in terms of understanding where and
how private funding is appropriate.
The way legal aid is funded in Australia is very similar to the
description Nye gave you of the new-look model in Canada, with
a qualification. We have what we call a mixed-model service
delivery-British Columbia has one-which involves judicare and
in-house lawyers in significant numbers. So all the description
you got from Nye about how to manage a capped budget reflects
the Australian system. It means that across Australia, in a
number ofjurisdictions, we principally have a public-funded legal
service. How do we provide legal services? The government pays.
End of story.
There is growing interest in alternative methods of funding
because of the difficulty in obtaining and retaining public funds,
hence the interest in private sources of funding.
You have in your kits a bibliography. In that bibliography is
reference to Innovative FundraisingIdeas for Legal Services,
produced by PERLS, a project in the ABA. They have been through
the exercise that I have been asked to talk to you about, so I
simply draw your attention to a chart they've done, which is a
long, long list -of all the innovative ways you might fund legal
They list what I call straight fundraising-donors, bequests,
special events, slow auctions, golf days, you name it. They list the
IOLTA funds, which I will come back to in a minute. They list a
group of activities that I call "riding on the back" activities. This
group includes what's going on in the legal system that we can
leverage up a bit, like adding a premium on filing fees in court,
for example. Where can we milk a little more money? A lot of it
would be characterized as indirect taxation, a bit more money
out of the litigants, a bit more money out of the process. I
recommend that you understand the list and all the options and
make up your own mind how you would fill those criteria for
Something they don't list here-I don't know what this tells
us about the extent to which the market dominates American
thinking-is what I would call market options, such as legal
expense insurance and pure privatization of legal services not
falling into those other categories.
What they have done is list them according to a number of
criteria-the revenue they earn, the time it would take, the cost
of doing it, the staff, and the upkeep-and under revenue they
list low, medium, and high. Under revenue for these in
Australia I would list low or nil for most of them. And I would even
have some warnings about trying to do it at all and the political
damage and fallout that you might get.
When I say that, I invoke the comment we heard from
Danny Greenberg in the previous session. Unsurprisingly, I am
saying that we should look at the cultural, social, and political
context. There are sound reasons that I won't detail in this short
time why private funding of legal services hasn't happened in
Australia, and why I think it is unlikely to happen for quite some
time. It is a different place: the ethos is different; the politics
are different. Pro bono services, for example, are not a significant
contributor to the legal services in Australia. It is culturally a
There are a couple of exceptions in Australia where there
has been a bit of private activity, but I am not sure that it is
remarkable or worth looking at in more detail simply for the fact it
is happening in Australia, as it happens elsewhere.
I will claim IOLTA funding for Australia! Canada got it
from us. It was developed in Australia, because the private
profession genuinely wanted to do a good thing. They actually had
a bit of a crisis. We were using interest on lawyers' trust accounts
to fund the guarantee funds for defaulting lawyers. There was a
massive default in the state of Victoria in the early 1960s that
bankrupted the guarantee fund, so they turned to these monies,
which they have since applied to more extensive
communitybased purposes. The Law Foundation is funded by IOLTA
Lorna listed some of the problems with IOLTA, and we
have discovered all these problems in Australia. Briefly, we don't
have the USA constitutional problem, but it does exist in some
countries. IOLTA is problematic in trust law, depending on how
it's structured. There are real questions about the legality of
some of the ways we manage the IOLTA money. There are
ethical issues about handling clients' money without their authority,
as IOLTA funds can do, depending on how they are set up.
There are issues of technology, since new technology has
threatened to be able to return interest to clients instead of
having to pool it. It is interest rate-dependent, and it is dependent
on the degree of trust account activity. All those reasons make
our use of IOLTA funds a bit limited, although in New South
Wales up to twenty percent of our annual legal services budget
does come from that money.
We do use contingency fees and speculative fees; David
referred to the difference before. We don't use the word
"contingency." We call it speculative because we cap it; you don't get a
percentage, but you can litigate and get your costs at the end.
That's a way of extending legal services. When I was on the
board of our Legal Services Commission, we decided in a crude
way to cut legal services altogether in civil matters where they
could be done on a speculative basis. We shifted the onus to the
private profession to fund litigation that we had been funding
There have been unsuccessful attempts to get legal-expense
insurance going. The Law Foundation has researched and
reported on why what happens in Scandinavia or in North
America doesn't work in Australia. So the attempts are limited
to IOLTA, legal-expense insurance, pro bono, and speculative
fees. Otherwise it's publicly funded, and I think there are good,
subjective, local reasons as to why private funding hasn't taken
off, and I wonder if it will.
MS. IMPERIAL: Thank you.
Does anyone in the audience have a question?
AUDIENCE: I am a great admirer of your project in
Ecuador and particularly the fact that the Bank has recognized the
issue of domestic violence as both a personal safety issue and an
economic issue for women.
My question to you is, could you say a little bit more about
the challenges of persuading governments to get funds into the
hands of independent NGOs to do work that may include
challenges to the very governments that are the conduit for the
MS. DAKOLIAS: That is a very good question, and it is
something that we have to grapple with all the time. Given that
there are a limited number of resources available, very often the
judiciaries are concerned about their own infrastructure,
computers, and training. We try to balance all the different elements
that are needed so that reform can take place. That includes
issues like legal aid and others related to domestic violence,
which we found in Ecuador in particular.
For that reason, it has helped to have what we call legal and
judicial sector assessments done, which open up the dialogue
with the government. We also have included civil society and
the NGOs in that dialogue, so that the priorities can be set given
the particular needs. In that way, we have been able to include
activities like the one we did in Ecuador. Although this has not
been widespread, it may be in the future.
MS. IMPERIAL: I actually wanted to follow up on
something that Anne Owers brought up in the last panel that is
related to this: how are legal needs determined and priorities set?
The model sounds interesting since it is collaborative, but it
seems as though, in lots of situations, private funders set the
priorities or the government says what you can do with the money.
So I open this up to the audience as well: how can we best
communicate what the true legal needs are and try to get those
priorities funded? Maybe Lorna would like to address that.
MS. BLAKE: Certainly. There have been in New York
State four legal needs studies done, and there have been
national attempts at assessing need as well. As funders of legal
services over the past decade, when funding cutbacks at the federal
level became severe, we have noticed that the chase for funding
has a very strong impact on program priorities, because people
are going after funding for their programs, and the funders are
deciding, or the government is deciding, what they are willing to
Before the cutbacks, a program could perhaps undertake a
community-based, priority-setting process and really take a look
at what the community wanted or needed in terms of legal
services. Now, however, the chase for funding implies that
priorities are increasingly being driven by what funders will fund and
not necessarily what communities most need. This is a concern
for civil legal services programs in this country and for IOLTA
programs as well. For IOLTA programs, what you can fund
depends on what either your court rules or your legislature, your
enabling statute, or your enabling rules allow.
Listening to Simon talk about private funding, private
funders have their own agenda, and they will fund what they
want to fund. So legal services programs continue to try to make
inroads into that market, if you will, with pretty limited success.
They can be successful when they start taking a more holistic
approach, as Maria mentioned. You are not talking necessarily
about legal services but, rather, a particular demographic group
or a particular issue that funders are interested in and the legal
services component is a part of the package of services that is
provided to that group.
I think legal services programs in this country are very
sensitive and pay attention to the impact of funding diversification on
priorities. There is a need to have some sort of corrective
mechanism to address what client needs really are, rather than what
governments and private funders are willing to fund.
MR. RICE: Maria, could I just address that question of
need? I said to Maria when we were planning this yesterday that
I thought it was apt that I spoke last because, as a matter of
principle, I think private funding does and should only come last, for
a number of reasons but including that an overall view needs to
be taken of where the need is when the funds are allocated.
In relation to legal needs, there is this elusive quest, a holy
grail, and I think it's a hopeless quest, with endless studies of
legal need. It is a very political process. Whoever is looking into
it and deciding it has their own agenda for deciding what legal
need is; I wonder whether it is worth continuing to do it. It is
important that we recognize that legal need will be assessed
differently by different people at different times, and that however
it is being assessed at any one time and however funds are being
allocated, it should be according to an explicit statement of the
current perception of legal need.
At any one time, we need to know what the funders think
the needs are. They may be right or wrong, but, unless we know
what is driving them or what their priorities are, we cannot map
out how to respond or how to pull down different strategies to
meet the needs.
The problem is not trying to nail down some ironclad,
permanent statement of legal need; it is knowing at any one time
what the agenda is so that you can invoke the strategies to meet
MS. IMPERIAL: The Lithuanian creation here of
providing these services seems to me to be rather remarkable. Is it
perhaps in part a reaction to a vacuum that might have been
there when they were occupied by Russia? Who has been the
moving force in Lithuania? Has it been the politicians or has the
bar gotten organized there to bring this about? And what kind
of funding are you talking about in terms of the population to
MS. PETRAUSKAITE: The idea to have laws and to create
a new system in Lithuania came from the people. But the
Minister of Justice was very supportive of this idea. And this new law
was created in cooperation with the Soros Foundation, with the
bar association, and with the Ministry of Justice. So it is very
difficult to tell whether the politicians were more interested in it or
I think we have such circumstances that we need to create a
new system. Why did we choose the state-funding model? I
think it depends on our traditions, that Lithuania is a country in
transition, and that we are coming from a state-planned
economy to a free-market economy. At that moment, in that
situation, to have some other model is very difficult for Lithuania.
We have five levels in the law, and it depends on annual
income and on the amount of property people own to
determine who will receive this legal aid. Some of them will be
reimbursed 100%; some of them, only 50%, and so on.
MS. IMPERIAL: Does anybody else have other questions
AUDIENCE: Less a question and more of a comment. I
am with the Federal Government in Canada, and we provide
funding both for civil legal aid and for criminal legal aid to the
tune of about US$82,000,000 a year for criminal matters and, at
last count, about US$99,000,000 for civil matters.
My concern is the issue of trying to sort out some way of
establishing priorities in a system where obviously there are
limits to the amount of money that is available. I don't think that in
Canada we have that sorted out yet. We need to have a
conversation around how one goes about looking at establishing
priorities when you are operating in a system with a hard cap.
There are some models that may be instructive, and we
need to explore those further. There is a very small
access-tojustice program that the Federal Government funds that is called
Public Legal Education and Information, which is apart from
Legal Aid and is a major program. The Federal Government also
funds Aboriginal Court Work, which is another access-to-justice
The interesting model involves this public legal education
funding. The position we are taking is that the non-government
organizations that are providing that service at the front line
need to go through an analysis of what are the needs with
respect to the clients they are serving, establish what the gaps are
in terms of those needs that they have identified, and then apply
our funding towards the most vulnerable groups. So the
approach is not dictatorial in the sense of fund X, Y, or Z, but the
approach is to identify-do some analysis around identifying
what are the needs-and then use our funding to address those
I think there is some merit to engaging in a conversation
with other funders, so that there is flexibility for service delivery
at the front line but at the same time there is some demonstrable
targeting of the funding for which we are accountable through
our political masters.
The other interesting development, and this is coming out
of the smallest of jurisdictions-I recognize that Ontario gets a
lot of play given its size, but there are some interesting
innovations that we are examining, and this innovation comes out of
the north. We have three territories. The third one just was
created a year ago, the Territory of Nunivak, with a very heavy
component of its population that is aboriginal.
The innovation that we've used with them is that we've
combined three separate access-to-justice programs under one
model, under one funding arrangement called Access to Justice
Services, which gives the territories the flexibility to be able to
use funding for either legal aid or public legal education or
aboriginal court work, depending on how they see the need in
terms of their own territory. It is an innovation that I think we
need to explore with some of the provinces. There have been
some expressions of interest around using that kind of
It seems to me, however, that all of this means that we need
an ongoing and sustained conversation that starts to focus on
priorities and less on some of the traditional or rigid approaches
that federal governments tend to have typically taken in the past.
This means opening up the process more to voices both at the
level of the provinces and also at the level of community groups,
enabling them to influence the nature of the arrangements that
we have with the provinces and territories.
MS. IMPERIAL: Would anyone on the panel like to
MR. THOMAS: Yes. Actually, you touched upon
something that we are struggling with right now, which is to
determine who should be involved in the priority-setting discussion.
In Ontario most often it has been lawyers who have decided what
the priorities for the program are. The result of that has been
that our priorities have tended to be heavily weighted in favor of
legal representation at trial and, as a result most of our money
has gone towards those kinds of services.
As we have reconfigured the governance of our program,
we have begun to think about who else should be at the table,
who else should be influencing our priority-setting discussion.
In fact, now that we have begun to broaden that discussion,
begun to go out into the community, begun to talk to those who
are more representative of clients per se than of legal
professionals, in fact their priorities are almost the exact opposite to those
of classic litigators. There is a lot more emphasis on summary
legal information and advice; there is a lot more emphasis on
interconnectedness between legal problems and other kinds of
issues that clients may have.
As a result, we have to re-conceive our service less as a law
firm and more as a social agency, which for us has been, not to
overuse the phrase, quite a paradigm shift. In fact, it is quite
challenging to many people who have provided our service for a
AUDIENCE: Hi. I am from Australia. We heard people
speaking last night and this morning about their criminal
budget; for legal aid funding, it was about eighty percent on
average for most legal aid societies or commissions.
My own question is around access to justice, whether it is
more about keeping people away from the criminal justice
system, and whether that is actually being looked at. In New South
Wales, the incarceration rate is at the highest in about five years.
We have mandatory sentencing, which is like a
three-strikes-andyou're-out program. It mainly focuses on indigenous people
because of the high incarceration rate.
I am just wondering why-we just had a cut actually in legal
aid within New South Wales and what got cut first is civil
lawcriminal law doesn't get questioned. I am just wondering why
that is and whether we should be focusing more on law reform
in the criminal justice system.
MR. RICE: I was having a discussion with Nye outside
before about some of the deep assumptions that are in our
approach to legal aid and legal services. We are driven by this idea
of civil and political rights, to put it in human rights terms. Our
sense of the operation of the legal system and where the
interface between the citizen and the legal system is, is around the
criminal justice system; it is the sort of paradigmatic example of
where people's civil rights are affected.
We still have a long way to go for our understanding, our
deeply historical understanding, of that interface between the
individual and the state to catch up with a new world where, to
put it in human rights terms, economic, social, and cultural
rights would be as important. Then we get into the next
question of priorities.
With the civil program and the family law program, you
would not characterize them as classical civil and political rights,
but a different kind of rights. We have modeled our systems for
generations, centuries, on that historical notion of those more
narrowly based rights. That is why, I think, we find criminal
programs being preserved. There is no question asked, certainly in
my experience in New South Wales, about the criminal program.
Everything else is modeled around it.
MS. IMPERIAL: Did you want to add to this question?
AUDIENCE: Yes. Ijust have the same point. At the center
where I work, we are very involved in thinking about how to
reach out to unexpected allies, if you will, who would be
supportive of civil legal right enforcement and supportive of civil legal
services, and we have been putting out some public education
I wonder if the panelists have thoughts about how to bring
in a greater involvement of religious organizations-the
churches, for example-or the teachers or the social workers or
the doctors or, even, to pull in corporations who might
recognize that the stability of the society depends on the effective
enforcement of laws.
I know folks do that to some extent, but I wonder if you
have reactions about how and whether there is a need to do
more of that, and whether there are ways to better use the media
or speak to journalists about how they can be supportive of this
MS. IMPERIAL: That could also go to people in the
audience. I don't know if there is a panelist who would like to
AUDIENCE: I am addressing the lady from Australia's
comment. We in the United States are finding that there are
problems even getting funding for constitutionally mandated
services such as criminal defense work or family court matters
where there is a mandate for counsel.
We've gone to editorial boards. We even got some of our
most conservative newspapers to say, 'Yes, there has to be an
increase in funding for criminal defense work." We also have
alliances with the church.
And yet the sheer cost of the increased rates create an
imperative to keep our courts from collapsing, because we have lost
something like eighty percent of the lawyers who do this kind of
work. They no longer do this work, because there is no money
in it. Ijust read with dismay in a law journal yesterday where the
political response in the New York state capital has been, "We'd
love to do it but we're not going to do it; it costs too much
That does not mean we're going to stop. The editorial
response has been great, the community response has been very
positive. We have alliances with the Domestic Violence Coalition
and all sorts of coalitions on this issue, and yet it all seems to
come down to dollars and cents. Where do we get the money
So I am quite interested in all these proposals that you have,
but it seems to me that it comes down to a political will. The
important question is, how do we get the population at large to
feel that this matters to them? And that is a question that I don't
hear us trying to answer, and I think that is a critical question for
where we are moving today. Thank you.
MS. IMPERIAL: Lorna?
MS. BLAKE: I just wanted to comment on a project that is
being undertaken now. It is being funded by the Open Society
Institute and it is a part of the Project for the Future of Equal
Justice of the National Legal Aid and Defender Association. In
it, they are undertaking a national message campaign to do
exactly what our audience member just mentioned, which is to
assess the attitudes of everyday citizens about the need for legal
services and social justice issues generally.
That project has been undertaking some research but also
doing some work with focus groups to really go deeper into
Americans' attitudes about this issue. Amazingly, we find that in
the focus groups people don't really make a distinction between
civil and criminal. Many Americans think that there is a right to
civil representation, just as there is to criminal, which is kind of
an alarming statement about something.
But then when asked or probed a little further, they think
that it would be a very good idea to provide civil legal services.
They seem to think that it is an issue of basic fairness to have a
society that claims it is based on the rule of law and you are
entitled to a lawyer if you are at risk of losing your liberty, but if you
are at risk of losing your child, your home, or your livelihood,
you are out of luck.
But when asked who should pay for that, the immediate
response is, "Not me, not the government, not the taxpayers." So
there is a disconnect there that somehow needs to be addressed,
and that is what, at least initially, one group that is trying to
probe this more deeply is finding. I should emphasize that this
research is in the preliminary stages.
AUDIENCE: I am Bob Rhudy from Maryland. I am going
to throw a fairly radical and unpopular idea on the table. I think
the leadership for funding access to justice has to come from the
bar. I think justice is our product. We know the need for it, I
think more than the general population, anyone in the
population. We know the importance of the services that we provide.
I would like to see a past president, not one running for
president, but a past president, of the ABA suggest something
that only our opponents have so far, which is a surcharge, a
service tax on legal services.
Yesterday Judge Earl Johnson mentioned that the legal
services of the United States cost US$130,000,000,000. We get
US$600,000,000 total from all resources apparently for civil legal
services in the United States right now. A one percent surcharge
would be US$1,300,000,000. At three percent, you're starting to
talk real dollars.
I think lawyers must take the lead in saying that this is
important, that we must break this stalemate, that this impasse over
inadequate resources must end-not someone running for
president, but a past president-and throw it before the politicians.
It is not a matter of economics in most countries-it is in some
countries, but not in this country, not in many of the developed
countries-it is a matter of political will. We've got to break the
stalemate and say, "We've got a suggestion on how we can fund
this realistically. Don't take away the dollars that are currently
going there. Let's have the diversity of funding for different
purposes, but to fund basic, general, civil legal services to the poor,
we've got an idea that can do the job."
I have looked at funding approaches from a whole range of
areas and a whole range of countries. I don't know if this exists
anywhere in the world. I think it's time someone starts talking,
someone who is a proponent and a supporter of legal services,
about ways to make legal services and access to justice a reality in
AUDIENCE: I am involved with Legal Aid in Australia and
have confronted the question of needs and priorities often. We
have proposed to the government-and the Law Society of New
South Wales is supportive of this proposal-that the core
responsibilities for government funding of legal aid fall into the
following areas: human rights, income security, family law, and
Under the areas of human rights, obviously, the right to a
fair trial and general criminal law is clearly the most important
of those headings. But also it includes discrimination law, it
includes the rights of refugees, it includes the rights of prisoners, it
includes the rights of the mentally ill, and it includes civil
With family law, the highest priority is the rights of the child
and issues around domestic violence. Under the heading of
income security, it is consumer protection, which is most
specifically in relation to consumer finance and insurance issues; also
social security and employment law, although we have some
trouble with cost-benefit on employment law. And under the
heading of housing, it's the rights of public and private
tenancies, the rights of residents of institutional homes, and issues in
relation to bank foreclosures.
The method of service delivery changes, of course,
depending on the needs of the clientele. Empowering people charged
with serious criminal offenses by handing out our pamphlets is
not the best method of service delivery, but it might in fact be a
good method of service delivery in some areas of law, so that
advice, representation, community legal education, and group
advocacy are an appropriate way of spending the legal aid dollar.
I am supposed to turn my statement into a question for Nye.
Nye mentioned that there was a sweeping statement of saying we
fund criminal, family, and poverty law, and I wanted to know
what Nye was talking about when he said poverty law. Thanks.
MR. THOMAS: Essentially for us it means, what we call,
income maintenance, which otherwise might be called welfare,
social assistance, and housing. Those are the two main areas. In
the past, when there was more money available, it branched off
into areas of consumer law, employment law, and some of the
other areas that you mentioned.
We have a network of seventy community clinics, fifty-six of
which are attached to a specific geographic area that provide
largely income maintenance and housing support to low-income
communities. On top of that, there is a series of fourteen-soon
to be sixteen-specialty clinics, which are essentially law clinics
devoted to a specific issue. They cover the whole range of legal
issues for low-income Ontarians. There is one on the
environment; there is one for disabled law; there will be one for
housing; and there are a lot of ethno-specific clinics for people who
speak Spanish or other languages.
Most of our community clinics, the general service clinics,
provide income maintenance and housing law. The specialty
clinics provide a whole range of services in a whole range of
areas on top of those basic core services.
MS. IMPERIAL: We only have about five minutes left for
one last question.
AUDIENCE: Thanks. I have a question to the panel,
taking up from the question that was raised by a gentleman this
morning in relation to why we don't get together as a profession
and lobby for funding, and to take Anne Owers' point that it is
not about raising funds for lawyers but it is actually raising funds
to facilitate the services that lawyers provide in this instance.
What I seem to be seeing in Australia at the moment is an
insidious move to force those of us who are receiving funding to
compete within ourselves for those funds. It is a kind of
divideand-rule approach, and it is turning us against one another in
relation to the services that we provide.
What I want to know, from some comments from the panel
or from the audience, is what we need to be doing is to articulate
the diversity that we offer within the range of services that we
provide and to demonstrate to the government that in fact we
are providing a service to government; we're doing their work, in
a sense. We need to start articulating our priorities in the
language that the government understands, to try to stop what I
think is becoming a very dangerous undermining of these
services within ourselves because we are starting for those funds.
And so what we are doing is rationalizing our services to that end
rather than actually facilitating the purpose of our work.
MS. IMPERIAL: Do any of the panelists want to comment?
MS. BLAKE: Well, I think that that is a very sad reality that
none of us, I think, have as much money as we would like to have
to give out or we need to meet the need. Funders as well, I
think, are in the business of allocating scarce resources among
very compelling and competing needs.
I think that maybe goes to the earlier question about the
importance of trying to set priorities, trying to articulate
priorities for those funds in a way that is inclusive and that gets
everybody to the table-clients, providers, the government, the bar,
and other stakeholders.
I don't really have a comment that that's a solution. I know
that IOLTA programs in this country have been spending a
substantial part of their time trying to maximize resources.
Basically, we are in the business of turning over flat rocks to find
pennies to add to the resource pool. I think that we need to take
a fresh look or a really different, radical look at how we fund
these services, because otherwise what we will be doing is
continuing to allocate scarce resources between competing demands.
MS. IMPERIAL: Anybody else?
MS. DAKOLIAS: I think I will just add that, from the
developing-country perspective, it is very hard to set those
priorities, because there is a lack of information, there is a lack of
statistics as to who is actually using the judiciary. Often one may
see that it is only the privileged who can access formal dispute
resolution. So having that kind of information allows different
programs to be developed based on what is actually going on,
which is crucial.
MS. IMPERIAL: We actually have to end the funding
panel, but I want to just pick up on one point Maria said, and
hopefully we can talk more about this in the breakout sessions.
One thing that we noticed when planning for this panel was that
it is very difficult to find information. There doesn't seem to be
one source noting how much each government spends on legal
services around the world.
And so we were thinking that we need to think about ways
that we could share information with each other in a better way,
whether there should be a centralized Web site. There are some
list-servers that are out there. I think that one outcome of this
conference might be just how we might share information after
we leave the conference, and maybe we can talk about that in
more detail at the breakout sessions.
I would like to thank all the panelists and thank you all.