Washington Lawyer - May 2020 - 6

FROM OUR PRESIDENT

LOW
BONO
Filling Neglected Nooks in the Justice Gap
I started looking into how the FPG is computed,
I was astonished. In 1963 a statistician for the
Social Security Administration developed the
first guideline based on a 1955 survey estimate
that families spend one-third of their income
on food. The FPG was reached by computing
a basic food budget for individuals and families,
and then multiplying that number by three.
This measurement, with some adjustments for
inflation, forms the basis for today's FPG.1 The
guideline is seriously flawed for a multitude of
reasons, just a couple of which I will highlight.
Photo: Joe Shymanski

Connect
with Susie:
shoffman@dcbar.org

s pro bono partner at Crowell & Moring,
the most difficult part of my position is
telling a potential client, "No, we cannot
provide you representation." Frequently,
the reason is that the individual's income
exceeds our guidelines. Our firm, like others in
the District of Columbia, follows the income
guidelines used by most legal services providers, including the D.C. Bar Pro Bono Center
- 200 percent of the federal poverty guideline (FPG). For entities receiving funding from
the federal Legal Services Corporation (LSC),
the maximum income level to qualify for representation is lower - 125 percent of the FPG.
The numbers may surprise you: The poverty
level in 2020 is $12,760 for an individual and
$26,200 for a family of four. With the median
monthly rent in the District for a one-bedroom
apartment logging in at about $1,340 and the
average rent at $2,085, a lawyer's retainer can
be half of a potential client's monthly income.
What is the solution for the working poor who
don't qualify for free legal services but cannot
afford to pay for such services? Adoption of
a more realistic poverty measure would help
to address this deficiency. Indeed, for decades
various policymakers have called for a more
realistic assessment of the guideline. When

WASHINGTON LAWYER

MAY 2020

First, food costs today account for a much
smaller percentage of household expenses,
whether because of increases in agricultural
efficiency or the disproportionate increase in
other household costs such as housing. One
commentator estimated that "modern households now spend only one-eighth of their
incomes on food."2 Second, the guideline does
not account for differences in the cost of living
based on geographic location.3 The problem
with redefining the poverty level, however, is
that it would not solve the justice gap absent
a dramatic increase in legal services funding.
Fortunately, lawyers across the country and
in the District in particular have addressed the
plight of this population, who are often referred
to as individuals of "modest means." For years,
the response was to offer "unbundled" or limited-scope services. Indeed, in the early 2000s,
I was a member of an ABA task force that developed the Handbook on Limited Scope Legal
Assistance.4 Today limited-scope representation
is still utilized as an effective way to meet the
demand for legal services, both for low-income
and modest-means individuals. The D.C. Bar Pro
Bono Center, the DC Affordable Law Firm
(DCALF), and the Legal Aid Society of the
District of Columbia are collaborating on the
Family Law Assistance Network, a new courtbased project in which an attorney of the day
provides on-the-spot free advice and limitedscope representation to low-income parents
and third parties on custody, child support, and
other family law issues.
In recent years, creative advocates have developed
other innovative approaches. Former D.C. Bar

President Andrea Ferster (2013-2014) championed
the "low bono" movement. Andrea's efforts and
those of many other innovators, such as
Georgetown University Law Center's Sheldon
Krantz and Arent Fox LLP's Marc Fleischaker, led to
the creation of two forward-facing models here in
the District to serve the working poor: DCALF and
DC Refers. Georgetown Law, Arent Fox, and DLA
Piper LLP joined together to create DCALF, "a charitable nonprofit [that] charges modest fees consistent with a client's ability to pay."
DC Refers connects practitioners with modestmeans clients through its online directory and
sets their fees within the range of $75 to $150 an
hour. While DCALF relies primarily on recent law
graduates to provide services, DC Refers only
includes already established solo and small firm
lawyers with at least two years of relevant experience. Over the past two years, DC Refers, through
its panel attorneys, has provided representation
to 125 clients and brief advice and referrals to
more than 800 individuals.
Clearly, there is room and need for more innovation. This past February the ABA House of
Delegates adopted Resolution 115, which
acknowledges that traditional solutions have
failed to meet the civil legal needs of millions
of Americans. It calls on U.S. jurisdictions "to
consider adoption of regulatory innovation
approaches to address the access to justice
crisis in the United States."
As a bar that prides itself on its talent and ingenuity and being ahead of the curve, we need
to continue to build on the efforts of these low
bono pioneers, expand the capacity of recently
adopted models, and accept Resolution 115's
challenge to explore new solutions.
NOTES
1 "Who Counts as Poor? The Official Way America
Calculates Poverty Is Deeply Flawed," Economist
Special Report (September 26, 2019), economist.
com/special-report/2019/09/26/the-official-wayamerica-calculates-poverty-is-deeply-flawed.
2 Id.
3 Id.
4 See lians.ca/sites/default/files/documents/
handbook_limited_scope_legal_assistance-aba.pdf.

http://economist.com/special-report/2019/09/26/the-official-way-america-calculates-poverty-is-deeply-flawed http://economist.com/special-report/2019/09/26/the-official-way-america-calculates-poverty-is-deeply-flawed http://economist.com/special-report/2019/09/26/the-official-way-america-calculates-poverty-is-deeply-flawed http://lians.ca/sites/default/files/documents/handbook_limited_scope_legal_assistance-aba.pdf http://lians.ca/sites/default/files/documents/handbook_limited_scope_legal_assistance-aba.pdf

Washington Lawyer - May 2020

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