Report: Many low-income Delawareans lack access to legal counsel

DOVER — At least 140,000 Delaware residents are eligible for free legal aid.

But the three main nonprofits in the state that focus on legal assistance in civil cases can handle only a fraction of that — potentially leaving more than 120,000 people without counsel, officials say.

A report released Monday by three subgroups of a state committee focused on improving the court system highlights that imbalance and offers recommendations for better assisting individuals involved in civil cases.

The subcommittees are part of the Delaware Access to Justice Commission, an initiative started by the courts in 2014 to make the state’s courts fairer in both civil and criminal justice.

The findings released Monday mainly provided an examination of how the Delaware legal system serves low-income people.

The answer? Not always well.

“More than 50 million Americans technically qualify for federally funded legal assistance, but over half of those who actually seek such assistance are turned away because available funding is so low,” the U.S. Department of Justice, quoted in Monday’s report, noted in 2016.

“Similarly, for those living just above the qualifying line, even basic legal needs are beyond reach. There continues to be a substantial ‘justice gap’ between truly meeting the needs of low- and moderate-income people and the resources available for civil legal services.”

According to the report, low-income Americans obtained lawyers for legal cases less than 20 percent of the time — often placing them at a disadvantage.

In many instances, people who cannot obtain counsel are forced to represent themselves, particularly when they are defendants. The report notes a majority of litigants in cases involving custody, divorce and protection from abuse did not have lawyers.

“Based on 2014 data from Delaware’s Court of Common Pleas, plaintiffs have attorneys in 85 percent of the cases while defendants have attorneys in only 11 percent of the cases,” the findings state. “This asymmetry creates an imbalance of power between the litigants. The court itself is limited in its ability to introduce some degree of countervailing power to enhance the fairness of the process.”

The recommendations, which number in the dozens but are all broadly related, are aimed at making it easier for people to access legal assistance.

The findings suggest, among other things, the courts work closer with the legal nonprofits to aid people in need of counsel, the judiciary makes its website easier for non-lawyers to navigate and the state’s legal community place greater emphasis on representing people for no charge.

While Delaware is, according to the findings, “rather generous compared to other states in the overall support given to legal aid to low-income people,” that figure is on the decline. Budget pressure resulted in lawmakers reducing funding to legal nonprofits this year. An annual $600,000 appropriation to the courts to be used to, in concert with the Delaware Bar Foundation, represent low-income Delawareans was eliminated.

Individual nonprofits also were earmarked less: For the fiscal year started July 1, Community Legal Aid Society received $169,000, down from $247,000 the year before.

“There are clear societal benefits from the investment in an effective legal aid system,” the report says. “Legal services for victims reduce costs due to medical care for physical injuries and mental health care, lost productivity, and lifetime earnings. Effective legal assistance to victims can result in savings to insurance companies, hospitals, law enforcement and the criminal justice system, domestic violence shelters and homelessness systems.”

According to the findings, a study in New York estimated a cost of $2,500 to provide a lawyer for a family facing eviction, versus a $45,000 price tag to shelter the same family if its members become homeless.

The report says Delaware has several “untapped” sources of potential funding for legal assistance, such as court filing costs, fees paid by lawyers who are not members of the Delaware bar but want to practice law in the state, residual funds from judgments or class-action lawsuits and money from fundraising.

Other assistance can come from lawyers offering pro bono, or free, counsel. However, a survey conducted by a subcommittee indicates the majority of Delaware lawyers spent less than 25 hours over the previous year on pro bono work.

To make legal assistance more readily available, the group urges the Delaware State Bar Association to “create friendly competition regarding pro bono service, and better recognize and reward those individuals and organizations who are leading in creating a culture that values pro bono service.”

The civil subcommittees will continue to meet to implement the recommendations, while the Access to Justice Commission’s subunit on criminal law will keep looking at ways to better the court system.

In a statement, Chief Justice Leo Strine, who expanded the Access to Justice initiative started by his predecessor, praised the subcommittees’ work as “a blueprint for opening up the avenues of justice.”

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