When prospective pro bono clients call a lawyer about domestic violence or divorce, their legal problems are usually connected to other needs. Clients have worries about eviction, prescription drugs, and child care, not just their legal proceedings. “They’re reaching out to me and the firm for necessities,” said Todd Spodek, who offers pro bono services to first responders working during the pandemic.
Legal services organizations and law firms that provide free or reduced fee representation often work closely with other service providers to secure transportation, food, housing, clothes, and other necessities. But legal organizations can’t typically pay for those things directly, thanks to an obscure rule that exists in many states. They can cover filing fees and some required medical exams, but cannot pay for many of the basic things that would prevent clients from getting to court for their cases.
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“Human services often have client emergency funds, so it seems like a false distinction that legal services can’t do that,” said Amy Barasch, executive director of Her Justice, an organization focused on representation for women living in poverty. “If you can’t come to court because you don’t have enough money to pay for child care while you are coming to court, that’s going to be an access issue.”
The problem lies with the American Bar Association’s Model Rule 1.8(e), which prohibits lawyers from loaning or giving clients money for anything not directly tied to litigation. At least 11 states, including Louisiana, Alabama, California, and Minnesota, have made efforts to loosen their own versions of Rule 1.8(e) so certain lawyers, mostly those working pro bono or in legal services for low-income clients, can pay on behalf of clients for things that fall outside direct litigation costs.
New York is the latest state to alter Rule1.8(e) in favor of providing aid to poor clients. Changes proposed by a committee at the New York City Bar were approved by the Administrative Board of New York courts on June 18. The push to refine Rule 1.8(e) began two years ago, but was interrupted by the COVID-19 pandemic and its accompanying state of emergency. In March, the bar modified their ask to request an immediate “humanitarian exception” to the rule for the duration of the coronavirus crisis.
The economic fallout from the pandemic may have pushed the courts to take action on the proposal. The modified rule will allow some lawyers to offer “humanitarian assistance to their clients in dire need,” according to the news advisory released by the New York State Unified Court System.
“New Yorkers are experiencing severe financial consequences as a result of the COVID-19 pandemic,” writes a previous letter from two New York City Bar committees to members of New York State’s Supreme Court. “Lawyers throughout the state have answered the call to provide pro bono assistance to those dealing with the repercussions of the pandemic.”
Indigent clients — those living in poverty who cannot afford to pay a lawyer nor court-related fees — have always needed more than volunteer lawyers are currently able to provide. Now, with job losses ballooning, more clients could enter that indigent category, and it’s likely that more people will be seeking pro bono services for eviction. The amended rule means that pro bono lawyers across New York preparing to take on cases caused or exacerbated by the pandemic now have one more resource open to them.
“Legal aid programs intersect with so many of these issues, unemployment, increased family violence, family separation or unification, eviction, foreclosure, debt problems, elder abuse. And all the things that come from a dip in the economy,” said Don Saunders, vice president of policy at the National Legal Aid & Defender Association (NLADA).
The coronavirus pandemic, like natural disasters of the past, has had a catastrophic effect on human lives and human systems. “It’s kind of like what happens after a hurricane, after you have immediate first responders, then a host of legal needs come up. We’re worried about housing, homelessness, food and nutrition and healthcare. These are all issues that people have legal rights around.”
These issues are especially pressing for people of color. The pandemic is infecting and killing New York’s residents of color at higher rates than white people, and the inequities will likely continue through the disease’s aftermath. Assistance from lawyers could also help clients who are ineligible for state supports, including undocumented people who are excluded from the stimulus and unemployment benefits. Hamra Ahmad, Her Justice’s director of legal services expects that clients who could benefit the most are those who are undocumented, minors, and/or victims of human trafficking.
Andrew Kent, Fordham Law professor and the primary author of the bar’s report, explained that clients in a financial bind will sometimes settle claims for less than they deserve. For example, “say there is someone who’s been beat up in jail at Rikers Island. If that client is getting pro bono legal help for their case, and let’s suppose that they have a good claim which might be expected to get decent money, maybe $20,000 or $40,000.”
“But if the city or the state comes to them and says we can give you a check for $2,000 today and that person has rent due, or needs costly medical treatment, or their kid needs diapers or whatever it is, that smaller amount of money might be attractive,” said Kent. If a client can’t manage their living expenses through the long court process, they may forgo a higher amount of damages in the end.
“The challenge of getting out of poverty is that everything you’re supposed to do to get out of poverty ends up costing money,” said Barasch. Good pro bono representation is a proven way to better one’s financial situation for the long term, and yet the minimum amount of participation required from clients can still be too expensive. Providing assistance to stabilize clients throughout the process could alleviate some pains and strengthen the possibility of a life-changing result.