Work Group 4 - Expanding Resources – Final Report

Work Group Charge - Resources are at the heart of the issue. What are ways that Maine can consider increasing the resources that are available to the system, both in and out of the courtroom?

Work Group Participants Include:
David Warren, Chair; Victoria Powers; Vice Chair; Sara Meerse, Staff

Members – Lauren Dietlin, Janet Henry, Jennifer Lechner, Jaye Martin, Peter Michaud, Hon. James Mitchell, Margaret Minister O’Keefe, Deborah Shaw, Carol Warren

JAG Statewide Planning for Justice Initiative

Expanding Resources Work Group

Report

April 30, 2007

The Expanding Resources Work Group is pleased to submit this report to the JAG Statewide Planning for Justice Initiative Steering Committee, setting forth the Work Group’s recommendations for strategies to increase financial resources available to support the delivery of civil legal services, including pro bono legal services, in Maine.

Background and Process:

The Expanding Resources Work Group was appointed in 2006 as part of a comprehensive Statewide Planning Initiative established by the Justice Action Group (“JAG”). The goal of the planning process as described in the charter for the Statewide Planning Initiative was “to create and implement a vision of what the civil justice system should look like as it relates to those who need the assistance of a legal professional and are not able to obtain it,” with a “primary focus [on] low-income people and others who experience barriers to access to justice such as language, distance, disability or age.”

The Expanding Resources Work Group is one of six such groups (some of which have divided into sub-groups), each of which has been assigned a particular area of inquiry in pursuit of this goal. Specifically, the Expanding Resources Work Group was charged with considering ways to increase the resources available to support civil pro bono efforts in Maine. In an effort to avoid overlap with areas of inquiry being undertaken by other work groups, the Expanding Resources Work Group did not address issues relating to volunteer resources. Instead, the Group focused exclusively on ways to expand financial resources from a variety of sources, including governmental, professional (bench/bar), business, and private philanthropic organizations.

The membership of the Work Group comprised the following: David E. Warren, Chair; Victoria Powers, Vice Chair; Lauren Dietlin, Janet Henry, Jennifer Lechner, Jaye Martin, Sara Meerse, Peter Michaud, James Mitchell, Margaret O’Keefe, Deborah Shaw, and Carol Warren.[1] Our meetings were joined regularly by Sally Sutton, and frequently by Statewide Planning Initiative Chair Colleen Khoury, both of whom contributed significantly to our discussions.

The Work Group met six times (in June, September, October, November, and December of 2006, and in April of 2007). At its initial meetings, the Group discussed the assigned topic generally and spent time understanding the role of the Work Group in the larger context of the overall JAG Statewide Planning effort. At subsequent meetings, the Group first developed and then discussed a long list of potential strategies to increase financial resources supporting civil pro bono efforts. We then narrowed our list and attempted to identify strategies that we believe hold the greatest promise for generating a meaningful increase in financial resources, and which we would therefore recommend for consideration by the Justice Action Group for implementation. In this regard we note that, although our Work Group’s charge explicitly did not extend to implementation, our discussions necessarily entailed consideration of the extent to which we believe our recommended strategies might in fact be susceptible of implementation by appropriate parties in the future.

We submitted our Interim Report on January 19, 2007, and later modified and resubmitted the report on February 6, 2007. After reviewing our Interim Report and those submitted by the other Work Groups, and after discussions with the JAG Executive Committee, the Steering Committee provided comments on our report and requested that we identify a number of priorities among our recommendations. Our Work Group met in April for that purpose and now submits this final report setting forth our recommendations.

Our report is presented in three parts:

First, we present three general recommendations that we believe should be considered by JAG and by the legal service providers. We believe that these three broad recommendations can facilitate implementation of all of the more specific strategies discussed later in this report. The common thread in these recommendations is that collaboration will deliver the best results.

Second, we present a number of more specific recommendations of strategies that we believe should be undertaken in pursuit of the goal of expanding financial resources. These recommendations fall into the following general categories: (i) political and government support; (ii) general and external development; and (iii) assistance from the bar and bench.

Third, we provide a summary identifying the recommendations that we believe warrant the highest priority in ongoing fund-raising and other development efforts, and to which the most immediate attention should therefore be directed. In prioritizing our recommendations, we have attempted to identify those that will either (i) position the civil legal service providers for the greatest long-term success in developing funding for pro bono and other legal service programs; or (ii) achieve the most immediate returns on the investment of limited time and other available resources. In so doing, we do not minimize the potential value of other recommended strategies, but merely attempt to identify a number of initiatives that we believe should be pursued at the earliest possible time because of their reach and importance or because of the prospect for substantial and early returns in the form of expanded support for the work of the legal service providers.

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Part I: General Recommendations:

Ų Collaboration by Providers: In part as a result of the success of the Campaign for Justice, which has produced significantly greater proceeds for each of the providers than any of their individual fundraising efforts had previously generated, the Work Group concluded that a streamlined, unified approach to fundraising and other development efforts could work well in other contexts. The Work Group believes that the providers of civil pro bono and related civil legal services could achieve enhanced benefits through collaboration or coordination with each other, and possibly with other social service providers, in a number of fundraising and other development activities. Grant research and grant writing are examples of the types of tasks that might benefit from having the shared support of a grant writing specialist, who could assist the providers in identifying available grant opportunities and help efficiently produce high quality and competitive grant proposals. A shared development coordinator could also work with the providers to evaluate fundraising from a more strategic perspective. The activities of a shared staff resource might appropriately be overseen by a committee of providers, which would be in the best position to identify the types of tasks suitable for such joint activities, as well as the qualifications and scope of duties for a shared staff person. We recommend that the providers appoint such a committee to meet to explore this approach.

Ų Efforts to Enhance Awareness among Policy Makers and the Public Regarding Funding Needs for Civil Legal Services: Successfully expanding fundraising and development efforts at the governmental level will require greater support of both policy makers and the public at large. JAG and the Maine Bar Foundation should convene a task force charged with identifying, developing and implementing legislative and administrative proposals to access government funds. A task force with committed membership from the community and the bar would raise the profile of the “access to legal services” issue within the Legislature and with the public. The Work Group envisions that this task force would actively explore potential governmental revenue sources and opportunities on an ongoing basis and might assist the providers in developing or implementing proposals for increased governmental support.

Ų Efforts to Expand Development Efforts within the Business, Professional and General Communities: Many businesses and community leaders already support the cause of access to justice. The Work Group believes, however, that there are existing untapped or undertapped resources, such as the Friends of VLP, that should be enlisted to seek additional contributions from businesses, law firms and lawyers, and possibly from the community at large. A consolidated effort to both expand this group’s membership and its involvement in direct fundraising efforts, including expansion and/or replication of successful group undertakings such as the Coffin Fellow program, could increase the amount of donations and broaden the base of support.

The Work Group suggests that the above recommendations be integrated into all of the specific resource development goals and strategies described below.

Part II: Specific Recommendations:

1. Political and Government Support

Our Work Group believes that maximizing access to various government funding sources presents the greatest opportunity for collaborative and united efforts by the providers and other supporters of civil legal services in Maine. A legislative task force led by JAG, the Maine Bar Foundation and the Executive Directors of the providers, with active participation of other stakeholders (including the Maine State Bar Association, individual attorneys, legislators, and clients of the pro bono providers), could both take the lead in pursuing governmental revenue sources and opportunities and serve as an implementation team for efforts initiated by the Maine Bar Foundation, JAG, or the providers.

The Work Group identified and reviewed various sources of funding that might be available through appropriate legislative or other governmental action, and felt that the following goals and strategies hold the most promise of yielding meaningful returns.

Goal: Increase appropriations at the federal, state, county, and even local levels

Strategies:

Direct appropriations by the State and continued federal funding of programs in Maine through the Legal Services Corporation continue to be of enormous importance to the providers. In addition, there may be resources at the county or even local levels that are not currently being maximized. We believe that the legal service community should (i) expand its lobbying and legislative education efforts, focusing primarily on the Maine Legislature, beginning with an effort to meet periodically with Legislative leadership, and (ii) continue to work with the Maine State Bar Association and other groups to ensure that legal service providers in Maine are receiving the greatest possible amount of Legal Services Corporation funding. To implement these strategies, we recommend that the supporters of expanded funding for legal services:

§ Form a Task Force comprised of representatives of the providers, JAG, the Maine Bar Foundation and the Maine State Bar Association (including volunteer attorney/lobbyists) to identify, develop and coordinate legislative and other governmental initiatives to expand funding sources. This Task Force would review State license and court fees for opportunities to add surcharges to support pro bono legal services and/or to pursue allocations of revenues generated by existing and additional fees, including as appropriate:

o Fees administered by the bench and bar (but requiring legislative action to increase)

o Designations of awards in class action litigation using the doctrine of cy pres

o Surcharges on probate filings

o Designation of a percentage of punitive damage awards

o Bar registration fees/surcharges

o Pro hac vice fees

o Appropriations of abandoned property receipts by the State including IOLTA accounts

Goal: Obtain more federal grants

Strategies:

Increase and focus existing efforts by individual providers

Collaborate and share strategies and potential funding sources

§ A shared grant-writing specialist, perhaps operating under the supervision of the Maine Bar Foundation or Committee of Providers, could both streamline the grant application process and perhaps help expand the pool of grant sources that could be pursued by individual providers.

2. General and External Development Efforts

This category covers a variety of development efforts targeted at private funding sources, and might include philanthropic grants, efforts to increase business support, planned giving and/or endowment campaigns, efforts to increase United Way and Maine Share support for providers that are member agencies, special events, and other pursuits. The success of the Campaign for Justice provides a good model for a coordinated approach in this area, and the Work Group considered the possibility that a shared development department, perhaps under the supervision of the Maine Bar Foundation, might be established and charged with pursuing these types of strategies.

Building on this model, the Work Group proposes that the providers engage in collaborative development efforts to pursue a greater range of resources over the long term, and consider the following:

Goal: Raise the profile of the “access to justice” cause outside Cumberland County

Strategies:

Consider one or more special events, perhaps less labor-intensive than the Muskie Dinner, to enlist business support in communities such as Lewiston-Auburn and Bangor.

o The annual Muskie Dinner was cited as a signature event that draws the attention of the business community to the cause of access to justice, and generates significant business contributions in support of the providers. The Muskie Dinner is now firmly established and is able to rely on perennial support from a consistent group of businesses and law firms. In addition to financial resources, the Dinner raises public (and in particular business and professional) awareness in Southern Maine of the need for funding legal service providers. Variations on the Muskie Dinner theme might include luncheons or other more modest events as a starting point outside the Greater Portland area.

Expand the Coffin Fellows program to include additional firms from both Greater Portland, but more importantly firms from other areas of the State.

o The Coffin Fellows program has been a highly successful undertaking among the largest law firms in Portland. The participating Portland firms have been steadfast in their support of the Coffin program and have voluntarily increased their contribution levels in response to provider need. This model can and should be extended to other areas of the State.

Goal: As a long-term objective, stimulate major gifts through outreach to qualified individual supporters, special promotions, or campaigns

Strategies:

Identify and solicit individuals outside the legal profession who have the financial ability to provide meaningful support for legal services;

Develop and promote a planned giving program; and

Consider a capital (endowment) campaign for specific purposes, including loan forgiveness programs for lawyers employed by the pro bono provider organizations.

o In all of these cases, collaborative effort among the providers will be critical to the successful implementation of these strategies.

Goal: Increase contributions from existing charitable foundations or organizations

Strategies:

Develop an educational forum for private funding sources such as the United Way, and charitable foundations within and outside Maine.

o Educational outreach should include the Maine Community Foundation, which administers a large number of donor advised funds, some of which may have granting purposes that would be consistent with the mission of the provider organizations.

Although the Work Group was not optimistic that significant resources might be available from this source, providers should also investigate potential sources of funding from religious institutions that share a common commitment to social justice.

3. Bar and Bench Initiatives

The Work Group discussed two efforts currently being undertaken by the Maine Bar Foundation:

· A review of IOLTA funding, including efforts to raise the interest rates paid by participating financial institutions, or to impose mandatory (“comprehensive”) participation in the IOLTA program.

o In addition to exploring efforts to increase rates, the Work Group also discussed the possibility of entering into arrangements with one or more banks that might be interested in supporting the pro bono providers in ways that extend beyond merely increasing interest rates paid on IOLTA accounts. One bank, in particular, has discussed the possibility of providing direct grants to providers in conjunction with an increase in its utilization as a depository for IOLTA accounts.

· Consideration of increasing pro hac vice fees and the dedication of such fees to providers of pro bono legal services.

Our Work Group recommends continued support of these efforts. In addition, the Work Group identified several other initiatives that depend upon increased support from the bench and the bar, including the following:

Goal: Increase bar support

Strategies:

Maintain momentum of the Campaign for Justice

o The Campaign for Justice has grown impressively in its first three years. Increased efforts should focus on extending the Campaign into more sectors of the bar and on expanding support throughout the State.

Enlist support from county bar associations, perhaps through establishment of grants or other programs.

Goal: Continue to support and expand the range of individual provider efforts to obtain funding

Strategies:

Explore opportunities for provider fee-for-service contracts with governmental entities.

Through streamlining of the application process, increase the number of grant applications submitted by the provider organizations.

Part III: Priority Recommendations:

Our recommendations presented above have fallen into two general categories. One group includes recommendations that are general in nature, directed toward the process and approach to resource development. The other recommendations have been more specific, focusing on discrete activities, fees, or funding initiatives that we believe should be considered.

In attempting to prioritize our recommendations, we would like to continue to address these categories separately, and therefore present two sets of priorities (general and specific), as follows. In the category of “general” priorities, we have identified two recommendations, each of similar weight and importance:

General Priority 1-A. Governmental Funding Committee

Establish a joint committee, comprising representatives of the providers, JAG, the Maine Bar Foundation, and the Maine State Bar Association along with others as determined from time to time, to undertake and oversee efforts to expand governmental funding for civil legal service programs. This committee would be charged with overseeing efforts to preserve and expand direct appropriations for civil legal services in each session of the Maine Legislature, and with convening specific legislative task forces as appropriate to support specific initiatives in the Legislature. It would also be responsible for developing plans to educate and inform members of the Legislature and other governmental decision-makers regarding the need for increased support for civil legal services. The committee would also participate with the MSBA and others to monitor Legal Services Corporation funding levels, and take appropriate action to support renewed or expanded LSC funding for providers in Maine. The measure of success of this committee’s efforts would be new and expanded governmental support, especially Legislative appropriations.

General Priority 1-B. Development Committee

In the category of “specific” priorities, we have identified five priorities:

Specific Priority 1. Maximize support from the State’s IOLTA program.

We believe that the potential for expanded funding through the IOLTA program is substantial and warrants continued focus by the legal services community and its supporters. The Maine Bar Foundation, in particular, has been studying Maine’s IOLTA program and has recommended a number of changes. Our group supports the work of the Maine Bar Foundation and would support any legislation or rulemaking that might be necessary (i) to make Maine’s IOLTA program mandatory (“comprehensive”) and (ii) to ensure that deposits in IOLTA accounts earn a competitive (“comparable”) rate of return within any single institution. As noted above, our group discussed but did not agree on a recommendation to establish one or more banking institutions as preferred providers of IOLTA deposit services. Implementation of this recommendation would be the responsibility of the Development Committee, which we hope would work closely with the Maine Bar Foundation in pursuing this objective.

Specific Priority 2. Consider surcharges on probate filing fees.

We include among our priority recommendations consideration of increases of probate filing fees, with dedication of the increased fee revenue to support of civil legal service programs. We noted that a large percentage of requests for pro bono legal services relate to domestic relations matters, including protection from abuse, child custody, and family matters. Since expanding fees would require legislation, implementation of this recommendation would be the responsibility of the Governmental Funding Committee.

Specific Priority 3. Consider new or expanded pro hac vice fees.

Because the overall efficiency of the State’s court system will be enhanced through the provision of greater resources to those in need of pro bono or similar legal services, we believe that counsel seeking the privilege of appearing in Maine courts should contribute appropriately to meeting the need for civil legal services in Maine. Any action in this regard will require legislation and/or rulemaking to designate the new funding to the benefit of Maine’s legal service providers, and implementation of this recommendation would therefore be the responsibility of the Governmental Funding Committee.

Specific Priority 4. Consider efforts to educate the bench regarding designations of awards in class action matters (“cy pres”).

While there have been relatively few large class action cases in Maine, these types of cases often lead to substantial settlement arrangements and sometimes require creative ways of structuring the payments and identifying direct beneficiaries of settlement proceeds. We believe that, when such cases occur in Maine, they may afford opportunities to structure settlement payments (through a process akin to traditional “cy pres” proceedings in the trust and probate areas) in a way that could provide substantial funding for Maine’s legal service providers. We recommend that the supporters of civil legal services in Maine undertake to educate the bench with regard to the benefits of designating portions of class action awards for the support of legal services, including the use of this approach in other jurisdictions, thereby raising awareness of the opportunity to provide similar support in Maine. Although it does not fall as neatly into either the governmental or private development area, implementation of this recommendation might most appropriately be the responsibility of the Governmental Funding Committee.

Specific Priority 5. Expand to other areas of the State two specific private fund-raising efforts that have proven to be successful in the Greater Portland area.

Two fund-raising programs undertaken largely in the Greater Portland area have proven to be highly successful in generating meaningful funding for civil legal services. The Coffin Fellows Program, named in honor of Senior U.S. Court of Appeals Judge Frank M. Coffin, has united a number of Portland’s largest law firms (originally twelve, but now including a few additional firms) who pay the entire cost of hiring lawyers to provide pro bono family law services on a full-time basis during the term of their fellowship. The annual Muskie Fund for Legal Services dinner has drawn on both the business and professional communities to support the legal service providers through the proceeds of a dinner at which the Muskie Access to Justice Award is presented to a deserving recipient chosen from either the legal or business community. While not limited to the Portland area, the Muskie Fund event is most widely attended by lawyers and representatives of business organizations from Southern Maine. We felt that, in each case, the success of these efforts could be replicated in other areas of the State, beginning at least initially with Bangor and/or Lewiston-Auburn. Implementation of this recommendation would be the responsibility of the Development Committee.

The members of the Expanding Resources Work Group would like to emphasize again that we feel that many of our other recommendations have merit, and the identification of priorities among our recommendations should not be viewed as limiting efforts to explore additional funding sources. For example, the concept of a planned giving program, the consideration of a capital or endowment campaign, and efforts to identify and solicit private individuals with the ability to support legal services should be viewed as important future opportunities to be pursued at an appropriate time. We are hopeful, in fact, that our “general” recommendations will help establish an infrastructure of volunteer and staff resources that can be directed to these and other opportunities in the future.

[1] One other member was initially appointed but did not participate in any of the Group’s meetings or other discussions.