Counting the Number of Lawyers for the Poor
For the Attorney Access Index, the Justice Index relies on a single indicator, the “civil legal aid attorney ratio,” for producing the Index score. To calculate this ratio, we divide the number of full-time-equivalent (“FTE”) civil legal aid attorneys employed in the state by the number of people in the state with incomes at or below 200% of the federal poverty level.
Researchers investigated and determined the following figures to calculate the civil legal aid attorney ratio and other findings presented in the Attorney Access Index:
- the number of civil legal aid attorneys in each state, relying on the criteria and method described below, available here;
- the number of people in each state living at or below 200% of the federal poverty level based on 2014 census data, available here. (Note: users will need to follow the website’s instructions for setting filters to see the relevant state-level data);
- the number of attorneys in each state in 2015, using data from the ABA, available here; and
- the number of people in each state based on census data, relying on 2014 American Community Survey 1-Year Estimates, available here.
The decision to focus on the number of civil legal aid attorneys in each jurisdiction was prompted by consideration of the following sources that describe the role of civil legal aid attorneys in assuring access to justice:
- ABA, Basic Principles of a Right to Counsel in Civil Legal Proceedings (2010)
- Legal Services Corporation, Documenting the Justice Gap in America (2009)
- ABA, Principles of a State System for the Delivery of Civil Legal Aid (2006)
- ABA, Resolution 112A (2006)
Criteria for Counting Civil Legal Aid
To calculate the civil legal aid attorney ratio, NCAJ had to first identify the “Qualifying Organizations,” which we defined as legal aid organizations that employ FTE attorneys and provide direct legal services to clients with incomes at or below 200% of the federal poverty level. NCAJ chose a 200% cutoff level because most Interest on Lawyer Trust Account (known as “IOLTA” or “IOLA”) funding entities use the 200% figure when determining whether to fund civil legal aid programs.
For Justice Index 2016, NCAJ counted a total of 370 Qualifying Organizations. The Legal Services Corporation (“LSC”) provides funding to 134 of these organizations and provided us with the number of FTE attorneys employed at each organization. By law, LSC-funded organizations serve constituents who live in households with annual incomes at or below 125% of the federal poverty guidelines. (See www.lsc.gov for more information). After outreach by the pro bono attorneys and NCAJ staff, 236 legal aid organizations not funded by LSC provided us with their number of FTE attorneys who provide direct legal services to clients with incomes at or below 200% of the federal poverty level.
Method of Identifying and Contacting Civil Legal Aid Programs
As noted above, LSC provided NCAJ with the results of its annual tracking of the number of FTE lawyers at LSC-funded organizations. That data is included as one part of the Justice Index’s civil legal aid attorney count.
For the other part, NCAJ researchers identified non-LSC-funded Qualifying Organizations (“QOs”) through the following steps: (i) reviewing the 2014 Justice Index list of programs; (ii) contacting the IOLTA/IOLA organizations in the state both to determine the funding criteria used and to obtain a list of organizations receiving IOLTA/IOLA-based funding; (iii) contacting each organization identified in steps i and ii to verify that the organization meets the requirements of a QO; and/or (iv) asking each organization to identify additional organizations that might also be QOs. In addition to the foregoing, as data was collated, NCAJ did further outreach to programs across the country to identify additional QOs.
NCAJ followed a protocol for contacting potential QOs. After an initial email, researchers called each organization and made at least two follow-up emails and calls seeking to make contact. NCAJ staff estimate that approximately 10% of the organizations identified by researchers did not respond to these repeated inquiries. Thus, the data presented in the Justice Index does not account for the presence of attorneys working in the non-responding organizations.
The Justice Index presents a ratio reflecting the number of full-time-equivalent civil legal aid attorneys in each state per 10,000 people in each state with incomes equal to or below 200% of the federal poverty level. The Justice Index includes the actual count of civil legal aid lawyers in each state, available as a downloadable document in the Attorney Access section and on the Findings landing page. The Justice Index also presents a listing of the names of the specific civil legal aid qualifying organizations included in the count.
To calculate an Attorney Access score for each state, NCAJ began by treating each state’s civil legal aid ratio as the state’s raw score.
The raw score was then converted to a 100-point scale suitable for inclusion in the Composite Index, by comparing it to a civil legal aid ratio used by NCAJ as a benchmark goal (the “benchmark civil legal aid ratio”). NCAJ set this goal at 10 civil legal aid lawyers per 10,000 people with incomes at or below 200% of the federal poverty level. Thus, a state with a raw score of 10 or higher (matching or exceeding the benchmark goal) would earn the maximum Attorney Access scaled index score (for inclusion in the Composite Index) of 100.
To calculate each state’s actual scaled index score, we divided the state’s raw score by 10 (the benchmark civil legal aid ratio figure), and then multiplied by 100. Thus, the scaled index scores are expressed as a percentage of the benchmark figure.
NCAJ chose the benchmark civil legal aid ratio of 10 because 10 is approximately 25% of 40.31, which is the national average of the number of active attorneys per 10,000 people, as calculated using census data and ABA statistics. (See “Overall Methodology” section above for links to sources).
Several things should be noted about NCAJ’s use of the benchmark of 10 civil legal aid attorneys per 10,000 people with incomes at or below 200% of the federal poverty level. The simplest approach would be to set the benchmark for the number of attorneys dedicated to serving those who cannot afford one as equal to the number of attorneys available to serve an equivalent number of people in the general population. This standard would be based on the notion that access to legal representation should be equally distributed across the population and determined by one’s legal needs, not one’s ability to pay. Some would instead argue that the benchmark ratio should be higher for civil legal aid attorneys than for attorneys generally because those living in poverty often face issues requiring legal assistance that people who are more affluent do not, or face more rarely. Others, however, would argue that the 40-to-10,000 ratio for the general population is an inapt baseline for a civil legal aid benchmark because it includes corporate lawyers, government lawyers, and others who do not serve individual clients.
Our benchmark of 25% of the national average reflects two critical points. First, it is a very conservative figure for estimating the need for civil legal aid lawyers. It is hard to argue credibly that those living at or below 200% of the federal poverty level do not need at least one-quarter of the access to counsel that others have. Second, no state is even close to the reaching the index benchmark of 10 civil legal aid attorneys per 10,000 people in poverty. The index figure is demonstrative of a large unfilled need and, if anything, grossly understates that need.
NCAJ is grateful to the pro bono researchers at all five of the volunteer law firms, all of whom participated in counting the civil legal aid lawyers. NCAJ is also grateful to the Legal Services Corporation for the data it provided that has been included in the count. NCAJ staff attorney Aaron Sussman provided guidance to the firms, and also carried out research to complete the count.