Massachusetts State House.
Policy Library

How We Got Here

October 23, 2014

The BBA’s recent report on civil legal aid in the Commonwealth , “Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts,” paints a dire picture.  In spite of generous monetary support from the private bar and Legislature alike, nearly two-thirds of those who qualify for legal aid are turned away due to a lack of resources.  It is a sad and frustrating state of affairs when some 54,000 qualifying individuals cannot obtain the legal help they need to secure necessities such as shelter or protection from a batterer. This predicament didn’t manifest overnight.  This is how we got here…

The Massachusetts Legal Assistance Corporation (MLAC) was established by the Legislature in 1983 to provide financial support for legal assistance programs in Massachusetts.  Shortly thereafter, in 1985, the Interest on Lawyers Trust Account (IOLTA) program was created by the Supreme Judicial Court.  The IOLTA program collects interest on funds held in trust by attorneys and uses them to help fund legal aid.  By 1990, MLAC’s total funding was just under $8.4 million.  This included nearly $3 million from IOLTA, $2.8 million from a surcharge on civil case filing fees, and almost $2 million from a legislative appropriation.

In 1994, the Legislature changed the law, moving the funds from the surcharge on civil filing fees from MLAC to the General Fund.  While the Legislature has since greatly increased its yearly appropriation to MLAC, up to $15 million in Fiscal Year (FY) 2015, it has never again given MLAC a direct source of revenue as it had from the filing surcharge through 1994.  This item has produced around $4 million of income for the General Fund in the last few years.

At the same time, IOLTA revenue was generally increasing, until it reached tens of millions of dollars annually in the early 2000s, including more than $16 million in FY 2007 and $17 million in FY 2008.  MLAC total funding in each of those years was over $25 million.  When the recession hit in 2008, IOLTA plummeted and the legislative appropriation dropped.  MLAC’s total funding decreased over ten million dollars in a single year.  Each year since then, IOLTA funding has continued to drop, and although the Legislature has continued to gradually increase funding for legal aid, and individuals — mostly lawyers — have continued to contribute tens of millions of dollars’ worth of pro bono services and monetary donations, legal aid funding lags behind the growing need.

One figure in particular helps highlight this gap: Turn-away rates, which were about 50% in the mid-2000s, have reached an estimated 64%, as calculated by the BBA’s Statewide Task Force to Expand Civil Legal Aid.  The funding decreases forced legal aid agencies to lay off experienced attorneys and implement hiring freezes.  Compounding the problem, the state experienced a nearly 25% increase in the number of individuals qualifying for legal aid in recent years, to almost 1 million people today.

Now that we know how we got here, we are excited to see where we can go.  “Investing in Justice” demonstrates, through the work of three independent economic analysts, that the state stands to save a significant amount of money by investing in civil legal aid.  The report recommends a $30 million annual increase in legal aid funding over the course of the next three years.  We know that amount is not even close to enough to solve all our problems, but it is a sound start.  We hope the Legislature will heed the advice of SJC Chief Justice Ralph Gants from his State of the Judiciary Address, asking them to carefully consider our findings and recommendations.  The money the state invests in legal aid will pay dividends, and not just for the state’s bottom line. The investments improve the administration of justice in the courts and, most importantly, they improve the lives of individuals in Massachusetts, allowing them to secure basic needs such as shelter, safety, and human dignity.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association