What’s Next: Access to Justice in NH in 2021 and beyond

The civil legal aid landscape in New Hampshire has just undergone its most radical transformation in 25 years. The merger of two long-standing programs, the Legal Advice and Referral Center and the Pro Bono Referral System of the NH Bar Association, into 603 Legal Aid was the product of nearly three years of intensive planning, with a single-minded goal: make it easier for more people to access civil legal aid in New Hampshire.

So, what’s next? NH Legal Assistance and 603 Legal Aid will continue to help thousands of families facing life-changing problems that can only be resolved in the civil legal system – a divorce or child custody dispute; wrongful treatment by a landlord, employer or debt collector; or a denial of benefits like disability payments, unemployment insurance or health care coverage.

And they could do so much more, with investment from philanthropists seeking to promote justice, well-being and equity. Civil legal aid can be one of the most effective partners in the pursuit of justice and the support of basic human needs, human rights and human dignity.

In 2020, civil justice-focused community leaders invested in an updated assessment of the civil legal needs of the community, including a statewide telephone survey. Published in January 2021, the assessment reported that both clients and other community agencies view legal aid as effective and important.

It also highlighted areas of significant unmet need, especially debt collection, the single most frequently reported civil legal problem in the survey. In the typical debt claim, a business — often a massive company that purchases delinquent debts in bulk from the original creditor, such as a local hospital — sues an individual to collect the debt, frequently for amounts under $5,000.

Even before the pandemic, debt collection suits made up about 25% of all civil lawsuits filed nationwide. The debts are typically related to unpaid medical bills, credit card balances, auto loans, student debt, and other types of consumer credit.  In 2019, approximately 9,983 consumer credit collection cases were filed in the New Hampshire Circuit Court District Division’s small claims docket, in addition to several hundred consumer credit collection cases filed in the New Hampshire Superior Court.

Debt collection disproportionately impacts people with disabilities: 20 percent of telephone survey respondents who had a household member with a disability had experienced problems with debt collection, compared to 9 percent of respondents who did not have a household member with a disability.

The relationship between debt, poverty and injustice is one that legal aid is uniquely well-suited to address. Multiple studies have found that consumers who have attorneys to represent or even advise them in a debt claim were more likely to win their cases or at least reach a mutually agreeable settlement with the plaintiff.

A Pew Charitable Trust analysis found that fewer than 10 percent of defendants in debt collection cases have a lawyer – compared with nearly all plaintiffs.

Nobody would have surgery without a doctor, but it’s accepted that most people will go to court without a lawyer. Millions of people every year lose their cases, not because they’re in the wrong, but because they can’t afford the legal help they need.

A collaborative consumer debt project, including recruiting, training and supporting volunteer attorneys for courthouse-based debt collection “clinics” via 603 Legal Aid and expanding staff at NHLA capacity for longer-term individual representation, would cost about $500,000 per year.

Increased legal services for people struggling with consumer debt are desperately needed, but a hallmark of legal aid is looking for the source of a problem: improving systems to improve lives.

Of the people who reported experiencing problems with debt collection in the New Hampshire survey, nearly 20 percent had also been denied Medicaid or Medicare health coverage benefits.

Two-thirds of all personal bankruptcies in America are due to medical bills. During the height of the pandemic, nearly 4 in 10 Americans said they were more worried about medical bills than about Covid-19.

What if we can prevent people from losing their medical coverage, or help them access income support programs and keep them from falling into debt in the first place?

NHLA has a long, successful history of protecting people’s access to benefit programs, including recently defending Affordable Care Act expanded Medicaid coverage for an estimated 50,000 people with low income. In the past, the organization protected state cash benefits for the parents of children with severe disabilities, and fought to make sure that children with Medicaid dental coverage could actually get in to see dentists.

However, ensuring that a program exists is not the end of the fight.

People struggling with illness or economic insecurity – or in many cases, both – must navigate a complex patchwork of federal, state and municipal assistance programs, each with its own complicated and lengthy application and review process. Applicants for some assistance programs can wait years for a determination of eligibility.

Legal aid attorneys and paralegals work behind the scenes to make benefits programs more accessible, to make application processes fair and more equitable, and to hold officials accountable when the rules are broken and people are wrongly denied benefits they deserve.

Throughout the pandemic and economic shutdowns of 2020 and 2021, tens of thousands of New Hampshire residents applied for unemployment assistance, navigating the complex system of new federal benefits and existing state benefits. Thousands of them later received notices that they had been overpaid and needed to reimburse the state for thousands of dollars – plus interest.

Legal aid stepped in and helped hundreds of the most desperate people appeal these rulings, and found that many were due to paperwork errors. In many cases, people owed nothing – and were eligible for more than they had received. These clients were able to preserve their housing, avoid bankruptcy, and end a nightmare of debt-induced stress, thanks to legal aid.

Poverty itself leads to many civil legal problems, and people with low income, older adults and people with disabilities frequently experience multiple civil legal problems at once. A wrongful termination of Food Stamps leads to an impossible choice between buying food and paying rent; unpaid rent leads to eviction; eviction leads to loss of Medicaid because renewal notices went to the wrong address; loss of Medicaid leads to medical debt; medical debt leads to bankruptcy. Along the way, families are repeatedly destabilized – a pattern that has profound consequences for children and contributes mightily to generational poverty.

Legal aid attorneys and paralegals could intervene at every step of that tragic path. And, they often work miracles when they do. Such was the case for stay-at-home mom Gina:

As the COVID—19 lockdown started, Gina knew she and her 8-year-old son had to escape her husband’s escalating physical and mental abuse. But she didn’t have a means of supporting them on her own and the pandemic made her terrified to go to a homeless shelter.

With help from legal aid, Gina obtained a protective order that mandated her ex provide monthly child support so she and her son could move into a safe apartment. When she first fled, Gina relied on financial assistance from the state to make rent. But when the public funds stopped inexplicably, and the child support payments never came, Gina called legal aid again.

Her attorney, Stephanie Bray, called the same state agencies Gina had been trying desperately to reach. Stephanie, who has been practicing at NH Legal Assistance (NHLA) for almost 15 years, was able to quickly reach supervisors within the state system, restart the assistance payments immediately, and coordinate a proper transition for Gina away from state family assistance and into state distribution of child support.

“Being in a personal crisis, and the public health crisis, has made all of this so much harder. It was a relief that there was someone there to help me and guide me through the process. Stephanie uplifted me the entire time. Without legal aid, I don’t know what I would have done.”

Insufficient funding means legal aid agencies across the country are staffed with less than one attorney for every 10,000 low-income Americans.

Stephanie may be able to work miracles, but not 10,000 or more a year.

There are solutions to fix our civil legal system and make it work for all Americans — from innovative uses of technology, to leveraging the power of volunteer attorneys, to designing court processes that you don’t need a law degree to understand. But there is one simple truth: we need more lawyers and paralegals for people who can’t afford to pay for them.

The time for substantial private philanthropic investment in legal aid is now.

A key private source of funding for legal aid is the Interest on Lawyers Trust Accounts, or “IOLTA” program. Short term deposits associated with transactions like real estate purchases are pooled in a law firm’s client trust account; the interest earned by client trust accounts helps fund legal aid in all fifty states.

However, because of the economic crisis and historic low interest rates, this funding has plummeted in recent years. Here in New Hampshire, IOLTA crashed after the recession and had not yet recovered before the pandemic.

Public funding has, at best, not kept pace with increasing costs and the increasing number of people in need of civil legal aid. In some states, including New Hampshire, public funding has never recovered from cuts during the Great Recession.

Philanthropists interested in promoting well-being and equity should get to know civil legal aid, which can be one of their most effective partners in the pursuit of justice and the support of basic human needs, human rights and human dignity.

Legal aid lawyers and paralegals are experts on the needs and potential solutions within their communities and are well-positioned to deploy a significant influx of resources.

They see first-hand the problems low-income communities face every day. Encountering an injustice while helping one client, many legal aid organizations turn their attention to the source of the problem, and have been behind major reforms and expansions for beneficial public programs such as Food Stamps and Medicaid.

At its best, legal aid can be a lifeline to someone at sea, at risk of drowning.

Linda and her three children were displaced by a house fire and had to move an hour away to live with family. During this period of trouble, Linda lost her Medicaid coverage because she missed a paperwork deadline. And, the state lowered her monthly Food Stamp benefits, because she didn’t submit a copy of her youngest child’s Social Security card – which the Social Security Administration hadn’t sent her.

With legal aid assistance, Linda resolved all the issues and submitted an emergency room bill of approximately $6,000 to Medicaid, rather than going into debt that could have crushed her when she was already struggling to get back on her feet.

“All our documentation was lost in the house fire and I had no money for new copies,” Linda said. “At the same time, I got many different notices, with impossible and confusing deadlines. This kept happening, until finally I had enough. I knew that I had rights, I just wasn’t sure what they were. That is when I decided to find help. Without NHLA, I don’t know where I would be.”

Fully staffing a public benefits project at NHLA – including five full-time staff attorneys and paralegals to help people access the benefits they need and to which they are entitled, especially Medicare and Medicaid, which will prevent consumer medical debt from ruining so many lives – would cost about $600,000 per year.

More families like Linda’s could have access to an attorney when they need one most.

As Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy, has written:

“The opposite of poverty is not wealth. The opposite of poverty is justice.”