Fla. Supreme Court Considers Rule Placing New Restrictions On Legal Aid Funding

May 6, 2021

If you are accused of a crime, you are entitled to a lawyer, even if you can’t afford one. But in civil cases, — things like evictions, foreclosures, or wrongful denial of government assistance — there is no guarantee of an attorney. 

These cases can be nearly impossible to navigate without representation, leaving many low-income people at a disadvantage.

So in many places, legal aid organizations provide free legal representation to low-income people in civil cases.

  

A new rule under consideration by the Florida Supreme Court would limit the way that legal aid groups can use certain funding, effectively curtailing the ability of legal aid firms to innovate and prepare for the future, according to opponents of the proposal. 

“We expect the initial, just the initial hit right off the bat, to be more than $100,000,” said Jim Kowalski, the CEO of Jacksonville Area Legal Aid, which serves 17 counties in northern Florida. “We then have to figure out what services we’re going to close or stop to make up for that shortfall.”

Florida and Idaho are the only states that don’t fund civil legal aid for the poor through the state budget. Instead, Florida legal aids rely on something called Interest on Trust Accounts, or IOTA, administered by the Florida Bar Foundation. 

“Lawyers have a trust account, that’s client money, and it only stays in the trust account for a few days sometimes a few months, never long term. But while it’s there, it’s throwing off a little piece of interest,” Kowalski explained. “All across the state, those little pieces of money go to the Florida Bar Foundation, and historically, the Florida Bar Foundation has then distributed it to legal aid organizations across the state.” 

In 2019, the Supreme Court, which has the authority to make rules that impact the Florida Bar Foundation, authorized a task force to look into whether any changes ought to be made to the way the IOTA money is handled. 

That report is in, and the Supreme Court heard arguments on whether it ought to be implemented this week. 

The report had two main recommendations: One, that the Florida Bar Foundation restrict the amount of IOTA money that legal aids can spend on administrative expenses, everything from subscriptions to online legal research platforms to funding to encourage law school graduates to take lower-paying jobs doing public-interest work; and two, that money couldn’t be saved for future market downturns or other rainy-day situations. 

“Given the level of unmet legal need, use of IOTA funds should be restricted and limited to providing direct legal services to low income litigants,” the report reads. 

“The proposed changes will promote instability, as they will hamper the programs ability to engage in meaningful budgeting and planning,” wrote Jacksonville attorney Bryan Gowdy, who is representing 26 past presidents of the Florida Bar Foundation in the Supreme Court in this case. 

No other state currently restricts funding this way, he said. 

“The proposed changes will promote instability, as they will hamper the programs ability to engage in meaningful budgeting and planning,” Gowdy wrote.

A representatives for the Supreme Court’s task force, which wrote the report, declined to comment for this story. 

The task force also recommended that all IOTA money would have to be spent within six months. 

“An IOTA Funds Administrator should be able to efficiently fulfill its responsibilities with no significant costs,” the task force’s report reads. “Accordingly, an IOTA Funds Administrator must distribute to Qualified Grantee Organizations at least 95% of the IOTA funds received within six months of receipt."

Gowdy said that would hamper the foundation’s ability to plan for the future or save up money when the economy is strong to help low-income Floridians when the economy is weaker. 

“They’re saying that 90% of the funds have to be spent on the facilitation of direct legal services. And your initial reaction would be, what’s wrong with that?” said Gowdy in an interview with WJCT News. “But the reality is that a legal aid is like a business or any other organization, and you have to have in place an infrastructure for that legal aid to operate.”

JALA’s Kowalski pointed to a service that his legal aid organization set up during the coronavirus pandemic as a way the new rule would harm legal aids. 

There are resourcess to help landlords evict tenants, but its harder to find resources to help tenants avoid eviction, Kowalski said. So his team created FloridaEvictionHelp.org

“We built this tool to allow people to build their eviction answer or build their motion to determine rent, and we stood it up for the entire state of Florida,” Kowalski said. “We did all this work in-house, and were able to reach thousands of people across the state in ways that no other service can reach. And you’re trying to say we can’t use IOTA revenue to build these tools, which are really the future of civil legal aid?” 

Kowalski said JALA had found ways to be sustainable without relying too heavily on IOTA funds. But other Florida legal aid groups, specifically those representing immigrants and children, would be more severely impacted by the ruling, he said.

The Supreme Court is expected to issue its new rule within the next few months. 

Correction: A previous version of this story incorrectly stated that IOTA funds are distributed by the Florida Bar Association. They are distributed by the Florida Bar Foundation, a separate entity. The story has been updated to reflect this. 

Contact Sydney Boles at sboles@wjct.org, or on Twitter at @sydneyboles.