Dues 'check-off' for legal aid defeated

Excerpted from Virginia Lawyer’s Weekly Article October 27, 2003

By Dawn Chase

WINTERGREEN - The Virginia State Bar Council has approved the transfer of $500,000 to the Clients' Protection Fund and a contribution of $100,000 to Lawyers Helping Lawyers, as a mechanism for reducing its large reserve.

The council also declined to act on a request by the Legal Services Corporation of Virginia (LSCV) for a voluntary contribution line on the annual dues statement. Instead, the council sent the request back to the VSB's Special Committee on Access to Legal Services, to see if other ways could be found to help Virginia's legal aid system out of its financial difficulties.

The actions were taken during the VSB Executive Committee and Council's fall meeting Oct. 16 and 17 at the Wintergreen Resort in Nelson County.

Dues check-off?

The lawyer dues "check-off" issue, however, generated a lot of discussion, generally from people who said they believe the VSB should support legal services, but question whether the agency should open its mandatory dues statement as a mechanism for fundraising.

Some VSB officers clearly disapproved of the idea as they questioned LSCV Executive Director Mark D. Braley and Robert J. Stoney of Fairfax, chair of the Access to Legal Services Committee, during the executive committee meeting. A month before the meeting, Edmonds had sent council members a memo that included a lengthy list of objections to the check-off. (See "Check-Off For Legal Aid Proposed For VSB Invoices" in the Oct. 6 edition of Virginia Lawyers Weekly.)

Stoney himself told the executive committee and council that, while he generally supports the check-off proposal - under which a blank line would be added to the dues statement, with a notation suggesting a minimum contribution of $50 - but he was concerned by some bar leaders' suggestions that the General Assembly might look askance at this method of fundraising by a state agency.

"Legal Aid is in desperate financial straits right now. … This idea is born of desperation," Stoney told the executive committee.

"Providing access to legal services is one of the core missions" of the VSB, he said. LSCV by statute is the bar's mechanism by statute for collecting money and distributing it to all but one of the state's legal aid programs.

VSB President Jeannie P. Dahnk said she had heard from both supporters and detractors of the idea. As Edmonds had in the memo, she drew a similarity between the proposed voluntary dues check-off and the decision by council nearly 10 years ago to make Interest on Lawyer Trust Accounts (IOLTA) participation mandatory.

The IOLTA decision sparked the ire of VSB members, who complained to the legislature, which launched an investigation of the bar that resulted in reforms - including a reduction in bar dues and a lower reserve. The bar returned IOLTA to its current voluntary status.

Dahnk said opponents of the check-off old her "the bar … that they must pay dues to should not be in the position of raising money for legal aid. And that's what this is - fund raising."

While the access committee believes that they can reach a wide audience through the dues statement, Dahnk argued that, "Most lawyers don't see their dues statements. Most lawyers … don't know what their dues are. They look at it and see its their dues statement and hand it to a secretary."

President-elect David P. Bobzien said he had another concern: That the VSB, by opening its dues statement to one fund-raiser, would create a public forum, and other nonprofits could demand a listing on the statement as well.

A similar argument had been made by Edmonds in his memo.

Executive committee member Alda L. White of Stafford, who spoke at both the executive committee meeting and before council, said she is torn over the issue as a former legal aid lawyer who now works as a county attorney.

She compared the idea to United Way fund-raisers, when employers force workers to donate. "It's something that really raises the hackles of a lot of people," she said. However, "I think there's some obligation on the part of the bar to try to address the lack of funding."

Stoney reminded the executive committee that lawyers are set an aspirational goal to contribute to legal services to the poor, through pro bono work or monetary contributions.

"These legal aid lawyers are the people that are in the trenches. They are us. They are members of the State Bar. They're accepting 20 cents on the dollar to fulfill our obligation, and we're perfectly willing to let them do that," he said. "It's really the poor helping the poor," he later told the council.

Braley added that last year the 12 legal aid programs under LSCV's umbrella turned away almost 25,000 applicants. "We are chronically underfunded. We meet such a small part of the need."

LSCV holds a unique position that sets it apart from other nonprofit groups that provide legal representation, Braley said. "LSCV is the only system created by the State Bar. It is the only system overseen by the State Bar. It is the only system that the State Bar has accountability for to the General Assembly."

The executive committee declined to vote on the issue. The next day, the council took up the debate.

Fairfax lawyer Glenn C. Lewis ridiculed the suggestion that lawyers would feel strong-armed by the bar to contribute. "That's absolutely ridiculous," he said. "If there's a lawyer who would feel pressured by this, I haven't met that lawyer. … People need to be a little more high-minded, or a little more courageous."

Martinsville general practitioner Benjamin R. Gardner described the situation in Henry County, which has a 17 percent unemployment rate, "and it's going to get worse." There is no legal aid program there. About half the people who seek Gardner's help have no ability to pay him. "It would sure help me if we had legal aid," he said.

However, he said he does not believe the dues check-off is the right means for solving the funding problem. "If you don't think voluntary becomes mandatory, you haven't been around long," he said. "Don't ever underestimate what the legislature might do with us or about us."

The solution is for "the geezer lawyers like me and the young lawyers and the local bar associations to get together and do … aggressive fundraising," Gardner said.

Arlington lawyer Raymond B. Benzinger suggested that the council was being asked to make the decision too quickly, without enough information. "It's a lot like making love: one must hasten slowly," he said. The General Assembly should be asked first to make up the gap. If lawyers step in, "the legislature is less likely to see this need as their responsibility," he said.

Former VSB President Joseph A. Condo suggested that a more desirable alternative would be for Dahnk to send a fundraising letter to the lawyers, and it might produce contributions faster than the dues check-off would.

On the motion of John Kenneth Zwerling of Alexandria, the council voted 37-26 to send the proposal back to the access committee to explore other options.

Afterwards, Stoney said, "I'm actually optimistic from what I heard at council, because it was a pretty unanimous endorsement of support for legal services." He added that he believes the committee can find an alternative that council members would be comfortable with. "I think we've raised some consciousness."

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