The Best of Both Worlds: A Solution to Indiana’s Appointment of Counsel Funding Problem

by Burnell K. Grimes, Jr.
J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law
B.A., 2013, Indiana University – Bloomington; Bloomington, Indiana
bukgrime@indiana.edu
LinkedIn

Editor’s note: Mr. Grimes’s article was selected as the winner of the Indiana Law Review‘s first writing competition. You can read more about it here.


The Indiana State Legislature has established a statutory rule allowing a court to appoint an attorney to represent an indigent person in civil matters, upon application by the litigant. [1].  In Sholes v. Sholes, the Indiana Supreme Court held that (1) Indiana Code section 34-10-1-2 requires appointment of counsel for civil indigent litigants, and (2) the appointed counsel must be compensated. [2].  However, the Court did not specifically decide who would be responsible for compensating those attorneys who are appointed as counsel to indigent citizens. [3].  While the Court suggests that the county courts use their authority to require payment as part of the functions of the court’s administrative duties, this has placed a significant burden on courts that are already constrained by tight county budgets. [4].

While there are many possible solutions to the funding problem associated with civil legal aid in Indiana, there is a need to establish one funding source responsible for all civil legal aid matters. [5].  This article will discuss one possible solution to the funding problem for civil legal aid in Indiana, with a specific focus on the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission.  These funds may be used to address the funding and participation shortage for both civil indigent litigants and pro bono efforts and legal aid projects in Indiana.

I.     INDIANA CIVIL LEGAL AID FUND

The Division of State Court Administration (“the Division”) dispenses the Indiana Civil Legal Aid Fund, [6] which was established to provide additional revenue for legal service providers. [7]. The primary function and purpose of these organizations is to provide civil legal service without charge to indigents. [8].  To be eligible to receive these funds, a legal services provider must meet certain requirements, including: (1) being incorporated before July 2, 1997, or being incorporated and providing civil legal aid to the indigent for three years before submitting an application for funds; and (2) the legal service provider must submit an opt-in form to the executive director of the Division of State Court Administration before May 2 of each year. [9].  Further, the legal aid provider is restricted from using the funds in certain ways. [10].

Twice a year, in July and January, the Division makes distributions totaling $1.5 million to organizations providing civil legal aid services to Indiana’s indigent litigants. [11].  The division receives $1 million of its annual funding through appropriations from the state’s general fund. [12].  There are currently twelve qualified organizations. [13].  However, distributions are based on a four-step process, which includes an analysis of each county’s civil caseload, as it relates to the caseload for the entire state, and the number of organizations serving each county. [14].

II.     INDIANA PRO BONO COMMISSION

In addition to the Indiana Civil Legal Aid Fund, the Indiana Pro Bono Commission (“the Commission”) is a project of the Indiana Bar Foundation, which it operates in close consultation with the Indiana Supreme Court. [15].  The Commission consists of twenty-one members appointed by the Indiana Supreme Court and the Indiana Bar Foundation. [16].  Additionally, the Commission operates in twelve district pro bono committees throughout the state of Indiana. [17]. The purpose of the Commission “is to promote equal access to justice for all Indiana residents, regardless of economic status, by creating and promoting opportunities for attorneys to provide pro bono civil legal services to persons of limited means, as determined by each district pro bono committee.” [18].

The Indiana Bar Foundation (“the Foundation”) has the overall responsibility and authority for managing the Commission, which includes “making funding decisions and disbursing available funds to pro bono organizations/projects upon recommendations by the Commission.” [19].  The Commission has the “responsibility and authority to supervise the district pro bono committees . . . [and] make funding recommendations to the Foundation in response to district committee pro bono plans and funding requests.” [20].  To ensure an active and effective district pro bono program the district committees must submit an annual report and plan that addresses the unmet legal needs in their community. [21].

“The Indiana [Interest on Lawyer Trust Account (“IOLTA”)] program funds the implementation of the district plans and the efforts of the [d]istrict [c]ommittees to improve delivery of civil legal services to the indigent population in their district.” [22].  To avoid fundraising competition with other civil legal aid providers, the Commission is not authorized to raise funds for itself, other than from IOLTA. [23].  However, the Commission may, with the consent of the Foundation, raise money to cover its usual and reasonable start-up expenses. [24].

III.     COMPARING THE INDIANA CIVIL AID FUND AND THE INDIANA PRO BONO COMMISSION

Although the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission are different entities, they both serve a similar purpose:  providing indigent Indiana residents with civil legal aid. [25].  The two primary differences between these two entities are their focus and their funding.  While the Indiana Civil Legal Aid Fund focuses on providing civil legal aid to the state’s indigent, the Commission is focused on encouraging and promoting attorney involvement in different pro bono projects. [26].  Further, as discussed above, both entities have different funding sources. [27].

These entities also have different issues that impact their effectiveness.  The primary issue plaguing the Indiana Civil Legal Aid Fund is its capacity to provide funding for different legal service providers across the state. [28].  This is a particular problem in both large, urban counties, where the indigent population is high and the need overwhelming, and in small, rural counties where there are only a few practicing attorneys available to fill the indigent population’s legal needs. [29].  In contrast, generating attorney involvement in its pro bono projects is the primary issue affecting the Commission. [30].

IV.     POSSIBLE SOLUTION

One possible solution to alleviate these issues is to combine the two entities.  By combining the two, the state can provide more access to funds for legal service providers and create more support and educational services for participating pro bono attorneys. [31].  Moreover, this solution will provide a more comprehensive group solely focused on providing legal services to the state’s indigent population.  Providing legal service providers with more access to funds will increase the productivity of current legal service providers, as well as provide them with resources to address the cost accrued in representing indigent citizens in all legal matters.  Although attorneys are not always interested in participating in pro bono projects, combining these two entities provides more readily available information about the pro bono opportunities within the state for those attorneys committed to pro bono opportunities. [32].

CONCLUSION

With the increase in the number of people and families living in poverty, the pool of indigent people needing pro bono legal services has increased. [33].  Thus, the need for Indiana lawyers to pursue more opportunities to help those in need is greater than ever. [34].  By combining the Indiana Civil Legal Aid Fund and the Indiana Pro Bono Commission, both entities will benefit and ultimately achieve their common purpose of providing civil legal aid to Indiana’s indigent citizens.


[1].  IND. CODE § 34-10-1-2 (2014).

[2].  760 N.E.2d 156, 159-164 (Ind. 2001).

[3]Id.

[4]Id.; see also STACI A. TERRY, The Indigent Person’s Rights to Appointed Counsel in Indiana, 45 RES GESTAE 12, 18 (July/August 2001).

[5]Id. at 18-19.

[6].  IND. CODE § 33-24-12-5 (2014).

[7]Id.

[8]Id. § 33-24-12-3.  Indiana legal service providers are private, nonprofit organizations incorporated and operated exclusively in Indiana.

[9]Id. § 33-24-12-4 (2014).

[10]Id.

[11]Id. § 33-24-12-6.

[12]Id. § 33-24-12-7.

[13]About the Commission, INDIANA JUDICIAL BRANCH DIVISION OF STATE COURT ADMINISTRATION, http://www.in.gov/judiciary/admin/2408.htm (last visited Feb. 5, 2015).

[14].  IND. CODE § 33-24-12-6 (2014).

[15]Civil Legal Aid Fund, INDIANA JUDICIAL BRANCH DIVISION OF STATE COURT ADMINISTRATION, http://www.in.gov/judiciary/probono/2332.htm (last visited Feb. 5, 2015).

[16]Id.  Members are specifically appointed by the Supreme Court and the President of the Indiana Bar Foundation.

[17].  IND. R. PROF’L. CONDUCT 6.6(f) (2014).

[18]Id. 6.6(a).

[19]Id. 6.6(c).

[20]Id. 6.6(d).

[21]Id. 6.6(g).

[22].  About the Commission, INDIANA JUDICIAL BRANCH DIVISION OF STATE COURT ADMINISTRATION, http://www.in.gov/judiciary/probono/2332.htm (last visited Feb. 5, 2015).

[23].  IND. R. PROF’L. CONDUCT 6.6(e) (2014).

[24]Id.

[25].  IND. CODE § 33-24-12-3 (2014); IND. R. PROF’L. CONDUCT 6.6(a) (2014).

[26]Id.

[27].  IND. CODE § 33-24-12-7 (2014); About the Commission, Indiana Judicial Branch Division of State Court Administration, http://www.in.gov/judiciary/probono/2332.htm (last visited Feb. 5, 2015).

[28].  STACI A. TERRY, The Indigent Person’s Rights to Appointed Counsel in Indiana, 45 RES GESTAE 12, 18 (July/August 2001).

[29]Id.

[30]Id.

[31].  IND. R. PROF’L. CONDUCT 6.6(h) (2014).

[32]Id. 6.6(i).

[33].  C. ERIK CHICHEDANTZ, Indiana’s Pro Bono Program – Do Good, Help People, Make a Few Bucks for Your Soul, 55 RES GESTAE 5, 6 (December 2011).

[34]Id.

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