The $100 Per Attorney Licensing Fee Should Be NOT Approved
For those of you who may not know, a proposal is before the Iowa Supreme Court to assess every Iowa licensed Attorney a $100 annual fee to fund Iowa Legal Aid. The deadline for submitting written comments to the Court is 4:30 p.m. on Jan. 5, 2015. This is not an ISBA proposal and ISBA has not taken a position in favor of this proposal. Iowa Legal Aid took the request to the Court.
I believe in Iowa Legal Aid. My firm and I have donated time and money in support of its mission. I have lobbied, in person, members of both the Iowa Legislature and the United States Congress, for support for Legal Aid on State and national levels. However, I see court imposed funding for Legal Aid as unacceptable for many reasons. Here are a few.
Requiring all Iowa licensed lawyers to subsidize Iowa Legal Aid as a condition of licensure sends the wrong message to the Iowa Legislature, and to other sources of funding for Iowa Legal Aid. No longer would the Legislature need to provide any funding to Legal Aid. Funding could be defaulted to the Court, which can increase the mandatory fee as legislative funding declines. I don’t particularly like "slippery slope” arguments, but this is an opportunity ripe for the Legislature to shift responsibility for funding for Legal Aid to the Court, to be collected from Attorneys.
This funding mechanism could place Legal Aid in the awkward position of going to the Court on a regular basis to justify its budget, and to request regular increases in the fee to be imposed upon Iowa lawyers. This is a risk regardless of the level of legislative funding, so long as any funding is collected and administered by the Court.
Court funding carries with it the prospect of the Court becoming involved in the methods of operation and administration of Iowa Legal Aid, to a degree perhaps inappropriate to the independence of Iowa Legal Aid. An example - what happens when Iowa Legal Aid is a party to an appeal - to its funding source - of a lower court decision?
A fee for Legal Aid might cause other groups to "jump on the bandwagon” and attempt to secure fees through assessments by the Court. An example might be the State Public Defender seeing this as a funding mechanism. I don’t know of any such prospect yet in Iowa, but in Minnesota a mandatory "pro bono” fee was followed by a mandatory fee to help fund the public defender. There could be other law related programs which see a similar opportunity.
A mandatory fee to support Iowa Legal Aid puts at risk the relationship between Iowa lawyers and Iowa Legal Aid. The mandatory fee could have the effect of reducing both volunteer hours and monetary contributions to Iowa Legal Aid. Many people, not just lawyers, do not like having contributions to organizations imposed as mandatory fees, no matter how worthy the cause. As a result many Iowa lawyers may simply stop donating time or money to the organization. Others may see the court imposed fee as having satisfied all pro bono obligations. While this would be a Court imposed fee, Iowa Legal Aid made the request to the Court and whatever lawyers’ sentiments may be they will likely impact Iowa Legal Aid.
A mandatory fee of this nature may damage the relationship between the Iowa Supreme Court and lawyers in Iowa. Imposing a licensing fee to fund an organization outside the Court is an unprecedented step in Iowa. The Court has made efforts in recent years to solidify a positive relationship with lawyers in Iowa, and with members of the Iowa State Bar Association. The potential negative effect of this fee on those relations should not be underestimated. It would be sad to see the Court’s work undermined by the resentment such a fee might well cause.
I cannot help but be concerned about the effect of this on The Iowa State Bar Association. It is a voluntary association. Membership is not a condition to a license to practice law in Iowa. Some Iowa lawyers are price sensitive about becoming and remaining members.
I am not quite as concerned about overall membership, as I am about how the demographics of ISBA might change. Historically ISBA has had a hard time recruiting and retaining members from the ranks of government lawyers, at both state and local levels, from corporate counsel and from judges. Any loss of members from those demographic groups would erode the invaluable perspectives those members bring to the Association. I also fear that some small firm members would see the costs of the voluntary bar, tacked on top of the Court’s licensing fees, as too costly and pay only the mandatory fees. That is another practice perspective I would not like to see eroded.
The most recent polling of ISBA members, which dates from 2006, indicates that a mandatory fee has little support. In that survey 0.5 percent - yes ½ of 1 percent - of the lawyers responding favored a "state imposed tax on lawyers” to fund "civil services to the poor.” Only 29 percent supported a mandatory "play or pay” pro bono requirement, fulfilled by pro bono hours or by contribution of a designated amount of money directly to legal service agencies.
Iowa lawyers did not create the need for funding Iowa Legal Aid. That is a societal problem, not a lawyer problem. The availability of legal services to everyone needs to be addressed, but a Court imposed mandatory fee on Iowa lawyers is not the answer. I do not know of any other profession which imposes a mandatory fee on its members to provide professional services to indigents. In other professions, for example medical and dental, help is provided through donations of time, services and funds, exactly as it is now handled in the legal profession. The funding is not involuntarily extracted from members of the professions.
As I said at the outset of this article, I support Iowa Legal Aid and the efforts to provide legal services to Iowans who cannot afford those services. I expect that no matter what the Court does with this request ISBA will continue to support mechanisms for delivering legal services to those in need but unable to afford the cost. However, I simply cannot support the Legal Aid request for a mandatory fee. I am going to submit my comments to the Iowa Supreme Court and I encourage others to do the same, whatever their position on this proposal.