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Task force hears about IOTA fund use

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Mayanne DownsFlorida Bar Foundation IOTA funds that do not directly go to legal aid attorney salaries are used for a variety of purposes that help low-income and vulnerable Floridians, according to the Foundation and legal aid representatives.

Those officials were testifying February 6 at a meeting of the Bar’s Task Force on the Distribution of IOTA Funds at the Bar’s Winter Meeting in Orlando.

And while acknowledging the testimony, task force Chair Mayanne Downs, a former Bar president, repeatedly cited strictures in the Supreme Court Administrative Order setting up the task force, including that alternate models for distribution of IOTA funds should be considered and, “in conducting its work, the Task Force shall give priority consideration to the need for funding direct legal services for low-income litigants in Florida.”

Downs said the Bar’s current IOTA rule allows for two uses of the proceeds: legal services to the poor and supporting the administration of justice.

“There’s no question about whether The Florida Bar Foundation, or any party, has been in compliance with the rule,” she said. “The question the court is asking is should that rule be changed….The court has asked us to look at whether the rule should be restricted to the delivery of legal services to the poor.”

Downs said the committee has an obligation to address that point.

But Jim Kowalski, executive director of Jacksonville Area Legal Aid, noted the administrative order asked the specific question whether the Bar’s trust accounting rules “should be amended to ensure the most effective use of IOTA funds.”

“The answer to that question is simply no,” he said.

Kowalski’s presentation prompted Bar President John Stewart, another member of the task force, to note, “The request was to ask us to ensure that the current use [of IOTA funds] is the most effective use. No one has said that this is the best use of IOTA funds. You may mean that, you may believe that. That’s really the first part of the equation. Let’s first start with the premise, is this the best use?”

“The answer is a resounding yes,” Kowalski replied. “Currently in February 2020, this is the best use of the limited IOTA funds. Will it be that way in 2021? I don’t know. That’s why the [Foundation] board remains flexible.”

Foundation Executive Director Donny MacKenzie said the Foundation over the years has helped pay law student loans of legal aid attorneys, supported the Pro Bono Coordinators Association, invested in technology for legal aid, helped legal aid programs improve their intake, made disaster grants, sponsored law school clinics, paid for the summer fellows program for law students, helped legal aid programs write grants for non-Foundation funds, and did the One Campaign drive, which increased pro bono participation among lawyers.

“Those are some of the things we do with IOTA funds, which I think adds value to the system,” he said.

By investing its reserves, the Foundation has earned $2 million more than its administrative and development costs since 1992, which means all of its IOTA funds go to help legal aid programs, MacKenzie said.

Task force member and Third District Court of Appeal Judge Ed Scales asked MacKenzie about a program to provide WestLaw for legal aid agencies, which uses IOTA funds.

MacKenzie said WestLaw is very expensive for each legal aid agency to buy on its own, so the Foundation worked with them to develop a joint program where the Foundation pays WestLaw and then bills each agency for its share. Pooling the agencies, he said, saved substantial money, although he said the Foundation does provide a subsidy.

He also said the Foundation did the same pooling program to help legal aid programs obtain case management software at a lower cost. During his presentation, Kowalski said the Foundation is working on a similar joint approach for health insurance and for legal aid agencies to invest their reserves through the Foundation.

Former Foundation President John Patterson, also a former Bar Board of Governors member, said he was confused by the Supreme Court order’s mention of direct legal services funding. He said there would always have to be some sort of “infrastructure” to monitor the disbursal and effective use of those funds, and the Foundation was in the best position to continue doing that.

Instead of the IOTA review, Patterson said the focus should be on getting more resources, especially since Florida is one of three states that spends no state monies on legal aid.

“When you look at countless studies on what makes countries prosper, rule of law is the indispensable element in the long run. If you don’t believe in the rule of law, you don’t believe in the American experiment,” Patterson said. “We under fund the judiciary and we under fund our legal system. And we need to do better than that. You need to recognize that funding is a problem and you need to do better….

“On direct [IOTA] funding, if that’s the only thing that you look at and the only thing you report out, you’re going to send everyone down a rabbit hole, because that is not the solution…. We’ve got a system that is working with the Bar Foundation and the IOTA funds, and we need to build on that. We don’t need to break it.”

Robin Rosenberg, deputy director of Florida Children’s First, said her agency gets around $75,000 annually from the Foundation, down from $250,000 several years ago.

Florida Children’s First does not provide any direct legal services, she said, but works in other ways. She said Florida Children’s First was primarily responsible for a 2014 law where the state agreed to pay for attorneys for dependent children with special needs and which since paid for counsel for 5,642 children and provided pro bono lawyers for even more.

The agency has supported programs to help keep children in families, provided training for lawyers helping children, operates the Florida Dependency Law Center to support attorneys and judges, helps draft and lobby for legislation, and participates in rulemaking and administrative procedures, Rosenberg said.

“We think the state and all of our privatized providers always want to do the right thing, and if they are not doing the right things, we can bring it to their attention,” Rosenberg said. “If they don’t fix it, we can do other things.”

The task force’s final report is due to the Supreme Court by September 15.

The court charged the task force to, “[E]xamine and make recommendations to the Court on alternative models for the distribution of IOTA funds; whether specific priorities should be established for the use of available IOTA funds; whether specific requirements or limitations should be imposed on the use of IOTA funds; whether reporting requirements regarding the distribution and use of IOTA funds should be adopted; and any other matters related to ensuring the most effective use of IOTA funds. In conducting its work, the Task Force shall give priority consideration to the need for funding direct legal services for low-income litigants in Florida.”

The Task Force will again have public testimony at its June meeting at the Bar Annual Convention, when it will be considering a draft of its recommendations. Until then, it will be meeting monthly and consider specific priorities set out by the court in its order.

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