A defendant in a criminal matter has a constitutional right to counsel. But what about parents of children with disabilities who, although they may not live in poverty, still cannot afford $350-400 per hour often charged by civil litigation attorneys in New Jersey?
Innisfree understands that most pro bono programs have tough income eligibility requirements. For example, a family of four would be above the 2015 federal poverty guidelines (incorporated by reference by a number of organizations that provide pro bono legal services) if the family makes more than $24,250 per year. What’s more, merely being income eligible for a pro bono program is no guaranty of obtaining counsel. Clients in need of services can sit on lists for a long time without anyone stepping up.
The Low Bono program is intended to address this need, for families of children with disabilities whose family income is below the median for their community. The needs analysis is intended to be generous and inclusive. Toward that end, when we consider your income eligibility, we compare it to the “median family income” in either your town, your county, or the state, whichever is the highest. If your total family income is documented to be below the median (by any of these three measures), you are eligible for the Low Bono program.
The fees you will be charged by an Innisfree Low Bono attorney (all of whom have experience in special education law) will depend on the combination of (a) your exact income, and (b) the extent of the experience of the lawyer representing you. Each of these variables range from 13. The income eligibility is dependent upon which of three tiers (within the bottom half) your family income falls into. And the experience variable depends upon whether the attorney has (1) up to five years of experience, (2) between five and ten years, or (3) over ten years of experience.
So for example, if you live in Newark, the income guideline would be governed by the state median income. That is, the median family income in Newark is $34,387? the median family income in Essex County is $55,095? and the median family income in the state of New Jersey is $71,629. Consequently, so long as your family income is less than the highest of these (in this case, the state median $71,629) you are income eligible for the Low Bono program. (If you have extenuating circumstances, we will consider granting eligibility for families at just above this level). On the other hand, if you live in Essex Fells (also in Essex County), the median family income in that town is $157,501. Consequently, a resident of Essex Fells who makes less than this amount would be eligible for the Low Bono program.
Tracking. Unlike initial eligibility, income tracking is accomplished with sole reference to the state median income, i.e., $71,629. As to the variables discussed above, the income variable is determined by dividing the applicable family income by three. Those who make less than one-third of the median are on track one, less than two-thirds are on track two, and those whose income is more than two thirds but otherwise eligible are assigned to track three. Because the state median is utilized for this, the numbers are constant:
- Track 1: Income less than $23,876.33
- Track 2: Income equal to or exceeding $23,876.34 but less than $47,752.67
- Track 3: Income equal to or exceeding $47,752.68, but nonetheless eligible for program participation (because family income is less than median for town, county or state, whichever is highest).
Thus, the Low Bono rates for a participant are determined by reference to these two variables (income tracking and attorney experience level), and can be charted as below:
|Up to 5 years||5-10 years||Over 10 years|
|Income Track 1||$50 per hour||$75 per hour||$100 per hour|
|Income Track 2||$75 per hour||$112.50 per hour||$150 per hour|
|Income Track 3||$100 per hour||$150 per hour||$200 per hour|
Notably, special education cases brought under the IDEA or Section 504 are subject to a prevailing party fee shifting provision. But as a condition of receiving referrals from the Low Bono program, unlike some private attorneys not working with a nonprofit, Innisfree LowBono attorneys will not “take assignment” of any prevailing party attorneys’ fees in advance. That is, Low Bono cases are not taken as contingency cases in the hope of obtaining prevailing party fees. If you and your attorney succeed on the merits after trial, the attorney will seek prevailing party fees on your behalf. If such fees are awarded (as they usually are if you succeed on the merits), you will reimbursed for the amount you’ve paid off the top of any fee award, before the attorney receives any additional compensation. If fees are awarded in a greater amount than you paid (which is not unlikely, considering the reduced fee schedule), then the attorney will retain any overage after you have been fully reimbursed. Also, if you choose to settle your case at any time, you will retain the full right to waive attorneys’ fees if doing so will get you
the relief you are seeking for your child. The lawyer working for you would then receive no additional compensation for working on your case. In other words, the Low Bono fees are all-inclusive, and do not come with a “catch” regarding the “assignment” of prevailing party fees.
Comparison to Contingency Agreements. The fact that Low Bono attorneys do not “take assignment” of your attorneys’ fees sets the Low Bono program apart from contingency fee agreements with attorneys who hope and expect to obtain prevailing party fees from the school district. Parents who engage private attorneys on a contingency basis, and “assign” attorneys’ fees to those attorneys, should be aware that a commitment in advance not to waive attorneys’ fees may make it more difficult (or sometimes impossible) to settle their case out of court. Low bono clients, on the other hand, reserve the right to settle at any time, and waive any part or all of any fees up to the end of trial and a final decision on the merits is issued in their case. Consequently, participants in this program may find it easier to settle their cases than if they “assign” potential attorneys’ fees to a private attorney who is not working within the context of the Innisfree Low Bono program.