Cba Ethics Committee Opinion No. 59: Legal Services Programs
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 11 No. 4 Pg. 896 |
| Pages | 896 |
| Publication year | 1982 |
1982, April, Pg. 896. CBA Ethics Committee Opinion No. 59: Legal Services Programs
Ethical responsibilities of legal services program management and staff attorneys in facing totally eliminated or substantially reduced funding. Responsibility of the bar in these circumstances.
When facing the likelihood of no or substantially reduced funding, legal services program management and staff attorneys must make reasonable efforts to prepare for the possible interruption of services.
When the impact of reduced or no funding becomes reasonably evident, legal services attorneys may be required to decline new representation to avoid prejudice to existing clients.
If, as a result of disrupted services due to lost funding, a substantial number of legal services program clients will be prejudiced, every reasonable effort should be made to find substitute counsel in order to handle pending matters.
If efforts to secure alternative funding or substitute counsel fail, legal services attorneys may withdraw from representation in accordance with all rules and procedures governing withdrawal in civil matters. Such withdrawal is permitted both for remaining legal services attorneys who are overburdened by the additional caseloads of departing lawyers and for legal services attorneys who are departing because they are no longer being compensated. In these instances, it is the responsibility of the legal profession in Colorado, collectively, and of members of the profession, individually, to act to meet the needs of indigent clients.
Organized legal assistance to the poor in the United States began in the last quarter of the nineteenth century. Through the early 1960s, legal aid societies developed in communities throughout the country, supported both by legal services contributed by lawyers and by funds through various charitable contributions. New growth surged in the mid-1960s when, at the urging of the American Bar Association, the federal Office of Economic Opportunity supported legal assistance to the poor in civil matters through grants to statewide and local legal services programs. In 1974, the Legal
Services Corporation Act established, under the direction of the Legal Services Corporation (LSC), a national system of funding for civil legal services to the indigent (42 U.S.C. § 2996a-k). Today, the LSC's annual funding is $321 million, which is an estimated 85 percent of the funding which supports civil legal services to the poor throughout the nation.
In Colorado, the LSC currently provides approximately $3 million for four major legal services programs: the Legal Aid Society of Metropolitan Denver, serving Denver, Adams, Arapahoe, Jefferson, Boulder, Gilpin, and Douglas Counties; Colorado Rural Legal Services, serving much of rural Colorado; Pueblo County Legal Services; and Pikes Peak Legal Services, serving the El Paso County and surrounding areas. Fifteen to 20 percent of each program's total funding is made up of additional funding from other sources, such as the United Way and the Older Americans Act. Additionally, there are significant amounts of legal services to the poor also provided by volunteer lawyers through such programs as the Denver Bar Association's "Thursday Night Bar."
The questions presented in this opinion arise because the extent of future funding of the LSC is in doubt. The President of the United States last spring formally announced his intention to abolish the LSC and to eliminate any finding for legal services for FY '82. Under this plan, apparently state governments would have the discretion to provide funding for legal services from federal block grants designed for other services. Throughout the summer and fall of 1981, congressional consideration of the LSC and its funding has been intense; the future of the program has teetered, day to day, on the brink of elimination. However, most recently, there is increasing evidence that the LSC will continue for FY '82 at perhaps 70 to 75 percent of its FY '81 funding level.
The potential impact of the total or substantial withdrawal of federal funds for legal services to the poor in Colorado is illustrated by a close look at the Legal Aid Society of Metropolitan Denver. Its FY '81 funding was $1.4 million; 80 percent or $1.1 million was provided by the LSC, 13 percent or $181,000 through United Way, and 5 percent or $70,000 through the Older Americans Act. The society, with a full-time legal and paralegal staff of 30, plus support staff of 15, fully handles approximately 4,000 cases annually, and provides legal advice and related assistance in approximately 9,000 additional matters. It presently maintains about 1,200 open cases.
The total or substantial loss of federal funds for legal services to the poor is not a mere specter posing theoretical issues. Rather, the net effect of events over the past nine months is that detailed contingency plans must be developed and, to the extent necessary, implemented to provide for reduced and, possibly, eliminated federal funding for legal services to the poor. The ethical issues inherent in this defunding situation must be resolved in order for proper planning to proceed and for effective daily operations presently to continue. In view of the pressing nature of the situation, the Denver Bar Association has requested that the Ethics Committee issue an opinion offering ethical guidance to Colorado lawyers.
1. What are the ethical responsibilities of legal services staff lawyers and lawyer management when faced with the imminent threat of substantial defunding of the legal services programs?
2. In the event of defunding and the resulting inability of a legal services program to continue handling existing cases due to lack of staff, what is the obligation of a legal services lawyer to continue representing clients in pending cases in the following two circumstances: first, the legal services lawyer who, due to the additional caseloads of departing lawyers, is no longer able to competently represent all his or her clients; and second, the departing legal services lawyer who is no longer being compensated by the legal services program?
3. May legal services programs accept new cases during periods of substantial cutbacks in available legal services?
4. If funding is cut off or substantially reduced, what is the responsibility of other Colorado lawyers to aid legal services programs and handle matters unable to be concluded by the legal services programs?
Two bar associations recently addressed these and related questions. On December 1, 1981, the American Bar Association (ABA) Committee on Ethics and Professional Responsibility issued Formal Opinion 347. In November 1981, the Committee on Professional Responsibility and Conduct of the State Bar of California issued its draft Formal Opinion No. 1981-64, which to date has not been approved by that bar's board of directors. Similar questions are presently under consideration by several other state bar association ethics committees throughout the country. As indicated below, the Colorado Bar Association's Ethics Committee is in general agreement with the principles and analysis set forth in ABA Formal Opinion 347.
The Code of Professional Responsibility does not deal with the particular issue of possible termination of all or a substantial part of a program delivering legal...
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