If you gag the lawyers, do you choke the courts? Some implications for judges when funding restrictions curb advocacy by lawyers on behalf of the poor.

• Author: Abel, Laura K.
• Position: Attorneys fees

You are a county court judge. A woman, through her lawyer, tells you that her husband has just broken her arm and given her a black eye. She requests a restraining order, which you grant. The order requires the husband to leave the house and to avoid all face-to-face and telephone contact with the woman.

Two weeks later, the woman is back in court. Her lawyer tells you that the husband came by the house the previous night. When the woman refused to let him in, he broke down the door and threatened her with a gun. Perceiving a need to deter the defendant from assaulting his wife and to vindicate the court's authority, you hold the husband in civil contempt and order him to pay his wife's attorneys' fees.

At this point, the woman's lawyer tells you that Congress has barred you--a state court judge--from ordering an attorneys' fee award. (1) Although the attorney's salary is paid by a domestic violence grant from the state, the attorney's office receives some of its funding from the federal Legal Services Corporation (LSC). Congress prohibits LSC grantees from seeking or accepting fee awards in most circumstances. (2)

This scenario illustrates how restrictions on legal services lawyers interfere with core functions of the courts. This article will examine restrictions on legal services lawyers that are particularly likely to cause such interference. These restrictions include federal and state restrictions on participating in class actions, claiming attorneys' fee awards, representing certain categories of clients (such as prisoners and certain immigrants), and representing clients in certain categories of claims (such as public housing drug eviction cases).

This article will also examine the effect on state courts of federal restrictions on the funding that state and local governments provide for legal services. Such restrictions cause problems for the courts, including (1) interfering with the ability of courts to certify classes and award fees in appropriate cases; (2) interfering with the ability of courts to ensure that all people subjected to wrongful treatment are provided relief; (3) interfering with the deterrent effect of court orders; (4) interfering with the ability of the courts to decide cases with all relevant facts before them; (5) permitting defendants to insulate their wrongful practices from judicial review; (6) reducing the ability of the courts to prevent themselves from being used for illegitimate ends, such as harassment; (7) reducing the ability of courts and other state legal services funders to allocate money to improve the administration of justice; and (8) increasing the amount of pro se litigation in the courts. (3)

Finally, this article will discuss the separation of powers and federalism implications of these incursions into court operations. This article will apply the reasoning of the Supreme Court in Legal Services Corp. v. Velazquez, in which the Court struck down a federal funding restriction that prohibited lawyers in programs that receive federal LSC funding from challenging welfare reform laws. (4) The Court was deeply troubled by a rule aimed at depriving federal courts of their supreme authority to resolve constitutional questions (5) The Velazquez opinion did not, however, explore the legal implications of the effects on the courts of other federal or state legal services restrictions. (6) In papers filed in December 2001, the plaintiffs in Velazquez, as well as in a companion case entitled Dobbins v. Legal Services Corp., requested that the U.S. District Court for the Eastern District of New York consider the First Amendment, separation of powers, and federalism implications of federal restrictions on non-federal funding received by LSC grantees, as well as of the class action, attorneys' fee award, and public outreach restrictions on LSC funding. (7) At the time of writing, the court had not yet issued a decision.

1. DESCRIPTION OF LEGAL SERVICES RESTRICTIONS

   A discussion of legal services restrictions must begin with the conditions the United States Congress imposed in 1996 on legal programs that receive any funding from LSC. (8) These restrictions have had a tremendous impact because Congress applied them not only to activities supported by LSC funds, but also to all activities engaged in by any entity that receives even a penny of LSC funding. (9) Several lawsuits challenged this "entity restriction" as an unconstitutional infringement of the right to spend one's own funds in support of protected political speech. (10) These challenges persuaded LSC to authorize LSC grantees to dedicate their non-LSC funds to various forms of restricted advocacy, but only if such programs do so through an "objectively" and physically separate entity, with separate staff, offices and equipment. (11) LSC calls this regulation the "program integrity" regulation. (12)

   The restrictions that Congress passed in 1996 include the following:

   * NO CLASS ACTIONS -- LSC grantees may not initiate or participate in class actions on behalf of their clients, even where the legal effort is simply to file an amicus brief or to co-counsel with lawyers who receive no LSC funding. (13)

   * NO ATTORNEYS' FEE AWARDS -- Clients of LSC grantees may not claim court-awarded attorneys' fees, even in cases in which their opponents seek fees. This is true even when the availability of attorneys' fees reflects a legislative judgment that the fight at stake is sufficiently critical to warrant special incentives to attract quality representation or when the court desires to use its inherent powers to award fees in order to vindicate its authority. (14)

   * NO REPRESENTATION OF MANY CATEGORIES OF IMMIGRANTS -- LSC grantees generally may not assist undocumented immigrants and many categories of documented immigrants. (15) For example, a migrant farmworker with a valid work visa subject to illegal indentured servitude cannot seek advice from an LSC grantee willing and able to use non-federal funds to represent him.

   * NO REPRESENTATION OF PRISONERS IN CIVIL LITIGATION -- LSC grantees may not represent incarcerated persons, even in a suit unrelated to the incarceration, such as a child custody proceeding or a housing court matter, even if the claim arose before the incarceration or the prisoner has not yet been tried. (16)

   * NO REPRESENTATION OF PEOPLE IN CERTAIN CATEGORIES OF CLAIMS -- LSC grantees may not represent people in abortion-related litigation, (17) or public housing tenants facing eviction based on an accusation of drug-related crimes. (18) The LSC Act contains additional subject-matter restrictions. (19)

   * NO PUBLIC INTEREST OUTREACH - LSC grantees may not approach victims of legal violations to inform them of their rights and then offer to represent them in seeking remedies. (20) A lawyer cannot, for example, make a presentation at a homeless shelter regarding the residents' rights to apply for food stamps, inform the residents that he or she is available to represent them if they have been denied this right, and then represent those people who accept the lawyer's offer of assistance.

   In addition to these federal restrictions on LSC funds and non-LSC funds, many providers of legal services operate under additional restrictions attached to state, local, Interest on Lawyer Trust Accounts (IOLTA) (21) and other funds dedicated to financing legal representation of the poor. In some instances, these restrictions track the LSC restrictions. (22) In other instances, the restrictions are novel. For example, some prohibit litigation against the state when it is providing the funding; (23) at least two prohibit representation of migrant workers in employment matters; (24) and others prohibit representation of categories of clients or claims or prohibit lawyers from seeking certain remedies on behalf of clients. (25)

2. IMPACT OF LEGAL SERVICES RESTRICTIONS ON CLIENTS AND LAWYERS

   If restrictions on legal services only affected a few clients and lawyers, then other lawyers could perhaps provide the representation that legal services lawyers are prohibited from providing. Unfortunately, hundreds of thousands of clients are restricted in what they can do -- and in many parts of the country there is no one else to help them. (26)

   Over $780 million in funds are dedicated annually to the provision of civil legal services nationwide. Several hundred million dollars come from federal funding allocated to LSC, and hundreds of millions of additional dollars come from federal, state and local governments, IOLTA funds, and private donations (including those of foundations, corporations, bar associations, and lawyer fund drives). (27) The federal restrictions applicable to LSC funding encumber approximately $329.3 million in 2002. (28) These funds finance advocacy in more than 200 legal services offices spread throughout the fifty states and several federal territories. These offices provide representation in roughly one million matters annually. (29) The LSC restrictions also encumber almost $300 million of the resources that LSC grantees receive annually from federal, state and local governments, IOLTA funds, and various private sources. (30) An additional $62 million in non-LSC funds carries an independent set of restrictions, imposed in most instances by state or local governments or IOLTA governing structures. (31) In total, approximately $660 million in scarce legal services funding is encumbered each year by restrictions: this amounts to about eighty-five percent of all legal services funding. (32)

3. IMPACT OF LEGAL SERVICES RESTRICTIONS ON JUDGES

   Judges occupy a unique institutional role allowing them to observe patterns in the administration of justice. They are well situated to assess how legal services restrictions burden the courts and cause injustice to individual litigants. This section catalogues some of those effects.

   1. Bans on Participating in Class Actions

      Restrictions prohibiting legal services lawyers...