Restoring legal aid for the poor: a call to end draconian and wasteful restrictions.

• Author: Diller, Rebekah

Introduction I. LSC: Committed to the American Promise of Equal Justice II. The LSC Restriction Regime A. 1996 Restrictions Sharply Curtail Advocacy Available to Poor Clients B. Extraordinary, Poison Pill Restriction Is out of Step with Private-Public Partnership Model III. The LSC Restrictions Obstruct Justice for Low-Income Individuals and Waste Scarce Funds A. Limits on Advocacy Tools Available to Low-Income Clients Obstruct Equal Justice 1. Attorneys' Fee Award Restriction 2. Class Action Restriction 3. Legislative and Administrative Advocacy Restriction B. Restrictions on Unpopular Clients Render Courts Off-Limits for the Most Vulnerable 1. Immigrant Representation Restriction 2. Prisoner Representation Restriction C. The Restriction on Non-LSC Funds Wastes Precious Funds and Unfairly Burdens State and Local Efforts to Expand Access to Justice 1. Non-LSC Funds Restriction Is out of Step with the Government's Approach to Public-Private Partnerships 2. Restriction on Non-LSC Funds Interferes with Growing State and Local Efforts to Expand Access to Justice 3. Restrictions Waste Precious Resources that Could Go Toward Serving More Clients Conclusion INTRODUCTION

As the burgeoning economic crisis pushes growing numbers of Americans into poverty and homelessness, the need to revitalize the civil legal aid system is more urgent than ever. For low-income families, a civil legal aid lawyer can be a lifeline to preserve a home against foreclosure by a predatory lender, recover back wages from a cheating employer, or secure sufficient food for a sick child. Studies have shown that access to a lawyer can be the critical boost that families need to avoid homelessness and the key factor that domestic violence survivors need to achieve physical safety and financial security. (1)

Notwithstanding the clear benefits, the overwhelming majority of low-income people who need legal aid cannot obtain it, in large part due to political attacks that have compromised the Legal Services Corporation ("LSC"), the cornerstone of the nation's institutional commitment to equal justice. (2) Every year, one million cases are turned away by LSC-funded offices due to funding shortages. (3) Study after study finds that 80% of the civil legal needs of low-income people go unmet. (4) On average, every legal aid attorney funded by LSC and other sources serves 6861 people. (5) In contrast, there is one private attorney for every 525 people in the general population. (6) This "justice gap" keeps families in poverty and threatens the stability of our court system.

The justice gap is not soley a product of funding shortages; it is also the result of extreme and ill-conceived funding restrictions imposed on legal aid programs by Congress in 1996. (7) In an effort to deprive the low-income clients of LSC-funded programs of full legal representation, Congress restricted the advocacy tools available to LSC clients. Clients of programs that receive LSC funds are denied access to the full range of legal tools available to people who have private lawyers, such as participating in class actions, claiming court-ordered attorneys' fee awards, and pursuing legislative and administrative advocacy. (8) Second, Congress made some categories of individuals ineligible for legal services representation; all undocumented immigrants, certain categories of documented immigrants, and people in prison simply cannot qualify. (9) Finally, Congress imposed an extraordinarily harsh, "poison pill" restriction on LSC-funded programs that extends the federal funding restrictions to limit all the activities conducted on behalf of clients of LSC programs, even when funded by non-LSC funds. (10)

In the thirteen years that have passed since the restrictions were pushed through the Congress as part of the Gingrich-era "Contract with America," the restrictions have denied countless people equal access to justice. They have prevented victims of predatory lenders from obtaining their full measure of justice. They have contributed to the widespread abuse of immigrant laborers, including those legally in the United States, at their employers' invitation. Further, by shutting down legislative advocacy, they have prevented legislators from learning about the legitimate concerns of low-income communities.

The most draconian aspect of the restrictions--the poison pill restriction on non-LSC funds--has warped the civil legal aid delivery system and wasted precious public and private money that could go toward serving more clients. In many states, justice planners have had to set up two, duplicative legal aid systems in order to ensure that state and other funds are not constrained by the non-LSC funds restriction. (11) The result is that scarce funds must be spent on duplicate administrative costs--two rents, two copy machines, and two computer networks. In other locations with less state funding for legal aid, there are no non-LSC-funded organizations to perform the restricted work. As a result, whole communities are unserved. Parts I and II of this Article survey the impact that the LSC restrictions have had on the ability of low-income clients to obtain justice. Part III provides examples of the manifold harms that the Brennan Center has identified in its multi-year effort to educate the public and lawmakers about the damage caused by the restrictions. Finally, it argues that now is the time for Congress to ease the restrictions to eliminate their worst effects.

1. LSC: COMMITTED TO THE AMERICAN PROMISE OF EQUAL JUSTICE

   LSC embodies the federal government's most sustained effort to deliver on the off-touted American promise of equal justice for all. (12) Congress created LSC in 1974 to provide high-quality civil legal assistance to those unable to afford attorneys. (13) By providing legal assistance, Congress aimed to promote equal access to the justice system, improve economic opportunities for low-income people, and reaffirm faith in the legal system. (14) LSC built on the federal government's initial foray into funding civil legal services under the auspices of the Office of Equal Opportunity ("OEO"), which administered the Johnson Administration's War on Poverty programs in the late-1960s.

   LSC was structured not as a federal agency, but rather as a quasi-private, non-profit corporation to insulate it from the political battles that periodically enveloped the OEO legal services program. It is governed by an eleven-person, bipartisan board of directors appointed by the President and confirmed by the Senate. (15) LSC operates by providing grants to independent, local non-profit organizations, incorporated under local state law, that in turn provide direct legal services within their communities. (16) LSC-funded programs help nearly one million people a year. (17) Those local nonprofit organizations determine their own priorities for service provision, taking into account the particular needs of the client communities they serve. (18) Legal services offices handle cases concerning basic needs: family matters (38%), housing (23%), income maintenance (13%) and consumer issues (12%). (19)

   LSC is the single greatest source of funding for legal aid in the United States, but it is just one part of a three-pronged partnership that also includes state and local governmental institutions, and private donors. (20) In 2007, LSC provided more than $330 million in grants to 138 programs with more than 900 offices. (21) In the same year, more than $490 million was received by LSC programs from non-LSC sources: state and local governments, Interest on Lawyers' Trust Accounts ("IOLTA") programs, foundations and other private donors. (22) The proportion of non-LSC funds possessed by LSC-recipient organizations has risen substantially since the restrictions were put in place, from 40.33% in 1996 to 58.1% in 2007; (23) however, recent declines in IOLTA funding and state budget shortfalls due to the national economic crisis may start to reverse that trend.

2. THE LSC RESTRICTION REGIME

   At the inception of LSC, Congress placed some restrictions on the activities of LSC-funded lawyers, but struck a balance that enabled individuals to perform essential legal work. (24) For example, while some limits were imposed on tools of advocacy--class actions, for example, could only be undertaken with the approval of a program director--they were not completely barred. (25) Congress also banned certain participation in certain types of cases that reflected particular controversies of the time, including litigation related to military registration, desegregation, and attempts to procure a "non-therapeutic abortion." (26) However, LSC-recipient programs could still represent clients in such cases if a state or local government funder wished to finance the effort. (27) For the most part, Congress held true to its declaration set forth in the LSC Act that "attorneys providing legal assistance must have full freedom to protect the best interests of their clients." (28)

   1. 1996 Restrictions Sharply Curtail Advocacy Available to Poor Clients.

      The restrictions imposed in 1996 marked a clear departure from this balance by sharply curtailing advocacy on behalf of legal services clients. The 1996 restrictions were the culmination of attacks on indigent legal services that began soon after LSC's formation. Hostility came in large part from agribusiness interests in farm states, which were angered by the representation of farmworkers conducted by legal services offices. (29) Ronald Reagan's 1980 election provided an eager ally in the White House. The Heritage Foundation's conservative agenda, Mandate for Leadership, published on the eve of President Reagan's first term, detailed steps to take to eliminate LSC or, at least, to reduce its effectiveness. (30) Declaring LSC "so basically flawed that it is beyond reform sufficient to justify its continuation," the plan called for the wholesale destruction of LSC. (31) If...