The Ethical Bar and the LSC: Wrestling with Restrictions on Federally Funded Legal Services

Article excerpt

I. INTRODUCTION

Equal justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . [I]t is fundamental that justice should be the same, in substance and availability, without regard to economic status.1

[T]he United States provides less money for legal services than any other Western industrial country except Italy.2

In 1996, Congress passed a budget act containing the most restrictive set of legislative limitations on the Legal Services Corporation ("LSC")-the private, nonprofit organization responsible for administrating federal funding for and facilitating access to legal services for low-income people across the nation3-in the tumultuous history of that entity.4 Designed to forestall advocacy and representation activities viewed as undesirable by those in political power,5 these restrictions mandated that those organizations to which the LSC awarded funds refrain from engaging in any of a wide variety of previously permissible actions (for example, assisting incarcerated persons in civil proceedings and encouraging other people to engage in political activity).6 The restrictions also further foreclosed some actions that had long been restricted for grantees (for example, class actions and lobbying).7 The LSC quickly promulgated regulations following these restrictions, with which its grantees had to comply or lose their funding. The combination of restrictions and regulations has resulted in an increasingly cramped mandate for LSC grantees, compounding the already dire situation in the United States with respect to low-income people's access to the legal system.

When President Richard Nixon signed the LSC into being in 1974,8 the goal was to fund two lawyers representing the low-income population (hereafter "legal-services lawyers") for every 10,000 low-income people in the nation9 (of whom there were then approximately 29 million).10 Today, the LSC itself estimates that it provides only a single LSC-funded legal-services lawyer for every 11,500 low-income people.11 By contrast, the country's population contains one lawyer for every 240 people above the eligibility cutoff.12 Millions of Americans are eligible for legal services, but the vast majority of those millions go without any legal assistance whatsoever. Congressional funding for the LSC reached its highest level (adjusted for inflation) a quarter of a century ago in 1981,13 following what has turned out to be the program's only four-year period of strong Democratic governance to date, under President Jimmy Carter.14 Since that time, as the political climate has become more conservative and the successive administration and congressional perceptions of the LSC and its target clientele have become correspondingly less beneficent, the LSC's very existence has been threatened with some regularity.15 Among other things, its budget has shrunk substantially in real terms, even as the need for the services it funds has increased.16 The 1996 restrictions and resulting LSC regulations exacerbate these problems in at least two ways: by limiting the ways in which legal services can be offered to income-eligible persons and by eliminating from eligibility entire groups of people who need help and would be entitled to it on income grounds.

These restrictions also negatively affect both the private bar and legal-services lawyers, who handle most of the representation the income-eligible population receives. One important area in which these effects are felt is that of professionalism. Seen through an ethical lens, professionalism requires lawyers to transcend the bottomline orientation of their profession and to serve such overarching goals as social justice and public interest. A more practical view of professionalism highlights qualities including autonomy and honesty. Both views place an extremely high value on the quality of service given to the client-the essence of the work that lawyers do. …