Restoring Legal Aid for the Poor: A Call to End Draconian and Wasteful Restrictions

By Diller, Rebekah; Savner, Emily | Fordham Urban Law Journal, June 2009 | Go to article overview

Restoring Legal Aid for the Poor: A Call to End Draconian and Wasteful Restrictions


Diller, Rebekah, Savner, Emily, Fordham Urban Law Journal


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.

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