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

By Abel, Laura K.; Udell, David S. | Fordham Urban Law Journal, February 2002 | Go to article overview

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


Abel, Laura K., Udell, David S., Fordham Urban Law Journal


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. …

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