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Frances Gibson[*]
Civil legal aid services in the United States have achieved enormous successes in assisting poor clients through a combination of individual casework, major litigation, education and lobbying.[1] Perhaps as a result of this success, in the last few years, civil legal aid has been under attack in a variety of areas. The sector has faced significant funding cuts and increasing government restrictions on the type of work that can be done on legal aid grants.
In 1997, for the first time in Australia, restrictions were placed by the Commonwealth government on the funding for the Environmental Defenders Offices (EDOs). These offices were specifically prohibited from using federal funding to run any litigation or to assist in litigation-related activities. This placed major limitations on EDO lawyers’ choice of remedies for clients who approached them.
We should be alert to the possibilities of government intervention in our legal aid services and the American example is a useful study. In Australia in recent years, we too have seen funding cuts affect access to legal services for disadvantaged clients in all areas of law. There are significant gaps in civil legal aid services in all Australian States. We have much to learn from the USA experience both in terms of a warning of what may happen in Australia and the innovative and visionary approach which US legal services lawyers have taken to finding solutions for their clients.
This article outlines problems faced in the civil legal aid sector in the USA in the last few years, the justification for and the effect of cuts and restrictions, and steps taken to mitigate the effect of these measures.
The Legal Services Corporation (LSC) was created in 1974. This is a non-profit corporation whose purpose is to provide civil legal services to the poor. Through LSC funding, civil legal aid became a reality for the USA. A network of legal aid offices was set up throughout the country. National and State training programs for LSC-funded offices were organised. A National Clearinghouse was established which provided support and leadership on poverty law issues. With this support many offices undertook major innovative litigation.
The LSC has faced stringent opposition ever since its inception. In the 1980s President Reagan tried to dismantle the LSC allegedly because some individuals represented by LSC had sued him and won.[2] Attacks during the 1980s and 1990s have resulted in drastic funding cuts and significant restrictions on provision of services. Because the LSC funding requires annual appropriations, the future of the organisation is uncertain from year to year.
It has aroused the wrath of some policy/lobby groups such as the National Legal and Policy Center. This Center has as its mission the monitoring of the activities of LSC offices with the aim of curtailing and restricting LSC-funded activities and ultimately terminating the LSC funding completely. Funding of this Center is by what appears to be rather generous private donations. Civil legal aid seems to have symbolic importance as a target for attack by right wing conservative groups in the USA and is constantly under scrutiny.
The Heritage Foundation, a conservative think tank, has asserted that the LSC ‘has sustained the power and credibility of thousands of self-styled representatives of poor people, minorities, consumers, and other groups of Americans thought to be exploited by the private sector’ and that it is a federal instrumentality by which the ‘left’ has been financed and that it is ‘principally devoted to financing full time corps of idealogues [sic] whose impact has been profound’.[3]
Despite the work done by the LSC-funded offices, the American Bar Association’s Comprehensive Legal Needs Study in 1994 reported that fewer than three in ten of the legal problems of low income households are brought to the justice system.[4] Many studies have shown that existing legal aid services in the US are only able to assist about 20% of those who need help in civil matters.
Despite this, LSC funding has faced drastic cuts in recent years. In 1996 the LSC received about $415 million,[5] but after federal funding for civil legal aid was cut by 30% in 1996,[6] the LSC was left with $250 million in 1998. A right to representation in criminal matters has been guaranteed by the Supreme Court so aid for criminal matters has not suffered the same cuts.
Republican draft budgets circulated for 1999 included proposals to terminate all funding for civil legal aid to the poor;[7] however, in 1999 Congress actually approved a 6% increase — up to $300 million. This increase was based on arguments that the money would be used to initiate expanded self-help programs, to make better use of technology, to expand services to domestic violence victims and unmet legal needs of children, and cost of living adjustments. Despite this small increase, current funding is still below the $321 million the LSC was allocated in 1981. One example of the effect of the past cuts to the LSC put before Congress was from Everett, Washington where due to lack of resources legal services staff cannot take on domestic violence cases where a woman calls for help unless she has been beaten in the last 24 hours.
From its inception the LSC was subject to restrictions on its services that were never mirrored in Australian legal aid legislation. The 1974 LSC Act contained provisions that legal services attorneys were not permitted directly or indirectly to attempt to influence legislation by Congress or by State and local legislative bodies and that LSC attorneys could only lobby on behalf of a client or at government request.
Continued political attacks on the activities of the LSC have led to more and more restrictions being placed on the funding body.
In 1977, Congress provided that lobbying by LSC lawyers was only allowed with respect to issues directly affecting LSC or local programs. There was also a ban on certain kinds of cases, for example, school desegregation and non-therapeutic abortions, and there were restrictions on attorneys’ individual political activities.
In 1987, further restrictions were placed on LSC-funded lawyers. LSC lawyers could not assist clients in preparing a client’s own communications to legislators. Attorneys were not allowed to communicate with elected officials on behalf of a client until they had exhausted all of the appropriate judicial and administrative relief. Attorneys were prohibited from attending political meetings or activities if the principal purpose of the meeting was to discuss or engage in legislative or political activities.
The Office of Management and Budget grant rules prohibit the use of federal funds for electioneering or lobbying. Grantees are subject to stringent audit requirements to enforce this limitation.[8] Any organisation that breaches this prohibition on the use of federal funds can be required to reimburse the government for the misspent funds and grants can be suspended or terminated. There can also be criminal sanctions.
The 1996 Act,[9] which cut funding to the LSC by one third, also prohibited activities such as representing certain immigrants, welfare reform, legislative work and taking class actions. In another significant change the 1996 Act prohibited LSC programs using private funds for purposes restricted by the Act. This was a severe blow to LSC funded offices. They were required to choose between relinquishing their LSC grants or refusing services in the restricted areas or to particular clients even where these services were carried out with non LSC money.
So what are the current restrictions on the LSC funds?[10] In summary, the restrictions in the 1996, 1997 and 1998 appropriations legislation together with the LSC Act mean that LSC-funded programs cannot — with LSC funds or money from any other source — take action in the following areas.
Programs are not entitled to undertake advocacy and representation before legislative bodies or in administrative rulemaking proceedings and cannot challenge State or federal welfare reform laws or formally adopted regulations. So when legislation is being drafted, LSC lawyers or staff generally cannot comment on draft legislation and cannot meet with government officials to discuss proposed government policies.
There are exceptions where grantees may respond to a written request for information from a legislative body, committee or government agency but only if they use non-LSC funds to do this work and if they did not arrange for the request to be made.[11]
LSC lawyers are not permitted to represent certain non-US citizens living in the USA. They are not allowed to participate in litigation on behalf of anyone in a federal or State or local prison or represent people in prison even where the legal issue is a non-prison-related matter such as divorce. They are not allowed to act for clients convicted of or charged with drug crimes in public housing evictions where evictions are based on alleged threats to health/safety of public housing residents or employees.
Recipients are not allowed to participate in litigation relating to abortion. The LSC is prohibited from funding a legal service provider that takes legal action or participates in litigation or lobbying involving an effort to reform the federal or State welfare system.[12] Labor-related activities and litigation related to assisted suicide and euthanasia are also restricted.
Following the 1996 legislation, lawyers in LSC programs cannot initiate, participate or engage in any new class actions and had to discontinue work on pending class actions. Recipients of LSC funding cannot claim or collect fees from the other party on cases initiated after 25 April 1996 even when fees are permitted by statute.
Recipients of funding cannot conduct training programs to advocate particular public policies or political activities. Grass roots lobbying is not allowed. This is defined as any form of communication that suggests to the public they should contact public officials in support of any particular legislation, regulations etc. LSC lawyers are prohibited from soliciting clients.
Recent proposals for restrictions on LSC funding have gone even further. Some proposals have suggested banning all litigation by community non-profit organisations (even when using their own funds and not federal funding) except that directly involving the non-profit organisation as a defendant, if any agent or instrumentalities of federal, State or local governments are parties.
Conservatives argue that legal aid attorneys have misused funds, pursued their own radical agenda and engaged in dubious litigation that is of no real benefit to poor people.[13] Examples of undesirable LSC activities during 1998 cited to Congress include allegations that LSC lawyers were:
• thwarting drug related evictions from public housing;
• advocating disability benefits for drug abusers and alcoholics;
• arguing before the Kentucky Supreme Court on behalf of an alcoholic father who had sexually abused his children;
• suing a public housing authority which sought to speed up evictions of violent criminals.[14]
Lobby groups actively work to have LSC funding reduced or terminated. The National Legal Aid and Policy Center has set up a Legal Services Accountability Project which is ‘committed to researching and exposing abuses within the Legal Services program’.[15] Their website allows visitors to select ‘horror stories’ of cases LSC grantees have run State by State. Under the New York section, for example, cases listed include:
• New York Legal Services Gets Alcoholic on Disability
• Bronx Legal Services Seeks Welfare for Healthy Beggar
• Bronx Legal Services Fights Eviction of Drug Dealer
• Lazy Man Seeks Disability
• Brooklyn Legal Services Harasses Children in Abuse Case
• Legal Services Defends Tenants in Drug-Related Evictions
• Stops Eviction of Woman Arrested for Dealing Crack
• Seeks Federal Disability for Man Too Tired to Work
• Legal Services Gets Involved in Homosexual Child Custody Case
• Legal Aid Society Claims Begging Protected by Constitution
• Wins Right of Homosexuals to Adopt Children
• Legal Services Defends Accused Drug Criminal
The National Legal and Policy Center has also tried to get Congress to force the LSC to publicly disclose which cases they represent with taxpayer funds.[16]
The Chairman of the National Legal and Policy Center is Kenneth Boehm who, prior to joining NLPC, served as Counsel to the Board of Directors of the Legal Services Corporation. Long active in both legal and conservative organisations, Mr Boehm’s background includes assisting Republican Congressmen in Washington, five years as a talk show host, as well as working for the American Tax Reduction Movement.
Legal aid lawyers say these restrictions have caused significant problems which, in many cases prevent them from doing their jobs as lawyers in the proper way. What these restrictions basically mean is that a lawyer who acts for a client under LSC funding is in a different position to a private lawyer.[17]
There are certain courses of action that the LSC lawyer cannot take, certain arguments that are not open to them: they are not free as lawyers to determine with their clients the course of action they wish to follow. LSC grantees are permitted to refer restricted cases to other civil legal assistance providers or pro bono attorneys who can do the work. As always, of course, the problem is finding someone with the resources and interest to take the case. They can also create separate offices to receive non-LSC funds as long as all functions (accounting, staff etc) are separate. This, of course, is an extremely expensive enterprise using valuable funds that would otherwise go to providing direct legal services.
The prohibition against collecting costs in a matter puts LSC lawyers at a decided disadvantage. In many cases the threat of fees forces the other side to settle. The LSC-assisted client loses this bargaining point.
An LSC client may present with a problem that is shared by hundreds or even thousands of others. The lawyer may well feel that a class action would be the best way to approach the problem, for example, in consumer claims. Lawyers working for the LSC, however, are no longer permitted to take class actions. As the LSC programs lack the resources to be able to file repetitive, identical, individual cases this restricts the ability of lawyers to tackle systemic harms on behalf of their clients.[18]
LSC clients are the only people who are restricted from taking action in relation to the welfare laws. They are also of course probably the only people who have an interest in challenging injustice in the welfare systems and whose lawyers have the knowledge to mount effective challenges to oppose unfair or invalid laws or regulations.
When the 1996 restrictions came in, in more than 600 cases Legal Services lawyers were forced to resign as Counsel. It has been very difficult to find alternative funding for these and other cases. Other private lawyers are not usually willing to take on these time-consuming and difficult class actions. The restrictions ensure that in many cases poor people cannot stand up to government, cannot challenge government decisions and some classes of people are denied access to the legal system at all.
These restrictions have raised questions in the US about whether a lawyer is able to practise law ethically when operating subject to these restrictions.[19] If a legal services lawyer is precluded from challenging certain legislation or taking a class action on behalf of a client, then that client does not have the same access to justice as a client with a lawyer not subject to these restrictions.
Provisions prohibiting LSC-funded organisations from carrying on advocacy in relation to legislation and administrative practices are counter productive. Obviously LSC attorneys are often the people who best understand the laws affecting their poor clients and are best equipped to provide advice to government to ensure the most effective services are provided.
There is also much discussion in the US about whether these restrictions are constitutional. Arguments against the restrictions include, of course, arguments that Congress is attempting to restrict the scope of lawyers’ activities on behalf of their clients.
Many in the legal services community have been reluctant to oppose these restrictions fearing that any action might encourage Republicans in Congress to try and get rid of the LSC altogether. Some LSC lawyers and those who supported them felt in 1996 they had only narrowly avoided what may have ended in a total defunding of the LSC.[20]
The LSC itself is not actively speaking out about any adverse effect of the restrictions. In 1996 the LSC Board chose a Republican as the President of the LSC. He says that the LSC is an organisation that has been misconstrued as an organisation with a political agenda. He is someone who has connections with the Republican Congress and sees the focus of the LSC as being on individual rights. Some LSC lawyers have declined to use LSC funds outright rather than operate under the restrictions, for example: the Legal Aid Society of New York, the Community Legal Service of Philadelphia, and the Greater Boston Legal Services. Many have just ceased participating in the restricted activities for the foreseeable future. Some have taken legal action against the LSC in respect of the restrictions. So far three cases have been filed challenging the restrictions.
Some commentators feel that the issue of restrictions really is a political issue and will not be won on test cases.[21] It certainly seems clear that test cases, even if successful, will only assist in part in dealing with the problems faced by the LSC.
As a result of the restrictions a dual delivery system has been developed. There are at least 12 States where there are two sets of full legal aid service providers — one funded by LSC and one funded by non-LSC sources. The wasted resources in such a system are obvious. The affiliated organisations have to have separate personnel, separate accounting and time keeping, be physically separate and identify and have signs that distinguish them.
While the effect of these restrictions and funding cuts, has been to significantly reduce the capacity of LSC lawyers to act for certain clients and in certain cases, the LSC continues to provide basic civil legal aid services in the USA. Even if it is true that over 98% of the cases brought to court in 1995 can still be brought after the imposition of the 1996 changes, it cannot be denied that the restrictions seriously affect the ability of legal services lawyers to act in the interests of disadvantaged clients. The 2% of cases no longer being run are the class actions which could lead to marked improvements in access to justice for poor people. Are those cases the ones run for the benefit of those most marginalised in society — prisoners, immigrants, welfare recipients? What about the lack of law reform and policy work? Without the advice and assistance of those who really know what is happening on the ground, politicians and government officials cannot help but make policies and laws which do not work fairly or have unforeseen adverse impacts.
The situation in the USA may appear extreme to our eyes. It would be easy to sit back comfortably and say it could never happen here. But we already face massive cuts to legal aid funding. The Commonwealth government is already prescribing conditions as to what lawyers may do for their clients. Legal aid offices and community legal centres are in the process of changing their client base and reducing policy work to fit perceived or real criteria of funding agencies.[22] What we need to do is to take a critical look at the way we provide our services and what the needs of our communities are. Are we offering the most needed legal services in the most effective way to those who most need it or are we doing what funders want? We must prepare ourselves for hard decisions that may come when funding is offered subject to restrictions we find objectionable because certain clients are left out or certain methods of addressing clients’ needs are not allowed. Those involved in the provision of legal services for disadvantaged clients need to develop united positions on these issues and support agencies which take a stand.
Attacks on the civil legal aid sector in the USA over the last years have led to heated and sometimes bitter debates among the legal aid community. We too should be having these debates. What has happened in the USA can be an example to us to value the freedoms we currently have in the Australian legal aid system. These are already under attack and we must work to safeguard our clients’ rights to effective legal services for them as individuals and for their broader communities.
References
[*] Frances Gibson is Director, Kingsford Legal Centre, and teaches law at the University of New South Wales.
email: f.gibson@unsw.edu.au
[1] For examples of types of cases run see Redlich, Allen, ‘A New Legal Services Agenda’, (1993) 57 Alb.L.Rev 169.
[2] Ernesto, Sanchez, ‘Equal Justice is a Right’, 38 OCT Advocate (Idaho) 29.
[3] ‘Conservative Think Tank Recommends LSC Be Abolished’, (1980) Legal Services Corp. News, Nov-Dec, p.2.
[4] Reese Ray, and Eldred, Carolyn, Legal Needs Among Low Income and Moderate Income Households: Summary of Findings from the Comprehensive Legal Needs Study, Consortium on Legal Services and the Public Interest, American Bar Association, 18 January 1994, p.41.
[5] Dodson, Doreen, FY99, Congressional Testimony on behalf of the American Bar Association before the Sub Committee on Commerce, Justice, State the Judiciary and related agencies on the committee on Appropriations of the US House of Representatives, 1 April 1998.
[6] National Legal Aid and Defender Association website at <<www.nlada. org/g-98congvote.httn>>.
[7] Rogers, David, ‘Republicans Seek Budget Cuts to Pay for Tax Reduction’, Wall Street Journal, Europe, 15 April 1998.
[8] See Lobbying Disclosure Act 1995, 1996 Changes to OMB Circular A-122, Circular A-i 33.
[9] Omnibus Consolidated Recessions and Appropriations Act of 1996.
[10] For a more detailed breakdown see CLASP website <<www.clasp.org/ pubs/legalservices/whatcant>>.
[11] Harmon, Curran and Spielberg, Regulation of Advocacy Activities of Non Profits That Receive Federal Grants, Alliance for Justice website <<www.afi.org.fai/regula/html>>.
[12] Omnibus Consolidated Recissions and Appropriations Act of 1996 Pub l No 104-134 110 Stat 132 S 504(a)(16).
[13] See Yoder, J Dwight, Justice or Injustice for the Poor? A Look at the Constitutionality of Congressional Restrictions on Legal Services, 6 (3) Wm & Mary Bill Rts J 827 at 843.
[14] Boehm, Kenneth F., National Legal and Policy Center Congressional Testimony FY99, before Commerce, Justice, State the Judiciary and related agencies on the committee on appropriations for the US House of Representatives, 1 April 1998.
[15] See the website of the Center at <<www.nlpc.org>>.
[16] Boehm, Kenneth F., above, ref 14.
[17] For a discussion of how these restrictions have affected legal services lawyers see, Rosche, Staci, Billings, Lucy, Bogart, Valerie J., Boskey, Jill Ann, ‘Implementation Issues Panel’, (1998) 25 Fordham Urban LJ 321, Symposium.
[18] Udell, David S., ‘Implications of the Legal Services Struggle for Other Government Grants for Lawyering for the Poor’ (1998) 25(4) Fordham Urban LJ 895.
[19] Houseman, Alan W., ‘Restrictions by Funders and the Ethical Practice of Law’, Conference on the Delivery of Legal Services to Low Income Persons, (1999) 67(5) Fordham Law Review 2187.
[20] Roth, Jessica, ‘It is Lawyers We are Funding: A Constitutional Challenge to the 1996 Restrictions on the Legal Services Corporation’, (1998) 33 Harvard Civil Rights Civil Liberties Law Review 107.
[21] Freedman, Eric, ‘Constitutional Issues Panel’, (1998) 25 Fordham Urb LJ 345.
[22] Note for example the NSW Legal Aid Commission’s almost complete abandonment of immigration/refugee matters and nature of service agreements entered into by various community legal centres specifying numbers of cases to be run/clients to be assisted in particular areas of law.
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