End the Harmful Restrictions on Legal Aid
from the Brennan Center for Justice at New York University School of Law
As the nation struggles under the burgeoning economic crisis and record numbers of Americans are threatened with the loss of their homes, people civil legal aid is more critical than ever. However, an outdated, ill-conceived and inefficient law cuts deeply into the ability of low-income and of color communities to obtain a fair day in court.
Background:
In 1996, the Gingrich-era Congress imposed draconian restrictions on federal funding distributed by the Legal Services Corporation ("LSC") to civil legal aid lawyers across the country. First, Congress banned certain legal tools, preventing the vulnerable clients of these lawyers from joining class actions or claiming court-ordered attorneys' fee awards. [1] Second, Congress prohibited broad categories of people from relying on legal aid lawyers at all, excluding from eligibility certain legal immigrants, all undocumented immigrants and people in prison (even those in need of legal help as they prepare to reenter society). . Finally, Congress imposed an extraordinarily harsh restriction on LSC-funded programs -- a poison pill restriction -- that extends the federal funding restrictions to cover the privately financed activities of LSC recipient programs as soon as they accept their first dollar in federal LSC funds.
Problems Caused by the Restriction on State, Local and Private Funds
All of the legal aid restrictions are harmful and should be removed. The most harmful restriction – and top priority for a new administration and Congress – is the poison pill restriction on state, local and private funds. This overreaching, outdated law has caused substantial harm:
- Individuals and families are suffering.
- Communities are hamstrung in their ability to combat predatory lending practices because legal aid clients cannot participate in class actions.
- Victims of consumer fraud, domestic violence and illegal housing practices are placed at a disadvantage in court because legal aid attorneys canot bring attorneys' fee claims, a crucial source of leverage in many cases.
- Whole immigrant communities are going unserved even though state and local governments want to fund their representation.
- The restriction interferes with choices of state, local and private charitable donors about how to spend their money.
- This poison pill restriction encumbers more than $450 million provided by state and local governments, charitable contributions, and other non-LSC sources. [2]
- State and local governments, critical partners in legal aid delivery systems, are prevented from running the most efficient legal aid systems in their communities.
- Precious public funds are being wasted as a result of the restriction.
- In many states, justice planners have had to set up entirely separate organizations and law offices, funded by state and local public funders and private charitable sources, to do the work that LSC-funded programs cannot do, resulting in wasteful duplication of overhead, personnel and administrative costs.
The Solution – Fix the Law by Eliminating the Restriction on State, Local, and Private Funds.
The solution is easy and cost-free (in fact, it saves money). Low income and of color individuals would be able to obtain more essential legal help if Congress would simply remove the restriction from the Commerce, Justice, and Science appropriation bill.
The new administration can recommend this change in its first budget submitted to the Congress. Additionally, the new administration can appoint Legal Services Corporation board members who would support a flexible regulatory approach to effectuating the existing law. Finally, the new administration should seek the removal of the full set of funding restrictions.
1. See Omnibus Consolidated Rescissions & Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a), 110 Stat. 1321, 1321-53 to -56. Congress has carried forward these restrictions each year by incorporating them in the annual appropriations rider for LSC.
2. See Legal Servs. Corp., Fact Book 2006, at 14 (2007), available at http://www.rin.lsc.gov/Rinboard/2006FactBook.pdf.
