FACT SHEET | The Restriction Barring LSC-Funded Lawyers from Offering their Assistance

“None of the funds appropriated . . . to the Legal Services Corporation may be used to provide financial assistance to any person or entity . . . unless such person or entity agrees . . . not [to] accept employment resulting from in-person unsolicited advice to . . . obtain counsel or take legal action . . . .” Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104–134, 504(a)(18), 110 Stat. 1321, 50 (1996).

What is “unsolicited advice to . . . obtain counsel or take legal action”?

• “Unsolicited advice to . . . obtain counsel or take legal action,” sometimes referred to as “outreach” or “solicitation,” takes many forms. Legal Services Corporation (“LSC”)-funded lawyers have historically been able to engage in outreach to advise people about legal rights, such as the legal rights to be protected from employment discrimination, overreaching landlords, or abusive spouses. LSC-funded lawyers have engaged in outreach to offer free legal assistance to people already aware that they have suffered an injury, but who are unaware of the opportunity to have professional legal counsel.

What is the history of the outreach restriction?

• The United States Congress first prohibited LSC-funded lawyers from engaging in outreach in the Omnibus Consolidated Rescissions and Appropriations Act of 1996, which was part of the far-reaching reform of public benefits. Although Congress prohibited only “in-person” unsolicited advice, LSC has issued regulations that expanded the restriction to forbid legal services lawyers from engaging in outreach over the telephone or through the mail. See 45 C.F.R.  1638.2.

Why do some people seek to prevent legal services lawyers from engaging in outreach?

• Some critics confuse outreach with ambulance chasing, the practice of some lawyers who encourage people under duress to file personal injury actions that enable the lawyers to claim legal fees. The criticism does not apply to LSC-funded lawyers, however, who receive a pre-determined salary that is not related to the number of clients they represent or the awards they obtain for those clients. LSC-funded lawyers are required by law to refer to the private bar any case in which the client’s claim is likely to generate an award of fees.
• Some critics simply do not want indigent individuals to learn about their legal rights.
• Some critics suggest that LSC-funded lawyers seek to stir up litigation around controversial issues as a means to advance their own political views. But LSC-funded programs are guided by priorities set by local boards of directors, with input from members of the community and from local bar associations.

Why is it important for legal services lawyers to be able to engage in outreach?

• When legal services lawyers engage in outreach, they can help people become aware of their rights and gain access to the rule of law. For example:
  
  
  • In the 1950s, at the height of the battle to desegregate the nation?s public schools, Virginia tried to prohibit the NAACP from encouraging African American parents to file suits against segregated school systems. The Supreme Court overturned Virginia?s ban on outreach because, by barring lawyers from “advocating lawful means of vindicating legal rights,” the state trampled on First Amendment “freedoms of expression and association.” NAACP v. Button, 371 U.S. 447, 470 (1963)(concurring).
  • In 1973, a South Carolina county required women to undergo sterilization as a condition for obtaining Medicaid. Distressed by this practice, a local lawyer affiliated with the ACLU wrote to a recently sterilized woman offering free legal assistance. The South Carolina Supreme Court sanctioned the attorney for writing this letter, but the United States Supreme Court overturned the sanction. Justice Thurgood Marshall observed that the lawyer had “acted in accordance with the highest standards of the legal profession . . . [which encourage lawyers to defend the] legal rights of persons not likely to appreciate or to be able to vindicate their own rights.” In re Primus, 436 U.S. 412, 431–32 (1978).
• Outreach also helps people defend themselves from those seeking to take advantage of them. For example:
  • New immigrants often find work in this country as domestic servants. Ignorant of their rights to a minimum wage and overtime pay and unable to speak English, they often labor in illegal and unsafe conditions for illegally low pay. After learning about the protections of American law, one immigrant worker successfully sued to compel her employers to pay her back wages.
    
    This Fact Sheet was prepared by Philip Gallagher, Associate Counsel, Katz Fellow, Poverty Program, Brennan Center for Justice at NYU Law School.