Fighting Back Against the Attacks on Legal Services
by Laura K. Abel & David Pedulla*Cross-posteed from TortDeform.com
We’re going to use this space each month to discuss events affecting the ability of low-income people to access the courts. Our first post, and many others, will focus on civil legal aid programs, which represent low-income people in cases concerning child custody, eviction, public benefits and other basic human needs. These programs play an essential role in ensuring that low-income people are able to go to court to defend their rights. They also play a crucial role in helping the courts satisfy their mandate of providing equal justice for all.
Proving the maxim that no good turn goes unpunished, a legal aid program that for decades has represented rural Californians is being forced to fight for its very survival. Earlier this month, California Rural Legal Assistance, Inc. (“CRLA”) came under attack from the Legal Services Corporation’s Office of the Inspector General. LSC is the federal entity that doles out Congressional funding to local legal aid non-profits around the country. Its Inspector General is charged with ensuring that LSC and local programs use their federal funds properly. But sometimes the Inspector General becomes overzealous, becoming an enforcer not of federal law but rather an ally of industries that resent being sued by legal aid programs.
In its September 14, 2006 report,
the Inspector General claims that CRLA violated LSC regulations by
soliciting clients, handling a fee-generating case, requesting attorney
fees, and associating with political campaigns. CRLA has rebutted the charges.
We’re not going to weigh in here on who is right. Instead, we want to
flag some particularly disturbing aspects of the report that undermine
its credibility: 1) it relies on the use of “secret” sources, 2) it
attacks the use of “impact” litigation to help large numbers of
low-income people, 3) it challenges the ability of low-income people to
obtain the protection of the attorney-client privilege, and 4) the
accusations are driven, at least in part, by the interests of
industries CRLA sues.
Secret Witnesses
The Inspector General’s report is based on conversations with two
confidential sources. Without knowing the identities of the sources,
there is no way for CRLA, LSC or you, dear reader, to assess the
witnesses’ credibility or the truth of their allegations. It will come
as no surprise that an organization that sues the powerful on behalf of
the weak ends up with enemies. For all we know, the witnesses could be
linked to people CRLA has sued. They could be disgruntled former
employees. Or they could be upstanding whistleblowers who are telling
the truth. We just don’t know. At the very least, it seems wildly
unfair that CRLA is being placed under a magnifying glass while the
secret witnesses accusing CRLA of wrongdoing remain in the shadows.
Attacks on Attorney-Client Privilege
Alarmingly, the Inspector General is trying to compel CRLA to turn over the names of its clients, even though clients will be wary in the future of approaching CRLA if they know their identities might become public.
Would you consult a lawyer about a potential civil rights lawsuit against your employer, or about getting a restraining order against your abusive spouse, if you knew the employer or the spouse might find out? For many people, the answer is no. (Presumably the Inspector General understands the sensitivity of revealing names – that, we assume, is why he is keeping the names of his own witnesses secret.)
The American Bar Association has weighed in on behalf of CRLA by warning the Inspector General that his document requests may violate a California state law prohibiting lawyers from revealing undisclosed client names. The ABA’s letter states that “The Inspector General’s efforts conflict with the rights of California residents who consult with counsel and with the corresponding obligations of California attorneys to assert and protect these rights.”
The Inspector General’s effort to obtain this information is apparently based on a belief that low-income people have less right to attorney confidentiality than well-heeled clients do. If we start down that slippery slope, our society’s promise of equality and justice for all will soon disintegrate.
The Self Interest Underlying the Attacks
The Inspector General acknowledges that his investigation was prompted by Representative Devin Nunes (R-CA), a frequent critic of CRLA and of the Legal Services Corporation. Rep. Nunes, who comes from a family of dairy farmers, receives large financial support from the dairy and agriculture industries. CRLA often represents dairy and agriculture workers trying to get back wages owed them and to improve the safety of their jobs. During the past 18 months, CRLA’s clients have recovered more than $1 million dollars in unpaid wages, overtime pay, and penalties from the dairies for which they work. In an article published by the Associated Press, Nunes claims, “[CRLA is] basically just an extreme environmentalist organization and they’re constantly after agriculture and other industries that they don’t like. They’re not out at all to help poor people, that’s for sure”. The desire of the dairy and agricultural industries to employ a workforce unable to enforce their workplace rights is one more reason why the fight for civil legal services must continue.
The Attack on “Impact” Work
The Inspector General’s report declares that an alleged focus on “impact work” has distracted CRLA from providing “direct services” to clients. The report also concedes, as it must, that “impact work” can be an efficient, appropriate and permissible way to help multiple clients. Direct legal services are the bread and butter of all legal aid organizations. But the only way the lawyers can stretch their scarce resources to help more than a fraction of their communities is by working on cases with the potential to help many people at one time. Through its impact work, CRLA has been able to improve education, health, and employment standards for low-income families in California. The Inspector General’s attack on that work is a transparent effort to rob CRLA of its efficacy.
The Inspector General’s attack on CRLA should make your hair stand on end if you think low-income people need access to the courts. The philosopher David Luban has argued that “taking out your adversary’s lawyer is dirty law.” The involvement of the dairy industry in these attacks makes clear that this is a dirty law situation. So do the use of secret witnesses, the attack on attorney-client privilege and the attempt to stymie the use of impact litigation. Our society cannot maintain its integrity in the presence of such dirty tactics. They must be stopped.