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Civil Legal Aid
By Maggie Barron – 09/17/08
Those of us raised on cop dramas take for granted that in this country you have the right to an attorney, and that if you cannot afford it, one will be provided to you. What Americans don't know is that in courtrooms across the country, there is a lot of room to interpret what "afford" actually means.
This week, the Brennan Center for Justice released a new report, "Eligible for Justice," exposing the lack of standards for determining who is eligible for court-appointed defense counsel. In a national study, the Brennan Center found that many jurisdictions use flawed screening processes to separate those who can afford counsel from those who cannot, and as a result are denying government-funded defense counsel to people who should receive it, in violation of the Sixth Amendment.
The landmark Supreme Court case Gideon v. Wainwright requires that states provide counsel to all people charged with felonies who are unable to afford their own attorney without substantial hardship. Yet states have been provided with little instruction on how to determine which individuals are genuinely unable to pay for counsel. Some courts have no standards at all.
Read the rest of this story ...
Tags: Justice, Civil Justice, Civil Legal Aid, Civil Right to Counsel, Fair Forums, Criminal Justice
By Laura Klein Abel – 01/15/08
Among the many provisions of the omnibus appropriations bill President Bush signed the day after Christmas is one that, for the first time ever, promises to bring one of the most vulnerable group of employees in the United States within the protection of the laws the rest of us take for granted. Since the mid-80's, a group of foreign workers legally brought into the U.S. to do jobs that citizens refuse to do has been categorically ineligible for assistance from all nonprofit lawyers receiving funding from the federal Legal Services Corporation. This has made it all but impossible for these workers -- who are in the country legally under the "H-2B" visa program -- to get legal help, because virtually no other lawyers will represent them. Language barriers, the remote locations in which the workers are kept, the small amounts of money at issue, and the expertise needed to represent these workers make the cases unattractive to attorneys in private practice.
For the most part, government agencies won't help these workers either. State labor departments tend to think of the workers' plight as a federal matter. The federal Department of Labor sends the workers to the immigration authorities, who send the workers back to the federal Department of Labor. Even the most bureaucracy savvy among us would throw up their hands at that point. That is exactly what the workers - who generally lack familiarity with the U.S. legal system and rarely have more than a basic understanding of English - do.
Without access to a lawyer or help from the government, the many protections written into our nation's labor laws are worthless for these workers. The problems are exacerbated by the workers' unique vulnerability. The terms of their visa tie them to working for a single employer while they are in the U.S., giving that employer enormous power over the workers' lives. The workers tend to lack family or any other support system in the U.S. Most take out loans to pay for their transportation to the U.S., and they rely on the work they have been promised here to pay the loans back.
If this sounds to you like a situation ripe for exploitation, you are right. It is not unusual for workers lured to this country by U.S. employers to find, when they get here, that the wages are far lower than promised, the working conditions are dangerous, and living conditions are disgusting. Many workers end up being paid less than the legally required minimum wage, suffering workplace injuries, and going home deeper in debt than when they came here.
The omnibus spending bill holds out the promise of change for H-2B workers employed in forestry in the U.S. Senator Jeff Bingaman (D-NM), who wrote the change into the law, was moved to act by a series in the Sacramento Bee describing shocking mistreatment of H-2B forestry workers. On the Senate floor, he called making the workers eligible for assistance from federally funded lawyers "the single most effective thing Congress could do to address the problem of exploitation of forestry workers."
Next, Congress should address the plight of H-2B non-forestry workers, all of whom remain ineligible for assistance from those lawyers. The pressure is mounting. The Mexican government -- prompted by a petition filed by the Brennan Center, the Northwest Justice Workers' Project, and a large coalition of workers and nonprofits in the U.S. and Mexico -- has asked the U.S. government to explain how H-2B workers can enforce their labor rights. A recent series in the Glenwood Springs, Colorado Post-Independent details the plight of 100 H-2B workers lured to the U.S. with promises of construction jobs, and then stranded over Christmas with no work and no wages. Congress should not let another Christmas pass without making these, and other H-2B's, eligible for the legal assistance they need to prevent such abuses from happening again.
Tags: Justice, Civil Justice, Civil Legal Aid
By Rebekah Diller – 06/24/07
*Cross-posted from The Huffington Post
What to do when you have it in for a federal agency that is recognized on both sides of the aisle for providing high-quality services to Americans in need, all the while operating on a shoestring (about half of its 1981 budget in real terms)?
Manufacture a "scandal," of course.
Those few lawmakers who just don't like the Legal Services
Corporation, the nation's provider of civil legal aid to the poor, are
at it again. They've leaked a report that grudgingly concludes that
Helaine Barnett, LSC's president, made an unintentional mistake when responding to Congressional inquiries and tried to spin it into a story about abuse of taxpayer dollars.
Read past the headlines of this AP story
and see how notwithstanding valiant attempts, LSC's Inspector General,
Kirt West, could not find any evidence that Barnett intentionally
misled Congress when she answered questions about travel expenses for a
trip to Ireland. At issue was a first-class flight to Ireland for a
conference which Ms. Barnett believed had been obtained via a frequent
flyer upgrade. The IG determined that the upgrade occurred only after a
series of cancellations and rebookings that cost the agency about
$1049. After learning of the added costs, the AP story says, Ms. Barnett corrected her statements to Congress and reimbursed the agency.
Barnett, a respected, career legal aid attorney and administrator,
has received high marks from veteran legal aid providers for her
leadership. And the IG himself found no evidence that she knowingly misled Congress in any way. So why are Barnett and LSC under fire?
Some critics simply don't like the idea that in a country that
promises equal justice for all, the federal government might make some
small effort to deliver on that promise. Notwithstanding the important
work that LSC does -- preventing seniors from losing their homes,
helping victims of domestic violence obtain protection, obtaining
benefits for disabled children -- most studies estimate that 80 percent of the civil legal needs of low-income people still go unmet due to inadequate government funding.
Yet, despite this continued crisis in our courts, LSC critics such
as Charles Grassley (R-IA), persist in searching for any opportunity to
destabilize the agency. It's particularly ironic to read him inveighing
against Ms. Barnett's $1000 mistake -- all of which was repaid and cost
the taxpayer not a penny -- when just last year he himself attempted to
earmark $50 million
to bring a man-made rainforest to Iowa. A better use of everyone's time
-- and investigative zeal -- would be pry into why millions of
Americans who desperately need legal help in the land of equal justice
are unable to get it.
Tags: Justice, Civil Justice, Civil Legal Aid
01/05/07
By Laura K. Abel & David Pedulla
*Cross-posted from TortDeform.com
In November, the voters called for a different approach to national
policy. With the New Year, it is time for Congress to make that new
approach happen. These are some policy reforms that would help fix one
fundamentally flawed aspect of our government – the inability of
low-income people with pressing civil legal needs to get a fair day in
court.
1. Allocate more funding to the Legal Services Corporation.
Every county of every state is served by civil legal aid lawyers
receiving federal funding through the Legal Services Corporation
(“LSC”). Those lawyers provide representation in cases regarding the
daily, crucial legal needs of low-income people, in matters such as
child custody, evictions, and subsistence-level public benefits.
Repeated studies show that about 80% of those legal needs go unmet
because LSC lacks adequate funding. Pro bono and other palliative
measures are unable to fill the gap. The minimum Congress should
allocate is $411 million – the amount called for by LSC and the
American Bar Association. Even that amount will leave many dire legal
needs unmet, but it will be an improvement over the current LSC funding
level of $330 million.
2. Ensure that Interest on Lawyers’ Trust Accounts accrue the same level of interest as other bank accounts.
Interest on Lawyers’ Trust Accounts (“IOLTA”) – a program in which
attorneys bundle client funds in order to generate interest revenue
where no interest would otherwise be generated – is one of the nation’s
largest funding sources for civil legal aid. Unfortunately, banks
sometimes pay less interest on IOLTA accounts than they do on other
similar bank accounts. Congress should follow the practice of many
state legislatures and state court systems by instituting banking
reforms to require banks to pay interest at the same rate on IOLTA
accounts as they do on comparable accounts.
3. Remove the LSC “physical separation requirement.”
A holdover policy from the Gingrich-era Congress requires civil legal
aid programs receiving LSC funds to waste their scarce resources by
establishing two different offices if they want to use their non-LSC
funds free of cumbersome restrictions. The restrictions bar the
programs from representing clients in class action lawsuits, claiming
court-ordered attorneys’ fee awards to strengthen clients’ cases, and
representing many categories of immigrants, among other activities.
Congress should remove the wasteful physical separation requirement to
allow civil legal aid lawyers to help their clients in the most
efficient and effective manner.
4. Examine whether the LSC Inspector General is overstepping
his mandate by interfering with the ability of civil legal aid programs
to serve their clients.
Civil legal aid programs receiving LSC funding recently have come under
attack by LSC’s Inspector General (“IG”). The IG claims to be trying to
ensure that impact work does not interfere with civil legal aid
programs’ ability to meet the basic needs of low-income clients. Our
fear is that the IG’s investigations themselves are interfering with
the ability of civil legal aid lawyers to meet the needs of their
client communities in the most efficient and effective manner. Congress
must investigate whether this is the case.
5. Reform the Bankruptcy Act.
In 2005, Congress enacted sweeping changes in the bankruptcy laws. One
change that went too far was the imposition of personal liability on
lawyers representing clients in bankruptcy proceedings. This reform has
scared countless lawyers in public interest organizations and in
private practice away from representing clients seeking bankruptcy
protection. Congress must roll back this provision to increase
financial protection for low-income people and to ensure that the
bankruptcy system can benefit from the participation of lawyers skilled
at counseling and representing clients.
6. Fund student loan forgiveness programs for civil legal aid lawyers.
Another reason low-income people have a hard time finding high-quality
legal representation is that few recent law school graduates can afford
to take public interest jobs. A recent study
found that more than 80% of law students borrow money to pay for law
school, with an average loan burden of $78,763 for students attending
private schools. For these students, taking a legal aid job paying an
average of $35,000 is not an option. Congress should expand a pilot
program operated by the Legal Services Corporation, which helps civil
legal aid attorneys repay their loans.
7. Pass legislation similar to the Civil Rights Act of 2004 (the FAIRNESS Act).
Over the course of the past decade, the federal courts have stripped
themselves of the ability to enforce many important civil rights
protections. The result is that people suffering discrimination often
find that they have no way to enforce their rights. The FAIRNESS Act
would restore access to the courts for seniors seeking to challenge age
discrimination, for immigrants seeking to enforce their language access
rights, and for many others seeking fair treatment under the law.
Tags: Justice, Civil Justice, Attorneys' Fee Awards, Civil Legal Aid, Fair Forums, Language Access
10/30/06
by Laura K. Abel & David Pedulla
*Cross-posted from TortDeform.com
Fifty years ago this month, William J. Brennan took his seat on the
Supreme Court. Among his many remarkable opinions was Goldberg v.
Kelly, safeguarding the right of low-income people to be treated fairly
by the government when they seek to enforce their rights. Likewise, in
NAACP v. Button, he affirmed the First Amendment rights of non-profit,
public interest lawyers and their clients to join together to assert
important rights.
At the Brennan Center for Justice
at NYU Law School, one of the ways we carry out the ideals of Justice
Brennan is by working to ensure that low-income people have access to
the justice system to ensure that their rights are protected.
Throughout the country, non-profit civil legal aid organizations work
with low-income individuals, families, and communities to ensure that
parents and children remain together, tenants can stay in their homes,
and workers receive the wages they deserve. Unfortunately, these
organizations don’t have enough funding to carry out their vital work.
And even the limited funding that they receive often comes with
significant restrictions on the work that they are able to pursue. This
post explores some of the difficulties civil legal aid organizations
face and some of our attempts to overcome them.
Funding for Civil Legal Services in the United States:
Approximately half of the funding for civil legal aid in the United
States comes from a Congressional appropriation for the Legal Services
Corporation (LSC). LSC, a private non-profit corporation established by
Congress in 1974, distributes federal funding to 138 local legal aid
programs throughout the country. The remaining funding for civil legal
aid comes from a combination of state, local, and private sources.
Over time, the federal appropriation for LSC has dramatically
declined. In inflation adjusted dollars, LSC today receives just 49
percent of what it did in 1981. Unfortunately, the decrease in funding
has not coincided with a decrease in need. Respected studies show that
over four-fifths of the civil legal needs of low-income families go
unmet.
This is a real crisis, because many of the legal needs confronting
low-income people affect their most basic human needs: their daily
subsistence, their homes, and their families. When organizations that
represent low-income people lack adequate funding, entire families and
communities suffer.
Legal Services Restrictions:
In 1996, Congress enacted a “private money” restriction prohibiting
organizations that receive LSC funding from engaging in certain
important activities on behalf of low-income people with both their
public and private funding. This restriction bars LSC-funded
organizations from bringing class action lawsuits, performing outreach
to potential clients who may not be aware of their legal rights,
claiming attorneys’ fee awards, providing legal services to many
categories of immigrants, or engaging in other work for their clients.
The only exception is a theoretical one. LSC permits its grantees to
use their non-LSC funds to engage in these activities, but only if they
do so through a legally and physically separate entity, with separate
premises, equipment and personnel. This is so expensive that few legal
aid programs have been able to do it, and those that do create a
physical separate entity find that it exerts a severe strain on their
already scarce resources.
The private money restriction has far-reaching and detrimental
effects on the lives and well-being of low-income people. For example,
the inability of LSC-funded organizations to carry out class action
suits has had a negative effect on elderly and low-income homeowners in
Chicago, where there was an enormous increase in home foreclosures in
the late 1990s and early 2000s. One 75-year-old who had owned her home
for 30 years was forced into foreclosure in April 2002 when she refused
to repay a bogus $50,000 loan. The loan had been fraudulently taken out
in her name by a contractor. The contractor kept the cash; he never did
the work. A series of lawsuits brought by an LSC-funded legal services
provider in Chicago, and a set of complaints filed by Chicago and by
the Illinois Attorney General, didn’t stop the contractor’s lawless
activities. For the contractor, these small interferences were just
part of the cost of conducting a fraudulent business. A class action
lawsuit could have compelled the contractor to disclose the names of
all of the victims, led to damages and attorneys’ fees payments to the
victims, and even produced a cease and desist order preventing the
contractor from further scheming. Even though the LSC-funded
organization in Chicago had sufficient private funds to file the class
action suit, the restriction barred it from pursuing such a strategy.
The consequence has been the continued exploitation of elderly and
low-income people.
Working Towards a Solution:
The Brennan Center is challenging the restrictions placed on the
private funding of legal aid organizations. Collaborating with us are
over 100 civil legal aid non-profits, foundations, state and local bar
associations, unions, civil rights organizations, and religious
organizations, via a federal lawsuit, Dobbins/Velazquez v. Legal
Services Corporation, as well as a national campaign urging public
support to repeal the restriction.
To get involved, or to find out more information about our work to
remove the restrictions on civil legal aid organizations, please visit the Brennan Center’s website.
If you are interested in receiving updates about what’s going on nationally in the civil legal aid community, please subscribe to the Brennan Center’s Legal Services E-Lert.
Tags: Justice, Civil Justice, Civil Legal Aid, Fair Forums, Non-Profit Rights
09/05/06
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.
Tags: Justice, Civil Justice, Civil Legal Aid
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