Blog
Civil Legal Aid
By Kelly Williams – 11/24/09
"... we turn away from it at our peril.”
--Senator Sheldon Whitehouse on the Constitution, during the Second Annual Living Constitution Lecture, 11/20/2009, at NYU School of Law
Senator Sheldon Whitehouse (D-RI) delivered the Brennan Center’s Second Annual Living Constitution Lecture to a packed crowd in Greenberg Lounge at New York University School of Law. After a welcoming reception that featured the cuisine and libations of Rhode Island, Brennan Center Executive Director Michael Waldman introduced the pro-democracy evening. Katherine vanden Heuvel, editor-in-chief of The Nation, introduced Senator Whitehouse and moderated a Q&A following his remarks.
The Center’s Living Constitution Project brings together thinkers and policymakers to further a progressive interpretation of the Constitution. Senator Whitehouse, a member of the Judiciary and Intelligence committees, started his speech by noting that the Constitution is “a beacon of light” to citizens of the world and that, to protect its great principles, there must be respect for the rule of law and procedures “well down” the ranks of executive branch officials and the lawyers who interpret and enforce our laws. He pointed to the “litter of mischief” that resulted from torture memos written by lawyers in the Office of Legal Counsel during the last Bush Administration as a consequence of a turn away from a proper understanding of the principles that have made us strong and secure as a nation.
The Senator warned that the Constitution, the foundation of our democracy at home, faces grave threats in the form of widespread efforts to meddle with access to the ballot box by engaging in “electioneering games that trick voters into not participating.” Another looming threat is the pending Supreme Court decision in Citizens United, which might unleash corporations from the bounds of government by allowing corporations to tap their great accumulations of wealth to influence elections. In a lighter moment, he suggested that the only way to resolve this might be to muster a Constitutional amendment providing that only human beings can participate in the political process.
The Senator’s third concern springs from threats to the civil justice system. He argued that corporations have waged a successful war on our civil justice system and have won battles for mandatory arbitration systems and strict interpretations of statutes of limitations. The Constitution mandates trial by jury no less than three times, but in recent years we have witnessed persistent and successful efforts to erode and deride this right.
Finally, the Senator expressed concern for the promise of economic well-being that is embodied in the Constitution. He argued that the framers had a simple goal: to allow Americans to live freely and without government interference; but, for the past decade, progress on the economic front has not kept pace with the Constitution’s equally important promise of equality and justice. Economic disparities – widened by laws including those that allow reduced capital gains tax treatment of carried interest by hedge fund managers (15% rather than 36%, if deemed ordinary income) – erode this promise. And allowing executive compensation to be “taken” by the government under its TARP program without due process is a dangerous precedent, no matter how unsympathetic well-paid financial industry executives might seem at the moment.
Read the entire lecture by Senator Whitehouse here.
Tags: Democracy, Campaign Finance Reform, Justice, Civil Justice, Civil Legal Aid, Civil Right to Counsel
By Emily Savner – 10/01/09
One in two low-income Americans seeking legal help does not receive it, a new report shows. The report paints a grim picture of a two-tiered justice system, in which wealthy people are able to hire lawyers to help them get their "day in court," while low-income families must face life-changing legal issues without the same assistance. The report, Documenting the Justice Gap In America, was released this week by the Legal Services Corporation (LSC), the federal body that funds legal assistance for low-income Americans in civil cases.
The study found that budget shortfalls prevent the 137 local, LSC-funded legal aid providers from helping half of the eligible potential clients who contact them seeking help. Parents trying to protect their custody rights; individuals unable to collect the government support they need to pay their mortgage and feed their families; and workers fighting to obtain hard-earned wages illegally denied to them -- are all being turned away due to lack of funding for legal aid. The report estimates that in a year, almost 22,000 people seeking help to save their homes from foreclosure alone will be turned away by LSC grantees.
These figures likely understate the current crisis in legal representation. The U.S. Census Bureau reports that the number of people eligible for LSC-funded services (people living at or below 125 percent of the federal poverty level) grew to 53.8 million in 2008, up from 50.8 million just one year before, and even these figures capture just the recession's start. Only a fraction of low-income people with legal needs contact legal aid offices at all, and while LSC reports that half of those seeking help are "served," some receive just advice, not full representation in court.
In a case dealing with issues as important as child custody, the loss of one's home, or wage theft, standing alone in a courtroom, without the help of a lawyer, would be unthinkable to people of means. Low-income families are left without other options. There are ten times more private attorneys providing personal legal services to people who can afford it than there are legal aid lawyers serving the poor. And the poor suffer because of it; the report cites a growing body of research demonstrating that those without legal representation fare worse in court.
It is not just the poor who suffer. The court process is slowed and court costs multiply when litigants enter the courthouse without knowledgeable representation. Communities are drained of wealth when neighbors' homes are foreclosed. Consumers lose out when lenders are allowed to continue deceitful practices. And children suffer when family problems go unaddressed.
As the number of Americans with legal needs and eligible for federally financed legal aid swells, national and state-level responses fall woefully short. To date, federal stimulus bills have included no funding for legal representation, and though Congress is considering upping LSC's funding for Fiscal Year 2010, the proposed $10 - 50 million increase will not come close to the doubling of LSC funding needed to provide merely "necessary access to civil legal assistance," according to the report.
Further exacerbating the effects of funding shortages are Newt Gingrich-era federal restrictions on LSC grantees that not only limit the tools legal aid lawyers can use, but also create inefficiencies throughout the legal aid system. Unconscionable at this time of expanding need, a restriction prohibiting clients of LSC-funded programs from participating in class actions forces legal aid organizations to waste resources by unnecessarily litigating similar cases one-by-one. Unable to seek attorneys' fees, even when otherwise allowed under statute, the restrictions cause LSC-funded organizations to lose out on a potential funding source. And if an LSC grantee wishes to "un-restrict" its non-LSC funds, it must set up a wholly separate organization, creating major losses in duplicated overhead and administrative costs.
Only when all low-income people can obtain a measure of legal assistance in cases related to basic human needs, from lawyers with all the requisite tools, will the promise of "equal justice under law," inscribed on the Supreme Court, ring true.
Tags: Justice, Civil Justice, Civil Legal Aid
By Laura MacCleery – 06/16/09
Cross-post from CityLimits.org
Negotiating Justice: Progressive Lawyering,
Low-Income Clients, and the Quest for Social Change, by Corey S.
Shdaimah, NYU Press, $45.
Amid the surfeit of bad news that has
surfaced of late is the less than obvious connection between the
economic downturn generally and the budget crisis now being faced by
legal service providers. Due to a quirk in the manner in which many
organizations receive funding, hard times for Wall Street now means
it's even harder than usual to fund lawyers who serve the poor.
The
decline in interest rates undercuts the interest earned on a key kind
of account maintained by lawyers, called the Interest on Lawyers Trust
Accounts (IOLTA), a major source
of funding for legal aid organizations. Cash-strapped legal aid groups
may be fielding more demands than ever, yet find themselves less able
to provide services than they were even just last year.
And it is
no secret that, even in flush times, the best efforts of these groups
barely scratch the surface of the legal needs of poor communities and
families. While the victims of Bernie Madoff will almost certainly have
their day in court, it's clear that for many victims of mortgage fraud
and predatory lending schemes, workplace harassment, landlord-tenant
disputes, credit problems, or those grappling with mental illness,
securing a lawyer with the time and inclination to properly address
their needs remains a pipedream.
A new book
by Corey S. Shdaimah, "Negotiating Justice: Progressive Lawyering,
Low-Income Clients, and the Quest for Social Change," makes a measured,
observation-based analysis of the operation of a single legal service
clinic, named with the pseudonym "Northeast Legal Services" or NELS,
that serves poor clients in a medium-sized American city.
Through
interviews, the author applies social science methods in evaluating
day-to-day interactions of lawyers and clients. The book is
particularly meticulous in examining whether the work in the clinic
maps onto the contours of what has been a vigorous conversation in
academic and legal services circles concerning the goals and nature of
community-based legal practice.
Starting several decades ago,
some legal scholars and practitioners on the left began to question
whether the potential for empowering clients in legal work was being
realized in practice. Law professors and pioneering theorists Gerald
Lopez of UCLA, Lucie White at Harvard, and Amherst College's Austin
Sarat, among others, asked whether legal services lawyers were able to,
or did, assist clients in achieving social justice through litigation
and advocacy, or whether power dynamics within the lawyer-client
relationship were actually reinforcing poor clients' difficulty in
effecting change.
After losing many of the struggles to enshrine
social entitlements that were part of the so-called "War on Poverty,"
immediate goals for legal practitioners did - and had to - rise to the
forefront as part of a far more piecemeal approach to legal practice.
Particularly
against the current legal backdrop of largely conservative courts, as
well as federal funding restrictions that prohibit many legal aid
lawyers from bringing class actions and other important types of cases,
it became more crucial for legal services and community-based lawyers
to ensure that their work did not re-victimize poor clients as those
clients sought justice.
Scores of law review articles were
published as part of what Shdaimah calls the "progressive lawyering"
approach, which encouraged legal services lawyers to use opportunities
to listen more closely to clients, to maximize client autonomy and
lawyer-client collaboration, and to gain self-awareness about the
limitations of lawyerly expertise in telling client stories. The
obvious class divisions among lawyers and poor clients were also
highlighted.
As a conversation, it revealed a clear need for
community-based and more holistic, inclusive approaches to the practice
of law that included access to non-legal help as well as self-help, and
justified organizations' attempts to transcend a narrowly legal
approach by grappling with at least some other negative pressures in
clients' lives.
Most of these insights are now accepted widely
by legal services lawyers. They are an important aspect of both
aspirations and achievements of legal services organizations, including
such local, multi-dimensional organizations such as Make the Road by
Walking or The Neighborhood Defender Service of Harlem.
Shdaimah's
book is an important recent addition to this tradition of closely
examining public interest legal practice. Isolating certain themes
concerning progressive lawyering, Shdaimah - a lawyer and assistant
professor in the University of Maryland School of Social Work - probes
them carefully. Her innovation is to ask directly about, for example,
lawyer-client collaboration and client autonomy. The book contains
substantial excerpts from interviews, in which we hear both the
lawyers' and clients' voices and perspectives.
Shdaimah argues
with some force that much of the earlier scholarship lacked a
substantial empirical component, and this was to its detriment. From
her perspective, the literature has saddled practitioners with a set of
abstract and difficult-to-achieve goals, thereby burdening lawyers with
the unattainable.
Her most pointed example concerns the value
of collaboration: Shdaimah asks whether wealthy clients get their legal
needs met without being asked to shoulder a laboring oar, and therefore
whether it is fair for clients with far fewer resources to be expected
to perform tasks (such as getting affidavits signed) as a precondition
of receiving services. She rightly points out that, for many clients,
securing access to competent legal counsel is no small victory in
itself.
Yet the book makes it clear that, in practice, lawyers
need client assistance on many aspects of a case due to both the
pressure of caseloads and the greater efficiency of client action on a
matter. In interviews, the lawyers also directly linked their hopes for
collaboration in a particular case to their assessments of client
capacity. One lawyer indicated that he would do far more than usual in
the case of one specific client, a woman who was particularly
vulnerable and easily overwhelmed. In short, a mixture of transactional
and resource realities (and compassion) informed lawyers' judgments in
applying the abstract notion of collaboration to particular clients and
circumstances.
The book, as a whole, will be a terrific
resource for students who would like to leaven their academic
scholarship with insights gained from observations, surveys and
interviews at a real legal clinic. It would also be a deeply helpful
companion text in seminars accompanying clinical legal studies
programs, wherein law students work alongside lawyers to serve clients.
However, with the collaboration question, as with many of the
others that Shdaimah highlights, I found myself far more drawn to the
direct sources and stories she assembled than to her critique of the
scholarship. Much of what Shdaimah found confirms that lawyers are able
to work with clients to secure measurable improvements in their lives,
and are valued in this role by the clients, despite the fact that no
transformational change in the overall conditions of poverty is on the
horizon.
Her descriptions underlined the significance of the core
lawyer-client collaboration - "naming, claiming and blaming" - which
both confirms the clients' feelings of righteousness in their cause,
and makes the most of lawyers' skills in framing challenges and
possible solutions.
Moreover, through the interviews, it was
clear that the lawyers at NELS were very familiar with at least the
broad contours of the literature, and aware of its conceptual
significance for community-based legal centers. Shdaimah did not have
the liberty of studying this kind of legal practice before and after
the notion of progressive lawyering took shape, and these notions
appear to already pervade legal practice at NELS.
My own view is
that the lawyers' attempt to apply such values, however constrained in
practice or by compassion, is a rarely celebrated, but crucially
important, advance in how we have come to imagine legal practice in
these and other settings. When I was a law student, I admit to being
captivated by this literature, and credit it with providing me and
countless others tools for self-examination and self-awareness that
have proven an invaluable part of whatever I have done.
While
scholars such as Lucie White do exhort practitioners to a set of
engagement-oriented norms, equally important for her and others is a
call to situated practice, informed by real-life contingencies and a
clear-eyed assessment of what is possible. So while Shdaimah appears
somewhat dismayed by the distance between the literature and reality, I
am instead reassured by how far we have come in understanding the
challenges and pitfalls of lawyering in poor communities. Shdaimah's
findings at NELS of attentive, hardworking lawyers, who sensitively
work with clients to secure incremental change, are actually a happy,
and somewhat overdue, confirmation that real-world application of these
values creates a legal practice well worth doing.
Tags: Justice, Civil Justice, Civil Legal Aid, Civil Right to Counsel
By Laura Klein Abel – 03/27/09
Yesterday, Senator Harkin introduced the Civil Access to Justice Act of 2009. The Act will take significant steps towards improving access to civil legal aid: it will remove expensive and cumbersome restrictions on the ability of civil legal aid lawyers to help their clients, increase the funding allocated to civil legal aid programs, and expand the ability of law school clinics to provide legal assistance.
This is a vitally important move at exactly the right time. Record numbers of Americans face foreclosure, eviction, layoffs, domestic violence and other legal problems. Low-income people, and communities of color—which are disproportionately poor, and have been targeted by subprime lenders—suffer the most. They need help figuring out their legal rights, and making their voices heard in court.
Read the rest of this story ...
Tags: Justice, Civil Justice, Attorneys' Fee Awards, Civil Legal Aid
By Thaddeus Kromelis – 03/12/09
Good news: as part of the omnibus appropriations bill passed yesterday, the Legal Services Corporation will receive an additional $40 million in funding for fiscal year 2009. The timing of the additional funds is critical. Hit hard by the economic downturn, cash-strapped legal aid organizations nationwide are experiencing a tremendous increase in people seeking their services, especially for help with foreclosure cases.
According to their press release, found here, "The additional funding is critical to every one of our programs," LSC President Helaine M. Barnett said. "Low-income individuals and families are increasingly at risk during this economic downturn and our programs are overwhelmed with requests for help."
As part of our Civil Justice Initiative, the Brennan Center for Justice has put together a page chronically the economic downturn impact on civil legal services for the poor—impact on funding, uptick in legal services intake, etc. Click here to read more.
Tags: Justice, Civil Justice, Civil Legal Aid, Civil Right to Counsel, Economic Opportunity
By Emily Savner – 02/17/09
Signed into law today, the $787 billion stimulus package places our bets for the economy’s health on a plan promising job creation, government investment, and tax cuts. Another key component of the economic prescription is the expansion of public benefits programs needed to protect the most vulnerable families from falling deeper into poverty and essential to promoting growth.
To achieve their full remedial potential, these benefit program expansions must come with the assurance that claimants are receiving the full benefits to which they are entitled. Unfortunately, this is where the stimulus fell short. The Washington Post reports that, at least in the area of unemployment compensation, people applying for benefits are finding it increasingly difficult to obtain them.
Read the rest of this story ...
Tags: Justice, Civil Justice, Civil Legal Aid, Civil Right to Counsel
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
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