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Fair Forums
By Laura Klein Abel – 04/11/07
*Cross posted from TortDeform.com
Sometimes, complex, intractable problems require complex, expensive
solutions. So it’s particularly frustrating when government refuses to
adopt a free, simple and proven method to address an important social
issue.
That’s the case in New York City, where social services officials
are struggling to get public assistance benefits to the people who need
them most. A recent report
by the grassroots group Community Voices Heard shows that people with
disabilities continue to have a hard time getting the help they need,
despite a city program dedicated to helping them.
According to the report, one of the program’s failures is its
inability to ensure that people with disabilities receive the
information and support that they need to navigate the complicated
public assistance application process, which involves multiple
appointments in various locations.
We feel the City’s pain. It’s not easy to provide the millions of
New Yorkers eligible for public assistance with all of the specific
information they need about the many different rules governing public
benefits programs. The task is made harder by the many different
languages spoken in the city, and by the fact that a substantial
proportion of the people needing public assistance have a low level of
literacy.
That’s why it’s particularly surprising that the city is placing
obstacles in the way of non-profits that want to help get information
to the people who need it. Since the Giuliani Administration changed
the city’s welfare policy, New York City has forbidden advocates from
setting up help tables in the government offices where people apply for
benefits. Groups literally left out in the cold include the New York City AIDS Housing Network, which wants to get benefits information to HIV positive people, and Make the Road by Walking,
which wants to let people with limited English proficiency know about
their right to an interpreter. The result is incomplete applications,
and families left without Food Stamps, Medicaid, and other
life-sustaining benefits, solely because they don’t find out what they
need to know to submit effective applications for those benefits.
Advocates will help to ensure that there is less error in the
distribution of public benefits, which benefits low-income families,
city agencies, and the general public.
Now, the New York City Council is
considering a bill,
the Ready Access to Assistance Act, that would require the city to
allow advocates to set up help tables in the public areas of benefits
offices. It shouldn’t take a piece of legislation to require such a
common-sense measure. But since that seems to be the only thing that
will move the bureaucrats to let a little sunshine in, we hope it
passes, and soon.
* Laura K. Abel is Deputy Director at the Brennan Center Strategic Fund.
Tags: Fair Forums
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
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