Common Sense Solutions for Civil Legal Aid

The Civil Access to Justice Act is a vitally important move at exactly the right time....

March 27, 2009

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.

At other times in our history Americans could look to government agencies for help—for example to obtain wages owed them by their employers.  But government's ability to enforce its civil laws—including laws barring illegal foreclosures, wage theft and civil rights violations—has been decimated by years of government downsizing.  A Government Accountability Office report that was released yesterday, for example, documented the repeated failure ofthe federal Department of Labor to help workers deprived of hard-earned wages.

Civil legal aid programs that supply legal services to citizens who could not otherwise afford it face unprecedented constraints. In 1995, the Gingrich Congress imposed restrictions on all programs receiving assistance from the federal Legal Services Corporation (LSC).  As a result, those who depend on Legal Services are denied tools available to other parties to litigation; these include the ability to enter into class actions, demand attorney's fee awards and use of the legal procedure by which citizens can ask elected officials tochange bad laws.  The Brennan Center has documented the heavy human toll exacted by these restrictions. 

Equally damaging is an increasing funding shortage.  Civil legal aid programs have never been able to help more than 20% of the legal needs in their communities.   Federal funding has plummeted from the high-water mark it reached in 1981.  State governments, facing severe budget shortages, are slashing their support for civil legal aid.  And Interest on Lawyer Trust Account Programs (IOLTA)—for the past two decades one of the largest funding sources for civil legal aid—rely on interest rates to generate funding.  With interest rates at all-time lows, IOLTA programs are not providing much funding either.

The Civil Access to Justice Act is a ray of sunshine in this otherwise gloomy scenario.  It will allow civil legal aid programs to use all of their funding from sources other than the Legal Services Corporation free of the onerous restrictions.  Programs will be able to use their non-LSC funds to bring to bear on behalf of their clients all tools other lawyers can use.  They will be able to use their LSC funds to do many of these activities too. 

Equally important, the Act will increase the authorized funding level for LSC to $750 million. Compared to the $390 million included in the FY 2009 budget bill, this would be a huge improvement.  The result will be that far fewer people will be denied civil legal aid.  Communities will also be enriched.  Study after study has shown that civil legal aid programs save money for their communities. When civil legal aid programs prevent foreclosures, for instance, communities save money they would otherwise have to spend on homeless shelters and policing and maintaining abandoned properties.

The Civil Access to Justice Act isn't a complete solution to the problems facing civil legal aid programs and their clients.  It retains some of the restrictions on federal funding imposed by the ideologically motivated Gingrich Congress.  It lifts restrictions on class action suits, but only partially and in a legally tenuous way, by allowing only class actions that proceed from existing law.  And the monies involved go only part of the way towards addressing the enormous gap between the need for and the availability of legal services.

But the Act is a huge step forward, and it couldn't have come at a better time.