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Federal Judge Strikes Down Discriminatory Restriction on Lawyers for the Poor

December 20, 2004

For Immediate Release
Monday, December 20, 2004

Contact Information:
Natalia Kennedy, 212 998–6736

Federal Judge Strikes Down Discriminatory Restriction on Lawyers for the Poor
More Low-Income Clients Will Qualify for Needed Civil Legal Assistance

Brooklyn, NY A federal judge in Brooklyn today struck down a provision of federal law that has deprived low-income people of access to lawyers in housing, family, consumer and other types of civil cases for almost a decade. Judge Frederic Block agreed with several New York legal service providers that federal restrictions on how legal services offices spend private funds violate the First Amendment to the Constitution. To view the decision, please click here. To view a set of questions and answers about the decision, please click here.

This ruling means that we will be able to use resources more effectively to expand legal services to families facing eviction, elderly victims of predatory lending, disabled children in need of medical care, and immigrant workers wrongfully deprived of their paychecks, said Andrew Scherer, executive director of plaintiff Legal Services for New York City. Some of the most vulnerable people in our city can now get the help they so urgently need.

The case, Dobbins v. Legal Services Corporation, was brought by three New York-based programs that provide free legal services for low-income individuals and families Legal Services for New York City, South Brooklyn Legal Services, and Farmworker Legal Services of New York and by their clients and private funders. The plaintiffs are represented by the Brennan Center for Justice at NYU School of Law and by Kaye Scholer LLP.

At issue in the case are restrictions imposed by Congress in 1996 that have barred private non-profit organizations receiving any federal Legal Services Corporation (LSC) funding from representing low-income people in certain types of cases. The restrictions prohibit these programs from representing clients in class actions, educating potential clients about their rights and then offering to represent them, representing clients before legislatures, representing many classes of legal immigrants and all people in prison, and collecting attorneys fee awards in winning cases. An additional restriction the private money restriction prohibits the programs from engaging in this work even if they pay for those cases with money from non-federal sources, such as private donations or state grants.

The only way for a legal aid office to use private money to bring these restricted cases was to establish a physically separate facility. Complying with this physical separation requirement is so expensive that virtually none of the approximately 140 LSC grantees around the country which are already so cash-strapped that they can only represent a small fraction of eligible clients have been able to meet it. For example, plaintiff South Brooklyn Legal Services would have to turn away 500 more people each year if it set up a separate office. Most LSC-funded offices decided to forego these restricted cases entirely rather than turn away even more needy clients.

LSC-funded legal aid offices are virtually unique in facing such barriers to community support. Federal grantees are routinely required to comply with the governments restrictions on the federal money they receive; however, they can ordinarily use other funds to meet clients needs.
The court ruled that the private money restriction violates the plaintiffs First Amendment rights. In so ruling, it noted that the constitutional rights at stake are important, the burdens that the private money restriction imposes on the plaintiffs are substantial, and the reasons the government gave for requiring physical separation do not in fact support imposing such a burdensome requirement.

As a result of the ruling, the plaintiffs will be able to use their non-LSC funding to engage in the categories of activities barred by Congress, so long as they do so through legally separate programs; maintain separate public areas (reception and client conference rooms) for LSC-funded and restricted activities, maintain strict accounting and timekeeping measures to ensure that LSC funds are not spent on restricted activities; and make clear to the public that no LSC funds are being spent on restricted activities. The plaintiffs may allow all of their staff, including their executive directors, to work on both LSC-funded and restricted activities. While the courts ruling applies directly to three New York programs, well over a hundred other legal services programs throughout the country serving millions of low-income families and individuals may be able to rely on the courts reasoning to obtain rulings that would allow them to spend their resources more efficiently and strengthen their representation of low-income clients.

Congress needs to apply the same rules to legal services that apply to other non-profits, including faith-based non-profits, said David Udell, director of the Brennan Centers Poverty Program. More than 40 members of Congress have spoken out against the legal services private money restriction, and now a court has declared the rule unconstitutional. Instead of continuing to defend this unconstitutional restriction, Congress should simply get rid of it. He explained that President Bush currently authorizes faith-based non-profits to conduct their own privately financed activities—prayers, and other faith-based work that the federal government will not fund—in the same office space as their publicly funded social services.

The judge also denied the plaintiffs other challenges to federal restrictions that bar legal services programs from using LSC funds for such purposes as representing clients in class actions, educating potential clients about their legal rights and then offering to represent them, and collecting attorneys fee awards in winning cases. The plaintiffs have not yet decided whether to appeal this ruling.

Dobbins v. Legal Services Corporation is a companion case to Velazquez v. Legal Services Corporation, a 2001 U.S. Supreme Court decision striking down a federal law that had barred LSC-funded lawyers from challenging welfare reform laws.

For more information about efforts to remove civil legal aid funding restrictions imposed by federal and state and local funders, please visit the Brennan Center’s Access to Justice webpage.

The Brennan Center for Justice is a public interest research and legal advocacy group affiliated with NYU School of Law. The Center works with policymakers and grassroots coalitions at the federal, state and local levels to promote reform initiatives tailored to local needs.