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Foundation, Private Attorneys and Legal Services Lawyers Challenge Government Bar to Helping Low-Income Clients

December 14, 2001

For Immediate Release
December 14, 2001

Contact Information:
Amanda Cooper, 212 998–6736

Foundation, Private Attorneys and Legal Services lawyers Challenge Government Bar to Helping Low-Income Clinets
First Amendment Lawsuit Challenges Federal Restriction Thwarting Community Support For Legal Aid Programs

A law restricting civil legal assistance to low-income people came under attack today in federal court. The challenged federal law forbids Legal Services Corporation (“LSC”) funding to be used for certain basic legal representation on behalf of the poor, such as class actions and suits claiming attorneys’ fee awards. The law, dating from 1996, undermines community-based efforts to help low-income people and often leaves the most vulnerable Americans without legal recourse when they are wronged.

A private charity and a pro bono lawyer associated with one of New York’s most prestigious firms joined local legal aid offices in bringing the suit. A devastating consequence of the restrictions has been that legal aid offices that receive any funds at all from LSC are unable to use private contributions, or state and local government money, to pay for the full range of legal work required by their poor clients. Plaintiffs to the suit including the New York Foundation, and David F. Dobbins, the private attorney seeking to donate his legal services claim that this federal obstacle to their philanthropy violates their First Amendment rights.

“There’s a terrible irony at work here,” said David Udell, director of the Brennan Center’s Poverty Program and attorney for the plaintiffs in Dobbins v. Legal Services Corporation. “Public-private partnerships, faith-based initiatives, and support from local charities are being embraced by our government leaders. The aftermath of September 11 has shown us, once again, the enormous generosity of communities across the United States. Yet legal aid offices remain saddled by a Gingrich-era law that erects a roadblock to private philanthropy and pro bono lawyering.”

Brennan Center Legal Director Burt Neuborne explained, “The federal government should be encouraging, not thwarting, the generosity of communities working for equal access to justice for low-income people. This is a disastrous and mean-spirited policy. We are urging the court to find these laws unconstitutional and to strike them down.”

Impact on low-income people

Papers filed today by plaintiffs in support of a preliminary injunction motion barring enforcement of the law feature two examples that underscore the costs imposed by the challenged federal policy:

  • Discrimination against indigent persons with mental disabilities seeking half-fare MetroCards. Last year, Governor Pataki signed a law requiring the Metropolitan Transit Authority (“MTA”) to provide reduced-fare MetroCards to certain mentally disabled adults, but the MTA has refused to abide by the law. Though efforts to obtain reduced-fare status have succeeded on an individual basis, there has been no change in the MTA’s general policy. To assure that all members of the eligible population of indigent clients receive the reduced-fare benefit, a class action must be filed. Otherwise, the MTA will continue to violate the law.
  • No class action relief for low-income operators of day care centers. In Brooklyn, low-income women, many in welfare-to-work programs, who operate qualified day care centers in disadvantaged neighborhoods have been shortchanged payments owed to them by New York City as the result of an incorrect reimbursement formula. Legal services lawyers employed by South Brooklyn Legal Services (“SBLS”) won a settlement of $12,000 for one of these women, plus the withdrawal of the improper formula. But reimbursement has been denied to hundreds of other poor women who were similarly harmed. If not for the LSC restrictions hobbling SBLS, the clear solution would be a class action against the City. But that option is not available.
David Dobbins’ perspective as a pro bono attorney

David F. Dobbins, a former litigation partner, now of counsel to Patterson, Belknap, Webb & Tyler LLP, is seeking to work with MFY Legal Services, Inc. (“MFY”) in Manhattan as pro bono counsel to the class of mentally disabled adults being denied reduced-fare MetroCards. “Federal policy blocks me from donating my time and expertise,” said Mr. Dobbins. “To adequately represent these indigent clients, the case must be litigated as a class action in collaboration with MFY’s attorneys, who have day-to-day experience with the client population. Under the challenged law, that’s not possible.”

Madeline Lee’s perspective as a foundation director

“Federal policy can work like a stop sign for private charities,” said Madeline Lee, executive director of the New York Foundation. “My organization is proud of our support for day care centers in disadvantaged neighborhoods. Yet when it comes to fairly and fully reimbursing the low-income women who run these centers, the government tells us that we can’t fund the necessary legal assistance.”

The obstacles confronted by plaintiffs in Dobbins v. Legal Services Corporation show that class action litigation is an indispensable tool for poor communities suffering from abuses that cannot be remedied by separate lawsuits brought on behalf of individual low-income clients.

MFY Legal Services’ perspective

“As chairman of MFY’s board, and as one of MFY’s private donors, I want MFY to be able to use its resources to serve low-income clients in the most efficient and effective manner possible,” said David W. Ichel, a partner at Simpson Thacher & Bartlett. “Federal restrictions prevent MFY from using privately donated funds in the way they believe will best serve the legal needs of low-income New Yorkers.”

Legal theory

The lawsuit filed today, Dobbins v. Legal Services Corporation, joins an ongoing, related suit titled, Velazquez v. Legal Services Corporation. In a decision in Velazquez announced in February, the U.S. Supreme Court already struck down as unconstitutional a federal law barring LSC-funded lawyers from challenging welfare reform laws.

The legal landscape is much changed in the five years since the issues currently raised in Dobbins and Velazquez were first presented to the U.S. District Court for the Eastern District of New York in Velazquez. First, the Supreme Court’s ruling earlier this year in Velazquez substantially limited the landmark precedent, Rust v. Sullivan, 500 U.S. 173 (1991), in determining whether the challenged federal policy violates the First Amendment.

Second, conjecture about the impact of an LSC regulation allowing legal aid programs to use their private funds for class actions and other restricted work despite Congress’s bar has, with the passage of time, now been replaced by the real world experience of efforts to comply with the regulation. LSC had mandated in January 1997 that grantees could provide unrestricted services if they did so through an “objectively” separate legal services program, housed in a separate physical facility, and paid for with non-LSC funds.

That real world experience has revealed that the requirement of objectively separate programs imposes an unconstitutional “undue burden” on LSC grantees, making it practically impossible for these programs to use their non-LSC funds to provide services needed by their clients. For example, MFY Legal Services and Mr. Dobbins cannot bring the class action against MTA. And South Brooklyn Legal Services cannot sue the City for child care workers.

As stated in the affidavit of John C. Gray, project director of South Brooklyn Legal Services, “paying the operating costs associated with separate programs renting separate office space, paying separate personnel, paying separate executive directors, operating separate computer networks, operating separate telephones, and maintaining separate furniture and files would be enormously wasteful and unjustifiably reduce our ability to serve clients.” Faced with the high cost of opening separate facilities, both South Brooklyn Legal Services and MFY Legal Services have declined to do so, and both have joined as plaintiffs in Dobbins.

Also included among the plaintiffs challenging the federal restrictions is Legal Services for New York City (“LSNY”), the organization that receives and administers all LSC funds for New York City, and Bronx Legal Services. Bronx Legal Services, MFY and SBLS all possess substantial non-LSC funds, but they are prevented from using them to deliver comprehensive legal assistance to low-income clients by the law being challenged in this suit.

Brennan Center for Justice

The Brennan Center for Justice at New York University School of Law is a new type of public interest law firm that bridges ideas and action. Founded in 1995, the Brennan Center brings together thinkers and advocates in pursuit of a vision of inclusive and effective democracy. The Center’s mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education and legal action that promotes equality and human dignity, while safeguarding fundamental human freedoms.

In Legal Services Corporation v. Velazquez, the Brennan Center represented Carmen Velazquez, a 56-year-old disabled grandmother from the Bronx whose welfare benefits were wrongly terminated, as well as a coalition of legal services attorneys, legal services clients, and elected officials. In February, the U.S. Supreme Court already struck down one of the challenged restrictions, providing a landmark victory for the legal rights of low-income Americans. As noted above, the Dobbins lawsuit filed today joins the ongoing Velazquez litigation.

Click here to obtain copies of the Brennan Center’s complaint and brief. For more information, click here.

The plaintiffs in Dobbins v. LSC are David F. Dobbins, New York Foundation, Lisa E. Cleary, David W. Ichel, MFY Legal Services, South Brooklyn Legal Services, Bronx Legal Services, and Legal Services for New York City (LSNY).

The plaintiffs in Velazquez v. LSC include Farmworker Legal Services of New York, Jeanette Zelhof, Peggy Earisman, Carmen Velazquez, WEP Workers Together!, Community Service Society of New York, New York City Coalition to End Lead Poisoning, Centro Independiente De Trabajadores Agricolas, Greater New York Labor-Religion Coalition, Elisabeth Benjamin, Lauren Shapiro, Olive Stamm, Andrew J. Connick, the Honorable C. Virginia Fields, the Honorable Scott M. Stringer, the Honorable Guillermo Linares and the Honorable Stanley Michels.