A Disaster for Poor Kids – or Just LSC’s Liberal Lawyers?

Ed Finkel
September 1, 1995

After surviving conservative attacks relatively unscathed during 12 years of the Reagan-Bush era, federally-funded legal services face deep cuts and several new restrictions under legislation awaiting Congress this fall.

A House-passed bill would cut the Legal Services Corporation (LSC) from the post-reaction $400 million level for fiscal year '95 to $278 million in FY '96. Among other restrictions, offices receiving LSC funds would be prohibited from filing class action suits against government agencies: and restrictions would apply to all funds, not just the LSC money itself.

"All the daily bread-and-butter of what a legal services lawyer does, children benefit from," argues John O’Toole, director of the San Francisco-based National Center for Youth Law (NCYL) one of 16 national legal services support centers that would lose all LSC funds under the House bill (see pg. 29). "It's a lot more devastating for children than people realize. There's more child advocacy being funded out of legal services offices than any other single source."

"The one thing you can be sure of in this country, is that virtually nobody under 18 has the ability to go out and get a lawyer," adds Abner Mikva, White House Counsel, former congressman, and former U.S. Court of Appeals judge. "If their parents don't have the means, the only place to get services is through legal services offices. I feel very strongly about the need to encourage[the LSC's] activities and to have sufficient funding to carry it on."

“This is a grant program that's gotten way out of hand," counters Mike Franc, director of congressional relations at the Heritage Foundation. "What was meant to be a storefront legal services operation turned into a law school legal clinic where people are trying out all these wild theories. [The proposed cuts] do not need to come out of the hides of the needy."

"The argument's between people who think legal services lawyers ought to be able to expand upon legislative provisions, and those that want them to provide day-to-day services for individuals," says Jim Wootton, president of the Safe Streets Coalition and the deputy administrator of the Office of Juvenile Justice during the Reagan Administration. “That's what the great debate has been about since [LSC] was created ... . It's never been represented to Congress that they were going to fund impact litigation. The impact litigation has been done through the aggressive interpretation of the act [that created LSC in 1974] by legal services lawyers."

LSC backers are hopeful that the Senate, expected to do mark-up in September, will moderate both funding and prohibitive provisions. The Clinton Administration opposes the House bill.

The Numbers

How important is LSC funding to legal services for children and youth? "Unfortunately, the only way to measure that is if we weren't around," says LSC spokesman William Lutz. But figures he provides give some indication: The LSC funds 323 offices (including the 16 support centers), which get an average of 60 percent to 70 percent of their budgets out of LSC's $400 million (minus administrative costs) pot.

Those offices closed about 1.7 million individual cases and 1,611 class actions in 1994, turning away about half the clients who sought services.

As for LSC's impact on children the 323 offices served 58,228 clients under 18 in 1994, Lutz says, ranging from education-related cases, to securing or improving government services, to parental abuse and neglect. And "many other cases affect children," he notes.

Case types included: adoption, 7,534: guardianship, 23,098; custody, 122,107; parental rights-termination, 2,468; paternity, 11,575: child support, 50,940; food stamps, 21,309: supplemental security income, 93,057; federal housing, 49,491; Aid to Families with Dependent Children, 69,352.

Verboten

Those who oppose the House bill say banning class actions against agencies would stymie many actions brought on behalf of children — and a 30 percent funding cut would add to the problem. But conservatives say those suits involve left-wing lawyers "inventing" rights for the poor; and children and families would be better off if grantees stopped "chasing rainbows" and stuck to more mundane cases.

Heritage's Franc says everyone would benefit from the latter. "If you score the budgetary effects of some of these cases, it's enormous." he says. "It's not that they're never useful, it's just that those types of class actions should not be brought with taxpayer funding. Tax-payers are funding litigation to create new entitlements that then have to be funded by taxpayers."

"If they took the federal money away, what these grantees will have to decide is, 'Do we do the nuts-and-bolts law, and give up the class action lawsuits and the fancy-type lawsuits?" he adds. "If the LSC grantees had to rely upon what they get out of the interest on lawyers trust accounts, trust funds and private contributions, and focused their energies on meaningful cases, there would still be plenty of quality legal assistance out there."

Ken Boehm, chairman of the non-profit National Legal and Policy Center, spent 4 1/2 years at LSC as director of policy development and communications, and later counsel to the board of directors. He cites 1980s Congressional redistricting litigation as an example of LSC-funded excess.

"Legal services attorneys pick and choose what cases they take," Boehm says. "The average poor person doesn't walk in and say, "I feel mal-apportioned today.... The scarce resources really ought to go to those cases where there's a consensus; where it's not political. I don't think it's brain surgery to define those types of cases."

"It's kind of hard to de-politicize the representation of poor people," answers David Lambert, an attorney at the NCYL. "We're talking about people who have been cut out of the system. These are pretty unpopular people. To assert that they have rights and entitlements is threatening to a lot of people."

Legal services lawyers say they're just insisting that the government live up to its legislated obligations. "I know they say it's a political agenda; I think often their gripe is more with the law that entitles the class members to get what they get. They're sort of trying to kill the messenger," contends Jonathan Baum, from his unusual vantage point as full-time pro bono director at Chicago's Katten, Muchin & Zavis law firm.

Mark Soler, president of the foundation-funded Youth Law Center, dismisses the notion that lawyers could "invent" rights, even if they wanted to. "The days when, federal judges were renegades, leaping to pounce on new and revolutionary constitutional theories, are over — if they ever existed at all," he says. The victories legal services lawyers win are so clearly deserved because most judges... are very cautious about finding any violation by government agencies."

James Barrett, director of Pisgah Legal Services n Asheville, N.C., says class actions represent a tiny portion of what LSC-funded field offices do, anyway. His six-lawyer office has brought two in the past 12 years — one suing the state to get clients’ child support benefits, the other on behalf of 40 or 50 tenants at a run-down trailer park. Barrett says while they certainly took more time than the average case, they're still negligible overall — which, he adds, is typical of offices like his.

When class actions are pursued, however, "It's just a legitimate use of the rules of civil procedure. Legal ethics require that you be zealous in representing your clients," he says. "If the appropriate way to do that is as a group, that saves everybody a lot of time and trouble.... What is the rationale for allowing people who can afford a lawyer the full range of remedies, and denying a poor person the full range?"

O’Toole adds: "You save money by doing class action lawsuits — that' why they invented them, [LSC opponents] don't like us doing class action lawsuits because they're effective. That's the real reason."

Why extend these and other restrictions to non-LSC money? Because it's all commingled and interchangeable, say conservatives. When Congress has tried to impose restrictions in the past, “They would say. 'We were using non-federal funds to take care of those cases,'" Franc argues.

"I don't have a problem if they want private funds to be separately accounted for," Baum answers. "You could even separate the employees by funding source. What the House bill, is saying is, that if a private foundation in Chicago wants to give money to the Legal Assistance Foundation for a particular purpose, effectively it can't."

Pro Bono?

LSC supporters — including some private donors and attorneys — say it's unrealistic to expect foundation and individual giving, and pro bono work by private lawyers to make up for the one- third funding cut. Most private attorneys and donors agree.

Catholic Charities, U.S.A., president the Rev. Fred Kramer told the House Subcommittee on Commercial and Administrative Law: "We have repeatedly tried to make clear that the voluntary sector cannot make up these cuts.... I call it, sociological speculation fueled by ideological wishfulness to believe it could."

Diane Redleaf, director of the Children's Law and Policy Project at Legal Assistance Foundation of Chicago, (LAFC) says raising money for children's advocacy is especially difficult. While 30 percent to 40 percent of the LAFC's overall funding is donated, only about 20 percent of the Children's Law and Policy Project dollars come from the private sector.

Foundations "are interested in kids," she says. "But the idea that you have to sue for kids — there's so much 'best-interest' rhetoric that people don't see through it. They'd much rather fund research; they'd much rather fund a manual on legal rights. It's hard to find a foundation that understands the kind of hard-hitting advocacy work we do." Her project recently sued the perpetually troubled Illinois Department of Children and Family Services regarding foster care benefits, for example.

As for new pro bono energy from the private bar, Baum says for-profit lawyers "should do more, but they can't meet the demand. And most, particularly large private law firms, don't have the expertise [in poverty law]. The learning curve is just tremendous."

Michael O'Brien, partner at the Salt Lake City firm Jones, Waldo, Holbrook & McDonough, and four colleagues recently litigated a wide-ranging foster care case with NCYL attorneys against the Utah Division of Family Services. The suit "focused on a full range of issues in the child welfare field, from initial investigation of complaints, to medical and educational care, to just plain life-and-death safety issues," he says.

The result of their combined efforts: A 50-page settlement agreement "that essentially rewrote the way Utah's Division of Family Services does business," he says. "None of that would have happened, I believe, if the NCYL people hadn't been involved.... To the extent the legal services funding cuts would limit their ability to do what they did here in Utah, it would be [to children's detriment]. The case was so massive, and it required such narrow expertise — I seriously doubt these cases will come, if the initiative has to come solely from the private sector."

But conservative critic Boehm says the bread-and-butter cases — housing law, divorces, consumer cases — still would be brought through the local bar and other referrals. And he says private attorneys should know those areas — "the cases that get complicated are the class actions."

Wootton adds: "One, the cleaner the programs, the more support they'll get from the private sector and the states; and two, historically, when the government has restricted funding, the private sector and the bar have come forward."

Such optimism notwithstanding, Carol Honsa of the National Legal Aid and Defender Association fears a huge brain drain if the cuts go through. "When these centers and law offices close, and people are laid off, some of these attorneys walking out the door are going to take 20 years of experience with them in poverty law. That kind of experience just can't be matched by a well-meaning tax lawyer."

The Fallout

And if it all comes down, national support centers and local offices alike anticipate people walking out the door.

NCYL would lose $804,000, or 55 percent of its budget. O’Toole, planning for the worst, cut expenditures by 25 percent and reduced the staff of eight attorneys— one left voluntarily, another now works part time. An administrative position has also been lost.

The Legal Assistance Foundation of Chicago, which gets 60 to 70 percent of its budget from the government, would take a 25 percent hit, or $2 million, director Redleaf says.

What happens then? One snapshot at the micro level comes from Betty Surbeck, casework supervisor at the Children and Youth Services Agency in Delaware County, Pa., just west of Philadelphia. Surbeck misses Legal Aid of Delaware County's representation of her agency's children — sometimes even in suits against the agency. That ended several years ago when the Chadwick Memorial Fund pulled the plug on the funding for the project; court-appointed lawyers now do pieces of the work one day a week.

Suits brought by Legal Aid "were not pre-in-the-sky," says Surbeck. "They were usually based on something."

Now, it's up to the Senate to decide how much LSC's wings should be clipped.

Scott Wallace, consultant to the National Legal Aid and Defender Association and a former attorney for the Senate Subcommittee on Juvenile Justice, has a modest proposal. "Maybe the best thing conservative members of Congress could do is, go visit a legal aid office for a day," he says. "Or send a staffer off to watch the kind of people that come in, and the problems they have, and the number of folks they can help in a day, and the un-ideological tone of the work they do."

Resources

John 0’Toole

National Center for Youth Law

415-543-3307

Mark Solar

Youth Law Center

202-637-0377

Diane Redleaf

Legal Assistance Foundation of Chicago

312-341-1070

William Lutz

Legal Services Corp.

202-336-826

Sidebar:

A Disaster for Poor Kids – or Just LSC’s Liberal Lawyers?: The Central Nervous System of Legal Services


Finkel, Ed. "A Disaster for Poor Kids – or Just LSC’s Liberal Lawyers?" Youth Today, September/October 1995, p. 28-30.

©2000 Youth Today. Reprinted with permission from Youth Today. All rights reserved.

#

tags