Legal aid in the United States
||This article possibly contains original research. (November 2008)|
Defendants under criminal prosecution who cannot afford to hire an attorney are not only guaranteed legal aid related to the charges, but they are guaranteed legal representation in the form of public defenders as well.
In the early 1960s a new model for legal services emerged. Foundations, particularly the Ford Foundation, began to fund legal services programs located in multi-service social agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort.
In a series of cases, the U.S. Supreme Court ruled that American indigents do have a right to counsel, but only in criminal cases. See Gideon v. Wainwright. A few states (like California) have also guaranteed the right to counsel for indigent defendants in "quasi-criminal" cases like paternity actions and involuntary terminations of parental rights. The federal government and some states have offices of public defenders who assist indigent defendants, while other states have systems for outsourcing the work to private lawyers.
In 1974, Congress created the Legal Services Corporation (LSC) to provide federal funding for civil (non-criminal) legal aid services. LSC's funding has fluctuated dramatically over the past three decades depending upon which political parties were in control of Congress and the White House. For example, LSC suffered staggering funding cuts under former President Ronald Reagan in the early 1980s (after he was unable to carry out his stated objective of abolishing LSC altogether). LSC funding flourished during the early years of President Bill Clinton's administration, but was severely cut again in 1995 after the Republican Party retook control of Congress.
Legal aid for civil cases is currently provided by a variety of public interest law firms and community legal clinics, who often have "legal aid" or "legal services" in their names. Such firms may impose income and resource ceilings as well as restrictions on the types of cases they will take, because there are always too many potential clients and not enough money to go around. Common types of cases include: denial or deprivation of government benefits, evictions, domestic violence, immigration status, and discrimination. Some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel. Funding usually comes from charities, private donors, the federal government (see below on LSC) and some local and state governments. Most typical legal aid work involves counseling, informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale impact litigation. Education and law reform activities are also sometimes undertaken.
Legal aid organizations that take LSC money tend to have more staff and services and can help more clients, but must also conform to strict government regulations that require careful timekeeping and prohibit lobbying and class actions. Many legal aid organizations refuse to take LSC money, and can continue to file class actions and directly lobby legislatures on behalf of the poor. Many organizations that provide civil legal services are heavily dependent on Interest on Lawyer Trust Accounts for funding.
However, even with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate. According to LSC's widely released 2005 report "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans", all legal aid offices nationwide, LSC-funded or not, are together able to meet only about 20 percent of the estimated legal needs of low-income people in the United States.
The problem of chronic underfunding of legal aid traps the lower middle class in no-man's-land: too rich to qualify for legal aid, too poor to pay an attorney in private practice. To remedy the ongoing shortage of legal aid services, some commentators have suggested that mandatory pro bono obligations ought to be required of all lawyers, just as physicians working in emergency rooms are required to treat all patients regardless of ability to pay. However, most such proposals have been successfully fought off by bar associations. A notable exception is the Orange County Bar Association in Orlando, Florida, which requires all bar members to participate in its Legal Aid Society, by either serving in a pro bono capacity or donating a fee in lieu of service. Even where mandatory pro bono exists, however, funding for legal aid remains severely insufficient to provide assistance to a majority of those in need.
- Contract attorney
- Legal clinic
- Public defender
- Legal Aid Society
- Law Students in Action Project
- New York Legal Assistance Group
- NLADA: About NLADA - History of Civil Legal Aid
- Salas v. Cortez, 24 Cal.3d 22 (1979).
- Cal. Welf. & Inst. Code § 317.
- Cal. Fam. Code §§ 7860-7864.
- Kris Shepard, Rationing Justice: Poverty Lawyers and Poor People in the Deep South (Baton Rouge: Louisiana State University Press, 2007), 224-227.
- Alan Shank, American Politics, Policies, and Priorities (Needham Heights, MA: Allyn and Bacon, 1984), 383.
- Helaine M. Barnett, President, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans, pages 4 and 9. Legal Services Corporation, September 2005.
- Helynn Stephens, "Price of pro bono representations: examining lawyers' duties and responsibilities: for many reasons lawyers owe a duty to provide legal services to those who can't afford them, and the mandatory pro bono model is best for that goal," Defense Counsel Journal 71, no. 1 (January 2004): 71-79.