The Continuation Until 1996 of LSC Funded Support

By Alan Houseman

[Part 12 of the series on the 40th anniversary of the Legal Services Corporation, Support: p. 5]

This is the fifth in a series of blogs that are focusing on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. This blog will explore the time between 1985 and 1996 and the ultimate Congressional action that eliminated funding for support. The first blog focused on the development of that unique system and ended with the inclusion of the “Green Amendment” in the LSC Act. The second and third blogs discussed what LSC did between 1975 and 1981 to preserve, expand and strengthen the support system brought over from the OEO legal services program. The fourth discussed the efforts by the LSC Boards appointed by President Reagan to defund or limit support.

lsc_logo

In 1985, the support structure consisted of 17 national support centers, state support centers or units in each state, five Regional Training Centers, six computer assisted legal research projects, and the National Clearinghouse for Legal Services, which published the Clearinghouse Review.

Between 1985 and 1996, the support structure came under continuing but unsuccessful attack from critics of legal services and some members of the Board of LSC. These critics saw the support structure as the engine that drove legal service into class actions, major litigation, legislative and administrative advocacy and the glue that held together a coordinated, cohesive advocacy network to challenge the status quo. In September of 1987, the LSC Board voted to request that Congress not provide funds for national and state support, regional training centers, computer assisted legal research projects and the National Clearinghouse for Legal Services. Congress rejected this proposal, and, indeed, became very irritated at LSC for making such a proposal.

To protect support as well as other components of the legal services delivery system under attack (e.g., migrant and Native American programs), Congress, led by Senator Warren Rudman and beginning with the 1987 appropriation for LSC, specifically earmarked funding for support components. For example, Public Law 99-500, (October 18, 1986), the 1987 appropriation of $305,500,000 for LSC provided: $623,964 for regional training centers; $7,528,218 for national support; $7,842,866 for state support; $865,000 for the Clearinghouse; and $510,444 for computer assisted legal research grants. This earmarking continued until the 1996 appropriation.

Although LSC attempted to defund several national support centers (e.g., Migrant Legal Action Program, National Center for Youth Law), the only successful defunding was of National Social Science & Law Project, located in Washington, D.C. All of the other 16 remained funded until 1996. Similarly no state support center was defunded, although LSC unsuccessfully attempted to defund the Western Center on Law and Poverty because of its advocacy activities around a California election proposition on tax limits (Proposition 13).

As noted in the last blog on support, numerous LSC studies attempted to examine support throughout the 1980s, but none were successful in eliminating support. Two non-LSC studies were done on state support. The Management Project of NLADA commissioned a paper on state support completed by Erica Black Grubb in November of 1983, The Role of State Support in Delivering High Quality, Cost-Effective Legal Services to Low Income Clients. The National Organization of State Support Units did a subsequent study in 1991 entitled The Challenge of Leadership: Providing State Support Services in the 1990s. A shorter version of the report was included in an article by Daniel M. Taubman, “The Role of State Support Centers in the 1990s and Beyond,” 25 Clearinghouse Rev. 75 (Special Issue 1992).    

During this period, NLADA organized a number of conferences for state support staff to help state support build on successful initiatives among the various states and improve state level advocacy. Regional training centers met periodically to improve training and learn from each other. National support centers gathered at national NLADA conferences to share experiences and successful activities. While LSC remained hostile or indifferent until the Clinton board took over in 1993, the support entities themselves, working with NLADA, continued to focus on support and to build cohesive state and national networks of advocates.

In 1994, the Delivery Working Group (of the Project Advisory Group and NLADA) completed a comprehensive review of support that was presented to the LSC Board for its consideration just after the 1994 Congressional elections. That study set out eight core functions of state and national support:

  1. Advocacy: State and national support centers conduct advocacy directly as sole or co-counsel at state and national levels and are the focal points for such advocacy efforts because the two primary judicial, legislative, and administrative systems are centered at the state and federal levels.
  2. Coordination of and assistance to advocacy of others: Providing help to others in the Legal Services system who are doing advocacy, rather than doing it directly.
  3.  Management, administrative and organizational assistance, coordination, and development: Providing a variety of help to Legal Services programs and their administrative staff at both state (where there are at least two field programs distinct from the state support center) and national levels.
  4. Information dissemination to and sharing with staff, case handlers, and board members: state and national support centers are primary information distribution points.
  5.  Information dissemination to and sharing with the low-income client-eligible community: A central role of all Legal Services programs – and therefore of support – is to provide information to client-eligible people so that they may be relatively more empowered and may seek, wherever possible, to help themselves. The nature of support’s involvement in this activity will vary according to the pattern of involvement of other Legal Services programs and non-LSC entities for the particular substantive area, client population, or state.
  6. Conducting and assisting necessary training
  7.  Resource development: At both the state and national levels, support can play an important part in helping develop new sources of revenue for Legal Services.
  8. Preserving and strengthening Legal Services as an institution: National and state support, given their leadership responsibilities, can collectively be responsible for advancing Legal Services’ reputation and stature, preserving its independence, maintaining its integrity, and insuring its strength.

The LSC Board was to begin consideration of what to do to expand support in 1995, but by then there was a new Congress and a new political environment. The 1995 Appropriation for LSC (Pub. L. 103-317, August5 26, 1994) increased LSC funding to $415,000,000 and continued the earmarked funding for the various categories of support. This was the last time there would be annualized support funding through LSC.

With the 1994 congressional elections, LSC suffered a dramatic reversal of political fortune. Conservatives included the elimination of LSC in the infamous “Contract for America.” In much the same way as the Reagan Administration in the early 1980s, the leadership of the new Congress, under House Speaker Newt Gingrich (R-GA), committed itself to the elimination of LSC and ending federal funding for legal services. The House leadership sought to replace LSC with a system of limited block grants to the states that would severely restrict the kind of services for which the funds could be used. The House of Representatives adopted a budget plan that assumed that LSC’s funding would be cut by one-third for FY 1996, another third in FY 1997, and completely eliminated thereafter. Opponents of legal services dubbed this funding plan “the glide path to elimination.”

Despite the efforts of the House leadership, a bipartisan majority in the Congress, led by Senator Pete Domenici (R-NM), remained committed to maintaining a federally funded legal services program. Nevertheless, key congressional decision-makers, led by Congressmen Bill McCollum (R-FL) and Charles Stenholm (D-TX), determined that major “reforms” in the delivery system would be required if the program was to survive. The 1996 Appropriation for LSC (Pub. L. 104-134, April 26, 1996) incorporated these reforms. Grants were to be awarded through a system of competition, rather than through presumptive refunding of current recipients. Funding was to be distributed on a strict, census-based formula, eliminating any LSC discretion over funding amounts. More fundamentally, the Congressional majority was determined to redefine the role of federally funded legal services by refocusing legal services advocacy away from law reform, lobbying, policy advocacy, and impact litigation and toward basic representation of individual clients. Congress set out to accomplish this goal by restricting the broad range of activities that programs had engaged in since the early days of OEO, many of which had been mandated in the past. These restrictions are described in the earlier blog on Restrictions. Most significantly, Congress eliminated LSC funding for national and state support centers, the National Clearinghouse which published the Clearinghouse Review, regional training centers and computer assisted legal research centers.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

 

 

The Support System’s Fight for Survival

By Alan Houseman

[Part 11 of the series on the 40th anniversary of the Legal Services Corporation, Support: p. 4]

This is the fourth in a series of blogs that are focusing on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. This blog will explore the efforts by the LSC Boards appointed by President Reagan to defund or limit support. The first blog focused on the development of that unique system and ended with the inclusion of the “Green Amendment” in the LSC Act. The second and third blogs discussed what LSC did between 1975 and 1981 to preserve, expand and strengthen the support system brought over from the OEO legal services program.

lsc_logoAt the beginning of 1982, the support structure consisted of 17 national support centers; state support programs, joint ventures, or units of basic programs in most states; 5 regional training centers; a management assistance project at NLADA; a substantive training project at the Western Center for Law and Poverty; six computer-assisted legal research (CALR) projects; and the National Clearinghouse for Legal Services in Chicago. The Office of Program Support and the Research Institute within LSC were no longer in existence.

In 1982, the newly appointed Board of LSC (all of whom were recess appointments and not confirmed by Congress) began to focus on the LSC funded support structure.   Support was examined by a board committee on grants and contracts. The chairman of the committee, Clarence McKee, prepared a report which recommended a number of contract conditions for national support centers that would have required the centers to consider merger or consolidation, to eliminate any overlap among centers as to substantive law and client population, to stop the filing of amicus briefs without prior approval by the president or board, to stop training, to provide recommendations and options regarding alternative mechanisms and vehicles for the provision of support, and to limit direct delivery of legal services to eligible clients.

In 1982, the board, after considerable controversy, ordered a special study on support and authorized only six months grants. The study on support was to be conducted and completed by June 20, 1983, but that did not happen. The study was to review the existing support structure to determine whether or not there was a more effective, efficient and economical delivery system for the provision of national support and state support.

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Legal Services Corporation Report: Support Needs and Resources of Legal Professionals Serving the Poor. Prepared for the LSC by Mary Utne O’Brien, NORC. March, 1984, appendix 1-7. Copy available at the NEJL.

The study involved four components. The first was a survey to identify the areas in which support was needed; specific information on where and how support needs were presently being fulfilled; the effectiveness of the sources of support arid satisfaction with those sources; and information on potential sources to meet unsatisfied support needs. That survey was carried out by the National Opinion Research Center (NORC) under a contract with the Corporation. It was not publicly released until 1985. The results of that survey supported the continuation of the existing state and national support centers.

Key findings of the NORC study include the following:

  • Most legal services personnel find that their frequent or important support needs are being met; 74.7% of project directors and 68.8% of staff attorneys obtained assistance for their very important or very frequent needs.
  • Next to their own program colleagues, legal services field lawyers and project directors turn to national support centers most frequently for support needs; 65% of project directors and 55.5% of staff attorneys turn to LSC-funded support entities for 21% or more of their support needs.
  • During the period from 1982 to the summer of 1983 when the survey was taken, 94% of project directors, 87% of field attorneys, and 98% of legal services paralegals received assistance from national support centers.
  • Of all support resources available, both within and without legal services programs, national support centers provided the most satisfactory services. State support centers rated nearly as high; 89.9% of program directors, 90.3% of staff attorneys, 81.6% of paralegals and 85.7% of Judicare attorneys who used national support found the service very satisfactory, the highest rating
  • Co-counseling assistance is needed by large numbers of legal services 69.3% of project directors and 62.7% of staff attorneys listed co-counseling as one of their needs.

Second, the Corporation undertook an evaluation of each of the 17 national support centers and 11 of the state support centers. These evaluations were of mixed quality; some had to be redone because of their poor quality. All evaluations contained numerous factual errors. Many of the evaluators had no previous legal services experience and knew nothing about the support structure.

Third, the Corporation was to commission a study of the “important poverty law areas” and “alternative resources” in these areas which would go beyond the survey and the evaluations.

Such a study was never commissioned.

Fourth, the study was to review all of the current records of national support and address the specific questions raised in 1982 by the grants and contracts committee.

The Corporation also imposed a new requirement on both state and national support centers. They were to set forth their plans, proposals and timetables within 90 days after January 1, 1983 for closing any Washington offices or separate state capital offices or show cause to the satisfaction of the LSC president why the services at separate offices to local programs or to its area of specialized law could continue in view of the new Congressional restrictions and prohibitions on legislative activities. All of the national and state support centers provided such information. None of their separate capital or Washington offices were closed because no separate office was devoted exclusively to lobbying as the board and new president believed.

In 1983, LSC also promulgated LSC Instruction 83-9, Grant Conditions for National and State Support, 48 Fed. Reg. 54,305 (December 1983). In the state and national support instruction and a subsequent proposed regulation, 49 Fed. Reg. 34190 (August 28, 1984) LSC attempted to narrow the role of national and state support centers. Under LSC plans, centers would have been limited to providing advice, assistance, training and materials to local legal services staff. They  would have been severely limited or precluded from a whole range of advocacy activities which state and national support have previously undertaken: legislative representation before Congress and at the state level; administrative representation before federal and state agencies; litigation challenging major national or state policies; and development of networks of advocates and client groups, both to assure effective coordination of advocacy activities and to mobilize support when necessary to prevent implementation of new policies. The Instruction also prohibited centers from using fiscal year 1984 funds to support branch offices.

Fourteen national support centers brought litigation challenging the Instruction. On December 28, 1983, the District Court in DC issued a temporary restraining order and in January 31, 1984 a preliminary injunction, National Senior Citizens Law Center v. LSC, 581 F. Supp. 1362 (D.D.C. 1984). This was affirmed on appeal at 751 F.2d. 1391 (D.C. Cir., January 11, 1985) which held that the Instruction violated a rider (known as the “affirmative rider”) in the 1984 LSC Appropriation.

The “affirmative” rider preventing an LSC board of directors, which was not confirmed by the Senate, from taking adverse action against legal services programs. It was first included during 1982 for the FY 1983 appropriation which took the form of a Continuing Resolution. Congress adopted a FY 1984 appropriations bill in late November of 1983 which strengthened the “affirmative rider” by (1) providing for a clear formula for funding legal services programs and prohibiting LSC from altering those grant levels and (2) refunding all current grantees and contractors with a required funding increase unless contrary action was taken by a confirmed LSC board of directors by January 1, 1984. Both the 1984 restrictions and affirmative rider provisions were kept in place under the FY 1985 appropriations act.

LSC has also attempted to redirect training efforts. In the states, training has focused on both substantive law developments and skills for advocacy and has included both state and local training on more routine issues and regional and national training on new national poverty law developments and such skill areas as legislative advocacy and federal litigation. National conferences and seminars were held which brought together advocates from across the country to discuss new developments and to encourage coordination of local efforts. LSC would now limit the training to routine substantive developments and skills, eliminate regional and national conferences and preclude the use of training as a means of developing effective networks of advocates.

LSC has sought to change the direction of training by eliminating funding for the five regional training centers and the substantive law training program. These efforts were only partially successful because litigation blocked the termination of the regional training center grants.

A preliminary injunction was issued on March 23, 1984 based on an opinion of March 6, 1984, enjoining the Corporation from terminating grants to the regional training centers because its actions violated the “affirmative rider” and because the Corporation failed to provide a hearing as required by §§l007 (a) (9) and l0ll of the LSC Act. See Massachusetts Law Reform Institute v. Legal Services Corporation, 581 F. Supp 1197 (D.D.C. 1984). LSC then sought and obtained an expedited appeal. On June 14, 1984, the Court of Appeals for the D.C. Circuit affirmed the preliminary injunction finding neither abuse of discretion nor any reliance upon an incorrect legal theory. The district court issued a final judgment on December 19, 1984. See 601 F.Supp. 415 (D.D.C. 1984). The case was settled in June 1985.

As part of the effort to redefine support functions, LSC sought to increase the amount of training undertaken by state and national support centers. This step, if it had not been part of the effort to restrict support center advocacy activity, and if additional funds had been provided, may well have enhanced training for program staff. In 1983, however, LSC did not attempt to develop any new approach to training before taking steps to eliminate the structure put in place in 1982. Nor did LSC attempt to build upon the structure and make improvements in it. Instead, LSC began dismantling the training programs before the experiment with the decentralized approach they represented could be fully tested. In fact, the evaluations which LSC conducted in 1983 suggested that the regional training centers were providing effective training.

With regard to the National Clearinghouse for Legal Services, LSC entered into extensive negotiations with the National Clearinghouse over its 1984 contract. The Clearinghouse had been funded by contract beginning in 1981. A major difference between the Clearinghouse and the Corporation staff was over the issue of whether LSC staff could stop the Clearinghouse from carrying articles that were either critical of legal services or discussed national poverty law developments arising out of legislative and federal agency policies. The dispute was resolved and the Clearinghouse funded for 1984 and beyond.

Another support controversy involved six computer-assisted legal research (CALR) projects which were funded in 1981 and 1982 to provide computer-assisted legal research services to local programs on a regional basis. LSC was considering a major study and evaluation of CALR. It failed to fund the CALR projects until late March of 1984, and unsuccessfully attempted to limit funding to six months. It also sought unsuccessfully to deny the projects the percentage increase in funding to which they were entitled under the LSC Appropriations Act for 1984 (Pub. L. 98-166). The Corporation never proceeded with the evaluation.

In short, the early efforts of the boards appointed by President Reagan did not dismantle the support infrastructure. It remained in place through 1985.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

Growth of the Support System

By Alan Houseman

[Part 10 of the series on the 40th anniversary of the Legal Services Corporation, Support: p. 3]

This is the third in a series of blogs that is focusing on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. This blog will explore what LSC did in 1977-1981 to grow and expand the support system. The second blog explored what LSC did in 1975 and 1976 to preserve the support system brought over from the OEO legal services program. The first blog focused on the development of that unique system and ended with the inclusion of the “Green Amendment” in the LSC Act.

lsc_logoThe Corporation did not develop a coherent support policy until late 1978. See LSC, Support: Policies and Options for 1979 and Beyond (September 14, 1978). That policy developed after meetings held by key LSC staff; the Next Steps process; the development of a paper on National Advocacy; a joint PAG, NCC, NLADA task force on support; and the creation of a LSC support task force in the Summer of 1978 which held two large meetings and three smaller meetings and which discussed a planning paper prepared by LSC staff Alan Houseman and Judy Riggs. In addition, the 1007(h) study required by Congress in the 1977 LSC Reauthorization called for creation of national support entities on immigration and veterans. See Special Legal Problems and Problems of Access to Legal Services of Veterans, Migrant and Season Farmworkers, Native Americans, People with Limited English-Speaking Abilities and Individuals in Sparsely Populated Areas (LSC 1980).

Special legal problems and problems of access to legal services of veterans, Native Americans, people with limited English-speaking abilities, migrant and seasonal farm workers, individuals in sparsely populated areas : a report to Congress as required by section 1007 (h) of the Legal Services Corporation Act of 1974, as amended. Summary. Washington, DC: LSC, 1980.

The new LSC support policy mandated: (1) increased national support through increased funding for existing centers, the development of new support centers, expansion of national advocacy and the development of manuals and materials; (2) development of state support to carry out three principal functions of state level advocacy, coordination and support initially through a state planning process and ultimately with increased funding; (3) decentralization of training, from national events to local and regional training; (4) an expanded Clearinghouse Review to include articles and discussions of delivery issues; and (5) targeting of technical (or management assistance) to program problems as defined through monitoring and evaluation. The policy was never fully implemented. This was due to the low priority placed upon support in the LSC budget requests and among the supporters of the program in Congress. While not overtly hostile, many of the moderate Congressional supporters, particularly on the appropriations committee, did not give high priority to increased support but instead pressured LSC to complete the “minimum access” plan of providing programs to cover every county in the U.S. and territories.

National Support: Growth did come eventually for national support although no significant new money was available until 1979. The new support policy set out four principle functions for national support: (1) support of legal services staff and clients though individual service work, library and resource material, training, communications, the development of manuals and materials, technical assistance and development of strategies for use by local program staff; (2) litigation, including serving as counsel for eligible clients and co-counsel with local program staff; (3) legislative and administrative representation on behalf of eligible clients, including representation before Congress; and (4) coordination and establishment of networks with local program staff, other advocates and advocate organizations representing the poor, Many of the centers were funded to open Washington, DC offices for advocacy before Congress and in the federal agencies. Responsibilities of some of the existing centers were expanded, and new funding was made available for additional responsibilities and for special projects. All of the centers were encouraged to produce manuals and materials for use by local program staff, and additional funds were made available for these products. The Youth Law Center and the National Juvenile Law Center merged in 1980 into the National Center on Youth Law.

New initiatives were funded to cover family law (National Center on Women and Family Law), immigration (National Immigration Law Center), access to federal courts (Access to Justice Project at NLADA), veteran’s issues (National Veterans Legal Services Project), civil rights (through a contract with the Lawyers Committee for Civil Rights Under Law), food and hunger (Food Research and Action Center) and mental disability law (Mental Health Law Project). However, there remained a number of areas in which support needs were great and no center was available to provide assistance (e.g., physically disabled).

State Support: There was substantial growth in state support. OEO had funded the Western Center on Law and Poverty (California); Michigan Legal Services; Massachusetts Law Reform; Ohio State Legal Services; Greater Upstate Law Project (New York) and Legal Services of New Jersey. When discretionary money became available from the Corporation in 1977 and 1978, the programs in some states (primarily in the South and Southwest) pooled resources to establish state support projects–then called “joint ventures.” Often these projects limited their functions to training and legislative and administrative advocacy. Virtually none carried on the full range of activities of those programs funded through OEO. In other states where expansion was great, some state support entities were created as new programs or parts of expansion programs. In some states, the statewide program provided support to its staff and the staff of any other program.

Eventually, LSC recognized the need for state support in all states and in 1979 began the process of state planning for and funding state level advocacy, coordination and support around the country. However, because of budget pressures and the Congressional emphasis on “minimum access,” new money was not allocated until 1981. The plans were only partially implemented when the appropriations reductions for FY 1982 stopped the expansion of state support.

Training: Perhaps the greatest increase in support occurred in training. Substantial new funds were allocated to OPS in 1978 through 1980. OPS originally gave high priority to a series of national and regional training events for attorneys and paralegals. These events were beginning to come under increasing criticism from local program staff and local project directors (as well as clients) when the support study began. A National Training Advisory Committee (NTAC) was established in 1978 and recommended a shift in training from the national to the local level and increased use of training grants to states and regions to conduct their own training activities. The support study adopted a view that was generally consistent with the recommendations coming from field programs and the advisory committee. By then, however, the OPS staff had been

increased substantially. Tension began to arise between the desires of OPS staff and the recommendations of the advisory committees and the support study.

Bureaucratic resistance to the shift in training contemplated by the support policy also existed within OFS and the regional offices. The regional offices saw the opportunity to expand their activities and to use training as a means to improve quality in programs. In response to the regional office pressures and the OPS desires, LSC adopted a bureaucratically acceptable compromise. Instead of creating regional training centers, LSC regionalized its own staff, placing regional training coordinators in the regional offices. The coordinators were accountable both to the regional office director in OFS and to OPS. They were given some new funds to provide local training grants to programs.

The support policy contemplated turning most national training over to the national support centers. Some of the centers were reluctant to undertake the substantial training role originally contemplated without significantly increased funding. When additional funds for national training and national conferences were made available, the support centers provided the increased training. The solution wasn’t entirely accepted. There continued to be internal divisions within LSC and legal services over the training efforts and the role which OPS and the support centers (state and national) should play.

The training aspect of the support study was never fully implemented until the 1981 budget crisis forced the LSC staff to seriously consider how effective training was to exist in the future. LSC created five regional training centers by funding existing programs to undertake training activities previously done at LSC. Also, LSC funded the Western Center on Law and Poverty to undertake substantive law training. These grants provided funds through 1983. At the time the grants were made, the LSC senior staff expected the training centers to function as permanent LSC grantees. However, because of the severe funding reductions, there was insufficient money to provide funding over a longer period of time.

Also in 1981, LSC gave a grant to NLADA to deliver Management Assistance and created an independent National Clearinghouse.

Support–An Overview: To a certain extent, the elevation of “support” was to be expected. As the delivery system matured in any given place, it became clear that there were many desirable roles between national advocates and local office staff and that the support centers had only scratched the surface of needed national activities. Training was an obvious way to improve quality of service and it made sense to initially develop much of the training at the national level. State support addressed the inability of local county or city-based programs to address state policy issues and to coordinate advocacy within a state. It was also expectable that support would come under criticism from within. Leadership by support centers would be perceived as less necessary as local programs built-up experienced staff and law developed in most of the “poverty law” areas.

Finally, it was predictable that support policy should be a bellwether of the maturing of the overall delivery system. In the beginning, aggressive and imaginative legal services lawyers had freedom to take on new problems, develop new theories, and establish new rights. By the time of the Corporation, much of that freedom had disappeared. Large and intricate bodies of law had developed. Except for national advocacy (and some state advocacy) there was an expectation that field programs could handle all problems in these areas. Clients had come to expect this performance. However, only with extensive training, specialization and support were the expectations reachable. As the Corporation settled legal services into a service delivery bureaucracy, support became a central and growing part of the system. It undertook critical advocacy at the national and state level that local programs could not provide to their clients. It created and maintained networks of advocates in states and nationally to assure effective coordination and communication. It provided essential background materials and manuals. It participated in training. If support was no longer the engine of reform, it was a major source of quality and competency.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

Symposium at USC Gould School of Law: Reframing the Welfare Queen

Reframing the Welfare Queen: Feminist and Critical Race Theory Alternatives to Existing Poverty Discourse,  held on on April 23-24, 2015 at USC Gould School of Law. The symposium will feature numerous feminist and Critical Race Theory scholars from across the country.  The gathering will “discuss the ways in which the cultural construct of the welfare queen imposes discursive limits on anti-poverty discourse and, additionally, to consider what the welfare queen construct teaches us about the State’s anxieties about poor women and women more generally.  The opening speaker for the event is Dorothy Roberts.”

For more details about the conference and to RSVP, click on the link:  http://weblaw.usc.edu/who/faculty/conferences/welfare-queen-conference/

Preservation of the Support System

By Alan Houseman

[Part 9 of the series on the 40th anniversary of the Legal Services Corporation, Support: p. 2]

This is the second in a series of blogs that is focusing on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. This blog will explore what LSC did in 1975 and 1976 to preserve the support system brought over from the OEO legal services program. The first blog focused on the development of that unique system and ended with the inclusion of the “Green Amendment” in the LSC Act.

lsc_logoThe first real policy controversy facing the new LSC board was what to do with the back-up centers. In response to the Nixon veto threat, Congress had passed the Green Amendment. Under that amendment, research, training, technical assistance and clearinghouse functions had to be done by LSC directly “and not by grant or contract.” Congresswoman Green intended the language to cover direct advocacy for clients, an essential part of the back-up center function, but failed to state that intent clearly in the language. As a result, the language required LSC to take over only some of the functions of the back-up centers. Other functions couldn’t be picked up by LSC because its staff could not practice law directly. Thus, the LSC board faced a quandary. It could defund the back-up centers as Congresswoman Green intended, but only by eliminating some of their functions entirely. It could continue funding the centers but would have to do something to cover the activities specified in the Green Amendment.

In 1975, as one of its first actions, the LSC board requested a legal analysis from David Tatel, the transition General Counsel, and commissioned a study by a prominent public interest lawyer, Alexander Polikoff, to examine the activities of the centers and LSC’s ability to support all or part of the activities. It also heard from former Congresswoman Green and relevant Congressional committee chairmen. The Tatel Memorandum and the study conclusions known as the “Polikoff Report,” found client representational activities, including the research normally done by a lawyer for a client, to be outside the meaning of the Green Amendment. The study found that the centers engaged in both permitted and nonpermitted activities. Based on the Polikoff Report and the Tatel Memorandum, LSC President Tom Ehrlich proposed evaluating each center and continuing those that delivered services still permitted under the Green Amendment while narrowing their activities solely to those permitted by the Act. The term “support center” was coined to connote the new role. Based on the evaluation, all the substantive area centers were refunded.

tatel1

Memorandum by David Tatel to Louis F. Oberdorfer, Sept. 5, 1975, p. 1. Clint Bamberger Papers, NEJL.

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Memorandum by David Tatel to Louis F. Oberdorfer, Sept. 5, 1975, p. 2. Clint Bamberger Papers, NEJL.

While the back-up centers survived as “support centers,” they received little from the Corporation in the initial years. Funding was not significantly increased over 1975 levels although the number of field program staff the centers supported increased dramatically through expansion. As a result, the centers were stretched very thin in attempting to meet the assistance requests, particularly those from expansion programs and offices.

Based on the Polikoff Report, the Tatel Analysis and the Ehrlich Memo, the training centers (Legal Services Training Program and National Paralegal Institute), the NLADA Management Assistance Project and the National Clearinghouse for Legal Services were terminated. The Clearinghouse was absorbed into the Corporation with no change in office location and little change in staff and operation.

The Green Amendment very much shaped the future of the Corporation. The Corporation created two separate divisions—the Office of Program Support and the Research Institute–to take over the activities of the back-up centers that had to be handled by the Corporation. This organization was a particular stimulus to training and to research activities that came “in-house” under the Green Amendment. The Research Institute produced a series of papers, articles and books on “poverty law” subjects, sponsored conferences to discuss and disseminate its work and undertook delivery research.

The Office of Program Support (OPS) concentrated on training, greatly expanding the national training effort and eventually working into regional and local training. Most of the activities of the terminated centers were continued in OPS. Management assistance functions were divided between OPS and the Office of Field Services (OFS). Up until 1980, OPS and OFS shared authority for management assistance without a clear division of responsibility. Regional offices (part of OFS) provided management assistance to programs. Washington OFS staff developed efforts to assist new and expansion programs. OPS staff ran training and did some direct management assistance. Technical assistance, at least as administered by the regional offices, took various forms–cash awards to accomplish a discrete purpose (to computerize the financial system or to produce a pro-se divorce video tape); the provision of outside consultants to provide a particular service (a management systems expert, or an architect, or a group facilitator to help set program priorities); and consultation on an administrative issue by regional office staff.

During the reauthorization of the LSC Act in 1977, the Green Amendment was deleted, although broad general legal or policy research unrelated to representation of eligible clients could still only be done in-house. This legislative change gave LSC more discretion on how to deliver and fund support.

Alan Houseman’s next blog will explore what LSC did in1977-1981 to grow and expand the support system.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

 

The OEO/LSC Support Infrastructure

By Alan Houseman

[Part 8 of the series on the 40th anniversary of the Legal Services Corporation, support: p.1]

This series of blogs will focus on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. While there is no longer funding by the Legal Services Corporation (LSC) for this infrastructure, much of it remains. The first blog will focus on the development of this infrastructure.

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The second director of OEO legal services–Earl Johnson· (1967-68) – focused on “law reform” for the poor as the chief goal of OEO legal services. Johnson chose atypical implementation methods and among many tactics (including the Reginald Heber Smith Fellowship Program) created a unique national structure of advocacy, support, training, technical assistance and information sharing. No other legal aid system had such a structure.

A large investment was made in the “back-up centers”: national programs, initially housed in law schools, organized around substantive areas or a particular part of the eligible population. These centers engaged in national litigation and legislative and administrative representation to eligible clients while providing support, assistance and training to local programs. These centers provided specialized representation and specialized knowledge that was essential to the development of new areas of poverty law. They also provided leadership on key substantive issues and worked closely with the national poor people’s movements of the early legal services years (e.g., the National Welfare Rights Movement and the National Tenants Organization). At the end of the OEO era, the following national centers were fully functioning:

Center for Law & Education–Cambridge, MA

Center on Social Welfare Policy & Law–NY, NY

Indian Law Support Center–Boulder, CO (Part of the Native American Rights Fund)

Migrant Legal Action Program–Washington, DC

National Consumer Law Center–Boston, MA

National Economic Development & Law Center—Berkeley, CA

National Employment Law Project–NY, NY

National Health Law Program–Los Angeles, CA

National Housing Law Project–Berkeley, CA

National Juvenile Law Center–St. Louis, MO

National Senior Citizens Law Center~-Los Angeles, CA

National Social Science & Law Project–Washington, DC

Youth Law Center–San Francisco, CA

Earl Johnson, in his first History on the OEO Legal Services Program (Justice and Reform: The Formative Years of the OEO Legal Services Program, New York: Russell Sage Foundation, 1974 at 180-82) JusticeandReform1emphasized the major strengths of the back-up centers as follows:

  • They were funded solely to bring test cases and advocate for legislative change.
  • They would not be accountable to local boards of directors.
  • They were responsible for an “inordinate proportion” of the program’s impact on economic and social problems.
  • They were experts.
  • They could provide training and research materials.

These national centers were supplemented by a national publication to describe poverty law developments, the Clearinghouse Review produced by the National Clearinghouse, and by a case reporter, the Poverty Law Reporter. For a brief period, .OEO also published Law in Action to publicize legal services victories and provided funds to NYU Law School to publish the Welfare Law Bulletin. The Clearinghouse Review still exists, though it no longer publishes a hard copy. The Poverty Law Reporter, a Commerce Clearinghouse loose-leaf service, was discontinued by LSC in 1980.

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LSC Support Center Study, February 1976, vol. 2: table of contents. NEJL, Clint Bamberger papers.

OEO also funded national training and technical assistance programs first at Northwestern University Law School and later at Catholic University Law School. The national training events played a key role in assuring effective coordination among programs over newly emerging issues and provided a means of linking key substantive advocates within local programs to each other and to the national experts in the support centers or elsewhere. Technical Assistance on management issues was provided by the National Legal Aid and Defender Association. A National Paralegal Institute provided support to paralegals.

A few state support programs were also developed. State support centers were created in Massachusetts (Massachusetts Law Reform Institute), California (Western Center on Law and Poverty), Michigan (Michigan Legal Services), Ohio (Ohio State Legal Services), New York (Greater Upstate Law Project) and New Jersey (Legal Services of New Jersey). Such state support programs provided state level advocacy (major litigation, administrative and legislative policy advocacy) and coordination in states with a larger number of local programs. They increased training and facilitated a more direct link between local advocates and national experts.

While this support structure took several years to develop by the early 1970s it was fully operational and faced few threats from federal officials or from Congress. However, beginning in January of 1973, President Nixon appointed Howard Phillips, a critic of the war on poverty and of the legal services program, to head OEO. Although Phillip was to preserve legal services for the eventual transition to the Legal Services Corporation, he declared: “I think legal services is rotten and it will be destroyed.” He put legal services programs on month-to-month funding, cancelled law reform as a program goal, and moved to defund migrant programs and back-up centers. Marshall Boarman, who was put in charge of research and development, wrote several memos on back-up centers, arguing that they were duplicative, unaccountable, focused on social change and unnecessary to providing legal services to the poor. These provided the intellectual support not only to Phillips but also to Congressional critics such as Edith Green and later to opponents in the Reagan era.

The assault on legal services and the back-up centers by OEO was stopped when a federal court enjoined Phillips from acting as director of OEO because his name had not been submitted for Senate confirmation. See Williams v. Phillips, 360 F Supp. 1363 (D.D.C. 1973) and Government Employees, Local 2677 v. Phillips, 358 F. Supp. 60 (D.D.C. 1973).

However, stopping OEO and Phillips did not end the threat to the support structure and back-up centers. That threat became real again during consideration by Congress in 1973 of the creation of the LSC Act. In June of 1973, the House took up the bill to create LSC and during floor debate, which got quickly out-of–hand, added a number of amendments to the Committee bill that would curtail many law reform activities by legal services programs. One of those amendments was by Congresswoman Edith Green, a Democrat from Oregon.Green-ad copy

The Green Amendment modified §1006(a) (3) of the proposed Legal Services Corporation Act (42 USC §2996(c) (3)) to specify that LSC could undertake directly, and not by grant or contract, the following activities: (a) research; (b) training and technical assistance; and (c) information clearinghouse activities. The sponsor believed that these activities described the back-up centers and that requiring the activities to be performed directly within LSC would eliminate the back-up centers as well as the National Clearinghouse, the National Paralegal Institute, the national training program, and possibly even state support centers.

Congresswoman Green’s intent was clear. However, she made a serious drafting error in amending only part of the LSC legislation. Because she was familiar with the OEO legislative provisions on research, under which the support centers had been previously funded, she assumed that the back-up centers would be funded under the research and technical assistance provisions of the LSC bill. She did not take into account the provisions in the legal services legislation that provided for funding of programs providing legal assistance including specialized legal assistance.

Ms. Green was not aware of the direct advocacy activities of the support centers and their professional relationships with poor clients. She assumed that the centers were primarily  research organizations that developed new theories. In her view, the centers were the brains and the local program staff were the workers that carried out the orders of the back-up centers. This belief was never accurate and it assumed a role that the back-up centers never played. She used a series of examples provided her by conservative critics of the program. However, many of these examples involved the activities of local programs, the legal services training program or (in many cases) non-LSC-funded organizations.

When the Senate took up consideration of the House passed bill in late 1973 and early 1974, it significantly modified what the House had done including fundamentally changing the Green Amendment. The compromise reached during the Conference Committee on the legislation also preserved the back-up centers and the fundamental support structure created by Earl Johnson in OEO. In Mat 1973, the conference report barely passed the House (190-183) after a recommittal motion to include the Green Amendment. The national centers became the focus of opposition to legal services because they were perceived as the brains behind the activism of legal services programs, or the “cutting edge of social change” as Congresswomen Green charged. At that point the legislation became embroiled in the politics of the impeachment process. Key conservative leaders in the House and Senate (and several conservative supporters of the President) made their continued support for President Nixon dependent upon his promise of a veto if national back-up centers were not eliminated. The President then demanded that the Green Amendment be added to the bill in exchange for his support. Ultimately the Senate agreed and a final compromise was passed by both houses. President Nixon then signed the bill on July 25, 1974.

But the question then became: what would the new LSC do to interpret and implement the Green Amendment?

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

Restrictions on LSC Funded Legal Aid Programs

By Alan Houseman

[Part 7 of the series on the 40th anniversary of the Legal Services Corporation]

From the beginning of the Legal Services Corporation (LSC), there have been restrictions on who can be served and what can be done by LSC-funded civil legal aid programs. The original 1974 LSC Act included a number of restrictions. Congress added more in 1982 and 1989 through appropriation provisions that in most cases only restricted a program’s LSC funds. In the FY96 appropriations legislation, modified slightly by the FY98 appropriations legislation, and incorporated in the FY99 and subsequent appropriations legislation, Congress added many more and made these new restrictions apply to all funds received by a program with LSC funding. This blog reviews the history of restrictions on programs funded by LSC.

lsc_logoThe LSC restrictions imposed in 1996 and subsequently, left legal services programs and their staff with less capacity to effectively represent low-income persons in the courts and before other forums that affect their rights and responsibilities. Even so, over 95% of the work done in legal services in 1995 could continue and over 98% of the cases brought to court in 1995 could still be brought. Moreover, there continue to be many critically important representational activities that can still be done by LSC-funded entities, and programs can continue to address systemic problems faced by low-income persons in virtually all substantive areas.

Note that some states and other funders have also imposed restrictions on their funding. Most of the state restrictions are identical to the LSC restrictions. A few states and some other funders have imposed additional restrictions to funding not included in the LSC restrictions.

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Cropped from PAG Update, May 21, 1996.

RESTRICTIONS IN ORIGINAL LSC ACT

Restrictions on types of cases that could be handled: The 1974 LSC Act prohibited (1) litigation involving nontherapeutic abortion; (2) representation in school desegregation cases; (3) representation in selective service and military cases; (4) representation in certain juvenile cases; (5) representation in criminal cases; (6) representation in habeas corpus collaterally attacking a criminal conviction; and (7) bringing fee-generating cases ( defined as any case or matter which, if undertaken on behalf of an eligible client by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an awards to a client, from public funds, or from the opposing party.) The restriction on juvenile representation was removed during the 1977 reauthorization of the LSC Act.

Restrictions on clients that could be represented: The LSC Act permits representation of all aliens, public housing residents, prisoners and others so long as they met financial eligibility guidelines.

Restrictions on representation and other activities: The 1974 LSC Act included restrictions on legislative and administrative advocacy, ballot measures, initiatives or referendum, class actions, training and organizing, but there were qualifications and exceptions that significantly limited those restrictions.

Ballot measures, initiatives and referendum: Programs could not advocate or oppose any ballot measure, initiative, or referendum.

Legislative and administrative advocacy: The 1974 Act prohibited indirect or direct attempts to “influence the issuance, amendment or revocation of any executive order or similar promulgation by any Federal, State or local agency, or to undertake to influence the passage or defeat of any legislation by the Congress of the United States, or by any State or local legislative bodies, or State proposal by initiative petition. However, the Act permitted representing clients before legislative and administrative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.” The Act also permitted program staff to testify, draft, or review measures or to make representations to government agencies, legislative bodies, committee or members when requested to do so. The Act also permitted representation when agencies and legislative bodies are considering a measure directly affecting the activities of a program or the Corporation (self-help lobbying).

Class actions could be undertaken with the express approval of the project director under policies promulgated by the program’s board.

Training: While programs could not conduct or support training programs to advocate for particular public policies or encourage political activities, labor or anti-labor activities, boycotts, strikes and demonstrations, programs could train attorneys and paralegals to provide legal assistance and disseminate information about public policies.

Organizing: While programs could not organize a group, association, and the like, they could provide legal assistance to such groups.

Restrictions on personal activities of staff attorneys: Staff attorneys cannot: (1) run for partisan elective office (and must resign if they decide to run); (2) engage in any political activity during working hours; (3) engage in any illegal demonstrations, boycotts, strikes or other illegal activity at any time; or (4) engage in voter registration or transporting voters to the polls during working hours.

Funds Covered: Restrictions on the type of cases and scope of representation applied to both LSC and private funds, but not to non-LSC public funds (which included IOLTA funds).

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Memo by LSC president Thomas Ehrlich to recipients of LSC funds, Feb. 4, 1976. Clinton Bamberger papers, NEJL.

RESTRICTIONS ADDED ON LSC FUNDS IN THE 1980S BY APPROPRIATION PROVISIONS

The LSC Act provisions remained in effect. In some areas noted below, the appropriation provisions created more restrictions than the LSC Act. Except where noted, the appropriation provisions did not cover private or non-LSC public funds.

Restriction on types of cases: Programs could not participate in representation (1) relating to abortion with LSC funds and (2) in redistricting cases or activities involving the taking of the census with both LSC and private funds.

Restrictions on clients that could be represented: As a result of provisions contained in the LSC appropriation and the Immigration Reform and Control Act of 1986, use of LSC funds was only permitted for representation of the following categories of aliens:

Lawful permanent resident aliens including those granted amnesty.

  1. Lawful temporary resident aliens under the seasonal agricultural worker (SAW) program.
  2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
  3. Aliens granted asylum.
  4. Aliens granted refugee status.
  5. Aliens granted conditional entrant status.
  6. Aliens granted withholding of deportation.
  7. H-2A nonimmigrant temporary agricultural workers (concerning the worker’s employment contract).
  8. Replenishment agricultural workers (RAW’s) admitted for temporary residence.

Restrictions on Representation

Class Actions: LSC funds could not be used to bring a class action against a governmental entity except under the following conditions: (1) the relief was sought for the primary benefit of eligible clients; (2) the program had to notify the government entity involved and attempt to negotiate the issues which adversely affect the particular clients represented; (3) the board of each program had to adopt a class action policy, which could preclude or limit class actions; (4) before filing a class action against a governmental entity, the Project Director had to: (a) expressly approve the filing consistent with program policies; (b) determine that the government entity: (I) would not change its policy or practice; (ii) that the policy or practice would continue to adversely affect eligible clients; (iii) that the program had notified the government entity of its intention to seek class relief; and (iv) that the efforts to negotiate had failed.

Representation before legislative bodies:   LSC funds could not be used for: (1) self-help lobbying; (2) grassroots lobbying; (3) advocacy on referendums, initiatives or constitutional amendments.   However, LSC funds could be used to communicate to a legislative body on behalf of an eligible client on a specific issue but only if: (1) appropriate administrative and judicial relief had been exhausted; (2) the legislative body could provide relief; and (3) the communication was not part of a coordinated campaign. LSC funds could be used to respond to requests of legislative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Participation in agency rulemaking: LSC funds could be used to represent clients in agency rulemaking if the representation was on behalf of an eligible client on a particular application, claim or case which directly involved the client’s legal rights or responsibilities. LSC funds could be used to respond to requests of administrative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Training: LSC funds could not be used to disseminate information about public policies or to train people how to lobby or participate in agency rulemaking.

Restrictions on personal activities of staff attorneys: No new restrictions.

RESTRICTIONS IMPOSED IN 1996 APPROPRIATION PROVISIONS AND CONTINUED TO DATE

All restrictions in the LSC Act remain. The 1996 appropriation provisions replaced the 1980s’ appropriation provisions which are no longer in effect.

Non-LSC funds: With regard to the 1996 restrictions described below, all of a program’s funds from whatever source (except tribal funds) are restricted. Programs cannot use funds from non-LSC sources to undertake activities that are subject to the restrictions and that cannot be done with LSC funds. However, programs may transfer non-LSC funds to affiliated or entirely separate entities to use for representation in restricted cases.

Restrictions on types of cases

Welfare Reform: Programs cannot engage in litigation on behalf of groups or participate in lobbying or rulemaking involving State or Federal welfare reform initiatives, laws or regulations (unless they fall within the exceptions for lobbying and rulemaking outlined below). However, programs can represent an individual client who is seeking relief from a welfare agency because of threatened adverse action based on a welfare reform law, regulation or policy. As a result of the Supreme Court decision in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), legal services programs representing such individuals in cases seeking relief from welfare agencies can now raise all relevant legal issues and can challenge existing statutory law or regulations.

Redistricting: Representation in redistricting cases is prohibited.   However, representation in voting rights issues not involving redistricting is permitted.

Abortion: Programs cannot participate in any litigation with regard to abortion.

Drug evictions from public housing: Programs cannot represent persons convicted of, or charged with, drug crimes in public housing evictions when the evictions are based on threats to health or safety of public housing residents or employees.

Assisted suicide, euthanasia and mercy killing: Programs cannot use LSC funds for any activities relating to assisted suicide, euthanasia and mercy killing.

Restrictions on clients that could be represented

Aliens: Programs generally cannot use any funds to represent most undocumented and several other categories of aliens. However, certain legal aliens can be represented using both LSC and non-LSC funds. Specifically:

  1. Lawful permanent resident aliens.
  2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen, assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
  3. Aliens granted asylum.
  4. Aliens granted refugee status.
  5. Aliens granted conditional entrant status.
  6. Aliens granted withholding of deportation.
  7. H-2A nonimmigrant temporary agricultural workers, concerning the worker’s employment contract.
  8. H-2B nonimmigrant forestry workers, concerning the worker’s employment                       contract.
  9. Victims of human trafficking
  10. Aliens who are victims (or parents of victims) of domestic violence, victims of sexual assault or certain other sexual or violent crimes, when legal assistance is directly related to the prevention of, or obtaining relief from, the violence, assault or criminal activity.

Prisoners: Programs cannot participate in civil litigation on behalf of a person incarcerated in a Federal, State or local prison or participate in administrative proceedings challenging the conditions of incarceration.

Restrictions on representation

Legislative Advocacy: Programs are precluded from directly or indirectly attempting to influence pending or proposed legislation. However, programs can use non-LSC funds to respond to a written request for information or testimony from a legislative body or committee, or a member of such body or committee, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Administrative Advocacy: Programs cannot represent clients or client interests before administrative agencies engaged in rulemaking and cannot use LSC funds to respond to requests of administrative officials with regard to rules directly affecting clients. However, programs can use non-LSC funds to: (1) participate in public comment in a rulemaking proceeding, or (2) respond to a written request for information or testimony from a government agency, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Self-help lobbying: Programs are precluded from all self-help lobbying before agencies or legislative bodies, with two exceptions. Programs can use non-LSC funds to affirmatively contact or communicate with State or local legislative or administrative officials with regard to pending or proposed agency proposals or legislation to fund the program. Programs can use non-LSC funds respond to requests of federal, State or local legislative or administrative officials with regard to pending or proposed legislation or agency proposals to fund the program, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Grass roots lobbying: Programs are prohibited from participating in any grass roots lobbying.

Class Actions: Programs cannot initiate, participate or engage in class actions, but can continue certain limited non-adversarial activities in existing class actions and can represent individuals who are members of a class in certain limited circumstances.

Attorneys’ fees: The 2010 consolidated appropriations bill eliminated the statutory restriction on claiming, collecting and retaining attorneys’ fees. Effective March 15, 2010, LSC eliminated the attorneys’ fee regulation (45 CFR 1642) and programs are now permitted to make claims for attorneys’ fees in any case in which they are otherwise legally permitted to make such a claim. Programs are also permitted to collect and retain attorneys’ fees whenever such fees are awarded to them. With the repeal of the restriction, programs are permitted to claim, collect and retain attorneys’ fees with respect to any work they have performed for which fees are available to them, without regard to when the legal work for which fees are claimed or awarded was performed.

Solicitation: Programs are prohibited from representing clients as a result of in-person solicitation. However, programs can operate community legal education programs and engage in outreach activities to client groups, and may represent clients who seek assistance as a result of those activities, but may not affirmatively seek to identify particular individual participants who have specific problems on which they need assistance and advise those particular participants to seek such assistance from the program or another program.

Training: Programs cannot conduct training programs to advocate particular public policies or political activities or to train people to engage in restricted activities.

Client identification: Except in emergency situations, programs are required to identify by name to the defendant any client who is a plaintiff and obtain a signed statement of facts from such plaintiff before the program can file suit or engage in pre-complaint settlement negotiations on the client’s behalf. Access by adverse parties to the written statement of facts is governed by the law and discovery rules of the court in which the action is brought.

Case disclosure: Upon request, programs must disclose to the public and must report semi-annually to LSC certain information about each case that is filed by program attorneys in any court (not administrative agencies). The information includes (1) the name and address of each party to the legal action, (2) the cause of action of the case, and (3) the name and address of the court in which the case was filed and the case number assigned to the case. Programs do not need to file name and address information when such information is protected by an order or rule of a court or by a State or Federal law or when revealing such information would put the client of the program at risk of physical harm. This requirement applies only where a program represents a plaintiff in an action; cases where the programs represent defendants or third parties need not be reported.

Restrictions on personal activities of staff attorneys: No new restrictions.

Restrictions on assisted suicide: The Assisted Suicide Funding Restrictions Act of 1997 prohibited the use of LSC funds for any assisted suicide, euthanasia or mercy killing activities.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

Upcoming program: The Great Society in Florida at 50: A Look Back, A Look Forward

The University of South Florida St. Petersburg Department of History and Politics has organized a wonderful discussion series that looks at the impact of “The Great Society” on Florida and on the nation, while also debating the future of “the Great Society,” and programs inspired by its vision. The week-long program, which places a specific emphasis on the Great Society as a grassroots movement, will begin next week. The local NPR station did a story on the program, which includes an interview with Elisa Minoff, Assistant Professor of History at USFP, as well as Florida legal services pioneer Joe Segor, who talks about the challenges that Florida Rural Legal Services faced in the mid 1960s, the impact of their work, and the ongoing critical need to provide farm workers and the rural poor with legal assistance and social services.war_on_poverty_usf

A flyer of the full program can be accessed here.

Professional Ethics and Standards

By Alan Houseman

[Part 6 of the series on the 40th anniversary of the Legal Services Corporation]

We are continuing our blog on the War on Poverty and the Federal Legal Services Program with an emphasis on 40 years of federal legal services under the Legal Services Corporation (LSC). This series will examine each of the fundamental objectives for LSC set out in the Statement of Purpose of the LSC Act. Here we will focus on the objective: to assure that “attorneys providing legal assistance…have full freedom to protect the best interests of their clients in keeping with the [ethics codes) … and the high standards of the legal profession.”

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Until 1996, it could be fairly said that that attorneys providing legal assistance in LSC funded programs had the full freedom to protect the best interests of their clients in keeping with state ethics codes and the standards of the legal profession. LSC management interpreted the LSC Act as requiring LSC to respect state ethical rules and both the state and federal attorney-client privilege in carrying out its enforcement and monitoring activities.   With a few relatively minor exceptions, LSC honored this interpretation of the provisions of the LSC Act preventing LSC from interfering with attorneys professional responsibilities.

However, the 1996 appropriation provisions gave LSC and its auditors and monitors the authority to examine eligibility records, client trust funds, timekeeping records, retainer agreements and client names except for reports or records that were subject to the attorney-client evidentiary privilege. Although such access by LSC is likely permitted under most state ethical rules, which permit access to confidential information when “required by law,” the intrusion of LSC auditors and monitors into confidential client information is a troubling development that could lead to much more intrusive review of client case files and other confidential information. Also, most recently, LSC now interprets the LSC Act as requiring it to conform only to The ABA Model Rules of Professional Conduct and the federal attorney-client privilege, and not state ethical rules or attorney-client privilege. See United States v. California Rural Legal Assistance (D.C. Circuit 2013).

In addition, the restrictions imposed by the LSC Act and, the LSC funding restrictions imposed by appropriation provisions during the 1980s and 1990s, did not significant limit what LSC funded programs could do for the clients they services. However, the 1996 LSC restrictions on what can be done for eligible clients, such as those prohibiting class actions, asserting attorneys’ fees requests, or representing clients before legislative or administrative rule-making bodies, force LSC funded legal services programs to limit the scope of representation they can provide and prohibit them from engaging in vitally important representation. So far the restrictions do not directly interfere with professional ethics and programs and their attorneys can act ethically and comply with these restrictions. While we do not foresee new restrictions, it is possible that future restrictions on what programs or attorneys can do could so limit what attorneys can do for their clients that they could not competently represent clients.   A detailed analysis of both the confidentiality and scope of representation issues in light of the 1996 provisions and restrictions is found in my article: Alan Houseman, “Restrictions by Funders and the Ethical Practice of Law,” LXVII Fordham L. Rev. 2187 (April 1999).   See also Rebekah Diller and Emily Savner, A Call to End Federal Restrictions on Legal Aid for the Poor, Brennan Center for Justice (June 2009).

Poverty Journal Symposium Highlights Access to Justice

Poverty Journal Symposium Highlights Access to Justice

Every American knows that he or she has a right to an attorney in a criminal case — thanks to Miranda warnings on TV crime shows. But what many do not know is that they could…

Go to the Law Center’s web story on last week’s Rationing Justice symposium….