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The grandmother cannot work for more than twenty hours a week or she will start to lose her social security retirement benefits. She would like to get foster care payments for her grandson, which might be enough to allow her to stop working. To do so, she has to have a separate bedroom for her grandson. She also has to turn legal custody of him over to the child welfare agency in her city and risk losing her grandson while they evaluate her fitness as a caretaker. (This despite the fact that she has been raising him for five years without help from the child welfare system.)
If the grandmother can obtain separate, affordable housing, she may be able to start the process of obtaining the foster care payments. The same would be true of her daughter and the other grandchild. (It is worth noting that caretaker relatives, while in many instances the better placement for dependent children, rarely are offered assistance by governmental agencies responsible for fostering children. At the same time, they are much less expensive than institutional care, and are more stable placements than foster families. An average child in foster care for two years stays in eight different places.) This is the situation facing this nice, ordinary woman in what should be the relaxing days of her retirement. She does not know how to begin to get the matter resolved satisfactorily. Would you? What she needs is a lawyer, and she does not know how to get one without paying more than she can afford.
History
Long ago and far, far away—specifically, 1968 in the United States—federally funded legal services for the poor was born. Not lawyers for criminal defendants, but lawyers for those with civil legal problems—housing, domestic relations, consumer, government benefits and other non-criminal matters. It was part of the federal "War on Poverty" program, and it was very successful.
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Legal services programs were too successful, in suing government agencies that failed to follow their own mandates for assisting the poor; in preventing landlords from violating the rights of their tenants; in protecting the due process rights of consumers being defrauded by mortgage companies. |
Therein lay the seeds of its downfall. Legal services programs were too successful, in suing government agencies that failed to follow their own mandates for assisting the poor; in preventing landlords from violating the rights of their tenants; in protecting the due process rights of consumers being defrauded by mortgage companies; and in general, helping the poor take advantage of the protections the law promised for all, but generally could only deliver to those with money to hire lawyers. The status quo was threatened. Legal services staff joked that, for some of the opposition, the only thing worse than a poor person was a poor person with a lawyer.
A certain western state governor, Ronald Reagan, tried to eliminate the legal services program in California throughout his entire term of office. Miraculously, he was not successful. However, he went on to become President of the United States, and he brought his campaign against legal services to the federal level. In 1980, federal funding to legal services was cut in half. A Board of Directors hostile to the legal services for the poor was appointed to the Legal Services Corporation, the agency responsible for overseeing the program. In many cities and states, more than half the staff members of legal services programs were laid off due to the budget cuts.
Enter an unlikely hero. The private bar, i.e., attorneys in private practice as opposed to public practice (such as legal services lawyers or public defenders), realized that the legal services situation was unacceptable. The need was too great and the public resources too few. In its infancy, legal aid was viewed with suspicion and antipathy. Neighborhood attorneys saw them as competition for clients, who might be poor but who would borrow money to pay for a lawyer if the situation was desperate enough. Over time these feelings faded, but the relationship between legal services and the private bar was not close. President Reagan changed that.
Some lawyers had always helped legal services with volunteer assistance. Major class action lawsuits needed outside help in multiple forms—legal research, experienced litigators, and even clerical support. When funding was slashed, however, the number of individual clients legal services attorneys and paralegals could help was reduced dramatically. The private bar was brought into the picture as a piece of the solution. Pro bono programs were begun in large and small cities around the United States. Many of them are celebrating their twentieth anniversary this year.
The Present
The Legal Services Corporation is still the federal agency in charge of financing and regulating federally-funded legal services offices. However, many state governments have stepped up to provide additional funding. The budget crisis that hit in 1980 is not as severe now as it was then, but funding remains insufficient. The Republican controlled Congress several years ago tried to "zero out" legal services over three years of planned one-third reductions. They have not yet succeeded, although certain reductions were implemented. Every year at federal budget time, organizations like the American Bar Association, the American Association of Retired Persons, and the National Legal Aid and Defenders Association lobby senators and representatives to preserve both the programs and the funding.
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One battle the good guys lost took place in 1995 over new regulations governing how legal aid lawyers could practice law for their clients. If a legal services program accepts any federal funds, many restrictions follow. |
One battle the good guys lost took place in 1995 over new regulations governing how legal aid lawyers could practice law for their clients. If a legal services program accepts any federal funds, many restrictions follow. These restrictions prohibit lawsuits against government agencies; class action lawsuits; representation of inmates in penal institutions; representation of anyone who is not a citizen or a legal permanent resident; litigation over reproductive rights; and any involvement with government agencies or officials in proposed legislation that would affect the poor.
Some cities and states responded by splitting the existing program into two separate programs, one with federal funding and restrictions, the other with money from non-federal sources and no restrictions. In others, sufficient alternative funding was not available, and the only services provided to the poor are those allowed by the Legal Services Corporation restrictions.
All lawyers have an ethical obligation to provide pro bono services. Pro bono publico, the complete phrase, translates as "for the public good." The American Bar Association defines pro bono as legal services given without the expectation of payment to a low-income individual or group. Like many professional obligations, it is not mandatory and there is no penalty for failing to fulfill said obligation. Still, how many professions mandate that its members provide free professional services? When was the last time you heard of a pro bono electrician?
Many lawyers do take this recommendation seriously. They learn areas of the law in which they do not ordinarily practice to serve clients who could never afford their hourly rate. They learn, too, about poverty, about government agencies that often seem to work against their clients rather than for them. They watch in courtrooms as people with the same problem as their own pro bono client lose while their client wins, just because a lawyer represented one and not the other.
Private attorneys cannot take the place of legal services lawyers. The poor need lawyers who specialize in substantive areas like welfare (Temporary Assistance to Needy Families [TANF], formerly Aid to Families with Dependent Children [AFDC]), food stamps, medical assistance, and federally subsidized housing. But for problems that do not solely affect the poor, like child custody, special education and school discipline, consumer fraud, litigation defense and real property, private attorneys can fill a need. They do so through organized pro bono programs that work with legal services to serve low-income clients like the grandmother mentioned at the beginning of this article.
Towards a Solution
The work program through which our retired grandmother gets her employment training has a lawyer come and speak with the participants. The lawyer, director of a pro bono program and former legal services employee, urges the group to think about getting a will drafted. Especially if they own a home, a will prevents the squabbling to which family members frequently resort when left to sort out an estate, whether large or small. At the end of the meeting, many individuals come forward and ask the lawyer about particular problems. A few have grandchildren for whom they are caring, including our grandmother above. The lawyer gives out all of her business cards and invites the people to call her. Some of them do. The woman we met at the start of this piece calls and gives her story. After hearing her story, it is determined that she he needs a lawyer to help her with (1) applying for subsidized housing through the local housing authority; (2) negotiating with the child welfare agency to receive foster care payments for her grandson; and (3) assuring that her legal status as the boy’s guardian is protected. The pro bono agency opens a file and starts seeking a volunteer for her case.
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Education is more than what you hear in class and read in textbooks, and chances are good that no one has ever raised legal aid for the poor as a topic for consideration. |
Conclusion
Why is this article being printed in an undergraduate university newspaper? That’s a good question. Education is more than what you hear in class and read in textbooks, and chances are good that no one has ever raised legal aid for the poor as a topic for consideration. All of you eventually will leave Cornell and get jobs. Some of you will become lawyers, but most will not. A few of you may even enter government service as elected officials. Almost all of you will need a lawyer at one time or another, personally and in your business. If you become a lawyer, consider making pro bono a part of your practice. If you hire lawyers, ask them what they do for their pro bono obligation, and make it a factor in whom you hire for the job. If you work for the government and have influence over policy and budget, support legal services for the poor. If you experience poverty personally, you’ll know where to turn for legal help. If you’d like to help now, check out volunteer opportunities at the law school or the Ithaca legal services or pro bono program. Raise money for one or both programs. You don’t have to give up telling lawyer jokes, because they’re usually pretty funny, but remember, too, that sometimes lawyers really are the good guys.
Enjoy! |
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By Margaret deMarteleire, Guest Writer