Limits on Types of Cases That can be Handled by Legal Aid lawyers under attack
Bob Egelko, San Francisco Chronicle Nov. 24, 2009
Conservative-backed restrictions on Legal Aid lawyers’ representation of their low-income clients survived a federal appeals court test Monday in San Francisco, but face further challenges in the Democratic Congress and the Obama administration.
Congress attached the rules in 1996 to the budget of the Legal Services Corp., which funds lawyers for the poor in civil cases.
The restrictions, contained in each succeeding budget, prohibit the lawyers from filing class-action suits on behalf of numerous clients. They also bar attorneys from seeking fees that are usually awarded to the winning side in cases involving individual rights, and from lobbying for changes in the law.
The restrictions apply to the $390 million that the federal government provides to legal service programs.
Backers of the budget rules say they were needed to focus legal services on individual clients rather than political causes, but advocates of the programs say the restrictions have hurt their representation of the needy.
This year, both the House and the Senate have passed budget measures that would lift the ban on attorneys’ fees for at least the next year. The Senate bill would also allow Legal Aid programs to use non-federal funds for class actions. President Obama’s proposed budget would allow federal funds for attorneys’ fees and class actions.
In Monday’s case, Legal Aid agencies and lawyers in Oregon argued that the bans on class actions, attorneys’ fees and lobbying were unconstitutional based on a 2001 U.S. Supreme Court ruling. The high court said one of the 1996 budget restrictions, which prohibited lawyers who represented welfare recipients from challenging welfare laws, violated the attorneys’ freedom of speech.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said the remaining prohibitions do not limit lawyers’ ability to speak on behalf of their clients.
In measures such as the bans on attorneys’ fees and class actions, “Congress did not discriminate against any particular viewpoint or motivating ideology,” Judge A. Wallace Tashima said in the 2-1 ruling.
Dissenting Judge Harry Pregerson contended the majority had ignored the Supreme Court’s condemnation of any budget limit that “distorts the legal system” by altering lawyers’ traditional roles.
The current bans have that effect, he said, by preventing lawyers from effectively representing their client – for example, individual tenants who can pressure their landlords to remove hazards only by joining in a class action.