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Restrictions on Legal Aid Organizations Do Not Violate First Amendment

By Lisa R. Bliss, Litigation News Associate Editor – January 20, 2010

Rules that restrict the advocacy activities of legal aid organizations that receive funding from the Legal Services Corporation (LSC) do not violate first amendment rights, according to the Ninth Circuit Court of Appeals.

In Legal Aid Services of Oregon and Oregon Law Center vs. Legal Services Corp. [PDF], the plaintiffs challenged restrictions against LSC grantees, engaging in class actions, lobbying, seeking attorney fees, and soliciting clients, as violating the First Amendment. 

The Ninth Circuit upheld the restrictions, noting that Congress has restricted the activities of LSC grantees since its inception in 1974.

Historical Restrictions on Grantees
In 1996, Congress imposed restrictions related to lobbying, class actions, attorney fees, and soliciting clients and applied those restrictions to all activities of LSC grantees, including activities that were financed by non-LSC funds.

In 1997, LSC promulgated the Program Integrity Rule (PIR), which specifies that LSC grantees must have “objective integrity and independence from any organization that engages in restricted activities.” Evidence of independence from another organization includes no sharing of LSC funds, physical and financial separation, and separate record keeping.

Ninth Circuit Analysis of the Restrictions
As the result of advocacy restrictions and the PIR, the Oregon Law Center spun off from Legal Aid Services of Oregon.  It did not receive LSC funding and engaged in activities that Legal Aid Services of Oregon was prohibited from doing.

The two organizations brought suit after LSC rejected their proposal in 2005 to merge into a single nonprofit corporation with two financially separate divisions. The organizations proposed that they operate under the leadership of a single executive director and share personnel in certain categories.

The court held that “[t]he restrictions simply limit specific procedural tools and strategies that . . . attorneys may utilize in . . . carrying out their legal advocacy.” The court rejected the plaintiffs’ challenge based on the Supreme Court’s ruling in Legal Services Corp. v. Velazquez, reasoning that  because the restrictions do not discriminate against a particular viewpoint, they do not interfere with constitutional rights.

The dissent supported the plaintiff’s argument that the LSC restrictions on legal aid lawyers’ ability to influence the legislative process, participate in class action lawsuits, collect attorney fees under federal or state law, and solicit clients distort the plaintiffs’ ability to provide legal services to their clients.

Impact of LSC Restrictions on Access to Justice
Reacting to the opinion, Robert L. Rothman, Atlanta, past chair of the ABA Section of Litigation and cochair of the Section’s Special Committee on Access to Justice, remarked that the decision brings to the fore the need for fewer restrictions on the ability for low-income families to obtain access to legal help.

“The fundamental problem is that at a time when it is even harder for people to obtain legal assistance, during these difficult economic times, having restrictions on the ability of legal services lawyers to assert certain types of claims only makes it harder for low income people to get access to the courts,” Rothman says.

If the LSC restrictions were lifted, legal aid lawyers could serve more people, and generate attorneys fees where authorized by law, thus alleviating the burden of limited funding for legal services, Rothman says.

The restrictions interfere with the ability of legal services lawyers to be effective, agrees Mark Helm, Los Angeles, cochair of the Section’s Pro Bono and Public Interest Litigation Committee.

“If we invest money in lawyers who are attempting to redress wrongs that poor people suffer, shouldn’t they be allowed to use the full array of procedural options that other lawyers have access to?” Helm questions.

Restricting the use of class actions or other legal options can be inefficient, he notes.

ABA Support for Lifting LSC Restrictions
H. Thomas Wells Jr., Birmingham, AL, past ABA President and former Section Chair, spoke to the U.S. House of Representatives on behalf of the ABA in October in support of increased LSC funding and lifting of restrictions. 

Wells specifically requested lifting the restriction that prevents LSC grantees from freely using non-LSC funds without being bound by LSC restrictions, the restriction against statutory attorney fees and the restriction on class actions. 

Last month, President Barack Obama signed the Consolidated Appropriations Act of 2010 (H.R. 3288), which provided a $30 million increase to LSC for fiscal year 2010 and lifted the statutory restriction on the ability of LSC-funded programs to pursue the recovery of attorney fees when allowed under state or federal law.

Keywords: Litigation, legal aid, Ninth Circuit, First Amendment, access to justice


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