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Legal aid
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Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To fail to do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.
A number of delivery models for legal aid have emerged.
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Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To fail to do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.
A number of delivery models for legal aid have emerged. In a "staff attorney" model, lawyers are employed on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients in the U.S. The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.
Legal aid in the U.S.
Although legal services and assistance for the poor appeared in the US as early as the 1870s [2], for the most part, they remained piecemeal and underfunded until well into the 20th century.
In the early 1960s a new model for legal services emerged. Foundations, particularly the Ford Foundation, began to fund legal services programs located in multi-service social agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort.
In a series of cases, the US Supreme Court has ruled that American indigents do have a right to counsel, but only in criminal cases. See Gideon v. Wainwright. A few states (like California) also guarantee the right to counsel in "quasi-criminal" cases like paternity actions and involuntary terminations of parental rights. The federal government and some states have offices of public defenders who assist indigent defendants, while other states have systems for outsourcing the work to private lawyers.
Meanwhile, legal aid for civil cases is currently provided by a diverse hodgepodge of public interest law firms and community legal clinics, who often have "legal aid" or "legal services" in their names. Such firms may impose income and resource ceilings as well as restrictions on the types of cases they will take, because there are always too many potential clients and not enough money to go around. Common types of cases include: denial or deprivation of government benefits, evictions, domestic violence, immigration status, and discrimination. Some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel.
Funding usually comes from charities, private donors, the federal government (see below on LSC) and some local and state governments. Most typical legal aid work involves counseling, informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale impact litigation. Education and law reform activities are also sometimes undertaken.
In 1974, Congress created the highly controversial Legal Services Corporation to provide federal funding for legal aid services. LSC's funding fluctuated dramatically Between its creation in 1974 and the mid 1990s depending upon which political parties were in control of Congress and the White House. For example, LSC suffered staggering funding cuts under former President Ronald Reagan in the early 1980s. While it has been relatively stable between 2000 and 2008, costs have escalated dramatically thereby reducing the levels of direct legal assistance actually available to the public.
Legal aid organizations that take LSC money tend to have more staff and services and can help more clients, but must also conform to strict government regulations that require careful timekeeping and prohibit lobbying and class actions. Many legal aid organizations refuse to take LSC money, and can continue to file class actions and directly lobby legislatures on behalf of the poor.
However, even with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate. According to LSC's widely released 2005 report "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans", all legal aid offices nationwide, LSC-funded or not, are together able to meet only about 20 percent of the estimated legal needs of low-income people in the United States. [3]
The problem of chronic underfunding of legal aid traps the lower middle class in a catch-22: too rich to qualify for legal aid, too poor to pay an attorney in private practice. To remedy the ongoing shortage of legal aid services, some commentators have suggested that mandatory pro bono obligations ought to be required of all lawyers, just as physicians working in emergency rooms are required to treat all patients regardless of ability to pay.[4] However, most such proposals have been successfully fought off by bar associations. A notable exception is the Orange County Bar Association in Orlando, Florida, which requires all bar members to participate in its Legal Aid Society, by either serving in a pro-bono capacity or donating a fee in lieu of service. Even where mandatory pro-bono exists, however, the funding for Legal Aid remains insufficient to provide assistance to a majority of those in need.
The concept of providing free legal aid to poor people is supported by people of every political persuasion, from the far left to the far right. Conservatives prefer civil legal aid be in the form of attorneys helping individuals with their individual legal problems. Those on the far left often prefer to use the legal system to overthrow an existing social order that they see as being deleterious to large segments of the poverty population. Since LSC funded programs are precluded from accepting attorney fees, participating in class action suits, and may only help those who are in the country legally or who are victims of domestic violence (see Kennedy Amendment) legal aid programs that follow these types of restrictions are generally supported by most people of all political persuasions.
Those who prefer to focus on correcting social wrongs or changing existing conditions with large-scale litigation face significant opposition from those on the political right while they also see much support from the political left and some in the political center. In the final analysis, every American believes in one overriding principle - Justice Should Not Be Based on What You Can Afford to Pay for It!
Every state supreme court and every state bar association maintains that every lawyer has a moral obligation to provide access to justice to those who cannot afford to pay a lawyer. In this respect law is the only profession or industry that requires its members to give their primary product or service away free to those who cannot afford to purchase it. Despite this lofty principle, in most states, only 10 to 20% of all licensed attorneys either provide free direct legal aid to the poor or donate funds to a recognized legal aid program in their communities. This means that 80 to 90% of all lawyers shirk their moral obligation leaving 75 to 80% of those qualified for legal aid with less than what they need - a lawyer to represent them.
Why is this important? As one example, as of February 2, 2009, there are 83,897 licensed attorneys in the State of Texas. Of these, 62,054 are actively practicing law. If each one gave the Texas Supreme Court recommended 50 hours per year in free legal aid to the poor, the value would be (based on $75.00 per hour average cost for legal aid programs) $232,702,500.00 which is 2/3 of the entire LSC budget for 2008. Even if they only gave 1% of their income, it should work out to at least $120,000,000 which is almost 3 times what was actually distributed to all legal aid programs in Texas in 2008.
Imagine the effect on both the legal profession and the poor if it were required of every federal judicial nominee to have satisfied their state's aspirational goal of pro bono service by either providing the suggested number of hours or donating 1% of their income to a recognized legal aid program. Immediately, all those who earnestly believe they deserve to be federal judges would suddenly seek pro bono opportunities. Moreover, significant numbers of people living in poverty would be able to solve their personal legal problems before they became far more expensive community social problems.
Moreover, people who seek to seriously address large scale social problems should take a closer look at the importance of providing civil legal aid as an extremely effective tool. For while it may only cost $500 to prevent a family of four from becoming homeless, it will cost the community $15,000 to $40,000 to cure that homelessness in social services and government benefits.
In the past decade, medical authorities seeking to address the health needs of children living in poverty have discovered the benefits of including legal aid attorneys in their professional teams who regularly seek to address individual pediatric health problems. Through a brilliantly conceived program, originating at The Boston Medical Center, the Medical Legal Partnership Foundation now works to establish joint programs between legal aid programs and pediatric healthcare delivery systems throughout the country. Everywhere such programs have been established, communities have seen significant improvement in the long term prognosis of patient families benefiting from legal assistance as one tool of the many they employ to solve vexing medical problems in children.
Legal aid in Scotland
In Scotland, legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice.
Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board.
Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) The Court assesses Legal Aid.
Legal aid in England and Wales
In England and Wales, legal aid is administered by the Legal Services Commission, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.
Although the European Courts have recently ruled that a lack of legal-aid-libel may be a breach of the right to a fair trial (following the McLibel case), it is still unclear how this will affect UK libel trials.
Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not-for-profit advice agencies.
The provision of legal aid is governed by the Access to Justice Act 1999 and supplimentry legislation.
Legal aid in Australia
Australia has a federal system of Government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and State and Territory governments are each responsible for the provision of legal aid for matters arising under their laws.
Legal aid for both Commonwealth and State matters is primarily delivered through State and Territory legal aid commissions (LACs), which are independent statutory agencies established under State and Territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with State and Territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.
Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.
The Australian Government and most State and Territory Governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.
By way of history, the Australian Government took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). In 1977, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act) which established cooperative arrangements between the Australian Government and State and Territory governments under which legal aid would be provided by independent legal aid commissions to be established under State and Territory legislation. The process of establishing the LACs took a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and State and Territory legal aid funding agreements, which began in 1987.
In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement the States and Territories fund assistance in respect of their own laws.
Legal aid in Ontario, Canada
Legal aid in Ontario is administered by (LAO). Legal Aid Ontario provides funding to more than one million Ontario residents who need help with their legal problems. Legal aid is available to low income individuals and disadvantaged communities for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as basic employment rights, worker's compensation, landlord/tenant disputes, disability support and family benefits payments.
Legal Aid in Ontario is provided in a number of ways: the largest is a legal aid certificate program. The program provides low income people with certificates for a set number of hours of service to be provided by a private lawyer (i.e. a 'judicare' model). When the lawyer has completed their work, they bill Legal Aid Ontario for the services they provided. The certificate system is limited by the fact that many lawyers do not accept certificates because the hourly rates are too low. Lawyers are also wary of accepting cases because a certificate may not provide enough hours for the lawyer to provide adequate representation.
Ontario also has a community legal clinic system. Ontario’s 80 Community legal clinics are staffed by lawyers, community legal workers, and sometimes other professionals or law students. Each legal clinic is run by a volunteer board of directors comprised of members from the community. Legal clinics provide information, representation, and advice on various kinds of legal issues, including social assistance, housing, refugee and immigration law, employment law, human rights, workers’ compensation, and the Canada Pension Plan. Many legal clinics also produce community legal education materials, offer workshops and information sessions, undertake law reform initiatives and engage in other community development activities including campaigns to change the law. Specialty legal clinics serve a particular community or focus on a specific area of law. Unlike general service legal clinics, most specialty legal clinics are not limited to serving a particular geographic area.
The clinic system is seen by many to be a preferred model of legal aid delivery. Services are provided at the community level and clients therefore benefit from the agency's connections to other services, e.g. health care. Legal problems are seen in their social context and issues of broader societal concern can be identified by clients and staff. The model is also financially beneficial in that resources are invested in the development of long term stable service located in and informed by the communities they serve. This way, resources can be devoted to legal work that is most beneficial to the community. Clinics are independantly governed, but primarily funded by Legal Aid Ontario.
Ontario also provides immediate legal aid service to those appearing in court via duty counsel. Duty counsel are salaried lawyers who will represent low income people in criminal or family court. There is also a duty counsel program which provides representation to low income tenants appearing before the Ontario Rental Housing Tribunal.
Funding for Legal Aid in Ontario has been frozen for many years. While the Ontario Liberal Government recently announced a 19 million increase in funding over the next three years, this will do little to remedy the serious and chronic underfunding of the system.
The lack of funding means that legal aid lawyers are paid half as much as other government funded lawyers and must do their work with a severe lack of resources. The result is that many new lawyers with massive student debt cannot consider legal aid careers, other lawyers leave the system frustrated at the lack of recognition for their work, and those hiring new lawyers in the system find it hard to find well qualified lawyers who will even consider taking legal aid jobs. This undermines the system's quality of service and sustainability.
There is currently significant pressure on the Ontario Government to increase funding to the Legal Aid system to ensure that the quality of service remains high and the program as a whole is sustainable.
See also
External links
- * -U.S. public agency responsible for legal aid
- - Very full information site of the Scottish Legal Aid Board, addressed to lawyers and to members of the public, as to legal aid in Scotland
- - Legal Aid in England and Wales
- - From the Department of Justice of Canada website -Canadian Federal Government site
- - Legal Aid Ontario -provincial government site
- - National Legal Aid (NLA) is the Australian peak Legal Aid body.
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