Whither Legal Aid?

The New York Times this morning reports that Legal Aid societies nationwide are feeling the pinch of economic necessity. As interest rates fall in an effort to jump start a lagging economy, revenue for Legal Aid drops. That is because these groups are heavily dependent on income derived from interest of lawyer trust accounts, so-called IOLTA funds.

In Connecticut, as many as 150 lawyers and legal support staff my be laid off, according to Connecticut Legal Services. That means there will be fewer lawyers available to help folks with evictions, foreclosures, unemployment claims, domestic violence; in other words, the court system will be beseiged by more pro se litigants trying to make sense of the law. These one-armed Davids won't be able to load their slingshots as they stare down Goliath in a courtroom.

We guarantee indigent folks a right to counsel when their liberty interests are at stake. Yet when it comes to their property interests, we tell folks they are on their own. While not rising to the level of outright hypocrisy, this double standard nonetheless sheds troubling light on the Fourteenth Amendment's recognition of both liberty and property interests.

Private firms cannot absorb the demand for indigent representation. While all lawyers have an obligation to provide services on a pro bono basis when they are able to do so, economic woes are also battering the for-profit sector of the bar.

I am hard pressed to understand the vitriole expressed by groups like the Washington Legal Foundation against Legal Aid. Our society is complex. We live amid sometimes impenetrable and conflicting webs of laws, regulations, rules and procedures that are enough to make the heads of lawyers ache. It is no surprise that lay people, especially those living at the margins of society, need help untangling the mess in which they find themselves.

We do not do enough as a society to recognize the need for counsel. While the public defender system is a start, it does not go far enough. On the criminal side, we should guarantee counsel to all Americans, regardless of their income. The state needs not reckon costs when it prosecutes an individual case. Yet middle class families do. Unable to qualify for a public defender, a family of ordinary means must scramble to obtain competent counsel, experts and whatever else their defense requires. Folks are presumed innocent, but that presumption should not extent to a presumption of financial health as well.

And on the civil side, we should have a means test that permits families to obtain low-cost counsel when necessity strikes. A family about to lose its home, or a person wrongfully forced out of a job, ought not to be compelled to represent themselves. It makes little sense to send the innocent into the shark infested waters of a municipal court.

Legal Aid is floundering. Ordinary people are getting hurt. We proclaim equal rights for all but wink at the sad reality that those with means have rights they can vindicate while those without means are victimized.


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