Jeff Flake’s shameful record on civil legal aid for the poor

Civil legal aid is in crisis. Stanford Law School professor Deborah L. Rhode estimates that about four-fifths of the civil legal needs of the poor, and about half of the civil legal needs of the middle class, remain unmet. The Legal Services Corporation’s estimate is even more dire: by their count this year, “86 percent of the civil legal problems faced by low-income Americans in a given year receive inadequate or no legal help.” Less than $1 out of every $100 spent on lawyers is spent helping advance the personal legal interests of poor Americans. Since only 1 percent of American lawyers are in legal aid practice, the nation with one of the highest concentration of lawyers provides less than one legal aid lawyer for every 10,000 low-income Americans living in poverty.

When the World Justice Project’s Rule of Law Index ranked high-income nations by terms of the accessibility of their civil justice systems, the United States ranked 20th of 23. On their ranking of nations in terms of the ability of people to obtain legal counsel, the United States ranked 50th of 66. As Jim Sandman, president of the Legal Services Corporation, the federal program established to distribute civil legal aid grants, told National Public Radio for their 2012 report “Legal Help for the Poor In ‘State of Crisis’”: “We have a great legal system in the United States, but it’s built on the premise that you have a lawyer… and if you don’t have a lawyer, the system often doesn’t work for you.”

After decades of funding cuts, our civil legal aid system simply does not have the resources to meet the vast majority of our neighbors’ legal needs. Take Cleveland, for example: the city’s Legal Aid Society, having recently lost more than a dozen lawyers due to budget cuts, had to turn away 57 percent of the 17,000 legal matters brought to them in 2014. “It’s rare to have a tenant with a lawyer,” Cleveland Housing Court Magistrate Judge Myra Torain Embry told The American Lawyer, adding that cases where a tenant has counsel usually settle, sparing tenants rapid evictions and harm to their credit.

Or take Philadelphia: the family law unit at Philadelphia Legal Assistance turns away 95 percent of those requesting help. “We don’t have the resources,” Susan Perlstein explained to The American Lawyer. Philadelphia’s Women Against Abuse has three lawyers working on protective order cases, but they can “barely put a dent in demand.”

Or take Maryland: Joe Rohr, of Maryland’s Legal Aid Bureau, told NPR that some days they “actually have to close early because of volume.” Or take New York: the Task Force to Expand Access to Civil Legal Services estimated that 2.3 million New Yorkers navigate civil legal proceedings without the assistance of counsel. Or take anywhere: as H. Ritchey Hollenbaugh, chair of the American Bar Association’s Standing Committee on the Delivery of Services, explained to the ABA Journal: “Any local aid office will tell you that at least two-thirds of those who walk through their doors aren’t getting help because there aren’t enough resources.”

This mass exclusion of the public from legal power in the civil justice system has gruesome real-world consequences. As Professor Rhode writes, when the public is denied civil justice lawyers, “domestic violence victims cannot obtain protective orders, elderly medical patients cannot collect health benefits, disabled children are denied educational services, [and] defrauded consumers lack affordable remedies.” This exclusion is the denial of hope to someone walking into an overstuffed Baltimore legal aid center hoping to “protect her brother in a nursing home from possible retaliation” because “he was not given medication, he was not fed, he was soaking wet, he had black eyes.” It’s the failure to vindicate the rights of “a woman being abused who comes in to seek a protective order against an abuser” and is “turned away because there aren’t any children involved.” It’s the closing of the courthouse doors for a Boston tenant who has never been informed that her landlord is legally required to de-lead her apartment if she lives with a child younger than six.

The war on civil legal aid for the poor

For decades, reactionary think tanks and politicians have engaged in a sustained assault on the Legal Services Corporation (LSC), the federal foundation for civil legal aid for the poor in America. When Ronald Reagan, who fought against legal aid funding as governor of California, ascended to the Presidency in 1981, he called for an end to federally-financed legal aid. He did not succeed, but was able to push through a 25 percent budget cut to the LSC in his first year in office. Despite President George H.W. Bush’s support for the LSC, Reagan’s mid-90s heirs continued his crusade to limit impoverished Americans’ access to legal power. The 104th Congress, under the leadership of Speaker of the House Newt Gingrich, closed down the LSC’s national and state support centers, which had provided important technical assistance and training to federally-funded legal aid lawyers. Worst of all, federally-funded lawyers were prohibited from participating in class action suits, welfare reform advocacy, in-person solicitations, lobbying and rulemaking— limits effectively banning the use of federal funds to achieve “wholesale justice” for poor Americans. As former LSC president John McKay put it, Congress had conveyed the message that “federally-funded legal services should focus on individual case representation by providing access to the justice system on a case-by-case basis.”

Those interested in advancing the interests of impoverished Americans at the higher levels of power — by making political, structural, or cultural change — began to view federal funding as a “poison pill,” because “any group taking even a single dollar from the LSC could not participate in any of the restricted activities, even if they planned to use state or private funding for those purposes.” Indeed, in less than twenty years, President Reagan’s dream of crippling federally-funded legal aid for the poor had been realized.

As a result, we have fallen behind the rest of the world. In 2006, non-criminal legal aid government spending per capita was roughly $29.90 in England and Wales, $18 in the Netherlands, $7.20 in Canada and $7 in New Zealand. At the same time, the annual government spending on civil legal aid in the United States was roughly $2.25.  This means that Canada is spending over three times as much — and England and Wales are spending a whopping 13 times as much — as the United States is on legal aid for the poor.

Jeff Flake’s complicity in the war on civil legal aid

Jeff Flake has helped advance the war on civil legal aid.

In 2009, Rep. Jeb Hensarling (R-TX) proposed an amendment to fully defund the Legal Services Corporation, which would have ripped to shreds the last vestiges of federal support for “equal justice under law” in the civil justice system. Jeff Flake voted yes.

In 2011, Rep. Jeff Duncan (R-SC) again proposed an amendment to fully defund the Legal Services Corporation. Jeff Flake, again, voted yes.  For his vote, Breitbart praised him as a conservative all-star.

In 2012, Rep. Austin Scott (R-GA) proposed an amendment to, again, fully defund the Legal Services Corporation again. Jeff Flake, again, voted yes.

Later that night, Rep. Lynn A. Westmoreland (R-GA) tried again and tried to cut the Legal Service Corporation’s budget by $128 million.  Jeff Flake voted yes.

It is one thing to bring a speaker to Harvard Law School with opposing views. This is why I brought Rep. Susan Brooks (R-IN) to campus earlier this year to share her story of fighting for federal civil legal aid for the poor within a party that predominantly opposes it.   It is another for one of the nation’s most powerful law schools to honor a politician who has actively worked to exacerbate legal inequality with a Class Day speakership.

Pete Davis

Pete Davis is a civic reformer from Falls Church, Virginia and a member of the Harvard Law School Class of 2018. Email Pete at Tweet at Pete at @PeteDDavis.
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