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44th Street Notes

The Current Crisis in Legal Services Fun

Sep 1998

For several weeks I have been considering the topic or issue to which I should devote my initial President・s Message to the members of this Association. In recent days it has become increasingly obvious to me that one subject demands immediate attention and comment: the current crisis in legal services funding.

For many years the proponents of legal services have felt much as I imagine the residents of London felt during the bleakest years of World War II: under a continuous siege. The federal Legal Services program has been threatened annually with partial or total defunding, and the recipients of LSC grants have been hobbled with increasingly severe restrictions, putting them to the Hobson・s choice of accepting restrictions inconsistent with their historic mission or foregoing funds upon which their ability to represent the poor effectively has depended. At the same time, the other principal source of funding for legal services, the interest generated by IOLA accounts, has declined significantly as interest rates have fallen.

The crisis this year, however, is more acute. IOLA, weakened by falling interest rates, is now under legal attack as well. In Phillips v. Washington Legal Foundation, the United States Supreme Court held that the interest generated by IOLA accounts is private property under Texas law, but declined to decide whether the Texas IOLA program represents an unconstitutional taking of private property without just compensation, leaving that issue to be decided on remand. In short, the IOLA concept survives, but a shadow has been cast over it. Turning from the national to the state and local scene, the situation is more bleak. The Legislature・s addition to the state budget of $6.8 million for legal services funding was killed in a political cross-fire between the Governor and the Legislature. In New York City, $2 million in funding provided by the City Council met a similar fate.

A Ray of Light

If there is a ray of light in this dismal scene, it is the increasing realization of leaders within and outside the legal profession that legal services funding is too important to be left to the changing annual vagaries of the partisan political process and that a permanent solution must be found. This realization prompted Chief Judge Kaye last October to create the Legal Services Project, which she asked me to chair, and to charge the Project with the task of finding one or more secure sources of funding for civil legal services. The Project has differed in two significant respects from earlier similar efforts. First, Chief Judge Kaye appointed as Project members not just lawyers but also leading members of the business community. Second, Chief Judge Kaye made it clear that our task was to find a new and creative solution to the problem, not to reiterate solutions that have been tried and failed or that have been rejected.

After six months of intense investigation and deliberation, during which the views of bar associations and legal services providers throughout the state were solicited, the Project issued a report to Chief Judge Kaye this May recommending (i) that the Legislature create a new Access to Justice Fund, (ii) that it be funded by monies drawn from the Abandoned Property Fund, which receives each year approximately $235 million more than it pays out in claims, and (iii) that the Legislature amend New York・s fifty-year-old Abandoned Property Law to reach additional categories of personal property and shorten the periods at the end of which various types of property escheat to the State. These changes would conform the New York Abandoned Property Law more closely to the Uniform Unclaimed Property Act in force in many other states. The principal advantage of tapping the Abandoned Property Fund for legal services funding over other proposals, such as increasing either court filing fees or the attorney・s biennial registration fee, is that abandoned property is by definition a source of funds to which no other individual or group within the state can legitimately lay claim and the partial diversion of which hurts no one.

A Societal Obligation

In a sense, the Legal Services Project should have been unnecessary, for the provision of legal services to the poor in order that they may have meaningful access to the courts to vindicate their legal rights to the necessities of life, such as shelter and food, should be recognized by society and its elected representatives as a societal obligation to be discharged by the State from its General Fund. In his Arps Memorial Lecture last December, Judge Robert Sweet reminded us that a right to counsel in civil matters has been recognized at common law for five centuries and has been confirmed by the European Court of Human Rights1. Can we do less and still claim to have a civilized legal system? And even if the State will not appropriate substantial funds for legal services because that is the right thing to do, the State should do so because it is economically cost-effective. Studies have demonstrated persuasively that it is cheaper to pay for a lawyer to keep a poor person in his or her home than it is to provide that person with public shelter, and it similarly saves the State money to provide legal representation to a poor person who has been wrongfully denied federal social security and/or disability payments and thereby forced onto the State・s welfare rolls.

It is evident that at least to date bar associations and other advocates for the poor have not been able to convince governmental leaders of the truth of these propositions. What more can we do? First, we can and should write to our respective legislative representatives urging them to implement the recommendations of the Legal Services Project by prompt amendment of the Abandoned Property Law and the State Finance Law. This Association has 21,000 members, and their cumulative voice would have an impact. Second, we can and should enlist additional members of the business community and civic leaders in this effort. Governmental officials have seemingly become immune to the arguments of bar associations and legal services providers, the traditional advocates for the poor, but there is reason to hope that the support of business and civic leaders would not go unheeded. Finally, we must convince the judiciary that without a right of the poor to counsel in civil cases--a civil Gideon--we will not have a civilized system of justice.

We can and must persevere, reiterating in the halls of government, in the press and in every other place where we can make our voices heard, that funding legal services to the poor is a moral, political, social and even economic imperative. I implore and challenge each and every member of this Association to raise his or her voice in this struggle. If we succeed, we can take pride that our profession has made a major contribution to solving one of the most serious and intransigent problems of our time. If, however, we fail for want of trying, we will have betrayed the principles and values that entitle our profession to respect.

1 See Hon. Robert W. Sweet, Civil "Gideon" and Justice in the Trial Court (the Rabbi's Beard), 52 The Record 915, 925 (Dec. 1997).

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