Legal aid in the United States
in the United States is different for criminal law and civil law. Criminal legal aid with legal representation is guaranteed to defendants under criminal prosecution who cannot afford to hire an attorney. Civil legal aid is not guaranteed under federal law, but is provided by a variety of public interest law firms and community legal clinics for free or reduced cost. Other forms of civil legal aid are available through federally funded legal services, pro bono lawyers, and private volunteers.
Criminal Legal Aid
In 1942, the Supreme Court ruled in Betts v Brady that courts were to assign legal aid on a case-by-case basis. In overturning this case, the court held in Gideon v Wainwright that the average citizen "lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him." Later, the court expanded the right to include misdemeanors, and capital offenses. 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. Although public defenders are required to be provided at the trial level, free attorney services for appeals and appeals court are often not available. Funding for criminal aid come from both U.S. States and the U.S. federal government.Civil Legal Aid
Critically, the court did not extend this guarantee of legal aid to civil matters in Lassiter v Department of Social Services, holding that the provision was less necessary in matters where liberty was not at stake. A concerted movement towards substantive Civil Legal Aid in the United States didn't develop until the mid 1900s. The earliest developments trace back to 1876, with the first known legal aid society, the German Immigrants' Society being founded in New York. By 1965, there were around 157 legal aid organizations across the country, serving almost every major city. The landmark Supreme Court decision Gideon v. Wainwright guaranteed the right to counsel in criminal matters, but left the issue of civil aid unresolved. The movement towards extending Gideon to civil matters continues to gain momentum, even as States such as New York and California lead the way in establishing more substantive legal aid systems.office suite at Suffolk University Law SchoolLegal aid for civil cases is currently provided by a variety of public interest law firms and community legal clinics, who often have "legal aid" or "legal services" in their names. Public interest practice emerged from the goal of promoting access to equal justice for the poor and this was inspired from the legal services disparity amongst European immigrants. 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. In 2006, the American Bar Association adopted a resolution that defined such issues as "basic human needs," and urged the Federal government to provide legal services in such instances. Some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel.
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.
A History of Civil Legal Aid in the United States
Office of Economic Opportunity (OEO)
The first legal aid program to exist at the federal level was implemented though the Office of Economic Opportunity, founded in 1965. the OEO was established through the Economic Opportunity Act as part of the Johnson administration's War on Poverty. The first director of OEO, Sargent Shriver, moved the organization towards the provision of legal aid. In an interview in which Shriver was asked which program from the War on Poverty he most preferred, he replied that "I am proudest of Legal Services because I recognized that it had the greatest potential for changing the system under which people’s lives were being exploited.”Legal Services for the Poor
The United States' first attempt at providing legal remedy came about in 1965. The Office of Economic Opportunity created the Legal Services for the Poor program, under the direction of Sargent Shriver. The ideology behind the program utilized the "justice model", as it went beyond providing access to legal aid. Its focus was to dismantle barriers faced by those unable to afford legal protections on grounds of discrimination based upon race, gender, and/or class. In this way, the state sought to alleviate poverty using legal remedies, tackling the legal causes of poverty. This approach was employed in the “war on poverty” under the Johnson administration. The new pool of antipoverty lawyers worked to transform the lives of those oppressed by poverty en masse. Using a unique combination of understanding poverty-causing factors while pursuing economic justice, this work aimed to transform the social world that constructed and produced poverty conditions.In the late 1960s however, the U.S. saw backlash as those who faced marginalization and poverty became the recipients of economic and social program boons. The "justice model" would be replaced by the “access to justice” model in response to the rapid societal changes occurring within American society under the Nixon administration. This new approach would be crafted under the Legal Services Corporation, and would have a more individualistic focus with limited social impact, as the United States does not stipulate that legal services are a right to be guaranteed. "Access to justice” is the model that legal aid offices and services would follow for future organizations.
Legal Services Corporation (LSC)
Civil legal aid appeared as early as the 1870s. 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 1974, Congress created the Legal Services Corporation to provide federal funding for civil legal aid services. By 1975, the Legal Service Corporation had taken over the function of OEO, leaving it's organizational structure largely unchanged. Funding usually comes from the federal government Legal Services Corporation, Interest on Lawyer Trust Accounts, charities, private donors, and some state and local governments. 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. Organizations that receive LSC funding cannot take funding from non LSC sources to pursue legislative efforts that contradict LSC regulations. In addition to lobbying and class actions, LSC organizations cannot purse abortion related litigation and cannot advance certain state or federal welfare challenges. LSC organizations are not able to conduct workshops related to political activities and advocacy as well. 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. Many organizations that provide civil legal services are heavily dependent on Interest on Lawyer Trust Accounts for funding. Some civil aid organizations accept private donations and grants if they refuse LSC funding.However, even with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate. Demand for legal services remains high. In 2017, an estimated 60.3 million Americans were eligible for LSC programs. According to LSC's first annual Justice Gap report, initiated by LSC president Helaine M. Barnett in 2005, 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. The widely released 2005 report, "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans," concludes that 86% of civil legal problems facing Americans have received inadequate or no legal assistance in the past year. The report also finds that 71% of low-income households were at some point in need of civil legal services within the year. The report states that “in 2017, low-income Americans approached LSC-funded legal aid organizations for support with an estimated 1.7 million problems. They will receive only limited or no legal help for more than half of these problems due to a lack of resources."
Legal Aid at the State Level
The provision of legal services on a federal level through the LSC is largely inadequate, and leaves a large volume of unmet demand. In the absence of a major decision from the Supreme Court affirming the right to civil counsel, as came to pass with criminal matters through Gideon v. Wainwright, States have been left to their own devices in order to fulfill the high demand for legal services.New York
Historically, civil legal aid in the United States began in New York with the founding of the Legal Aid Society of New York in 1876. In 2017, New York City became the first place in the US to guarantee legal services to all tenants facing eviction with the passage of the "Right to Counsel Law". The bill was originally introduced in 2014 by Mark Levine and Vanessa Gibson before being expanded into its current form. Funding for legal services centered around eviction and housing will increase over the course of five years, reaching $155 million by 2022. The services are to be implemented by the Office of Civil Justice to households making no more than 200% of the federal poverty line.The legislation includes a provision for OCJ to provide annual reports in order to monitor the progress and effectiveness of the services being provided. The 2017 reports finds that evictions have declined by 27% since 2013, and that "over the four-year period of 2014 through 2017, an estimated 70,000 New Yorkers remained in their homes as a result of the decreased evictions."
California
The 2009 Sargent Shriver Civil Counsel Act created a number of pilot programs that advanced representation in civil aid cases regarding basic human needs in order to assess the benefits of civil legal aid, and the logistics of wider implementation. A 2017 study examined 10 of these legal aid programs, and found that recipients of aid had greatly improved prospects in eviction cases. 67% of cases settled, an increase of 33% compared to self pro per cases. Critically, the study found that, "while all Shriver clients received eviction notices, only 6% were ultimately evicted from their homes." If income requirements are not met, legal aid organizations in California funded by the Legal Services Corporation cannot provide services to constituents. This disproportionately affects Latinos/as living in California.The San Francisco City Counsel passed an ordinance in 2012 declaring its intention to make San Francisco the first city to guarantee a right to counsel. In June 2018, San Francisco implemented a "Right to Counsel" program guaranteeing legal representation to tenants facing eviction.
Currently, the Los Angeles City Counsel is considering "Right To Counsel" legislation that may look very similar to those being enacted in New York and San Francisco.
Pro Bono
The problem of chronic underfunding of legal aid is that it traps the lower middle class in no-man's-land: 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. Such proposals have been mostly fought off by bar associations successfully. The American Bar Association claims it is a lawyer's professional duty to perform 50 hours of legal pro bono work for poor people annually. 1/3 of Latino lawyers perform pro-bono work and 49% of Latino lawyers report to meet this 50 hour annual quota with 8.3% report to providing 200 hours or more. Pro bono services are sometimes awarded by Courts in cases related to employment, sex discrimination, consumer credit and fraud amongst others. 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, funding for legal aid remains severely insufficient to provide assistance to a majority of those in need.The term “pro bono” came into official existence in 1919. Reginald Herber Smith uncovered in his study of how drastically different the poor and rich prevailed in legal matters within the U.S. What Smith honed in on was need for lawyers to serve the "financially unservable", or those that could least afford legal services, but would also significantly benefit from such services. The issue with that notion however, means that a lawyer would not be compensated for their skills, knowledge, and time. Today, there are the “no costs to you” contingent contracts advertised in order to make a profit in the long run, in addition to the recommendation that private lawyers offer at least 50 hours of “pro bono” services per year in providing legal aid to those that cannot afford their services. To be clear, there is no mandate requiring any law firm or legal service providers to part take in either of these processes, only a recommendation that all lawyers "should aspire to" serve, and lawyers who wish to extend themselves in such a capacity must decide to render their services free of charge.
Administrative Legal Aid
A few states have also guaranteed the right to counsel for indigent defendants in "quasi-criminal" or administrative law cases like involuntary terminations of parental rights and paternity actions.Community Based Legal Aid
The creation of community based legal aid organizations typically form in response to a lack of services, or ability to actively operate as fully enfranchised citizens with all the rights as determined by the Superior Court of the United States. An example of such a community based legal aid program is the creation of the New York's Legal Aid Society, founded in 1876 to help German immigrants deal with a series of issues experienced within their communities. The lack led to German-Americans to develop this site in order to assist the people, who were vulnerable to wage abuse, criminalization, and other legal issues that plagued their lives. Other organizations would utilize legal means as practical steps in transforming fundamental American social values and culture. The National Association for the Advancement of Colored People, and American Civil Liberties Union, are two of the most recognized legal aid service providers within the U.S., but would come about later, founded in 1909 and 1920s respectively. Legal aid organizations were formed outside the legitimization scope of the state, using law to pursue, challenge, and change existing legislation that worked against the most vulnerable citizens based upon grounds of race, gender, citizenship, and other categories by which the poor were disadvantaged.Legal clinics have become centers of legal aid, advice, and sites of holistic approaches to poverty. Within these spaces, the poor have access to justice, along with a less specialized legal pool of knowledge addressing the more common complaints that impact the day to day on-goings of life, also known as the “generalists” approach, creating a type of “one stop shop” which attempts to have all the legal needs of a client met in a single space, cutting down expenses of having to have multiple lawyers in multiple sites for multiple legal issues. These sites also take into consideration the cultural and social considerations that contribute to the mental and social aversions to be able to seek legal aid by disadvantaged populations. A crucial part of this model is to meet the client where they are, or at least, be in a location that is actually feasible, and convenient for the client to visit. Insert neighborhood legal clinics, and their multifaceted approach to a multifaceted issue. Because poverty law “is not a specialized field,” there can be multiple issues a single client may experience, possibly simultaneously, and may not be all related to one particular case, or interwoven to such a degree that addressing one part of the problem leads to a chain reaction of sorts to affect all the moving parts.