메뉴 건너뛰기




Volumn 59, Issue 3, 2006, Pages 971-1015

The ethical bar and the LSC: Wrestling with restrictions on federally funded legal services

Author keywords

[No Author keywords available]

Indexed keywords


EID: 33750021191     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (3)

References (252)
  • 1
    • 33750009961 scopus 로고    scopus 로고
    • Professing Pro Bono: To Walk the Talk
    • as quoted in, 7
    • Lewis Powell, prior to his tenure on the Supreme Court, speaking in his capacity as the president of the American Bar Association, as quoted in Michael A. Mogill, Professing Pro Bono: To Walk the Talk, 15 NOTRE DAME J.L. ETHICS & PUB. POL'Y 5, 7 (2001)
    • (2001) Notre Dame J.L. Ethics & Pub. Pol'y , vol.15 , pp. 5
    • Mogill, M.A.1
  • 2
    • 33749999341 scopus 로고
    • citing NAT'L LEGAL AID AND DEFENDER ASS'N
    • (citing NAT'L LEGAL AID AND DEFENDER ASS'N, LEGAL SERVICES: THE UNMET PROMISE 1 (1995)).
    • (1995) Legal Services: The Unmet Promise , pp. 1
  • 3
    • 33750005887 scopus 로고    scopus 로고
    • Clipped Wings and Budget Cuts Tax Legal Aid
    • Mogill, supra note 1, at 11 n.35 (citing Aug., at 59)
    • Mogill, supra note 1, at 11 n.35 (citing Mary Wisniewski Holden, Clipped Wings and Budget Cuts Tax Legal Aid, CHI. LAW., Aug. 1997, at 59).
    • (1997) Chi. Law
    • Holden, M.W.1
  • 4
    • 33750014604 scopus 로고    scopus 로고
    • Role of the Legal Services Corporation in Preserving Our National Commitment to Equal Access to Justice
    • 742
    • Douglas S. Eakeley, Role of the Legal Services Corporation in Preserving Our National Commitment to Equal Access to Justice, 1997 ANN. SURV. AM. L. 741, 742;
    • Ann. Surv. Am. L , vol.1997 , pp. 741
    • Eakeley, D.S.1
  • 5
    • 33750006405 scopus 로고    scopus 로고
    • LSC Down but Not Out: With Reauthorizations Stalling, ABA Carries on Fight for Legal Services
    • 118
    • Rhonda McMillion, LSC Down But Not Out: With Reauthorizations Stalling, ABA Carries on Fight for Legal Services, 82 A.B.A. J. 118, 118 (1996).
    • (1996) A.B.A. J. , vol.82 , pp. 118
    • McMillion, R.1
  • 6
    • 33750002389 scopus 로고    scopus 로고
    • On Long-Haul Lawyering
    • See, e.g., 774-75
    • See, e.g., Susan D. Bennett, On Long-Haul Lawyering, 25 FORDHAM URB. L.J. 771, 774-75 (1998): [In 1996,] Congress withdrew from Legal Services grantees the funding, the stability, and the professional discretion to elect forms of delivery of legal services - class actions, community organizing, legislative lobbying - that might support more expansive or systemic representation. This action merely continued a process of curtailment of capacity for broad-based lawyering that began the minute that Legal Services offices received their first federal funding . . .
    • (1998) Fordham Urb. L.J. , vol.25 , pp. 771
    • Bennett, S.D.1
  • 7
    • 33750001037 scopus 로고    scopus 로고
    • Ethical Issues Panel
    • See also Symposium, 360 [hereinafter Ethics Panel]
    • See also Symposium, Ethical Issues Panel, 25 FORDHAM URB. L.J. 357, 360 (1998) [hereinafter Ethics Panel]: [W]hile LSC programs have at a number of different points in time had some restrictions placed on the type of clients that could be represented, or even on the type of actions that could be brought, what had never been done before [1996] was to impose restrictions on the legal arsenal of tools available to a client once a person was determined eligible and the case involved an acceptable subject matter.
    • (1998) Fordham Urb. L.J. , vol.25 , pp. 357
  • 8
    • 33749994828 scopus 로고    scopus 로고
    • The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960s to the 1990s
    • See, e.g., 241
    • See, e.g., William P. Quigley, The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960s to the 1990s, 17 ST. LOUIS U. PUB. L. REV. 241, 241 (1998)
    • (1998) St. Louis U. Pub. L. Rev. , vol.17 , pp. 241
    • Quigley, W.P.1
  • 9
    • 33750003790 scopus 로고    scopus 로고
    • quoting, 104th Cong., 2d Sess. See also McMillion, supra note 3, at 118
    • (quoting Hearing Before the Subcomm. on Commercial and Admin. Law of the House Comm. on the Judiciary, 104th Cong., 2d Sess. 36 (1996) (statement of Kenneth F. Boehm, Chairman, National Legal and Policy Center)): From the very inception of the legal services program up until today, the controversies which marked the program have been the same. In the name of helping the poor, program resources were used to promote political and ideological causes. Lobbying, congressional redistricting cases, abortion litigation and legal attacks on welfare reform and laws against welfare fraud all served to mark this program as being a far cry from the traditional legal aid offered to the poor by the legal profession over the years. See also McMillion, supra note 3, at 118 ("Critics say that LSC lawyers should not take on cases beyond the bread-and-butter basics, and that no LSC funds should be used in areas such as legislative redistricting, lobbying, abortion-related litigation, political activities or class actions. These restrictions were attached to the LSC appropriations legislation for fiscal 1996.").
    • (1996) Hearing before the Subcomm. on Commercial and Admin. Law of the House Comm. on the Judiciary , pp. 36
  • 10
    • 11544329176 scopus 로고    scopus 로고
    • It Is Lawyers We Are Funding: A Constitutional Challenge to the 1996 Restrictions on the Legal Services Corporation
    • 107-08
    • Jessica A. Roth, It Is Lawyers We Are Funding: A Constitutional Challenge to the 1996 Restrictions on the Legal Services Corporation, 33 HARV. C.R.-C.L. L. REV. 107, 107-08 & n.15 (1998).
    • (1998) Harv. C.R.-C.L. L. Rev. , vol.33 , Issue.15 , pp. 107
    • Roth, J.A.1
  • 11
    • 33750006406 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 12
    • 84859684290 scopus 로고    scopus 로고
    • Legal Services Corporation Act, Pub. L. No. 93-355, 88 Stat. 378 (1974) (codified as amended at 42 U.S.C. § 2996 (2006)) [hereinafter the LSC Act or the Act]
    • Legal Services Corporation Act, Pub. L. No. 93-355, 88 Stat. 378 (1974) (codified as amended at 42 U.S.C. § 2996 (2006)) [hereinafter the LSC Act or the Act].
  • 14
    • 0142160618 scopus 로고    scopus 로고
    • Civil Legal Assistance for Low-Income Persons: Looking Back and Looking Forward
    • 1221 [hereinafter Houseman 2002]
    • Alan W. Houseman, Civil Legal Assistance for Low-Income Persons: Looking Back and Looking Forward, 29 FORDHAM URB. L.J. 1213, 1221 (2002) [hereinafter Houseman 2002].
    • (2002) Fordham Urb. L.J. , vol.29 , pp. 1213
    • Houseman, A.W.1
  • 15
    • 84859680388 scopus 로고    scopus 로고
    • at 6 available at [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2005]
    • LEGAL SERVICES CORPORATION, BUDGET REQUEST FOR FISCAL YEAR 2005, at 6 (2004), available at http://www.lsc.gov/about/budget/FY05BReq.pdf [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2005]. One scholar puts the number slightly higher, at one lawyer for every 9,000 eligible people.
    • (2004) Budget Request for Fiscal Year 2005
  • 16
    • 0037276662 scopus 로고    scopus 로고
    • Taking Out the Adversary: The Assault On Progressive Public-Interest Lawyers
    • 211-13
    • David Luban, Taking Out the Adversary: The Assault On Progressive Public-Interest Lawyers, 91 CAL. L. REV. 209, 211-13 (2003). The LSC's recent publication on "the unmet civil legal needs of low-income Americans" calculates the numbers somewhat differently.
    • (2003) Cal. L. Rev. , vol.91 , pp. 209
    • Luban, D.1
  • 17
    • 50649104077 scopus 로고    scopus 로고
    • available at [hereinafter LSC, JUSTICE GAP]. Id. at 16
    • LEGAL SERVICES CORPORATION, DOCUMENTING THE JUSTICE GAP IN AMERICA: THE CURRENT UNMET CIVIL LEGAL NEEDS OF LOW-INCOME AMERICANS (2005), available at http://www.lsc.gov/press/documents/LSC%20Justice%20Gap_FINAL_1001.pdf [hereinafter LSC, JUSTICE GAP]. Grouping together all legal-services lawyers - both those funded by the LSC and those working for non-LSC-funded organizations - the Justice Gap report specifies a ratio of one legal-services attorney per 6,861 income-eligible people. Id. at 16.
    • (2005) Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans
  • 18
    • 84859687658 scopus 로고    scopus 로고
    • Luban, supra note 11, at 211-13. LSC, JUSTICE GAP, supra note 11, at 16; Mkt. Research Dep't, (last visited Apr. 30, 2006) [hereinafter ABA, National Lawyer Population]. LSC, JUSTICE GAP, supra note 11, at 16
    • Luban, supra note 11, at 211-13. The Justice Gap report bases this calculation on the number of lawyers providing specifically civil legal assistance to the general population, which appears to be approximately half the country's population of active lawyers. LSC, JUSTICE GAP, supra note 11, at 16; Mkt. Research Dep't, American Bar Association, National Lawyer Population By State 3 (2005), http://www.abanet.org/marketresearch/2005nbroflawyers bystate.pdf (last visited Apr. 30, 2006) [hereinafter ABA, National Lawyer Population] (noting that the number of active lawyers in the United States in 2005 totaled 1,104,766). This calculation yields "a ratio of one attorney per 525 people." LSC, JUSTICE GAP, supra note 11, at 16.
    • (2005) National Lawyer Population By State , pp. 3
  • 19
    • 33750002796 scopus 로고    scopus 로고
    • Houseman 2002, supra note 10, at 1221
    • Houseman 2002, supra note 10, at 1221.
  • 20
    • 33750000725 scopus 로고    scopus 로고
    • note
    • I am indebted to Professor Frank Bloch for outlining the political context of the 1981 peak for this child of the 1980s.
  • 21
    • 33750009488 scopus 로고    scopus 로고
    • note
    • See infra notes 182-184 and accompanying text (discussing Congress's repeated attempts to end or severely restrict the LSC).
  • 22
    • 33750001323 scopus 로고    scopus 로고
    • Houseman 2002, supra note 10, at 1221; Houseman 2003, supra note 9, at 4
    • Houseman 2002, supra note 10, at 1221; Houseman 2003, supra note 9, at 4.
  • 23
    • 33750012462 scopus 로고    scopus 로고
    • note
    • The Model Rules form the basis for the ethical codes governing lawyers' behavior at the state and federal levels.
  • 24
    • 33750005886 scopus 로고    scopus 로고
    • note
    • The OEO was the administrative parent of the original federal Legal Services Program ("LSP") that preceded the LSC.
  • 25
    • 33750004279 scopus 로고    scopus 로고
    • note
    • Such issues are typically short-handed in legal-aid scholarship and discussion as "law reform."
  • 26
    • 33750025188 scopus 로고    scopus 로고
    • Quigley, supra note 5, at 246-48
    • Quigley, supra note 5, at 246-48.
  • 27
    • 33750019343 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 28
    • 33750026038 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 29
    • 33749996811 scopus 로고    scopus 로고
    • note
    • Other contributing factors include the increase in the overall population of the United States, the increase in the number of U.S. residents eligible for and desirous of legal-aid services, and the increase in the complexity of problems facing both aid-eligible people and the lawyers striving to help them.
  • 30
    • 33749994152 scopus 로고    scopus 로고
    • note
    • THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) ("We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.").
  • 31
    • 0346181614 scopus 로고
    • On Disbelieving Atrocities
    • 92 (Danube ed.)
    • Arthur Koestler, On Disbelieving Atrocities, in THE YOGI AND THE COMMISSAR 88, 92 (Danube ed. 1965)
    • (1965) The Yogi and the Commissar , pp. 88
    • Koestler, A.1
  • 32
    • 0033466922 scopus 로고    scopus 로고
    • Cultures of Commitment: Pro Bono for Lawyers and Law Students
    • (quoted in 2431 [hereinafter Rhode, Cultures of Commitment])
    • (quoted in Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 FORDHAM L. REV. 2415, 2431 (1999) [hereinafter Rhode, Cultures of Commitment]).
    • (1999) Fordham L. Rev. , vol.67 , pp. 2415
    • Rhode, D.L.1
  • 33
    • 1842768854 scopus 로고
    • The Lawyer's Duty of Public Service: More Than Charity?
    • 373
    • Tigran W. Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More Than Charity?, 96 W. VA. L. REV. 367, 373 (1993).
    • (1993) W. Va. L. Rev. , vol.96 , pp. 367
    • Eldred, T.W.1    Schoenherr, T.2
  • 34
    • 0033409468 scopus 로고    scopus 로고
    • Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law Schools Conduct Them?
    • See, e.g., Memorandum from Bill Whitehurst, Chair, ABA Standing Comm. on Legal Aid and Indigent Defendants, to Helaine Barnett, President, LSC, ABA's 2006 Budget Recommendations to LSC (Aug. 24, 2004) (on file with author) [hereinafter ABA 2006 Budget Recommendations]; LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 6, 1883-84
    • See, e.g., Memorandum from Bill Whitehurst, Chair, ABA Standing Comm. on Legal Aid and Indigent Defendants, to Helaine Barnett, President, LSC, ABA's 2006 Budget Recommendations to LSC (Aug. 24, 2004) (on file with author) [hereinafter ABA 2006 Budget Recommendations] ("Various credible studies - state and national - continue to show that despite the combined efforts of legal aid programs and private bar pro bono attorneys, as many as 80% of the legal needs of people in poverty are not addressed in any way."); LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 6 (noting that 80% of aid-eligible U.S. residents lack access to civil legal services); Margaret M. Barry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law Schools Conduct Them?, 67 FORDHAM L. REV. 1879, 1883-84 (1999) ("The American Bar Association's ('ABA') Comprehensive Legal Needs Study reports that fewer than three in ten of the legal problems of low-income households are brought to the justice system. . . . The study found that in seventy-nine percent of the low-income households having legal problems, no lawyer was involved.");
    • (1999) Fordham L. Rev. , vol.67 , pp. 1879
    • Barry, M.M.1
  • 35
    • 33750021876 scopus 로고    scopus 로고
    • available at [hereinafter BRENNAN CENTER 2003]
    • BRENNAN CENTER FOR JUSTICE, STRUGGLING TO MEET THE NEED: COMMUNITIES CONFRONT GAPS IN FEDERAL LEGAL AID 6 (2003), available at http://www. brennancenter.org/resources/atj/atj8.pdf [hereinafter BRENNAN CENTER 2003] ("Some 45 million low-income Americans meet the financial qualifications for LSC-funded representation, and LSC-funded programs strain to provide services to about 1.4 million of them a year. . . .");
    • (2003) Struggling to Meet the Need: Communities Confront Gaps in Federal Legal Aid , pp. 6
  • 36
    • 33749997884 scopus 로고    scopus 로고
    • The Politics of Equal Justice
    • 1091
    • Robert Hornstein et al., The Politics of Equal Justice, 11 AM. U. J. GENDER SOC. POL'Y & L. 1089, 1091 (2003) ("[I]t has been estimated that only one-eighth of the legal needs of poor people are addressed.").
    • (2003) Am. U. J. Gender Soc. Pol'y & L. , vol.11 , pp. 1089
    • Hornstein, R.1
  • 37
    • 33750000454 scopus 로고    scopus 로고
    • Eldred & Schoenherr, supra note 26, at 372-73
    • Eldred & Schoenherr, supra note 26, at 372-73.
  • 38
    • 33750034463 scopus 로고    scopus 로고
    • Access to Justice: Connecting Principles to Practice
    • 380-81; LSC, JUSTICE GAP, supra note 11, at 13
    • Deborah L. Rhode, Access to Justice: Connecting Principles to Practice, 17 GEO. J. LEGAL ETHICS 369, 380-81 (2004); LSC, JUSTICE GAP, supra note 11, at 13.
    • (2004) Geo. J. Legal Ethics , vol.17 , pp. 369
    • Rhode, D.L.1
  • 39
    • 33750024348 scopus 로고    scopus 로고
    • LSC, JUSTICE GAP, supra note 11, at 13
    • LSC, JUSTICE GAP, supra note 11, at 13.
  • 40
    • 33750006403 scopus 로고    scopus 로고
    • note
    • Id. at 5. This particular problem is so acute that the LSC estimates that "for every client served by an LSC-funded program, at least one eligible person seeking help will be turned down." Id. (emphasis omitted).
  • 41
    • 33749987131 scopus 로고    scopus 로고
    • note
    • See infra notes 69-84 for a discussion of the restrictions Congress levied on the LSC in 1996 as a condition of continuing its funding and of the effects of those restrictions on the representation available to income-eligible persons.
  • 42
    • 21344481037 scopus 로고
    • Impoverished Practices
    • 2663
    • Anthony V. Alfieri, Impoverished Practices, 81 GEO. L.J. 2567, 2663 n.127 (1993) ("LSC regulations supplement statutory eligibility factors enumerating maximum income levels, not to exceed 125% of the current HHS [Department of Health and Human Services] Federal Poverty Income Guidelines . . . .").
    • (1993) Geo. L.J. , vol.81 , Issue.127 , pp. 2567
    • Alfieri, A.V.1
  • 43
    • 33847796217 scopus 로고    scopus 로고
    • Office of the Assistant Secretary for Planning and Evaluation, available at. Id.
    • U.S. Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, The 2005 HHS Poverty Guidelines, available at http://aspe.hhs. gov/poverty/05poverty.shtml. The rates are slightly higher for Alaska and Hawaii. Id.
    • The 2005 HHS Poverty Guidelines
  • 44
    • 19744374373 scopus 로고    scopus 로고
    • Employment Standards Administration, Wage and Hour Division, (last visited Apr. 30, 2006)
    • U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Questions and Answers About the Minimum Wage, http://www.dol.gov/esa/minwage/qa.htm (last visited Apr. 30, 2006). Basic state minimum wages range from $2.65 (Kansas) to $7.63 (Washington); some states lack minimum-wage laws entirely.
    • Questions and Answers about the Minimum Wage
  • 45
    • 33745336762 scopus 로고    scopus 로고
    • Employment Standards Administration, Wage and Hour Division, (Jan. 1), (last visited Apr. 30, 2006)
    • U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Minimum Wage Laws in the States (Jan. 1, 2006), http://www.dol.gov/esa/minwage/america.htm (last visited Apr. 30, 2006).
    • (2006) Minimum Wage Laws in the States
  • 46
    • 84859680370 scopus 로고    scopus 로고
    • See, e.g., LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 6; Luban, supra note 11, at 211; (last visited Apr. 30, 2006)
    • Sources vary on this number. See, e.g., LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 6 (putting the number of eligible people at forty-three million); Luban, supra note 11, at 211 (putting the number at forty-five million and citing to the 2000 U.S. Census in support); U.S. Census Bureau, Poverty: Historical Poverty Tables, tbl. 6: People Below 125 Percent of Poverty Level and the Near Poor: 1959 to 2004, http://www.census.gov/hhes/www/ poverty/histpov/hstpov6.html (last visited Apr. 30, 2006) (putting the number in 2004 at almost fifty million - over seventeen percent of the country's population).
    • Poverty: Historical Poverty Tables, tbl. 6: People Below 125 Percent of Poverty Level and the Near Poor: 1959 to 2004
  • 47
    • 33750027081 scopus 로고    scopus 로고
    • Hornstein et al., supra note 27, at 1090-91
    • Hornstein et al., supra note 27, at 1090-91.
  • 48
    • 84971563544 scopus 로고    scopus 로고
    • Traditional Issues of Professional Responsibility and a Transformative Ethic of Client Empowerment for Legal Discourse
    • See, e.g., 825
    • See, e.g., Brook K. Baker, Traditional Issues of Professional Responsibility and a Transformative Ethic of Client Empowerment for Legal Discourse, 34 NEW ENG. L. REV. 809, 825 n.40 (2000) ("'Numerous studies have shown that only [fifteen] to [twenty] percent of the nation's poor receive legal services[,]' much of that provided by increasingly embattled legal[-]services providers rather than by the private bar.")
    • (2000) New Eng. L. Rev. , vol.34 , Issue.40 , pp. 809
    • Baker, B.K.1
  • 49
    • 33750014361 scopus 로고    scopus 로고
    • Community Education: Creating a New Vision of Legal Services Practice
    • quoting, 440
    • (quoting Ingrid V. Eagly, Community Education: Creating a New Vision of Legal Services Practice, 4 CLINICAL L. REV. 433, 440 n.46 (1998));
    • (1998) Clinical L. Rev. , vol.4 , Issue.46 , pp. 433
    • Eagly, I.V.1
  • 50
    • 85055298787 scopus 로고
    • The Value of Public Service: A Model for Instilling a Pro Bono Ethic in Law School
    • 1697
    • Jill Chaifetz, The Value of Public Service: A Model for Instilling a Pro Bono Ethic in Law School, 45 STAN. L. REV. 1695, 1697 (1993) (citing a recent study in support of the statement that "fewer than 20 percent of poor people's legal needs are adequately addressed");
    • (1993) Stan. L. Rev. , vol.45 , pp. 1695
    • Chaifetz, J.1
  • 51
    • 33750030338 scopus 로고    scopus 로고
    • Reflections on Teaching Law as Right Livelihood: Cultivating Ethics, Professionalism, and Commitment to Public Service from the Inside Out
    • 238
    • Laurie A. Morin, Reflections on Teaching Law as Right Livelihood: Cultivating Ethics, Professionalism, and Commitment to Public Service from the Inside Out, 35 TULSA L.J. 227, 238 n.53 (2000)
    • (2000) Tulsa L.J. , vol.35 , Issue.53 , pp. 227
    • Morin, L.A.1
  • 52
    • 0346070250 scopus 로고
    • quoting STANDING COMMITTEE ON LAWYERS' PUBLIC SERVICE RESPONSIBILITY, AMERICAN BAR ASSOCIATION, COMMITTEE REPORT SUPPORTING 1993 AMENDMENT TO RULE 6.1, reprinted in, (Stephen Gillers & Roy D. Simon, Jr. eds.)
    • (quoting STANDING COMMITTEE ON LAWYERS' PUBLIC SERVICE RESPONSIBILITY, AMERICAN BAR ASSOCIATION, COMMITTEE REPORT SUPPORTING 1993 AMENDMENT TO RULE 6.1, reprinted in REGULATION OF LAWYERS: STATUTES AND STANDARDS 308-09 (Stephen Gillers & Roy D. Simon, Jr. eds., 1995)) (internal citation omitted): The ABA Standing Committee on Lawyers' Public Service Responsibility, which proposed the 1993 amendment to Rule 6.1, stated that "the inability of the poor to obtain needed legal services has been well documented: Since 1983, when Rule 6.1 was adopted, at least one national and 13 state-wide studies assessing the legal needs of the poor have been conducted. Of those studies reporting unmet legal need, there has been a consistent finding that only about 15%-20% of the legal need[s] of the poor are being addressed.
    • (1995) Regulation of Lawyers: Statutes and Standards , pp. 308-309
  • 53
    • 26444542210 scopus 로고    scopus 로고
    • Too Much Law, Too Little Justice: Too Much Rhetoric, Too Little Reform
    • See also, 992
    • See also Deborah L. Rhode, Too Much Law, Too Little Justice: Too Much Rhetoric, Too Little Reform, 11 GEO. J. LEGAL ETHICS 989, 992 (1998) (quoting Roger Abrams, Are There Too Many Lawyers?, N.J. L.J., Feb. 13, 1995, at 23): [T]he vast majority of legal needs among low[-]income households are unmet . . . . [T]he problem for most Americans is not that there are too many lawyers, but rather that "there are just too many lawyers trying to serve the same clients." Corporations and individuals with deep pockets or large potential damage claims may encounter a glut of would-be advocates. Ordinary Americans with ordinary needs do not.
    • (1998) Geo. J. Legal Ethics , vol.11 , pp. 989
    • Rhode, D.L.1
  • 54
    • 0347178741 scopus 로고    scopus 로고
    • The Professional Responsibilities of Professional Schools
    • See also, 26 [hereinafter Rhode, Professional Responsibilities]
    • See also Deborah L. Rhode, The Professional Responsibilities of Professional Schools, 49 J. LEGAL EDUC. 24, 26 (1999) [hereinafter Rhode, Professional Responsibilities] ("[A] nation with the world's highest concentration of lawyers meets less than a quarter of the legal needs of its low-income population.");
    • (1999) J. Legal Educ. , vol.49 , pp. 24
    • Rhode, D.L.1
  • 55
    • 33750020145 scopus 로고    scopus 로고
    • Mandatory Pro Bono Publico for Law Students: The Right Place to Start
    • 1074 (citing Eldred & Schoenherr, supra note 26, at 372-73)
    • Christina M. Rosas, Mandatory Pro Bono Publico for Law Students: The Right Place to Start, 30 HOFSTRA L. REV. 1069, 1074 (2002) ("The poor of this country suffer from a severe lack of access to legal services. . . . Over eighty percent of this population's legal needs are not adequately addressed. One estimate places this group's total number of hours of unmet legal needs at twenty million annually." (citing Eldred & Schoenherr, supra note 26, at 372-73)).
    • (2002) Hofstra L. Rev. , vol.30 , pp. 1069
    • Rosas, C.M.1
  • 56
    • 33749992236 scopus 로고    scopus 로고
    • Changing Conceptions of Lawyers' Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations
    • See, e.g., Eagly, supra note 38, at 440: See also, 94
    • See, e.g., Eagly, supra note 38, at 440: Legal Services has become overwhelmed with demands for assistance. Case priorities are usually set according to a "triage model," similar to the system in place in hospital emergency rooms. Under this model, programs decide which types of cases to undertake by using factors including degree of need, severity of poverty, and likelihood of success. See also Judith L. Maute, Changing Conceptions of Lawyers' Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 TUL. L. REV. 91, 94 (2002) ("Emergency triage is the only practical option to manage the overwhelming demand.").
    • (2002) Tul. L. Rev. , vol.77 , pp. 91
    • Maute, J.L.1
  • 57
    • 0033411304 scopus 로고    scopus 로고
    • Acting "A Very Moral Type of God": Triage Among Poor Clients
    • See generally
    • See generally Paul Tremblay, Acting "A Very Moral Type of God": Triage Among Poor Clients, 67 FORDHAM L. REV. 2475 (1999) (discussing the triage model and its implications).
    • (1999) Fordham L. Rev. , vol.67 , pp. 2475
    • Tremblay, P.1
  • 58
    • 33750000180 scopus 로고    scopus 로고
    • note
    • ABA 2006 Budget Recommendations, supra note 27: [L]ocal LSC-funded legal aid programs throughout the country are forced to turn away many thousands of individuals and families who need assistance with basic legal problems. Various credible studies - state and national - continue to show that despite the combined efforts of legal aid programs and private bar pro bono attorneys, as many as 80% of the legal needs of people in poverty are not addressed in any way. These are people who encounter legal problems relating to family relationships, domestic violence, health, employment, housing and other basic life issues.
  • 59
    • 84859683548 scopus 로고    scopus 로고
    • Memorandum from Lillian M. Moy, Chair, Nat'l Legal Aid and Defender Ass'n [NLADA] Civil Policy Group & Don Saunders, Director of Civil Legal Services, NLADA, to Helaine Barnett, President, LSC, Recommendations for FY 2006 Mark (Aug. 16) (last visited Apr. 30, 2006) [hereinafter NLADA 2006 Budget Recommendations]
    • Memorandum from Lillian M. Moy, Chair, Nat'l Legal Aid and Defender Ass'n [NLADA] Civil Policy Group & Don Saunders, Director of Civil Legal Services, NLADA, to Helaine Barnett, President, LSC, Recommendations for FY 2006 Mark (Aug. 16, 2004), http://www.nlada.org/Civil/NLADA_News/2004092052167018 (last visited Apr. 30, 2006) [hereinafter NLADA 2006 Budget Recommendations]: During the time of federal retrenchment in funding since 1995, we have seen an increase of 5.7% in the number of Americans living in poverty. Over 36 million people qualify for services from your grantees. Yet, as the Board all too well knows, we as a society remain able to address only about 20% of that need.
    • (2004)
  • 60
    • 33749985838 scopus 로고    scopus 로고
    • note
    • LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 6 ("A sample of recent legal needs studies performed on the state level demonstrate that there has been little or no improvement since the ABA study was conducted"; for example, under twenty percent of low-income people in Oregon, only fourteen percent in Massachusetts, and only twelve percent in New Jersey are able to obtain help with their legal needs.).
  • 61
    • 84937343009 scopus 로고    scopus 로고
    • Access to Justice
    • 1797 [hereinafter Rhode 2001]
    • Deborah L. Rhode, Access to Justice, 69 FORDHAM L. REV. 1785, 1797 (2001) [hereinafter Rhode 2001].
    • (2001) Fordham L. Rev. , vol.69 , pp. 1785
    • Rhode, D.L.1
  • 62
    • 33750023552 scopus 로고    scopus 로고
    • Full Legal Representation for the Poor: The Clash Between Lawyer Values and Client Worthiness
    • See, e.g., Houseman 2003, supra note 9, at 5, 287 [hereinafter Jacobs 2001]
    • See, e.g., Houseman 2003, supra note 9, at 5 (stating that "[c]ivil legal assistance for poor people in the United States began in New York City in 1876"); Michelle S. Jacobs, Full Legal Representation for the Poor: The Clash Between Lawyer Values and Client Worthiness, 44 HOW. L.J. 257, 287 (2001) [hereinafter Jacobs 2001] (noting that "[s]hortly after the New York Legal Aid Society was formed, similar efforts were undertaken in other areas of the country" and that "[b]y 1917, there were thirty-seven cities with forty-one different Legal Aid organizations").
    • (2001) How. L.J. , vol.44 , pp. 257
    • Jacobs, M.S.1
  • 63
    • 58149361683 scopus 로고    scopus 로고
    • see generally, available at; Eagly, supra note 38
    • The LSC's history has been told in detail numerous times in journal articles and books. The sources cited here represent only a tiny sampling of the scholarship on the subject. For overviews from different - and sometimes diametrically opposite - positions, see generally ALAN W. HOUSEMAN & LINDA PERLE, SECURING EQUAL JUSTICE FOR ALL: A BRIEF HISTORY OF CIVIL LEGAL AID IN THE UNITED STATES (2003), available at http://www.clasp.org/publications/ Legal_Aid_History.pdf; Eagly, supra note 38;
    • (2003) Securing Equal Justice for All: A Brief History of Civil Legal Aid in the United States
    • Houseman, A.W.1    Perle, L.2
  • 64
    • 33750030609 scopus 로고
    • Restrictions on Lobbying by Legal Services Attorneys: Redefining Professional Norms and Obligations
    • 86-87
    • Paula Galowitz, Restrictions on Lobbying by Legal Services Attorneys: Redefining Professional Norms and Obligations, 4 B.U. PUB. INT. L.J. 39, 86-87 (1994);
    • (1994) B.U. Pub. Int. L.J. , vol.4 , pp. 39
    • Galowitz, P.1
  • 65
    • 11544257318 scopus 로고
    • Development of the Legal Services Corporation
    • Hornstein et al., supra note 27, at 1091-1100; multiple sources by Alan Houseman, including Houseman 2002, supra note 10, at 1213, 1217-21
    • Warren E. George, Development of the Legal Services Corporation, 61 CORNELL L. REV. 681 (1976); Hornstein et al., supra note 27, at 1091-1100; multiple sources by Alan Houseman, including Houseman 2002, supra note 10, at 1213, 1217-21
    • (1976) Cornell L. Rev. , vol.61 , pp. 681
    • George, W.E.1
  • 66
    • 21844506667 scopus 로고
    • Political Lessons: Legal Services for the Poor - A Commentary
    • [on Marc Feldman's article of that name, 83 GEO. L.J. 1529 (1995)], 1670-84 [hereinafter Houseman 1995]; Jacobs 2001, supra note 44
    • and Alan W. Houseman, Political Lessons: Legal Services for the Poor - A Commentary [on Marc Feldman's article of that name, 83 GEO. L.J. 1529 (1995)], 83 GEO. L.J. 1669, 1670-84 (1995) [hereinafter Houseman 1995]; Jacobs 2001, supra note 44;
    • (1995) Geo. L.J. , vol.83 , pp. 1669
    • Houseman, A.W.1
  • 67
    • 33750022735 scopus 로고    scopus 로고
    • Federally Funded Legal Services: A New Vision of Equal Justice Under Law
    • Quigley, supra note 5
    • John McKay, Federally Funded Legal Services: A New Vision of Equal Justice Under Law, 68 TENN. L. REV. 101 (2000); Quigley, supra note 5;
    • (2000) Tenn. L. Rev. , vol.68 , pp. 101
    • McKay, J.1
  • 68
    • 33750021877 scopus 로고    scopus 로고
    • Serving the Poor: The Need for Unification within Today's Legal Services
    • Kelly Keenan Trumpbour, Serving the Poor: The Need for Unification within Today's Legal Services, 2 MARGINS 63 (2002);
    • (2002) Margins , vol.2 , pp. 63
    • Trumpbour, K.K.1
  • 69
    • 33750014362 scopus 로고    scopus 로고
    • From "Renegade" Agency to Institution of Justice: The Transformation of Legal Services Corporation
    • Mauricio Vivero, From "Renegade" Agency to Institution of Justice: The Transformation of Legal Services Corporation, 29 FORDHAM URB. L.J. 1323 (2002).
    • (2002) Fordham Urb. L.J. , vol.29 , pp. 1323
    • Vivero, M.1
  • 70
    • 33750012191 scopus 로고    scopus 로고
    • Houseman 2002, supra note 10, at 1213
    • Houseman 2002, supra note 10, at 1213.
  • 71
    • 33749989167 scopus 로고
    • President's Message to Congress Proposing Establishment of the Independent Corporation
    • Quigley, supra note 5, at 252 (quoting, 729 (May 10))
    • Quigley, supra note 5, at 252 (quoting President's Message to Congress Proposing Establishment of the Independent Corporation, 7 WEEKLY COMP. PRES. DOC. 726, 729 (May 10, 1971)).
    • (1971) Weekly Comp. Pres. Doc. , vol.7 , pp. 726
  • 72
    • 33749996296 scopus 로고    scopus 로고
    • Eakeley, supra note 3, at 742
    • Eakeley, supra note 3, at 742.
  • 73
    • 0347721879 scopus 로고    scopus 로고
    • Restrictions by Funders and the Ethical Practice of Law
    • 2190 [hereinafter Houseman 1999]
    • In 1998, Congress passed a new set of restrictions that gave the LSC the power to "foreclose recipients from future grants if they substantially violated the Legal Services Corporation Act or appropriation provisions[] or if they sued LSC because of the restrictions," eliminated the right that had existed prior to that time whereby organizations denied LSC funds could demand a hearing before an independent hearing officer and the LSC was precluded from eliminating a challenging organization's funding until that hearing had been resolved, and established a rule requiring grantees to reveal basic information about the participants in any case they instituted. Alan W. Houseman, Restrictions by Funders and the Ethical Practice of Law, 67 FORDHAM L. REV. 2187, 2190 (1999) [hereinafter Houseman 1999]. Although discussion of these restrictions lies outside the scope of this Note, their potential constricting effect on the already cramped provision of legal services seems clear.
    • (1999) Fordham L. Rev. , vol.67 , pp. 2187
    • Houseman, A.W.1
  • 74
    • 33750009322 scopus 로고    scopus 로고
    • LEGAL SERVICES CORPORATION. Id. at 7. Id. at 5
    • LEGAL SERVICES CORPORATION, LSC SPECIAL REPORT TO THE CONGRESS ON 1999 STATISTICS 1 (2000) [hereinafter LEGAL SERVICES CORPORATION SPECIAL REPORT] (on file with author). The LSC adjusted this number "by the average estimated error rate (11%), . . . [for] a total of cases closed for 1999 of 924,000." Id. at 7. The LSC defines a case as "the provision of permissible legal assistance to an eligible client with a legal problem, or set of closely related legal problems, accepted for assistance supported by LSC or non-LSC funds in accordance with the requirements of the LSC Act, regulations, and other applicable law." Id. at 5.
    • (2000) LSC Special Report to the Congress on 1999 Statistics , pp. 1
  • 75
    • 84859688796 scopus 로고    scopus 로고
    • Houseman 2003, supra note 9, at 2. Id. at 6-7. McMillion, supra note 3, at 118. Houseman 2003, supra note 9, at 7. Id. at 2. See also, at 1 (Apr.), (last visited Apr. 30, 2006)
    • In 1995, the LSC had 325 grantees. Houseman 2003, supra note 9, at 2. That year, in partnership with national legal organizations including the NLADA, the ABA, the Center for Law and Social Policy, and Interest on Lawyers' Trust Accounts ("IOLTA") programs, the LSC reacted to Congress's one-third reduction of its funding by inaugurating a still-ongoing large-scale effort to integrate state-level legal-services providers into more efficient, effective, and streamlined service-provision networks "called state justice communities." Id. at 6-7. More than 350 legal-services offices were closed in the wake of the 1996 funding cuts. McMillion, supra note 3, at 118. The justice-community effort then ramped up significantly in 1998, after Congress passed further restrictions on the LSC. Houseman 2003, supra note 9, at 7. In part as a result of this initiative, by 2003, the LSC had 160 grantees. Id. at 2. See also Meredith McBurney, ABA Center for Pro Bono, The Impact of Legal Services Program Reconfiguration on Pro Bono, at 1 (Apr. 2003), http://www.abanet.org/legalservices/probono/impact_reconfiguration.pdf (last visited Apr. 30, 2006).
    • (2003) ABA Center for Pro Bono, The Impact of Legal Services Program Reconfiguration on Pro Bono
    • McBurney, M.1
  • 76
    • 33749989690 scopus 로고    scopus 로고
    • LEGAL SERVICES CORPORATION, at 3 [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2004] (on file with author)
    • LEGAL SERVICES CORPORATION, BUDGET REQUEST FOR FISCAL YEAR 2004, at 3 (2003) [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2004] (on file with author).
    • (2003) Budget Request for Fiscal Year 2004
  • 77
    • 33750033982 scopus 로고    scopus 로고
    • LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 4
    • LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 4.
  • 78
    • 33749983523 scopus 로고    scopus 로고
    • Hornstein et al., supra note 27, at 1094
    • Hornstein et al., supra note 27, at 1094.
  • 79
    • 33750001322 scopus 로고    scopus 로고
    • Id. at 1095-96
    • Id. at 1095-96.
  • 80
    • 33750032158 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 81
    • 33750033794 scopus 로고    scopus 로고
    • note
    • In 1970, Governor Reagan vetoed the California OEO grant [to California Rural Legal Aid, or CRLA] on the stated grounds that legal[-]services funds had been diverted to an activist political agenda far-distant from the original legislative intent. . . . An investigatory commission of the OEO concluded that in fact routine legal matters made up over 95% of the caseload of CRLA . . . Quigley, supra note 5, at 249-50.
  • 82
    • 33749988139 scopus 로고    scopus 로고
    • Houseman 1995, supra note 45, at 1687
    • Houseman 1995, supra note 45, at 1687.
  • 83
    • 33750020709 scopus 로고    scopus 로고
    • Tending the Generous Heart: Mandatory Pro Bono and Moral Development
    • 460
    • Reed Elizabeth Loder, Tending the Generous Heart: Mandatory Pro Bono and Moral Development, 14 GEO. J. LEGAL ETHICS 459, 460 n.3 (2001).
    • (2001) Geo. J. Legal Ethics , vol.14 , Issue.3 , pp. 459
    • Loder, R.E.1
  • 84
    • 33749983798 scopus 로고    scopus 로고
    • Houseman 2002, supra note 10, at 1221
    • Houseman 2002, supra note 10, at 1221.
  • 85
    • 33749998486 scopus 로고    scopus 로고
    • The Unfinished Agenda for Law Schools in Nurturing a Commitment to Pro Bono Legal Services by Law Students
    • 478
    • Larry R. Spain, The Unfinished Agenda for Law Schools in Nurturing a Commitment to Pro Bono Legal Services by Law Students, 72 UMKC L. REV. 477, 478 n. 11 (2003)
    • (2003) UMKC L. Rev. , vol.72 , Issue.11 , pp. 477
    • Spain, L.R.1
  • 86
    • 0003577372 scopus 로고    scopus 로고
    • citing to LEGAL SERVICES CORPORATION; LSC, JUSTICE GAP, supra note 11, at 5
    • (citing to LEGAL SERVICES CORPORATION, ANNUAL REPORT 2000-2001 12 (2001)); LSC, JUSTICE GAP, supra note 11, at 5
    • (2001) Annual Report 2000-2001 , pp. 12
  • 87
    • 33750031408 scopus 로고    scopus 로고
    • Legal Services and the Organized Bar: A Reminiscence and a Renewed Call for Cooperation
    • 310; see also Hornstein et al., supra note 27, at 1097
    • Lawrence J. Fox, Legal Services and the Organized Bar: A Reminiscence and a Renewed Call for Cooperation, 17 YALE L. & POL'Y REV. 305, 310 (1998); see also Hornstein et al., supra note 27, at 1097 ("In June of 1995, twenty-eight members of Congress . . . sent a letter to House Speaker Newt Gingrich warning that 'there is every reason to believe that this agency will threaten the reforms contained within the Republican "Contract with America."'") (internal citation omitted).
    • (1998) Yale L. & Pol'y Rev. , vol.17 , pp. 305
    • Fox, L.J.1
  • 88
    • 33749993613 scopus 로고    scopus 로고
    • Pub. L. No. 104-134, 110 Stat. 1321 (1996)
    • Pub. L. No. 104-134, 110 Stat. 1321 (1996).
  • 89
    • 33750033984 scopus 로고    scopus 로고
    • note
    • For example, allocations to the Department of Justice included $16 million for the Radiation Exposure Compensation Trust Fund and - for the now-engulfed Immigration and Naturalization Service - a total of close to $1.4 billion, of which more than a third came earmarked for the Border Patrol. § 101, 110 Stat. at 1321-1, 1321-7.
  • 90
    • 84859691174 scopus 로고    scopus 로고
    • § 411, 110 Stat. at 1321-47, 1321-48, 1321-60
    • § 411, 110 Stat. at 1321-47, 1321-48, 1321-60.
  • 91
    • 84859685299 scopus 로고    scopus 로고
    • § 501, 110 Stat. at 1321-50
    • § 501, 110 Stat. at 1321-50.
  • 92
    • 33750009052 scopus 로고    scopus 로고
    • note
    • BRENNAN CENTER 2003, supra note 27, at 10. By contrast, consider the following numbers: $61,656,965 (amount billed by Enron's bankruptcy lawyers in the first four months after the company's collapse); more than one billion dollars ("the net operating income of only the twenty largest firms in the District of Columbia in 2002"); thirty billion dollars ("the gross national product of the legal profession in the United States" - in 1980). Hornstein et al., supra note 27, at 1103-04.
  • 93
    • 33750015875 scopus 로고    scopus 로고
    • A Call for the Repeal or Invalidation of Congressional Restrictions on Legal Services Lawyers
    • Comms. on Civil Rights and Prof'l Responsibility, Ass'n of the Bar of the City of New York, 18 [hereinafter Committees on Civil Rights and Professional Responsibility]
    • Comms. on Civil Rights and Prof'l Responsibility, Ass'n of the Bar of the City of New York, A Call for the Repeal or Invalidation of Congressional Restrictions on Legal Services Lawyers, 53 THE RECORD 13, 18 (1998) [hereinafter Committees on Civil Rights and Professional Responsibility].
    • (1998) The Record , vol.53 , pp. 13
  • 94
    • 33750000456 scopus 로고    scopus 로고
    • note
    • § 501, 110 Stat. at 1321-50. The 1996 restrictions were not the first to be levied, simply the most stringent. See supra note 6 and accompanying text.
  • 95
    • 33750017435 scopus 로고    scopus 로고
    • note
    • LSC Rule on Class Actions, 45 C.F.R. § 1617.3 (2006) ("Recipients are prohibited from initiating or participating in any class action."); 45 C.F.R. § 1617.2(b)(1) ("Initiating or participating in any class action means any involvement at any stage of a class action . . . 'Involvement' includes acting as amicus curiae . . .").
  • 96
    • 33750006404 scopus 로고    scopus 로고
    • note
    • LSC Prohibited Political Activities, 45 C.F.R. § 1608.5 (2006). Although a number of the verboten activities enumerated in this paragraph have political elements, they can also be characterized as legal: they concern the establishment, achievement, and protection of legal rights through law-related means, from the development of fundamental concepts of those rights to efforts to take advantage of them in environments in which doing so is otherwise difficult or impossible. Moreover, the oft-touted separation between political and legal concerns is honored more in the breach than not, given that laws and their regulatory analogues stand at the heart of most political activity. Consider, say, the number of "political" rallies that concern actual or proposed laws or legally binding regulations. Abortion, marriage equality, euthanasia and the existence of a right to die, adoption, the separation of church and state - all are hot-button political issues, and all implicate a wide variety of legal principles. The life of the mind compartmentalizes far more neatly than does the everyday practical version.
  • 97
    • 84859686320 scopus 로고    scopus 로고
    • LSC Restrictions on Lobbying and Certain Other Activities, 45 C.F.R. § 1612.3 (2006)
    • LSC Restrictions on Lobbying and Certain Other Activities, 45 C.F.R. § 1612.3 (2006).
  • 98
    • 84859685297 scopus 로고    scopus 로고
    • 45 C.F.R. § 1608.6
    • 45 C.F.R. § 1608.6.
  • 99
    • 84859685296 scopus 로고    scopus 로고
    • 45 C.F.R. § 1612.8
    • 45 C.F.R. § 1612.8.
  • 100
    • 84859686318 scopus 로고    scopus 로고
    • LSC Restriction on Representation in Certain Eviction Proceedings, 45 C.F.R. §§ 1633.1-.3 (2006)
    • LSC Restriction on Representation in Certain Eviction Proceedings, 45 C.F.R. §§ 1633.1-.3 (2006).
  • 101
    • 33750027082 scopus 로고    scopus 로고
    • note
    • LSC Rule on Representation of Prisoners, 45 C.F.R. §§ 1637.1-.4 (2006). Like section 1633, this regulation appears to reflect biases against certain groups of people that are so strong as to trump the fundamental presumption that an accused person is innocent until proven guilty.
  • 102
    • 33749985839 scopus 로고    scopus 로고
    • note
    • See, e.g., Committees on Civil Rights and Professional Responsibility, supra note 68, at 32-33: The reach of the government's restraint . . . amounts to an outright ban on conventional lawyering activities by lawyers for the poor - barring attorneys who work for offices that receive even modest support from the LSC from using non-LSC funds for lawyering activities that the federal government has chosen not to support. . . . Under the doctrine of unconstitutional conditions, [this bar] is plainly inconsistent with the First Amendment.
  • 103
    • 0346378132 scopus 로고    scopus 로고
    • Constitutional Law - Congress Imposes Restrictions on Use of Funds by the Legal Services Corporation: Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321
    • Harvard Law Review, 1347
    • Harvard Law Review, Constitutional Law - Congress Imposes Restrictions on Use of Funds by the Legal Services Corporation: Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 110 HARV. L. REV. 1346, 1347 (1997).
    • (1997) Harv. L. Rev. , vol.110 , pp. 1346
  • 104
    • 84859683542 scopus 로고    scopus 로고
    • LSC Rule on Use of Non-LSC Funds, Transfer of LSC Funds, Program Integrity, 45 C.F.R. § 1610.1 (2006)
    • LSC Rule on Use of Non-LSC Funds, Transfer of LSC Funds, Program Integrity, 45 C.F.R. § 1610.1 (2006).
  • 105
    • 84859686319 scopus 로고    scopus 로고
    • 45 C.F.R. § 1610.3
    • 45 C.F.R. § 1610.3.
  • 106
    • 84859675699 scopus 로고    scopus 로고
    • See, e.g., Press Release, Dec. 20, (last visited Apr. 30, 2006), Dobbins v. Legal Services Corp., companion case to Velasquez v. Legal Services Corp., 349 F. Supp. 2d 566 (E.D.N.Y. 2004). See infra note 205 and accompanying text for a discussion of the follow-up to this decision
    • See, e.g., Press Release, Brennan Center for Justice, Federal Judge Strikes Down Discriminatory Restrictions on Lawyers for the Poor (Dec. 20, 2004), http://www.brennancenter. org/presscenter/releases_2004/ pressrelease_2004_1220.html (last visited Apr. 30, 2006): The only way for a legal aid office to use private money to bring these restricted cases was to establish a physically separate facility. Complying with this "physical separation requirement" is so expensive that virtually none of the approximately 140 LSC grantees around the country - which are already so cash-strapped that they can only represent a small fraction of eligible clients - have been able to meet it. For example, . . . South Brooklyn Legal Services would have to turn away 500 more people each year if it set up a separate office. In December 2004, a New York federal judge found the program-integrity requirement unconstitutional on First Amendment grounds. Dobbins v. Legal Services Corp., companion case to Velasquez v. Legal Services Corp., 349 F. Supp. 2d 566 (E.D.N.Y. 2004). See infra note 205 and accompanying text for a discussion of the follow-up to this decision.
    • (2004) Federal Judge Strikes Down Discriminatory Restrictions on Lawyers for the Poor
  • 107
    • 33750009487 scopus 로고    scopus 로고
    • Pub. L. No. 104-134, 110 Stat. 1321, 1321-53 (1996)
    • Pub. L. No. 104-134, 110 Stat. 1321, 1321-53 (1996).
  • 108
    • 33749987380 scopus 로고    scopus 로고
    • The Legal Services Program: Unaccountable, Political, Anti-Poor, Beyond Reform and Unnecessary
    • See, e.g., Bennett, supra note 4, at 777: Cf., 323
    • See, e.g., Bennett, supra note 4, at 777: Being able to stay put and to dedicate resources over time[] is the greatest contribution that a program can make to the practice of long-haul lawyering. Long before Congress stripped Legal Services offices of most of the weapons in their arsenals for systemic strategies, consultants reminded them that their greatest strength lay in "being there": on the "collective institutional memory" of the neighborhood law office, a repository of impressions filtered through individual cases that build insight about neighborhood problems. Cf. Kenneth F. Boehm, The Legal Services Program: Unaccountable, Political, Anti-Poor, Beyond Reform and Unnecessary, 17 ST. LOUIS U. PUB. L. REV. 321, 323 (1998), applying a free-market competitive model to legal services with no apparent understanding either of the value of continuity of service or of the idea that legal-services lawyers might have non-financial motives for providing their clients with the best possible representation: The prevailing practice within the program of "presumptive refunding" has meant that once a local group has become a grantee, it will typically get automatic renewals of that grant in perpetuity. There is little incentive to provide excellent legal services because the grant is renewed regardless of whether the group has done a good, poor or mediocre job. The size of the grant is calculated based on the poverty population of the service area, not the quality of service.
    • (1998) St. Louis U. Pub. L. Rev. , vol.17 , pp. 321
    • Boehm, K.F.1
  • 109
    • 33750017434 scopus 로고    scopus 로고
    • note
    • For a discussion of constitutional arguments against the 1996 restrictions and details of some of the first cases to bring such challenges (including the early stages of what became Velasquez v. Legal Servs. Corp., 529 U.S. 1052 (2000), and Legal Aid Soc'y of Haw. v. Legal Servs. Corp., 145 F.3d 1017 (9th Cir. 1998)), see Roth, supra note 6.
  • 110
    • 33749851647 scopus 로고    scopus 로고
    • available at [hereinafter ABA 2004]
    • AMERICAN BAR ASSOCIATION, MODEL RULES OF PROF'L CONDUCT Preamble (2004), available at http://www.abanet.org/cpr/mrpc/mrpc_toc.html [hereinafter ABA 2004].
    • (2004) Model Rules of Prof'l Conduct Preamble
  • 111
    • 8344253321 scopus 로고
    • Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People?
    • 104 [hereinafter Jacobs 1995]
    • Michelle S. Jacobs, Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People?, 8 ST. THOMAS L. REV. 97, 104 (1995) [hereinafter Jacobs 1995].
    • (1995) St. Thomas L. Rev. , vol.8 , pp. 97
    • Jacobs, M.S.1
  • 112
    • 33750026564 scopus 로고    scopus 로고
    • note
    • An earlier version of this paragraph was written by the author for a paper entitled "When and How They Enter: Law Students, Public-Interest Law, and What We Don't (Yet) Know" and submitted in fall 2004 to Vanderbilt University Law School's Law & Poverty Seminar.
  • 113
    • 84859672094 scopus 로고    scopus 로고
    • See, e.g., CTR. FOR PROF'L RESPONSIBILITY, (last visited Apr. 30, 2006)
    • See, e.g., CTR. FOR PROF'L RESPONSIBILITY, AMERICAN BAR ASSOCIATION, PROFESSIONALISM CODES, http://www.abanet.org/cpr/profcodes.html (last visited Apr. 30, 2006) (listing state-level codes, the titles of which include words such as "professionalism," "civility," "appropriate conduct," "courtesy" and "professional courtesy," "professional conduct," "professional responsibility," "ethics," and even "client rights and responsibilities").
    • Professionalism Codes
  • 114
    • 33750027275 scopus 로고    scopus 로고
    • Public Declarations of Professionalism
    • see Morin, supra note 38, at 237-38 nn.46-51, see, 733
    • On the professionalism crisis, see Morin, supra note 38, at 237-38 nn.46-51 (citing an American Bar Association report and multiple books and articles on the subject). For an example of a definitional lacuna, see Bruce A. Green, Public Declarations of Professionalism, 52 S.C. L. REV. 729, 733 (2001) (suggesting that debate over the precise meaning of the term be abandoned, on the ground that "[e]ven if lawyers have different understandings of what it means to be 'professional,' almost all understand the importance of being 'professional'").
    • (2001) S.C. L. Rev. , vol.52 , pp. 729
    • Green, B.A.1
  • 115
    • 33750028861 scopus 로고    scopus 로고
    • Teaching Professionalism in Context: Insights from Students, Clients, Adversaries, and Judges
    • See, e.g., 305
    • See, e.g., Melissa L. Breger et al., Teaching Professionalism in Context: Insights from Students, Clients, Adversaries, and Judges, 55 S.C. L. REV. 303, 305 (2003) ("[T]here is substantial debate over standards of professionalism beyond the mandatory rules. What may seem like civility to one lawyer may seem like a breach of the ethical duty of zealous advocacy to another.").
    • (2003) S.C. L. Rev. , vol.55 , pp. 303
    • Breger, M.L.1
  • 116
    • 0345746445 scopus 로고
    • In the Spirit of Public Service": A Blueprint for the Rekindling of Lawyer Professionalism
    • 261 [hereinafter ABA 1986]. (Green, supra note 89, at 736). see, e.g., Green, supra note 89, at 736
    • Complementary definitions of professionalism abound. A sampling: • "pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood" (American Bar Association, Commission on Professionalism, ". . .In the Spirit of Public Service": A Blueprint for the Rekindling of Lawyer Professionalism, 112 F.R.D. 243, 261 (1986) [hereinafter ABA 1986]). • doing the best possible job of representation (Green, supra note 89, at 736). • honesty and truthfulness (see, e.g., Green, supra note 89, at 736 ("[A] professionalism code might state simply: . . . 'We will be honest and keep our word.'");
    • (1986) F.R.D. , vol.112 , pp. 243
  • 117
    • 8844259324 scopus 로고    scopus 로고
    • The Professionalism Problem
    • 304
    • Deborah L. Rhode, The Professionalism Problem, 39 WM & MARY L. REV. 283, 304 (1998) (describing honesty as an element of professionalism)).
    • (1998) WM & Mary L. Rev. , vol.39 , pp. 283
    • Rhode, D.L.1
  • 118
    • 1842819325 scopus 로고
    • In the Spirit of Public Service: Model Rule 6.1, The Profession and Legal Education
    • see, e.g., 65
    • • an obligation to perform public service (see, e.g., James L. Baillie & Judith Bernstein-Baker, In the Spirit of Public Service: Model Rule 6.1, The Profession and Legal Education, 13 LAW & INEQ. J. 51, 65 (1994) ("[T]he public service obligation of lawyers is an inherent characteristic, or defining element, of the profession. If there is no larger calling to public service, then the practice of law is simply a trade, consisting of a collection of analytical skills honed for commercial success.").
    • (1994) Law & Ineq. J. , vol.13 , pp. 51
    • Baillie, J.L.1    Bernstein-Baker, J.2
  • 119
    • 33749997321 scopus 로고
    • Green, supra note 89, at 736. Jacobs 1995, supra note 86, at 107-08 (quoting)
    • Green calls this component "assistance to the underserved." Green, supra note 89, at 736. • "a way for people to participate in a meaningful fashion in the resolution of their social disputes or in prevention of social disputes or both" (Jacobs 1995, supra note 86, at 107-08 (quoting JACK SAMMONS, LAWYER PROFESSIONALISM, 5-6 (1988))).
    • (1988) Lawyer Professionalism , pp. 5-6
    • Sammons, J.1
  • 120
    • 33750031655 scopus 로고    scopus 로고
    • A Noble Profession? A Discussion of Civility Among Lawyers
    • 827
    • • "a genuine interest in preserving the rights of the many against the power of the few" (Kara Anne Nagorney, A Noble Profession? A Discussion of Civility Among Lawyers, 12 GEO J. LEGAL ETHICS 815, 827 (1999)).
    • (1999) Geo J. Legal Ethics , vol.12 , pp. 815
    • Nagorney, K.A.1
  • 121
    • 0007865092 scopus 로고    scopus 로고
    • Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism
    • 1343
    • • "those goals, values, and attitudes which exemplify the nobler aspects of the practice of law and that enhance the public image of lawyers and the legal profession" (Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 AM. U. L. REV. 1337, 1343 (1997)).
    • (1997) Am. U. L. Rev. , vol.46 , pp. 1337
    • Daicoff, S.1
  • 122
    • 2242469027 scopus 로고    scopus 로고
    • Taking Professionalism Seriously
    • 43. See, e.g., Jacobs 1995, supra note 86, at 104. Baker, supra note 38, at 841
    • Richard L. Abel, Taking Professionalism Seriously, 1989 ANN. SURV. AM. L. 41, 43. Other scholars also list autonomy as a component of professionalism. See, e.g., Jacobs 1995, supra note 86, at 104 (arguing that defining "autonomy" as control over one's own work creates a damaging distance between lawyers and their clients). Another scholar includes client-centeredness under a nominally different rubric, that of representational ethics. Baker, supra note 38, at 841.
    • Ann. Surv. Am. L. , vol.1989 , pp. 41
    • Abel, R.L.1
  • 123
    • 0006774290 scopus 로고
    • Baker, supra note 38, at 812. Id. AMERICAN BAR ASSOCIATION (Robert MacCrate ed.) [hereinafter MacCrate Report]
    • Baker, supra note 38, at 812. Baker categorizes all of these components under the general rubric of "ethical issues." Id. He derives them from several sources, including: AMERICAN BAR ASSOCIATION, MODEL RULES OF PROFESSIONAL CONDUCT (1999); AMERICAN BAR ASSOCIATION, MODEL CODE OF PROFESSIONAL RESPONSIBILITY (1983); AMERICAN BAR ASSOCIATION, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM (Robert MacCrate ed. 1992) [hereinafter MacCrate Report];
    • (1992) Legal Education and Professional Development - An Educational Continuum
  • 124
    • 33749984335 scopus 로고    scopus 로고
    • SECTION OF LEGAL EDUC. AND ADMISSION TO THE BAR, AMERICAN BAR ASSOCIATION. Id. at 819-25
    • and SECTION OF LEGAL EDUC. AND ADMISSION TO THE BAR, AMERICAN BAR ASSOCIATION, STANDARDS FOR APPROVAL OF LAW SCHOOLS AND INTERPRETATIONS (1996). Id. at 819-25. Other scholars also list competence as a component of professionalism.
    • (1996) Standards for Approval of Law Schools and Interpretations
  • 125
    • 33749997930 scopus 로고    scopus 로고
    • Clinical Education for the Millennium: The Third Wave
    • See, e.g., 13; Breger et al., supra note 90, at 335
    • See, e.g., Margaret Martin Barry, Jon C. Dubin & Peter A. Joy, Clinical Education for the Millennium: The Third Wave, 7 CLINICAL L. REV. 1, 13 (2000); Breger et al., supra note 90, at 335.
    • (2000) Clinical L. Rev. , vol.7 , pp. 1
    • Barry, M.M.1    Dubin, J.C.2    Joy, P.A.3
  • 126
    • 33749987378 scopus 로고    scopus 로고
    • The Bounds of Professionalism: Challenging Our Students; Challenging Ourselves
    • See, e.g., 145; Barry et al., supra note 93, at 13, 55. Balos, supra, at 145
    • See, e.g., Beverly Balos, The Bounds of Professionalism: Challenging Our Students; Challenging Ourselves, 4 CLINICAL L. REV. 129, 145 (1997); Barry et al., supra note 93, at 13, 55 ("[C]linical education [has a] longstanding commitment to social justice and the inculcation of the professional values of access to justice, fairness, and non-discrimination in the legal system."). Like Baker, supra note 38, Balos derives these components from the values section of the MacCrate Report, supra note 93. Balos, supra, at 145.
    • (1997) Clinical L. Rev. , vol.4 , pp. 129
    • Balos, B.1
  • 127
    • 33750016148 scopus 로고    scopus 로고
    • note
    • See, e.g., Breger et al., supra note 90, at 335; Nagorney, supra note 91, at 817 ("[P]rofessionalism and zealous advocacy are not mutually exclusive. In fact, it could be considered a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client.") (internal citations omitted).
  • 128
    • 33750032686 scopus 로고    scopus 로고
    • See, e.g., supra note 38, at 28; Breger et al., supra note 90, at 305
    • See, e.g., Rhode, Professional Responsibilities, supra note 38, at 28; Breger et al., supra note 90, at 305 ("[W]e agree that professionalism embraces the realm of ethics, but also reaches far beyond. . . . [E]thical rules provide a minimum level of professionalism . . . .").
    • Professional Responsibilities
    • Rhode1
  • 129
    • 33750004702 scopus 로고    scopus 로고
    • note
    • Jacobs 2001, supra note 44, at 260 (quoting the MacCrate Report, supra note 93, at 140-41).
  • 130
    • 33750027547 scopus 로고    scopus 로고
    • note
    • ABA 2004, supra note 85, R. 1.1, 5.4(c), and 6.1 (2004). These rules are discussed in more detail infra at notes 110-128 and 165-169 and accompanying text.
  • 131
    • 23044526357 scopus 로고    scopus 로고
    • A Critical Reflection on Law and Organizing
    • See, e.g., 503
    • See, e.g., Scott L. Cummings & Ingrid V. Eagly, A Critical Reflection on Law and Organizing, 48 UCLA L. REV. 443, 503 (2001) ("[I]t has long been held that the same ethical standards apply to lawyers working in legal [-]services 7programs as to lawyers in law firms.") (citing, inter alia, ABA Comm. on Ethics and Prof'l Responsibility, Formal Opinion 324 (1970) (legal-services lawyers have a "'primary obligation of loyalty' to their clients and are required 'to act in accordance with the Code of Professional Responsibility'") and Borden v. Borden, 277 A.2d 89, 92-93 (D.C. 1971) ("We are reluctant ever to make an exception from the professional norm for attorneys . . . who provide legal representation without compensation from the client because then we might encourage a misapprehension that the special nature of such representation justifies departure from the profession's standards.")).
    • (2001) UCLA L. Rev. , vol.48 , pp. 443
    • Cummings, S.L.1    Eagly, I.V.2
  • 132
    • 84859686316 scopus 로고    scopus 로고
    • ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS (SCLAID), (2002 ed.), available at [hereinafter ABA, STANDARDS]
    • ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS (SCLAID), STANDARDS FOR PROVIDERS OF CIVIL LEGAL SERVICES TO THE POOR 1 (2002 ed.), available at http://www.abanet.org/legalservices/downloads/sclaid/ civilstandards.pdf [hereinafter ABA, STANDARDS].
    • Standards for Providers of Civil Legal Services to the Poor , pp. 1
  • 133
    • 84859680840 scopus 로고    scopus 로고
    • Id. at 3. ABA Standing Comm. on Legal Aid and Indigent Defendants, (last visited Apr. 30, 2006)
    • Id. at 3. In 2004, the ABA formed a task force for the purpose of updating the standards to accommodate the changes in the provision of legal services in the intervening eighteen years. The task force intended to present its revisions to the ABA House of Delegates in February 2006. ABA Standing Comm. on Legal Aid and Indigent Defendants, Task Force to Revise ABA Standards for Providers of Civil Legal Services to the Poor (2004), http://www.abanet.org/ legalservices/downloads/sclaid/standards/revisionprojectoverview.pdf (last visited Apr. 30, 2006).
    • (2004) Task Force to Revise ABA Standards for Providers of Civil Legal Services to the Poor
  • 134
    • 33750001321 scopus 로고    scopus 로고
    • ABA 1986, supra note 91, at 261
    • ABA 1986, supra note 91, at 261.
  • 135
    • 84859685295 scopus 로고    scopus 로고
    • LSC Act, 42 U.S.C. § 2996e(b)(3) (2006)
    • LSC Act, 42 U.S.C. § 2996e(b)(3) (2006).
  • 136
    • 84859686317 scopus 로고    scopus 로고
    • 42 U.S.C. § 2996
    • 42 U.S.C. § 2996.
  • 137
    • 33750014602 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 138
    • 33750027274 scopus 로고    scopus 로고
    • note
    • 42 U.S.C. § 2996f(a)(1) (2006). A past chair of the LSC echoes this foundational goal: "As part of its role in providing a national foundation for the delivery of legal services to low-income people, LSC has a responsibility to ensure that the delivery system provides throughout the country cost-effective assistance that meets the highest standards of thoroughness, quality, and professionalism." Eakeley, supra note 3, at 744-45.
  • 139
    • 33749999073 scopus 로고    scopus 로고
    • See supra notes 70-76 and accompanying text
    • See supra notes 70-76 and accompanying text.
  • 140
    • 84859685293 scopus 로고    scopus 로고
    • LSC Prohibited Political Activities, 45 C.F.R. § 1608.1 (2006) (emphasis added)
    • LSC Prohibited Political Activities, 45 C.F.R. § 1608.1 (2006) (emphasis added).
  • 141
    • 33749997589 scopus 로고    scopus 로고
    • note
    • LSC Governing Bodies, 45 C.F.R. § 1607.1 (2006) ("This part is designed to insure that the governing body of a recipient will be well qualified to guide a recipient in its efforts to provide high-quality legal assistance to those who otherwise would be unable to obtain adequate legal counsel. . .") (emphasis added); LSC Restrictions on Lobbying and Certain Other Activities, 45 C.F.R. § 1612.8 ("Nothing in this section shall be construed to prohibit training of any [persons] involved in the representation of eligible clients necessary for preparing them: (1) to provide adequate legal assistance to eligible clients or (2) [t]o provide advice to any eligible client as to the legal rights of the client.") (emphasis added).
  • 142
    • 33749992770 scopus 로고    scopus 로고
    • ABA 2004, supra note 85
    • ABA 2004, supra note 85.
  • 143
    • 33750011051 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 144
    • 33750013015 scopus 로고    scopus 로고
    • note
    • This section comes directly from the 1996 OCRAA restrictions. Pub. L. No. 104-134, 110 Stat. 1321, 1321-53 (1996) ("None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any person or entity (which may be referred to in this section as a 'recipient') . . . (7) that initiates or participates in a class action suit").
  • 145
    • 33750000453 scopus 로고    scopus 로고
    • note
    • LSC Rule on Class Actions, 45 C.F.R. § 1617.3 (2006) ("Recipients are prohibited from initiating or participating in any class action."). Class actions are not a cure-all for the maladies of poverty and deprivation, any more than is any other legal tactic. They do, however, offer the advantage of efficiency. Given appropriate client consent, a legal-services lawyer to whom the class-action tool was available could, for example, bring suit against a low-income-housing landlord/property owner on behalf of multiple clients deleteriously affected by the landlord's habit of failing to make major structural repairs to floors and ceilings damaged by weather and age. Contrast this with the current system, under which the same lawyer representing the same clients must bring multiple separate suits against the same landlord over the same issue. From a practical perspective, this system necessarily expends scarce legal-services funds and loads court dockets with repetitive litigation. At a minimum, the ethical concerns articulated elsewhere in this Note suggest that the class-action tool should be available to legal-services lawyers and their clientele, thereby rendering the substantive effect of that availability susceptible of judgment over some reasonable length of time. See supra notes 105-107 and accompanying text.
  • 146
    • 33750031656 scopus 로고    scopus 로고
    • Committees on Civil Rights and Professional Responsibility, supra note 68, at 22
    • Committees on Civil Rights and Professional Responsibility, supra note 68, at 22.
  • 147
    • 84859678259 scopus 로고    scopus 로고
    • See, e.g., available at [hereinafter BRENNAN CENTER 2000]. Id. at 13
    • See, e.g., BRENNAN CENTER, LEFT OUT IN THE COLD: HOW CLIENTS ARE AFFECTED BY RESTRICTIONS ON THEIR LEGAL SERVICES LAWYERS 6-7 (2000), available at http://www.brennancenter.org/resources/atj/atj6.pdf [hereinafter BRENNAN CENTER 2000] (describing a California deadbeat-dad child-support class action turned over abruptly to a private firm and a Louisiana class action regarding disability benefits that found no new counsel). When the 1996 restrictions took effect, the California firm (which was comprised of former legal-services lawyers) inherited thirty class actions from its local legal aid office. Id. at 13.
    • (2000) Left Out in The Cold: How Clients Are Affected by Restrictions on Their Legal Services Lawyers , pp. 6-7
  • 148
    • 33750026035 scopus 로고    scopus 로고
    • From the Viewpoint of the Poor: An Analysis of the Constitutionality of the Restriction on Class Action Involvement by Legal Services Attorneys
    • Comment, 715-16
    • Ilisabeth Smith Bornstein, Comment, From the Viewpoint of the Poor: An Analysis of the Constitutionality of the Restriction on Class Action Involvement by Legal Services Attorneys, 2003 U. CHI. LEGAL F. 693, 715-16
    • U. Chi. Legal F. , vol.2003 , pp. 693
    • Bornstein, I.S.1
  • 150
    • 33750011943 scopus 로고    scopus 로고
    • note
    • BRENNAN CENTER 2000, supra note 115, at 7 ("And while class actions and other now-banned activities sometimes enabled legal[-]services lawyers to attack systemic problems and achieve sweeping solutions, the results were not abstract philosophical victories. Instead, the restricted activities helped people deal with serious problems and made their lives better in concrete ways."). Although the ABA legal-services standards do not discuss class-action suits specifically, their governing principles do seem to imply a conflict between the LSC's rendering verboten certain law-reform activities (of which lobbying and political advocacy join class actions as examples) and the ABA's expectation of the lawyers from whom such activities are foreclosed: When effective resolution of individual clients' problems is circumscribed by existing laws and practices, or when existing laws and practices result in the same or similar problems for many indigent clients, representation of a client may call for a practitioner to reach beyond the individual problem to challenge the law, policy or practice. The fact that such advocacy may be complex, difficult, or controversial should not be a barrier to a practitioner pursuing it. ABA, STANDARDS, supra note 100, at 4 (emphasis added).
  • 151
    • 33750011682 scopus 로고    scopus 로고
    • note
    • See, e.g., Jacobs 2001, supra note 44, at 299: Resolution of economic deprivation of the poor would benefit everyone because it would reduce the drain on the costs of social services to the poor and the costs of securing everyone against crime committed by the poor. . . . More gainfully employed workers mean more disposable income to pump into local economies. More incomes mean better services and living conditions, which translate into safer communities.
  • 152
    • 33750001851 scopus 로고    scopus 로고
    • ABA 2004, supra note 85, R. 1.0(e)
    • ABA 2004, supra note 85, R. 1.0(e).
  • 153
    • 33749990157 scopus 로고    scopus 로고
    • Id. R. 1.2(c)
    • Id. R. 1.2(c).
  • 154
    • 33750000179 scopus 로고    scopus 로고
    • Id. R. 1.2(c) cmt. [6]
    • Id. R. 1.2(c) cmt. [6].
  • 155
    • 33749999074 scopus 로고    scopus 로고
    • Galowitz, supra note 45, at 92-93
    • Galowitz, supra note 45, at 92-93.
  • 156
    • 33750021528 scopus 로고    scopus 로고
    • note
    • Ethics Panel, supra note 4, at 370; see also Committees on Civil Rights and Professional Responsibility, supra note 68, at 18 ("The Budget Act impermissibly interferes with the independent lawyer-client relation by, among other things, restricting the autonomy and professional judgment of lawyers who work for LSC-funded organizations.").
  • 157
    • 33749998218 scopus 로고    scopus 로고
    • ABA 2004, supra note 85, R. 5.4(c)
    • ABA 2004, supra note 85, R. 5.4(c).
  • 158
    • 33750006675 scopus 로고    scopus 로고
    • Id. R. 1.8(f)
    • Id. R. 1.8(f).
  • 159
    • 33750028626 scopus 로고    scopus 로고
    • Ethics Panel, supra note 4, at 369
    • Ethics Panel, supra note 4, at 369.
  • 160
    • 33749999636 scopus 로고    scopus 로고
    • Zealous Advocacy In a Time of Uncertainty: Understanding Lawyers' Ethics
    • ABA 2004, supra note 85, R. 1.3 cmt. [1]. Id. See, e.g., Colloquium, 221. ABA, STANDARDS, supra note 100, at 4
    • ABA 2004, supra note 85, R. 1.3 cmt. [1]. As one reviewer of this note pointed out, the language of zealous advocacy has been removed from the "black-letter" Rules themselves and relegated to the comments thereon, which are informative at best and do not carry the force of the regulations from which they depend. Id. (I am indebted to Professor Susan Kay for this point.). Even a cursory search on LexisNexis, however, reveals that the concept of zealous advocacy still occupies a significant place in matters concerning legal ethics and professional goals. See, e.g., Colloquium, Zealous Advocacy In a Time of Uncertainty: Understanding Lawyers' Ethics, 8 D.C. L. REV. 219, 221 (2004). A similar search on the ABA's website leads the searcher to a similar conclusion. Whatever the Rules say (or do not say) about zeal in advocacy, the discussion thereof is alive and well. Moreover, the standards laid out by the ABA specifically for legal-services lawyers explicitly articulate the "zealous representation of client interests" as one of the four fundamental principles underlying those standards. ABA, STANDARDS, supra note 100, at 4.
    • (2004) D.C. L. Rev. , vol.8 , pp. 219
  • 161
    • 33749987887 scopus 로고    scopus 로고
    • Ethics Panel, supra note 4, at 375
    • Ethics Panel, supra note 4, at 375.
  • 163
    • 33749984884 scopus 로고    scopus 로고
    • BRENNAN CENTER 2003, supra note 27, at 4
    • BRENNAN CENTER 2003, supra note 27, at 4.
  • 164
    • 33750007736 scopus 로고    scopus 로고
    • ABA 2004, supra note 85, R. 6.1
    • ABA 2004, supra note 85, R. 6.1.
  • 165
    • 33750008776 scopus 로고    scopus 로고
    • See supra Part III.A
    • See supra Part III.A.
  • 166
    • 33749994570 scopus 로고    scopus 로고
    • See supra notes 27-42 and accompanying text
    • See supra notes 27-42 and accompanying text.
  • 167
    • 33749995600 scopus 로고    scopus 로고
    • note
    • See, e.g., Eldred & Schoenherr, supra note 26, generally and at 395 (internal citations omitted): It is an obvious fact . . . that all of our legal institutions (except small claims court) are designed to be operated by lawyers and not by laypersons. Laws are written in such a way that they can be interpreted only by lawyers; judicial decisions are crafted so as to be fully intelligible only to the legally trained. Court regulations, court schedules, even courthouse architecture are designed around the needs of the legal profession. . . . As a result, meaningful access to the legal system unavoidably requires the services of competent counsel.
  • 168
    • 33750001852 scopus 로고    scopus 로고
    • Loder, supra note 59, at 463
    • Loder, supra note 59, at 463.
  • 169
    • 33750020426 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 170
    • 33749990418 scopus 로고    scopus 로고
    • Id.
    • Id.
  • 171
    • 33750032687 scopus 로고    scopus 로고
    • Id. at 463-64
    • Id. at 463-64.
  • 172
    • 33750019866 scopus 로고    scopus 로고
    • Id. at 464.
    • Id. at 464.
  • 173
    • 84859686312 scopus 로고    scopus 로고
    • ABA STANDING COMM. ON PRO BONO AND PUB. SERV., 13 available at [hereinafter ABA, SUPPORTING JUSTICE]; ABA 2004, supra note 85, R. 6.1(a)
    • ABA STANDING COMM. ON PRO BONO AND PUB. SERV., SUPPORTING JUSTICE: A REPORT ON THE PRO BONO WORK OF AMERICA'S LAWYERS 11, 13 (2005), available at http://www.abanet.org/legalservices/probono/report.pdf [hereinafter ABA, SUPPORTING JUSTICE]; ABA 2004, supra note 85, R. 6.1(a). The Standing Committee's pro bono reports paint a strikingly different picture from that outlined in most prior research. See, e.g., sources cited infra note 143. Statistically speaking, however, it is not yet clear whether that picture is likely to be truly representative, particularly given that, as of this writing, the data is too new to have been corroborated.
    • (2005) Supporting Justice: A Report on The Pro Bono Work of America's Lawyers , pp. 11
  • 174
    • 33750019865 scopus 로고    scopus 로고
    • ABA, SUPPORTING JUSTICE, supra note 140, at 13
    • ABA, SUPPORTING JUSTICE, supra note 140, at 13.
  • 175
    • 33750031132 scopus 로고    scopus 로고
    • note
    • Id. at 9. Eleven hundred is less than one percent of the country's active lawyer population as of 2005. See infra note 146 and accompanying text.
  • 176
    • 33750865819 scopus 로고
    • See, e.g., BRENNAN CENTER 2003, supra note 27, at 20; Chaifetz, supra note 38, at 1696 (citing to AMERICAN BAR ASSOCIATION, CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, (May))
    • See, e.g., BRENNAN CENTER 2003, supra note 27, at 20 (citing the AMERICAN LAWYER and the NEW YORK TIMES in support of the statement that as of 1999, "lawyers at the country's largest law firms" averaged only 36 hours of pro bono a year, down from 56 in 1992); Chaifetz, supra note 38, at 1696 ("A recent study found that fewer than 20 percent of poor people's legal needs are adequately addressed, and that under 20 percent of attorneys participate in pro bono programs.") (citing to AMERICAN BAR ASSOCIATION, CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, 1990 DIRECTORY OF PRIVATE BAR INVOLVEMENT PROGRAMS 146-47 (May 1990));
    • (1990) 1990 Directory of Private Bar Involvement Programs , pp. 146-147
  • 177
    • 33749997931 scopus 로고
    • Law Schools Making a Difference: An Examination of Public Service Requirements
    • 39
    • Caroline Durham, Law Schools Making a Difference: An Examination of Public Service Requirements, 13 LAW & INEQ. 39, 39 (1994)
    • (1994) Law & Ineq. , vol.13 , pp. 39
    • Durham, C.1
  • 178
    • 33749992769 scopus 로고
    • Campaigning for a Law School Pro Bono Requirement
    • citing, 1; Eldred & Schoenherr, supra note 26, at 389
    • (citing Jason Adkins et al., Campaigning for a Law School Pro Bono Requirement, 1991 NAT'L ASS'N FOR PUB. INTEREST L. 1, 1 for the proposition that as of 1991, "only one in six attorneys [was] providing pro bono services"); Eldred & Schoenherr, supra note 26, at 389 ("According to recent surveys, approximately eighty percent of the bar engages in no form of pro bono activity on behalf of the poor.").
    • (1991) Nat'l Ass'n for Pub. Interest L. , pp. 1
    • Adkins, J.1
  • 179
    • 33750003788 scopus 로고    scopus 로고
    • LEGAL SERVICES CORPORATION, LSC STATISTICS: PRIVATE ATTORNEY INVOLVEMENT-PROGRAMS (on file with author)
    • LEGAL SERVICES CORPORATION, LSC STATISTICS: PRIVATE ATTORNEY INVOLVEMENT-PROGRAMS (on file with author).
  • 180
    • 33750008000 scopus 로고    scopus 로고
    • Houseman 2003, supra note 9, at 3
    • Houseman 2003, supra note 9, at 3.
  • 181
    • 33750024631 scopus 로고    scopus 로고
    • ABA, National Lawyer Population, supra note 12, at 3
    • ABA, National Lawyer Population, supra note 12, at 3.
  • 182
    • 33750028116 scopus 로고    scopus 로고
    • note
    • McBurney, supra note 51, at 2 (noting that the difficulties inherent in the reconfiguration process mean that "pro bono appears to be among the least pressing issues addressed during the first phases of [that] process").
  • 183
    • 33750015592 scopus 로고    scopus 로고
    • note
    • Houseman 2003, supra note 9, at 3. Houseman puts the total number of pro bono programs at 755, of which more than three-quarters are bar-sponsored or freestanding. Id. at 3.
  • 184
    • 84859683140 scopus 로고    scopus 로고
    • An ABF Update
    • Id.; 10 (Winter) available at. ABF, supra, at 10
    • Id.; American Bar Foundation, An ABF Update, 16 RESEARCHING LAW 1, 10 (Winter 2005), available at http://www.abfn.org/images/reslawwin05.pdf. The latter statistic dates from 2000; although this footnote presumes that the number of law firms in this country remained static between that year and 2003, the trend in the statistics recorded by the ABF suggests that that number probably rose during that time. ABF, supra, at 10. It is, of course, unreasonable to rebuke for its lack of an in-house pro bono structure a two-to-five-person law firm such as those that employed 76 percent of private-practice lawyers in 2000.
    • (2005) Researching Law , vol.16 , pp. 1
  • 185
    • 84859692115 scopus 로고    scopus 로고
    • Mkt. Research Dep't, (last visited Apr. 30, 2006) [hereinafter ABA, Lawyer Demographics]
    • Mkt. Research Dep't, American Bar Association, Lawyer Demographics (2004), http://www.abanet.org/marketresearch/lawyerdem2004.pdf (last visited Apr. 30, 2006) [hereinafter ABA, Lawyer Demographics]. If even the top 5 percent of firms by size ran their own pro bono programs, however, the number of such programs would increase to almost 2,400 - more than fifteen times the current number.
    • (2004) Lawyer Demographics
  • 186
    • 33749999395 scopus 로고    scopus 로고
    • Rosas, supra note 38, at 1073-74
    • Rosas, supra note 38, at 1073-74.
  • 187
    • 84859693159 scopus 로고    scopus 로고
    • Barry, supra note 27, at 1885. ABA Standing Comm. on Pro Bono and Pub. Serv., Feb. 7 (last visited Apr. 30, 2006)
    • States with fifty-hour aspirational goals include the District of Columbia and Maryland. Barry, supra note 27, at 1885; ABA Standing Comm. on Pro Bono and Pub. Serv., News: Maryland Court of Appeals Adopts New, Revised Pro Bono Rules, Feb. 7, 2002, http://www.abanet.org/legalservices/probono/ newsarchive.html (last visited Apr. 30, 2006).
    • (2002) News: Maryland Court of Appeals Adopts New, Revised Pro Bono Rules
  • 188
    • 84859695478 scopus 로고    scopus 로고
    • See, e.g., ABA, SUPPORTING JUSTICE, supra note 140, at 7; Mississippi Supreme Court (amended Mar. 21, 2005), available at
    • See, e.g., ABA, SUPPORTING JUSTICE, supra note 140, at 7 (noting that Maryland and Nevada both have mandatory reporting programs); Mississippi Supreme Court, Mississippi Rules of Professional Conduct, R. 6.1(e) (amended Mar. 21, 2005), available at http://www.mssc.state.ms.us/rules/RuleText.asp?RuleTitle= RULE+6.1+VOLUNTARY+PRO+BONO+PUBLIC+SERVICE&IDNum=7 ("Each member of the bar shall annually certify whether the member has satisfied the member's professional responsibility to provide pro bono legal services to the poor . . . [including] (1) the number of hours the attorney dedicated to pro bono legal services").
    • Mississippi Rules of Professional Conduct, R. 6.1(e)
  • 189
    • 33749983794 scopus 로고    scopus 로고
    • note
    • See, e.g., ABA, SUPPORTING JUSTICE, supra note 140, at 7-8 (noting that the Missouri, New York, and Texas bars have all conducted voluntary surveys of pro-bono activity in recent years).
  • 190
    • 33750032154 scopus 로고    scopus 로고
    • note
    • Puzzlingly, the 2005 report on pro bono from the ABA's Pro Bono Committee appears to have drawn its favorable statistics entirely from personal interviews with the aforementioned tiny sample of the country's lawyers. At the very least, it contains no indication that the surveying organization substantiated its findings by contacting any actual pro bono programs of any kind, whether PAI, bar-sponsored, firm-sponsored, or independent. See generally ABA, SUPPORTING JUSTICE, supra note 140.
  • 191
    • 33750006138 scopus 로고    scopus 로고
    • Loder, supra note 59, at 464
    • Loder, supra note 59, at 464.
  • 192
    • 33749993877 scopus 로고    scopus 로고
    • note
    • Barry, supra note 27, at 1886. An ABA fact sheet from 2004 provides some support for this argument. According to the most recent statistics, sixty-three percent of the country's private lawyers work alone or belong to a firm with fewer than six members, suggesting that many lawyers might have some trouble diverting resources from their compensated work. ABA, Lawyer Demographics, supra note 149.
  • 193
    • 33750005758 scopus 로고    scopus 로고
    • note
    • See, e.g., Barry, supra note 27, at 1886-87 (internal citations omitted): [A] mandatory system that requires a personal injury lawyer to provide pro bono representation in a landlord/tenant case may not be the most efficient use of this particular resource . . . Too often, large law firms offering to provide pro bono service will litigate a case well beyond the precepts of good judgment. . . . In other instances, attorneys required to provide pro bono service will litigate well below the standards of sound practice. See also BRENNAN CENTER 2003, supra note 27, at 20 ("[T]here are whole areas of law where private lawyers know little. When those lawyers provide representation in such areas, they must spend a lot of time mastering the law, and their representation is consequently inefficient.").
  • 194
    • 33750028382 scopus 로고    scopus 로고
    • note
    • See, e.g., Fox, supra note 62, at 313-14 ("[W]hy should [a private firm] volunteer to take federally funded legal[-] services cases when the impact of those precious pro bono hours may be compromised by the need to observe a set of vastly complicated and confining regulations?").
  • 195
    • 33750020425 scopus 로고    scopus 로고
    • Eldred & Schoenherr, supra note 26, at 368
    • Eldred & Schoenherr, supra note 26, at 368.
  • 196
    • 33749994151 scopus 로고    scopus 로고
    • Id. at 374-75
    • Id. at 374-75.
  • 197
    • 33749999340 scopus 로고    scopus 로고
    • Loder, supra note 59, at 460
    • Loder, supra note 59, at 460.
  • 198
    • 33750015114 scopus 로고    scopus 로고
    • note
    • These include an uncompensated-taking argument under the Fifth Amendment, the idea that mandatory pro bono violates First Amendment freedom of speech and association rights, and complaints that mandatory pro bono contravenes the Fourteenth Amendment's guarantee of equal protection and the Thirteenth Amendment's proscriptions against involuntary servitude. Thus far, such claims have found little success in courts. Id. at 464-65; Mogill, supra note 1, at 24.
  • 199
    • 33750014603 scopus 로고    scopus 로고
    • note
    • Loder, supra note 59, at 465. Ironically, the PAI programs mandated by the government via the LSC regulations would seem to require just such a structure. See infra notes 200-201 and accompanying text.
  • 200
    • 33750024901 scopus 로고    scopus 로고
    • note
    • See, e.g., Mogill, supra note 1, at 24 ("[C]ritics reason that a law license does not provide attorneys with monopoly access to the justice system because a party has the right to appear pro se and that the licensing requirement serves only to assure minimum competency and protect the public, not to give attorneys a competitive advantage.").
  • 201
    • 0345984557 scopus 로고    scopus 로고
    • The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono Publico
    • 1401, 1414
    • Norman W. Spaulding, The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono Publico, 50 STAN. L. REV. 1395, 1401, 1414 (1998): The most obvious positional conflict arises when a lawyer or firm argues one position on a particular legal question for a client while simultaneously pursuing the exact opposite position for another client. . . . Although positional conflicts are most stark in the context of simultaneous representation, they may also arise in subsequent representation - that is, between positions taken on behalf of former and present clients.
    • (1998) Stan. L. Rev. , vol.50 , pp. 1395
    • Spaulding, N.W.1
  • 202
    • 33750019080 scopus 로고    scopus 로고
    • Id. at 1406
    • Id. at 1406.
  • 203
    • 33749984336 scopus 로고    scopus 로고
    • note
    • Id. at 1414. [I]n discussing the possibility of positional conflicts, many [firms] state the issue in broader terms of paying clients' expectations. As one lawyer for a large national firm commented: ". . . I suppose that if a pro bono client walked in the door and wanted to sue one of our clients, we'd say no. If he wanted us to take a position adverse to the interests of our paying clients, we would probably refer him someplace else." Id.; see also BRENNAN CENTER 2003, supra note 27, at 20 ("[T]here are some types of cases - such as employees' wage, hour and job discrimination cases - that most private lawyers are wary of handling, because of either real or perceived conflicts of interest.").
  • 204
    • 33750024347 scopus 로고    scopus 로고
    • note
    • LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 3 (pie chart illustrating legal issues addressed by LSC grantees in 2002 indicates top four issues were family, housing, income maintenance, and consumer).
  • 205
    • 33750016147 scopus 로고    scopus 로고
    • note
    • ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 98-411 (1998) (discussing ethical issues in lawyer-to-lawyer consultation). A headnote summary of the previous source is available at http://www.abanet.org/cpr/ethicopinions. html (last visited Apr. 30, 2006).
  • 206
    • 33749983793 scopus 로고    scopus 로고
    • note
    • See, e.g., Barry, supra note 27, at 1885 (quoting a recent observation by a judge on the Court of Appeals for the District of Columbia "that the problem is so extensive it does not matter what service contributions lawyers are asked to make").
  • 207
    • 0003983534 scopus 로고
    • Spain, supra note 61, at 477 (citing). U.S. Census Bureau, Historical Poverty Tables, supra note 36. Id.
    • Spain, supra note 61, at 477 (citing DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 241 (1988)). The U.S. Census Bureau indicates that in 1988, the year in which Luban published his conservative estimate, approximately 42.5 million people were living at or below 125% of the poverty level (the qualifying income parameter for legal aid). U.S. Census Bureau, Historical Poverty Tables, supra note 36. That number has since risen by more than 7 million. Id.
    • (1988) Lawyers and Justice: An Ethical Study , pp. 241
    • Luban, D.1
  • 208
    • 33750021601 scopus 로고    scopus 로고
    • Spain, supra note 61, at 479
    • Spain, supra note 61, at 479.
  • 209
    • 33749992771 scopus 로고    scopus 로고
    • note
    • The author came up with these figures by multiplying the number of active lawyers resident in the U.S. by twenty-five and fifty, respectively. For other relevant figures, see supra notes 144-146 and accompanying text.
  • 210
    • 33750026036 scopus 로고    scopus 로고
    • note
    • The number of lawyers actively practicing in each state varies from 142,538 in New York to a mere 1,302 in North Dakota. ABA, National Lawyer Population, supra note 12, at 3. Aid-eligible population also varies by state, as does population in general. States such as North Dakota, however, present an additional concern: the larger and less populated the area, the more likely legal-services and private-bar pro-bono lawyers are to be spread thin.
  • 211
    • 33749986851 scopus 로고    scopus 로고
    • BRENNAN CENTER 2003, supra note 27, at 20
    • BRENNAN CENTER 2003, supra note 27, at 20.
  • 212
    • 27744542788 scopus 로고    scopus 로고
    • Lawyers As Upholders of Human Dignity (When They Aren't Busy Assaulting It)
    • See, e.g., Fox, supra note 62, at 313-14. See, e.g., 840-45; Mississippi Bar, supra note 152, R. 6.1(b)(1)-(3)
    • See, e.g., Fox, supra note 62, at 313-14 ("Does it make any sense for [a private firm] to contribute to an LSC-funded program when its dollars cannot either support real law reform or address whole areas of concern to poor people?"). Moreover, monetary contributions from the private bar may have substantially less impact on the legal-services crisis than would real-time legal assistance, for various complicated reasons. See, e.g., David Luban, Lawyers As Upholders of Human Dignity (When They Aren't Busy Assaulting It), 2005 U. ILL. L. REV. 815, 840-45 (arguing that the provision of pro bono services may be both of more practical use and more respectful of the client's dignity than cash assistance would be - even if the goal of the pro bono representation is to obtain money for the client); Mississippi Bar, supra note 152, R. 6.1(b)(1)-(3) (permitting Mississippi lawyers to discharge their annual aspirational pro-bono responsibility by providing 20 hours of pro bono legal services - or a $200 contribution to the bar for monetary support of legal-aid organizations).
    • (2005) U. Ill. L. Rev. , pp. 815
    • Luban, D.1
  • 213
    • 0040956032 scopus 로고
    • A Flawed System of Law Practice and Training
    • 571
    • Derek C. Bok, A Flawed System of Law Practice and Training. 33 J. LEGAL EDUC. 570, 571 (1983).
    • (1983) J. Legal Educ. , vol.33 , pp. 570
    • Bok, D.C.1
  • 214
    • 33750003518 scopus 로고    scopus 로고
    • Houseman 1999, supra note 49, at 2191-92
    • Houseman 1999, supra note 49, at 2191-92.
  • 215
    • 33750013297 scopus 로고    scopus 로고
    • note
    • It is difficult to determine precisely how much funding would suffice to meet the needs of the millions of people currently eligible for legal services without first defining several threshold variables. See supra note 36. These might include, although they would not be limited to: the rate of growth or decline of the population eligible for aid over a given fiscal year; the number and types of legal problems the members of that population are most likely to encounter; the number of lawyers actively practicing in the legal-services area and the number of lawyers willing and able to do so given job availability; whether the current restrictions on legal services remain in force; and the effect of the continuation or cessation of those restrictions on the kinds and number of legal-services cases brought. Above all, fully funding legal services would require a threshold definition of what comprises "sufficient" aid for low-income people. Even accepting the standard Nixon had in mind at the LSC's inception, that standard envisioned funding two legal-services lawyers per 10,000 poor, based on an eligible population of 29 million, for a total of 5,800 lawyers. See supra notes 8-10 and accompanying text. Applied to the current income-eligible population, that standard would 9,800 legal-services lawyers. As of 2000, the total number of legal-services lawyers and public defenders combined numbered only 10,854. ABA, Lawyer Demographics, supra note 149. The LSC's Justice Gap report conservatively estimates that "to provide necessary access to civil legal assistance . . . will require increasing our nation's capacity to provide [such] assistance to five times the current capacity." LSC, Justice Gap, supra note 11, at 4.
  • 216
    • 84859675775 scopus 로고    scopus 로고
    • LEGAL SERVICES CORPORATION BUDGET REQUEST 2004, supra note 52, at 1. LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 10 n.2. LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 1; LEGAL SERVICES CORPORATION, available at [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2006]. LEGAL SERVICES CORPORATION BUDGET REQUEST 2006, supra
    • For fiscal year 2004, the LSC submitted a budget request for $352.4 million, a 4.4% increase over its allocation for fiscal year 2003. It rationalized the increase by pointing out the rise in the number of aid-eligible people since 1990 and the fact that the requested increase exceeded by only 0.4 percent "the Administration's stated goal of 4.0% growth for domestic programs," as announced by the Office of Management and Budget in January 2003. LEGAL SERVICES CORPORATION BUDGET REQUEST 2004, supra note 52, at 1. Instead, Congress allocated the LSC $338.8 million (the same as the pre-rescission FY 2003 allocation, and $16 million shy of the LSC's request) and eventually reduced that amount via rescissions to $335.3 million - $1.3 million less than its post-rescission FY 2003 allocation to the LSC. LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 10 n.2. For fiscal year 2005, the LSC's request stayed static at $352.8 million, but its final funding allocation actually declined several million from the FY 2004 level, to $330.8 million. LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 1; LEGAL SERVICES CORPORATION, BUDGET REQUEST FOR FISCAL YEAR 2006 1 (2005), available at http://www.lsc.gov/about/budget/ FY06Req.pdf [hereinafter LEGAL SERVICES CORPORATION BUDGET REQUEST 2006]. For fiscal year 2006, the LSC requested $363.8 million to return it to its approximate FY 2002 funding level vis-à-vis the 7.4-percent inflation between 2002 and 2004. LEGAL SERVICES CORPORATION BUDGET REQUEST 2006, supra. Instead, Congress further reduced its funding, to a post-rescission level of $329.8 million as of December 2005.
    • (2005) Budget Request for Fiscal Year 2006 , pp. 1
  • 217
    • 84859692074 scopus 로고    scopus 로고
    • (last visited Apr. 30, 2006)
    • Legal Services Corporation, LSC's Budget: FY 2006 Appropriation (2006), http://www.lsc.gov/about/FY06app.php (last visited Apr. 30, 2006).
    • (2006) LSC's Budget: FY 2006 Appropriation
  • 218
    • 33750012738 scopus 로고    scopus 로고
    • See infra note 208
    • See infra note 208.
  • 219
    • 33750001850 scopus 로고    scopus 로고
    • Address: The Future of Legal Services
    • 339
    • When the LSC Act came up for reauthorization in 1998, the chair of the judicial subcommittee suggested the following: dismantling the LSC; giving responsibility for federally funded legal aid to the Department of Justice ("DOJ"); restructuring the program so that the DOJ would give block grants to states and the states would then re-grant to programs; and limiting acceptable cases to twelve areas, including such arguably infrequent concerns for low-income people as probate/estate management and the quieting of title to land. Alexander D. Forger, Address: The Future of Legal Services, 25 FORDHAM URB. L. J. 333, 339 (1998).
    • (1998) Fordham Urb. L. J. , vol.25 , pp. 333
    • Forger, A.D.1
  • 220
    • 33750008262 scopus 로고    scopus 로고
    • note
    • In 1995, Senator Jesse Helms introduced a bill to eliminate the LSC entirely and turn all administration, funding, and provision of legal aid over to unspecified private entities, on the ground that the Senate believed "the operations of the Legal Services Corporation are not essential functions of the Federal Government." Repeal of the Legal Services Corporation Act of 1974, S.958, 104th Cong. (1st Sess. 1995).
  • 221
    • 33750021599 scopus 로고    scopus 로고
    • note
    • BRENNAN CENTER 2003, supra note 27, at 6 ("In 2000, the House Appropriations Committee recommended cutting LSC's 2001 appropriation to $141 million - a familiar proposal that has become the committee's annual tradition."). The LSC's eventual budget award that year came to approximately $330 million. Id. See also Hornstein et al., supra note 27, at 1097-98 (internal citations omitted): [S]ince 1996, the House Appropriations Committee has recommended a fixed $141 million budget for the agency. This recommended budget was about fifty percent less than what the agency's actual funding levels were for most of the 1990s, and if approved would have effectively destroyed the agency. . . . [T]he House Appropriations Committee's starvation funding recommendation has occurred each year since 1996. LSC-funded legal-services offices provide the primary infrastructure supporting pro bono efforts by firms without in-house programs. Thus, the elimination of the LSC would deleteriously affect the provision of legal services to income-eligible persons not only by legal-services lawyers but also by the private bar. Forger, supra note 182, at 342-43.
  • 222
    • 33750026561 scopus 로고    scopus 로고
    • note
    • Such sources include state aid, IOLTA funds, private foundations and other private sources, United Way, filing fee surcharges, abandoned-property funds, punitive damage awards, and donations from lawyers' groups and individual lawyers. BRENNAN CENTER 2003, supra note 27, at 7-8, 12; Houseman 2003, supra note 9, at 20. In 1999, IOLTA funds "generated over $139 million for legal aid nationwide." BRENNAN CENTER 2003, supra note 27, at 7. By contrast, "[l]egislatures in at least ten states - including Alabama, Arkansas, Connecticut, Delaware, Idaho, Mississippi, New Mexico, South Dakota, Utah, and Wyoming - and the District of Columbia provide no financial support for civil legal assistance for the poor." Id. at 12. See LSC, JUSTICE GAP, supra note 11, at 18 (noting that although non-LSC funds have more than tripled since fiscal year 1981, the real-dollar decline in federal funding over the same period has essentially negated that increase).
  • 223
    • 84859686569 scopus 로고    scopus 로고
    • available at
    • LEGAL SERVICES CORPORATION, STRATEGIC DIRECTIONS 2000-2005 1 (2000), available at http://www.lri.lsc.gov/sd00.pdf ("Many states and local governments do not invest adequate funds in support of civil legal services . . . Private, charitable, pro bono and other contributions vary widely among States [sic] and programs, and are not sufficient to meet the burden imposed by inadequate governmental investment.").
    • (2000) Legal Services Corporation, Strategic Directions 2000-2005 , pp. 1
  • 224
    • 33749988312 scopus 로고    scopus 로고
    • note
    • See, e.g., Houseman 2003, supra note 9, at 20 ("[T]here are many parts of the country - the South, Southwest, and Rocky Mountain states - that have not yet developed sufficient non-LSC funds to operate civil legal assistance, including pro bono programs, without federal support.").
  • 225
    • 33749988898 scopus 로고    scopus 로고
    • note
    • See, e.g., BRENNAN CENTER 2003, supra note 27, at 17: [L]ack of money is not the only reason that non-federal revenues for legal aid fail to fill the gap left by decreases in and restrictions on federal legal aid funding. Another reason is that much of the newly found revenues are either earmarked for certain populations or purposes or encumbered by restrictions barring their use for certain populations or purposes. For example, Colorado, Georgia, Illinois, Montana and West Virginia all authorize general appropriations or filing fees for legal aid, but all also earmark these funds exclusively for victims of domestic violence. See also Houseman 1999, supra note 49, at 2196 ("Many state funding initiatives have also imposed restrictions similar to those of federal funding sources," including, e.g., restrictions on abortion-related litigation, lobbying, representing prisoners, representation of illegal aliens, fee-generating cases, and policy-change-oriented/political training activities).
  • 226
    • 33750017433 scopus 로고    scopus 로고
    • note
    • See, e.g., ABA 2006 Budget Recommendations, supra note 27 (noting that the real-dollar reduction in federal funding over time has been accompanied by "overall economic conditions [that] have resulted in significant decreases in supplemental funding provided by state and local sources. For example, while IOLTA income nationwide has declined by 8%, in some states IOLTA has seen up to a 25% reduction in income.").
  • 227
    • 33749992512 scopus 로고    scopus 로고
    • note
    • Id. ("An increase in the appropriation for LSC is the only realistic way that the system can respond to the overwhelming demand for services."); Ethics Panel, supra note 4, at 366 (responding to the 1996 restriction by stating "that '[i]n the end, the only real solution is for this country to recognize the need to fully fund lawyers for the poor free from restrictions that hamper their ability to serve their clients.'") (quoting ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 96-399 (1996)).
  • 228
    • 33750026288 scopus 로고    scopus 로고
    • note
    • Houseman 1999, supra note 49, at 2201. Houseman notes that such programs exist "[i]n sixteen states and in another twenty-six major urban areas," with the latter defined, somewhat dubiously, as including such locales as Charlottesville, VA (2004 population estimate 36,605; 19th largest city in Virginia in 2000 census), and Saginaw, Michigan (2004 population estimate 59,045; 26th largest city in Michigan in 2000 census). Id.; U.S. Census Bureau, Population Finder, http://www.census.gov/ (last visited Apr. 30, 2006). By contrast, Knoxville, Tennessee had an estimated 2004 population of 178,118. Census Population Finder, supra.
  • 229
    • 84859691159 scopus 로고    scopus 로고
    • LSC Act, 42 U.S.C. § 2996f(b)(1) (2006)
    • LSC Act, 42 U.S.C. § 2996f(b)(1) (2006).
  • 230
    • 33750031131 scopus 로고    scopus 로고
    • note
    • LSC Rule on Fee-Generating Cases, 45 C.F.R. § 1609.3 (2006). Note that with the exception of actions seeking benefits under two specific provisions of the Social Security Act, all qualifying circumstances have as a threshold requirement the attempted involvement of the private bar. Id.
  • 231
    • 33750003055 scopus 로고    scopus 로고
    • note
    • LSC Rule on Attorney's Fees, 45 C.F.R. §§ 1642.3-.4 (2006). The latter regulation makes clear that this ban on attorneys' fees extends to members of the private bar when working for compensation with a legal-services organization.
  • 232
    • 33750000724 scopus 로고    scopus 로고
    • note
    • The collection of awarded fees from a defeated party can have a powerful deterrent effect on defendants, hitting them in the pocketbook as it does. See, e.g., Ethics Panel, supra note 4, at 357 ("[A]ttorneys' fees can be a significant weapon to use in litigation."); Houseman 2002, supra note 10, at 1230-31 ("Under the American system, an award of attorneys' fees is intended, among other things, to deter and punish illegal conduct by defendants. With the threat of a possible large attorneys' fee award removed, private parties may feel they can violate poor people's rights with impunity.") (internal citations omitted); Laurence E. Norton II, Not Too Much Justice for the Poor, 101 DICK. L. REV. 601, 611 (1997) ("The possibility of having to pay a large fee award is a powerful motivating factor for defendants to settle these claims early. This leverage and the benefits it purposefully provides plaintiffs both before and during litigation are unavailable to the poor."); Rhode 2001, supra note 43, at 1797 ("These lawyers also may not collect attorneys' fees, which removes an effective deterrent to future abuses and a crucial funding source for other work.").
  • 233
    • 33750021872 scopus 로고    scopus 로고
    • note
    • See, e.g., Houseman 2002, supra note 10, at 1230-31 (internal citations omitted): The prohibition completely negates the Civil Rights Attorneys' Fees Awards Act, a key part of the civil rights enforcement structure in this country, and similar fee-shifting statutes. The prohibition severely undercuts the ability of legal[-]services programs to effectively represent poor people[,] who are often members of minority groups intended to be protected by civil rights laws.
  • 234
    • 84859686310 scopus 로고    scopus 로고
    • 42 U.S.C. § 2996f(a)(2)(C) (2006)
    • 42 U.S.C. § 2996f(a)(2)(C) (2006).
  • 235
    • 84859691160 scopus 로고    scopus 로고
    • Id. § 2996f(a)(3)
    • Id. § 2996f(a)(3).
  • 236
    • 33750007208 scopus 로고    scopus 로고
    • note
    • LSC Rule on Private Attorney Involvement, 45 C.F.R. § 1614.1 (2006). This regulation specifically takes its authority from the two Act provisions excerpted in the text accompanying notes 197-198, supra.
  • 237
    • 84859691161 scopus 로고    scopus 로고
    • 45 C.F.R. § 1614.1 (2006)
    • 45 C.F.R. § 1614.1 (2006).
  • 238
    • 84859684084 scopus 로고    scopus 로고
    • Id. § 1614.2(a)
    • Id. § 1614.2(a).
  • 239
    • 33750006934 scopus 로고    scopus 로고
    • Rhode, Cultures of Commitment, supra note 25, at 2418
    • Rhode, Cultures of Commitment, supra note 25, at 2418.
  • 240
    • 33750019079 scopus 로고    scopus 로고
    • ABA, STANDARDS, supra note 100, at 1
    • ABA, STANDARDS, supra note 100, at 1.
  • 241
    • 33750016146 scopus 로고    scopus 로고
    • note
    • See, e.g., LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 1 (noting that "from 1990 to 2000, the number of people living in poverty in all LSC service areas increased by 5.74%.").
  • 242
    • 84859672162 scopus 로고    scopus 로고
    • Press Release, (Dec. 22, 2004), (last visited Apr. 30, 2006). Velasquez v. Legal Services Corp. and Dobbins v. Legal Services Corp., 356 F. Supp. 2d 267, 270-72 (E.D.N.Y. 2005)
    • Companion case to Velasquez v. Legal Services Corp., 349 F. Supp. 2d 566, 613 (E.D.N.Y. 2004). Two days after this decision was handed down, the LSC issued a press release expressing pleasure at the judge's upholding other restrictions at issue in the case (including those on class actions, client solicitation, and attorneys' fees) and registering its objection to the program-integrity prong of the holding. Press Release, Legal Services Corporation, Statement of the Legal Services Corporation in Response to the Ruling in Dobbins v. LSC by the U.S. District Court for the Eastern District of New York (Dec. 22, 2004), http://www.lsc.gov/press/122204pr.php (last visited Apr. 30, 2006). In early 2005, the judge who had issued the preliminary injunction declined to convert it into a permanent one on the ground that both sides had already appealed the ruling. Velasquez v. Legal Services Corp. and Dobbins v. Legal Services Corp., 356 F. Supp. 2d 267, 270-72 (E.D.N.Y. 2005).
    • Statement of the Legal Services Corporation in Response to the Ruling in Dobbins v. LSC by the U.S. District Court for the Eastern District of New York
  • 243
    • 33750014360 scopus 로고    scopus 로고
    • note
    • 531 U.S. 533 (2001). For an analysis of this case, see, for example, Bornstein, supra note 116, at 697-98 (citing Velasquez, supra, at 543-44) (emphasis added): Because the LSC funding neither constituted nor was intended to promote governmental speech, the government was not entitled to impose any viewpoint-based restrictions. . . . The Court found that the government was using an existing medium of expression, legal advocacy, and controlling it, via the restriction against suits for benefits, in such a way that the implementation of the restriction would have distorted the usual functioning of the medium. According to the Court, restricting how LSC-funded attorneys may advise their clients and what arguments these attorneys may present to the court in suits for benefits sufficiently distorts the functioning of the judiciary by altering the traditional role of attorneys. A similar argument could be colorably advanced with regard to many of the 1996 restrictions.
  • 244
    • 33750018752 scopus 로고    scopus 로고
    • See, e.g., LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 2-5
    • See, e.g., LEGAL SERVICES CORPORATION BUDGET REQUEST 2005, supra note 11, at 2-5.
  • 245
    • 84859684085 scopus 로고    scopus 로고
    • ABA 2006 Budget Recommendations, supra note 27; ABA President, Letter to the Honorable Frank R. Wolf and the Honorable Alan B. Mollohan regarding FY 2006 Funding for the Legal Services Corporation (May 23), (last visited Apr. 30, 2006); NLADA 2006 Budget Recommendations, supra note 41. Id.
    • The "street sense" possessed by the ABA and the NLADA can be seen in their recent budgetary recommendations. For fiscal year 2006, the ABA's initial budget recommendation was $516.6 million (subsequently reduced to $363.8 million to match the recommendation made by the LSC's board), and the NLADA's was $515.57 million. ABA 2006 Budget Recommendations, supra note 27; Robert J. Grey, Jr., ABA President, Letter to the Honorable Frank R. Wolf and the Honorable Alan B. Mollohan regarding FY 2006 Funding for the Legal Services Corporation (May 23, 2005), http://www.abanet.org/poladv/letters/109th/ legalserv/wolfmollohan.pdf (last visited Apr. 30, 2006); NLADA 2006 Budget Recommendations, supra note 41. Note that, although these numbers are close to $200 million more than the LSC requested for fiscal year 2005, they represent precisely the same level, adjusted for inflation, at which Congress funded the LSC ten years ago, prior to the 25-percent reduction in the LSC's budget in 1996 and the post-Census discovery that the number of those earning at or below the poverty level had risen since 1990. Id. The NLADA's basic budget recommendation for fiscal year 2007 is $512.74 million, slightly under its FY 2006 number, but it also urges the LSC to request an additional $30 million for aid related to Hurricane Katrina and to bump up its fiscal-year 2008 recommendation substantially, to nearly $700 million.
    • (2005)
    • Grey Jr., R.J.1
  • 246
    • 84859692615 scopus 로고    scopus 로고
    • Memorandum from the National Legal Aid and Defender Association to LSC, (Sept. 27), (last visited Apr. 30, 2006)
    • Memorandum from the National Legal Aid and Defender Association to LSC, Recommendations for FY 2007 Budget Mark for LSC (Sept. 27, 2005), http://www.nlada.org/Civil/NLADA_News/2005092952167018/DMS/Documents/1128009734. 72 (last visited Apr. 30, 2006). As of January 2006, neither the ABA nor the LSC had made its FY 2007 recommendation publicly available.
    • (2005) Recommendations for FY 2007 Budget Mark for LSC
  • 247
    • 33749994407 scopus 로고    scopus 로고
    • See supra notes 38-42 and accompanying text
    • See supra notes 38-42 and accompanying text.
  • 248
    • 33749986846 scopus 로고    scopus 로고
    • Houseman 2002, supra note 10, at 1230
    • Houseman 2002, supra note 10, at 1230.
  • 249
    • 84859684086 scopus 로고    scopus 로고
    • LSC Act, 42 U.S.C. §§ 2996(1), (2) (2006)
    • LSC Act, 42 U.S.C. §§ 2996(1), (2) (2006).
  • 250
    • 33750005486 scopus 로고    scopus 로고
    • note
    • See, e.g., Ethics Panel, supra note 4. One panelist noted that when Congress enacted the 1996 restrictions, the ABA Ethics Committee "respond[ed] to the LSC restrictions not by determining whether these restrictions themselves are unacceptable but rather by examining how lawyers can comply with these restrictions without violating other ethical commands. . . . [W]e should not assume that the LSC's restrictions are compatible with lawyers' professional duties." Id. at 371. Another panelist argued that the preservation of an independent bar is threatened when the professional judgment of particular groups of unpopular lawyers - such as those representing the poor - is subjected to restrictions imposed as a result of political decisions by the state. It is especially troubling to see such restrictions imposed in the face of the longstanding, and far from adequately implemented, duty of all lawyers to ensure that even those without funds still have access to the legal system. Id. at 384.
  • 251
    • 33750025765 scopus 로고    scopus 로고
    • note
    • In Gideon v. Wainwright, the Supreme Court held that "in our adversary system of criminal justice, any person haled [sic] into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," whether at the state or federal level. 372 U.S. 335, 344 (1963) (emphasis added).
  • 252
    • 33750015113 scopus 로고    scopus 로고
    • Houseman 2003, supra note 9, at 21
    • Houseman 2003, supra note 9, at 21.


* 이 정보는 Elsevier사의 SCOPUS DB에서 KISTI가 분석하여 추출한 것입니다.