Learning To Love Legal Aid

Last week I wrote about an asinine proposal to eliminate federal funding for the Legal Services Corporation (the leading funder of legal aid programs nationally) and a study showing the economic benefits that flow from our legal aid dollars (tl;dr: the benefits are substantial).

A commenter suggested that, economics aside, defunding LSC would be consistent with conservative values:

You can defend it, but please don’t pretend like conservatives should want to keep the program.

Thankfully, I don’t have to pretend. Conservatives should want to keep the program.

Still, let’s hear our commenter out, starting with reason one for defunding LSC:

I think Goldberg v. Kelly was a terrible decision and that you shouldn’t get due process protections for Welfare programs. Thus, I really don’t like the idea of taxpayer dollars going to help welfare recipients sue to keep their benefits.

Here’s the deal: welfare and other benefits programs exist. Maybe you’d like to eliminate them. That’s your prerogative. But for now, they exist — and you and I pay for them. And part of what we pay for is the set of procedural protections afforded to benefits recipients (whether you agree with these protections or not). Now imagine benefits recipients availing themselves of these procedural rights pro se. This is not a pretty picture for many reasons — the process is likely to be inefficient and the outcomes arbitrary. Adding attorneys to the benefits-determination process can actually improve the efficiency of the process while also reducing the government’s unilateral power over the process and generating less arbitrary results.

And, by the way, legal aid lawyers rarely sue over benefits. According to these statistics (scroll down to “2013 LSC-Eligible Cases Closed by Case Type and Reason for Closure”), only 2% of “income”-related cases in 2013 involved litigation. The action is almost all within the administrative system.

Reason two:

I think that our EOIR [Executive Office for Immigration Review] makes it too difficult to deport criminal aliens. So I don’t want tax funded attorneys to make it even more difficult.

As a general rule, LSC doesn’t fund that kind of work.

Last week I wrote that I’ve worked for an LSC-funded organization, that my experience there suggested LSC takes its mandate seriously, and that one of the offshoots of LSC’s mandate is that I had to screen clients for their immigration status. There was a reason for that screening. I was required to turn away undocumented immigrants — and I did this regularly — because recipients of LSC funding “may not provide legal assistance for or on behalf of an ineligible alien” as a matter of federal law, and an ineligible alien is pretty much anyone who’s not in the country legally (the major exception is victims of domestic abuse). There are also restrictions on representing criminals (or at least ones that are in prison). So it’s good news for the commenter: as a general rule, tax-funded attorneys are not making it difficult to deport criminal aliens! But it’s bad news for the people I had to turn away: as a general rule, tax-funded attorneys really can’t do much of anything to help most non-criminal undocumented immigrants.

And, returning to the main point here, because LSC doesn’t fund that kind of work, defunding LSC won’t make it easier for the government to deport people.

Reason three (an argument against foreclosure prevention):

If foreclosures hurt lenders, why do banks do it? Are banks so mean they want to kick people out of their homes for fun even though it costs them money?

Someone’s taking a swing at a straw man. Banks aren’t mean. In fact, a nice one helped me obtain financing on reasonable terms to purchase the house where I live. But what banks are is unwieldy. And they’re definitely not perfectly efficient economic actors.

The real question is not why banks foreclose (the answer: to retrieve collateral from a delinquent borrower). The question is whether legal aid lawyers can in fact save banks money that would otherwise be spent going through the foreclosure process and then in all likelihood taking a hit at the auction or a later resale. And the answer to that is a resounding yes.

Other commenters discussed the foreclosure issue, and to me the discussion all seemed to come back to this point: renegotiating the terms of the homeowner-lender relationship is often the optimal response for both homeowner and lender. And that is the bulk business of legal aid foreclosure-prevention lawyers: negotiation. Not suing banks, but representing delinquent homeowners to negotiate with mortgage lenders and try to salvage a bad situation. In fact, according to the data set I referenced before, the percentage of foreclosure cases involving litigation was under 9% — and that might well be counting cases where the lender initially filed the complaint. Getting an experienced and competent negotiator in the room representing a homeowner really can save everyone money in the end.

Taken all together, the commenter’s take on legal aid doesn’t suggest that LSC should be defunded. It suggests that the commenter doesn’t understand what legal aid lawyers actually do. Which is why, when the commenter says this:

You can disagree with me on these policy/legal issues, but don’t pretend that I should like my tax dollars going to fund it.

I take issue. I do disagree with you on these policy issues. But I don’t have to pretend you should like your tax dollars going to fund legal aid. Because you really should. Make more of an effort to familiarize yourself with LSC-funded work and maybe you’ll even come to that conclusion yourself.

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Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].