Public Interest

Kentucky Attempted To Kill Legal Aid Funding -- We Should All Be Terrified

Kentucky's broken the taboo against eliminating legal aid funding -- expect things to get even worse around the country.

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While the public interest world continues to wait for a “Civil Gideon” like they’re waiting for Godot, Kentucky considered a sharp turn in the opposite direction with a new plan to eliminate state funding for legal aid as part of its budget negotiations. Ultimately, some of the funding snuck back into the final budget, but the program still took a hit. You might think the state’s proposed $1.27 million budget for legal aid was an insignificant bargaining chip compared to the state’s $70 billion operating expenses, but then you’d be forgetting about the state government’s commitment to issuing massive, revenue-crippling tax cuts.

It’s important to have goals in life and plutocratic supervillainy is as good as any other.

While these devastating cuts to critical legal services didn’t completely finish the job, there’s reason to worry about next year’s budget. Governor Matt Bevin has publicly called for gutting the legal aid budget and now it’s a key pillar of his “brand.” With the Senate, whose budget proposed eliminating funding entirely, and Governor opposed to legal aid, it’s hard to imagine this doesn’t come up again next year when they’re looking for another symbolic cut. The moral is, Kentucky’s poor should expect to take significant hits going forward.

And those are hits they can barely withstand. Kentucky, one of the nation’s five poorest states, leans heavily on the already underfunded legal aid system. The Kentucky Access to Justice Commission’s website explains that:

Kentucky Legal Aid receives 4,000 calls a month requesting legal help and closes about 24,000 cases each year, which provides critical assistance to 68,000 low-income families and children who have nowhere else to turn for help. About 55 percent of the people who apply and are eligible for civil legal aid services are turned away because of lack of resources.

Of course, if the state withdraws all of its funding in the future, Kentucky’s legal aid programs won’t be entirely without resources. The program could continue to rely on contributions from the Legal Services Corporation, the entity that distributes federal funds to state and local legal aid organizations.

For now.

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Unfortunately, that’s also a precarious position these days. The Trump administration’s prior budget proposals eliminated all federal funding for LSC. To date, cooler heads have prevailed — perhaps swayed by lobbying from Michigan football coach Jim Harbaugh, who has emerged as the face of legal aid funding in a case of the strangest of bedfellows — and this year’s budget not only saved the program but included a $25 million boost, officially moving LSC from “wildly underfunded” to merely “critically underfunded.” We joke, but to grasp the extent of the how little $25 million really means, UC-Berkeley’s Dean Erwin Chemerinsky wrote last year that LSC’s funding reached a nadir of $5.85 per eligible person in 2016 and the latest increase only managed to add a few cents to that.

Our state bar associations always raise the alarm about chronic underfunding for low-income legal services, but few rank-and-file attorneys appreciate just how dire the situation has become. Most attorneys assume picking up a couple extra pro bono hours could do the trick. More accurately, most attorneys assume someone else picking up a couple extra pro bono hours could do the trick. 

Except when it comes to civil legal representation the problem isn’t just that most lawyers are never going to offer up pro bono work in the volume needed, it’s also that pro bono services are often about as useful as a screen door on a submarine. Some enthusiastic transactional attorney may bring determination and brain power to child custody, but they’re never going to be as seasoned as a dedicated family law attorney. When a real estate attorney helps a non-profit secure a new headquarters for free, that’s a pro bono value add. When it comes to ground level representation, clients are better off with experts in their niche areas of need.

But those experts are hard to come by these days. Pete Davis, a Harvard Law student who caused a stir this year by releasing a comprehensive study of the public interest crisis, points out that only 1 percent of American lawyers opt into legal aid practice, meaning that, “the nation with one of the highest concentration of lawyers provides less than one legal aid lawyer for every 10,000 low-income Americans living in poverty.” The Legal Services Corporation itself reckons that “86 percent of the civil legal problems faced by low-income Americans in a given year receive inadequate or no legal help.” Relying on attorneys to serve the poor for substandard pay in the face of crippling debt (debt that could get even worse with Public Service Loan Forgiveness perennially at risk) is a major factor.

And that’s before states like Kentucky broke the taboo and signaled to the rest of the country that eliminating legal aid funding is on the table.

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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