If You Gag the Lawyers, Do You Choke the Courts? Some Implications for Judges when Funding Restrictions Curb Advocacy by Lawyers on Behalf of the Poor

Abstract

Restrictions on legal services lawyers can interfere with core functions of the courts. Restrictions that are particularly likely to cause such interference. include federal and state restrictions on participating in class actions, claiming attorneys’ fee awards, representing certain categories of clients (such as prisoners and certain immigrants), and representing clients in certain categories of claims (such as public housing drug eviction cases). Such restrictions cause problems for the courts, including (1) interfering with the ability of courts to certify classes and award fees in appropriate cases; (2) interfering with the ability of courts to ensure that all people subjected to wrongful treatment are provided relief; (3) interfering with the deterrent effect of court orders; (4) interfering with the ability of the courts to decide cases with all relevant facts before them; (5) permitting defendants to insulate their wrongful practices from judicial review; (6) reducing the ability of the courts to prevent themselves from being used for illegitimate ends, such as harassment; (7) reducing the ability of courts and other state legal services funders to allocate money to improve the administration of justice; and (8) increasing the amount of pro se litigation in the courts. In addition to these practical problems, some of the restrictions raise serious separation of powers and federalism concerns.

Keywords: legal services, legal services corporation, LSC, restrictions, class actions, attorneys' fees, advocacy, non-profits' rights, courts, prisoners, immigrants, access to justice, legal representation, public housing, migrants, separation of powers, federalism, pro se litigation

JEL Classification: I3, K1, K4, I18, J18