Much of the funding for civil legal aid programs is provided to the programs without earmarks on who can be served and what can be done. With these funds, the programs themselves make the key decisions about who will be served, the scope of service provided, the types of substantive areas in which legal assistance will be provided, the mix of attorneys and paralegals who will provide services, and the type of services provided (such as advice, brief services, extended representation, and law reform).
Congress has imposed restrictions on what LSC can fund and what its recipients can do, and a few other states have similar restrictions. But, in the U.S. system, LSC, IOLTA, and many other funders do not decide what kinds of cases programs will handle and which clients they will serve. It is the program itself that undertakes planning and priority setting and decides who will deliver the services (staff attorney or private attorney). As a corollary to this responsibility, it is the program that oversees how these services are delivered and evaluates the quality of work that is provided by its staff attorneys and the pro bono and paid private attorneys with whom the program works.
However, some government and private funding sources limit their funding to specific types of clients (e.g., aliens) or specific types of cases (e.g., domestic violence). Civil legal aid programs can decide whether or not to seek this funding, and many do. It is the program itself that decides internally whether to seek such funding.
The U.S. Congress has imposed some restrictions on what types of cases civil legal aid programs funded by LSC can bring and what types of advocacy they can pursue even with non-LSC funds.
- LSC funded providers are precluded from most advocacy and representation before legislative bodies and in administrative rulemaking proceedings, except in a few circumstances.
- LSC programs cannot initiate, participate, or engage in any class actions.
- LSC programs are prohibited from representation in redistricting cases and from participating in any litigation with regard to abortion.
Note: In 2009, Congress lifted the restriction on claiming, collecting and retaining attorneys’ fees from adverse parties.
Restrictions apply to all of LSC grantee’s funds, from whatever source
Prior to 1996 there had been some restrictions on what LSC-funded legal services programs could do, particularly with LSC funds. Then, the 1996 restrictions further tightened and prohibited LSC grantees from using funds available from most non-LSC sources to undertake those activities that are restricted with the use of LSC funds. In other words, all of a LSC grantee’s funds, from whatever source, are restricted.
Nevertheless, the restrictions do not cover most of the work that LSC programs can do on behalf of the low-income community, and LSC-funded programs can continue to provide representation in over 95% of the cases they were able to undertake prior to the imposition of the 1996 restrictions.