Legal aid

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Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To not do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.

A number of delivery models for legal aid have emerged. In a "staff attorney" model, lawyers are employed on salary solely to provide legal assistance to qualifying low-income clients. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients.^[1]

Contents 1 Legal aid in the U.S. 2 Legal aid in Scotland 3 Legal aid in England and Wales 4 Legal aid in Australia 5 Legal aid in Ontario, Canada 6 References 7 External links

[edit] Legal aid in the U.S.

In a series of cases starting in 1964, the U.S. Supreme Court has ruled that American indigents do have a right to counsel, but only in criminal cases. See Gideon v. Wainwright. A few states (like California) also guarantee the right to counsel in "quasi-criminal" cases like paternity actions and involuntary terminations of parental rights. The federal government and some states have offices of public defenders who assist indigent defendants, while other states have systems for outsourcing the work to private lawyers.

Meanwhile, legal aid for civil cases is currently provided by a diverse hodgepodge of public interest law firms, who often have "legal aid" or "legal services" in their names. All such firms impose income and resource ceilings as well as restrictions on the types of cases they will take, because there are always too many potential clients and not enough money to go around.

Common types of cases include: denial or deprivation of government benefits, evictions, domestic violence, immigration status, and discrimination. Some legal aid organizations serve as outside counsel to small nonprofit organizations that lack in-house counsel. Funding usually comes from charities, private donors, the federal government (see below on LSC) and some local and state governments. Most typical legal aid work involves counseling, informal negotiation, and appearances in administrative hearings, as opposed to formal litigation in the courts. However, the discovery of severe or recurring injustice with a large number of victims will sometimes justify the cost of large-scale impact litigation.

In 1974, Congress created the highly controversial Legal Services Corporation to provide federal funding for legal aid services. LSC's funding has fluctuated dramatically over the past three decades depending upon which political parties were in control of Congress and the White House. For example, LSC suffered staggering funding cuts under former President Ronald Reagan in the early 1980s.

Legal aid organizations that take LSC money tend to have more staff and services and can help more clients, but must also conform to strict government regulations that require careful timekeeping and prohibit lobbying and class actions. Many legal aid organizations refuse to take LSC money, and can continue to file class actions and directly lobby legislatures on behalf of the poor.

However, even with supplemental funding from LSC, the total amount of legal aid available for civil cases is still grossly inadequate. According to LSC's widely released 2005 report "Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans", all legal aid offices nationwide, LSC-funded or not, are together able to meet only about 20 percent of the estimated legal needs of low-income people in the United States. ^[2]

The problem of chronic underfunding of legal aid traps the lower middle class in a catch-22: too rich to qualify for legal aid, too poor to pay an attorney in private practice. To remedy the ongoing shortage of legal aid services, some commentators have suggested that mandatory pro bono obligations ought to be imposed on all lawyers, just as physicians working in emergency rooms are required to treat all patients regardless of ability to pay. However, all such proposals have been successfully fought off by bar associations.

Legal aid programs for the poor are generally opposed by conservatives in the U.S., and supported by liberals and moderates. Fiscal conservatives argue that if asked to select between $500 in cash and $500 in legal services, most poor persons would take the cash. Social conservatives argue that legal aid programs serve only a very limited, left-wing version of the public interest. The liberal counterargument is that from a moral or philosophical perspective, legal aid preserves the ideal of "equal access for all" to the judicial system. A rather Machiavellian argument is that legal aid upholds the rule of law and stabilizes society as a whole, by enabling the poor to regularly seek redress of their grievances through formal legal processes; otherwise, it is likely that the poor will resort to highly destructive self-help measures like rioting.

[edit] Legal aid in Scotland

In Scotland, legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice.

Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board.

[edit] Legal aid in England and Wales

In England and Wales, legal aid is administered by the Legal Services Commission, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.

Although the European Courts have recently ruled that a lack of legal-aid-libel may be a breach of the right to a fair trial (following the McLibel case), it is still unclear how this will affect UK libel trials.

Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not-for-profit advice agencies.

[edit] Legal aid in Australia

Australia has a federal system of Government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and State and Territory governments are each responsible for the provision of legal aid for matters arising under their laws.

Legal aid for both Commonwealth and State matters is primarily delivered through State and Territory legal aid commissions (LACs), which are independent statutory agencies established under State and Territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with State and Territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.

Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.

The Australian Government and most State and Territory Governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.

By way of history, the Australian Government took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). In 1977, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act) which established cooperative arrangements between the Australian Government and State and Territory governments under which legal aid would be provided by independent legal aid commissions to be established under State and Territory legislation. The process of establishing the LACs took a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and State and Territory legal aid funding agreements, which began in 1987.

In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement the States and Territories fund assistance in respect of their own laws.

[edit] Legal aid in Ontario, Canada

Legal aid in Ontario is administered by Legal Aid Ontario (LAO). The LAO provides funding to more than one million Ontario residents who need help with their legal problems. Legal Aid is available to low income individuals and disadvantaged communities for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as landlord/tenant disputes, disability support and family benefits payments.

Generally, legal aid lawyers in Ontario consider themselves to be paid very poorly. However, that is only relative to the Private Bar, who are charging fee paying clients. Several lawyers at Legal Aid Ontario are payed salaries exceeding $100,000 [1]. Also, in Canada, the provincial governments tend to pay Crown lawyers more than Legal Aid lawyers.

[edit] References

[edit] External links

• Legal Services Corporation home page
• Legal Aid and Legal Services Resources(US).
• Legal Services Research Centre - Research on Legal Aid and Civil & Social Justice Problems (UK)
• LawHelp.org (US) helps low income people find free legal aid programs and information about their legal rights.
• Scottish Legal Aid Board - Very full information site of the Scottish Legal Aid Board, addressed to lawyers and to members of the public, as to legal aid in Scotland
• Legal Services Commission - Legal Aid in England and Wales
• Pine Tree Legal Assistance - General reference site for legal aid throughout the world
• Legal Aid Program in Canada - From the Department of Justice of Canada website
• Legal Aid Program in Ontario,Canada - Legal Aid Ontario
• The Legal Aid Society of Northeastern New York - Legal Aid in 16 counties of Northeastern New York in the US
• Legal Aid Queensland - Access not only to Legal Aid services but also to a wide range of other legal and related services
• National Legal Aid (Australia) - National Legal Aid (NLA) is the Australian peak Legal Aid body.