Attorneys fight for right to provide unrestricted advice to clients

Monday, May 4, 1998

The federally funded Legal Services Corporation, which provides legal aid to the poor, is itself locked in a legal battle over the First Amendment rights of its attorneys to provide advice to their clients.

The dispute, currently before the U.S. Court of Appeals for the 2nd Circuit, mirrors the issues in two cases pending before the Supreme Court dealing with what restrictions the government may place on speech that it sponsors. NEA v. Finley involves a decency standard attached to government arts grants, and Arkansas Educational Television Commission v. Forbes tests whether a government-funded public television station may exclude certain candidates from a campaign debate it is hosting.

At issue in the Legal Services case, Velazquez v. Legal Services Corporation, is whether Congress can place restrictions on the type and subject matter of litigation LSC lawyers can undertake as well as the advice they can give.

LSC, founded in 1974, has long been the target of conservative lawmakers who question why the government should pay lawyers, in essence, to challenge government programs such as welfare, or to litigate issues of social reform through class-action lawsuits.

After repeatedly failing to cancel the program, Congress succeeded instead in 1996 in placing restrictions on funds allocated by the LSC to local legal agencies. Among other things, the restrictions forbid the use of federal funds to initiate a redistricting lawsuit, to lobby for passage or defeat of a law; to participate in a class-action suit; or to litigate an abortion case or a suit on behalf of a prisoner.

Initially, the law pertained to an entire legal aid agency funded by LSC, even if the agency actually used private funds to initiate an objectionable lawsuit. Most agencies funded by the LSC also receive contributions from private organizations.

In defense of the law, the Clinton administration says the restrictions “insure LSC’s focus is on the day-to-day needs of the poor.”

But those challenging the law, led by the Brennan Center for Justice, say the restrictions violate the First Amendment.

“Congress cannot restrict the legal tools and activities of lawyers for the poor, even if the lawyers are wholly supported by federal funds,” the challengers argue. “The attorney-client relationship is so infused with First Amendment value … that the activity the government seeks to regulate lies within a sphere of heightened protection.”

The law was challenged in a pair of lawsuits. In one, Legal Aid Society of Hawaii v. LSC, a federal judge issued an injunction against the restrictions, at least as they pertain to non-LSC funds used by an LSC-funded agency. The judge said the restrictions likely violated the First Amendment.

The LSC responded to the injunction by issuing new regulations that narrowed the scope of the law. The new regulations allowed LSC programs to use non-LSC funds to pay for activities forbidden by the law, so long as they set up a separate entity to handle the work that is “physically and financially separate.”

Challengers of the law say the restrictions do little to cure the law’s First Amendment problem, and set up impractical rules for operating a legal services agency.

But last December, acting in the Velazquez suit, a federal judge upheld the restrictions, partly because of the new regulations and partly because, in the judge’s view, the restrictions did not intrude on the attorney client relationship.

The conflicting rulings in the LSC cases reflect the ongoing battle within federal courts over restrictions on state-sponsored speech. As with the cases before the Supreme Court, the two major conflicting precedents on the issue are: Rust v. Sullivan, the 1991 ruling that upheld restrictions on the kind of advice that could be given out at federally funded family planning clinics; and Rosenberger v. Rector & Visitors of the University of Virginia, the 1995 ruling that said the government may not discriminate on the basis of viewpoint when doling out government funds to foster private speech.

At a recent mock argument of the case sponsored by the Brennan Center for Justice, a “court” composed of prominent Washington, D.C., lawyers ruled 5-4 that the restrictions do violate the First Amendment.

Nathan Lewin, the lawyer arguing in favor of the restrictions, downplayed the First Amendment aspects of the case. “Litigation is not speech,” Lewin said. But Alexia Morrison, challenging the law, said the restrictions were unconstitutional because they were clearly viewpoint-based.

In handing down the ruling, the mock court’s chief judge Peter Edelman cast the deciding vote against the law, criticizing the legislation for its disregard for the needs of the poor. “This statute puts the frosting on our modern Marie Antoinette cake,” he said.