High court appears skeptical of rules for legal services lawyers

Thursday, October 5, 2000

Supreme Court justices seemed poised yesterday to rule that certain
congressional restrictions on Legal Services Corp.-funded lawyers violate the
First Amendment.

During oral arguments in a case testing the regulations, several
justices appeared to tip their hand with comments sharply critical of the
limits on litigation that legal services lawyers can undertake.

The restrictions were imposed by Congress in 1996 to rein in LSC,
viewed by Republican leaders as a runaway agency that funded lawyers to pursue
a social agenda and to make trouble for the government.

A ruling by the 2nd U.S. Circuit Court of Appeals upheld all the
restrictions except one that prohibits LSC-funded lawyers from taking on cases
that question the constitutionality of a state or federal welfare-reform law or
regulation. In Legal Services Corp. v. Velazquez, and U.S. v.
, argued before the high court yesterday, the
government is trying to resurrect the restriction.

The corporation, which funnels $300 million annually to local agencies
for legal representation of the poor, fought the restrictions at first, but has
defended them in court ever since they became law.

New York lawyer Alan Levine, arguing on behalf of LSC, defended the
law as a permissible constitutional choice by Congress to fund certain
activities and not others. The law was valid, he said, under the Supreme
Court’s 1991 decision in Rust v.
, which upheld Reagan-era restrictions on the ability of
government-funded medical clinics to offer counseling on abortion.

Under sharp questioning, Levine said the law would make it impossible
for a legal services lawyer to participate in a case in which a private
co-counsel challenged a welfare law. He also acknowledged that the regulation
would even prohibit LSC lawyers from making routine arguments about how a
welfare rule should be interpreted.

Under those circumstances, “how could you possibly represent a client
adequately?” asked Justice Antonin Scalia incredulously. Levine answered that
the government-funded lawyer would have to avoid that problem by not taking on
the case in the first place.

Once the breadth of the restriction was mapped out for the court,
justice after justice seemed to see it as a form of viewpoint discrimination
that amounts to government censorship.

Justice Anthony Kennedy described the banned type of lawsuit as “a
paradigm of free speech — petitioning the government.” Justice David
Souter said the restriction comes very close to “the molten core of the First

Both Souter and Kennedy were in the majority in the Rust case, and
their skepticism could doom the regulation.

But Deputy Solicitor General Edwin Kneedler, who also argued in
defense of the regulation, tried to salvage it by repeatedly invoking
Rust. He also noted that under the
regulation, LSC-funded lawyers who are faced with potential litigation that
would violate the rule are able to refer clients to private attorneys who can

“There is no gagging of communication at all,” Kneedler said.

Burt Neuborne, legal director of the Brennan Center for Justice,
argued next on behalf of a group of New York City clients who challenged the
regulation. In addition to being a form of viewpoint discrimination, Neuborne
said the regulation was a “very powerful” intrusion on the lawyer-client

He also argued that in welfare litigation, the government already has
its point of view represented by the government agency that denied
benefits. Through the disputed regulation, Neuborne said, the government
was seeking to “commandeer the voice” of its adversary as well.

At one point, Justice John Paul Stevens asked whether Neuborne was
telling the court that Rust v.
had to be overturned. Hit by a barrage of other
questions, Neuborne never directly answered Stevens, though later he said the
high court “got it wrong” in Rust.

A decision in the legal services case, which could come anytime before
next summer, may not entirely end the long-running debate over congressional
restrictions on legal services. A case challenging the other half of the 2nd
Circuit decision — the part that upheld other less severe restrictions on
LSC activities — is pending before the court.

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