Legal Aid: Its Service and Its Struggle

By Susan M. Brazas, Attorney


A number of criminal defendants standing trial throughout New York filed a class action lawsuit claiming the state's legal aid or public defenders system is ineffective. More specifically, they claim the system is failing poor or indigent criminal defendants by providing them with undertrained and overworked lawyers. In addition, they claim that public defenders often have little contact with their clients, and at times, aren't even in court with them.

The State of New York wanted the case thrown out. It claimed the courts didn't have the power to give the criminal defendants who filed the suit (they're called the "plaintiffs") what they wanted: More money and resources for legal aid.

In May 2010, the New York Court of Appeals, the state's highest court, decided the case could go to trial. The court ruled the plaintiffs raised serious questions about legal aid's ability to serve the poor and the overall fairness of the state's criminal justice system.

Original Article

The news wasn't welcome: A basic legal representation required fee advance of three months' wages. The legal aid clinic downtown announced it could help only the elderly, and those in dire emergency circumstances. Where could she turn?

The books at the courthouse law library and in the "Legal Self-Help Center" were filled with words as foreign as if in a different language. All seemed lost.

Legal Aid Clinics Face Tough Economic Times

Many people have no other way to obtain legal services except what they can be offered free of charge. Many legal aid clinics offer a sliding fee scale, so prospective clients have some financial resources they're charged accordingly, but at rates far less than a private attorney charges.

Legal aid clinics depend heavily on financial aid from grants, government subsidies and private donations to survive. The current economic climate has hit legal aid clinics especially hard; government agencies and private donors closely guard their available dollars.

With their staff resources limited, many legal aid clinics have been forced to restrict whom they serve. For example, many offer assistance only to those in extreme emergency situations , such as victims of elder abuse and domestic abuse. The only help available for others are prosecutors to bring criminal charges and seek amends.

Legal Self-Help Centers Are Commonplace

Many local court systems and bar associations recognize the need to provide written resources and guidance. More and more people have turned to "pro se" help.

As a result, many courthouses have small areas, often found within their law libraries, called "legal self-help centers". Written materials include form books, samples and outlines describing legal processes. To many people, however, even with the assistance of these resources the legal process seems intimidating and overwhelming.

California Offers "Civil Gideon" for Free Lawyers in Civil Cases

A famous US Supreme Court case that impacted how the criminal court system works is Gideon v. Wainwright. A man jailed for a minor theft offense wrote to the Supreme Court, in his own handwriting and on lined paper from the jail, that he believed that it was unfair that he was prosecuted for a criminal offense without a lawyer being provided for him when he was unable to afford a lawyer.

The US Supreme Court agreed, reversing its own position of several decades earlier. In the end, a local attorney was appointed for Mr. Gideon, his case was re-tried, his conviction was overturned and he was freed from jail.

What role does Miranda's "You have a right to an attorney, if you cannot afford one, one will be provided free of charge" have in this? Can it be ignored?

Free Attorneys for Civil Cases

Currently, in many states and in many courts persons are provided free attorneys for limited types of civil cases. In cases where the prosecutor files a petition for termination of parental rights, free attorneys are provided, at the trial court level and especially at the appellate court level, to parents who are of limited financial means.

In addition, in difficult custody, placement/visitation and guardianship cases the court may appoint an attorney to serve as guardian ad litem at no charge to the parties.This attorney has the role of making recommendations as to the best interests of the minor or disabled person.

Now, the State of California has passed a law that allows free attorneys to be provided to persons who can't afford to hire their own attorney for certain civil cases, such as child custody and foreclosure. As this law is new, it remains to be seen whether adequate funding will be available and whether its use will be severely limited.

Questions for Your Attorney

  • What happens if an attorney and the client have a disagreement over fees, billing and payment while a case is pending?
  • I've been sued and I don't think I can afford an attorney; can you help me find legal aid resources in our area?
  • I'm involved in a lawsuit and I don't have an attorney - are there any laws or court rules that apply when someone is appearing "pro se" that I should know about?
  • Is it possible to recover or ask the court to award me attorney's fees if I end up winning a lawsuit?
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