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Legal aid

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In general

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. Some people use the label of "judicare" for legal aid, in an apparent attempt to analogize legal aid to the Medicare health care programs in the U.S., Canada, and Australia.

Legal aid in the U.S.

The U.S. has always been less generous than most other First World industrialized democracies in providing counsel to the poor and indigent.

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, 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 party was in control of Congress. The group suffered staggering funding cuts under former President Ronald Regan in the early 1980's. 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 the legislature 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 President Helaine Barnett, in a speech delivered on October 21, 2004, 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.

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 an 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.

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

Legal Aid in England and Wales

In England and Wales, legal aid is administered by the Legal Services Commission.

Legal Aid in Australia

Legal Aid is administered separately by each of the different states and territories in Australia, which typically have specific statutory agencies set up for that purpose.

It is important to note that legal aid work in Australia is performed almost exclusively by private law firms who account to Legal Aid for their fees, rather than state employees or "public defenders". The amount of money a lawyer receives from Legal Aid is always somewhat less than they would obtain from a private-paying client; however, most small and medium sized firms (particularly regional firms) will do at least some legal aid work because payment, even if modest, is guaranteed. Moreover in some areas of law (especially criminal law) Legal Aid work is often the only work available.

The High Court case R v Dietrich established that defendants to serious legal proceedings should receive representation, and generally the first spending priority of agencies is criminal proceedings. The legal aid agencies are required by statute to fund representation for criminal defendants in indictable proceedings, which tend to be relatively serious in nature (such as stealing, fraud, house invasions, and aggravated assault). Lesser charges such as traffic or drug possession offences (being those that can be dealt with summarily by a Magistrate) do not necessarily warrant aid, although it is often granted if the defendant is a child or is otherwise disadvantaged.

Legal Aid is not available if the Applicant either earns excessive income (usually more than $600) or possesses excessive assets. Applicants may be required to contribute part of the cost of proceedings if their income is less than this but still moderately high.

Participants in Family law proceedings involving custody (or residence as Australian family law terms it) of children will usually receive aid, unless they fail the means or asset test. However, typically aid will only be granted initially to attend an informal conference, at which a mediator will encourage the parties to agree on a consent order. If this fails, the Legal Aid agency will fund representation for court proceedings depending on its assessment of the merits of each party's position.

Aid is only rarely granted for civil proceedings, generally worker's compensation claims, or more commonly, for criminal injuries compensation claims.

Problems with Legal Aid in Australia involve chronic underfunding (the opening of the new High Court building was greeted by protests that the cost of the opening ceremony exceeded the total Legal Aid budget for that year). It is also worth noting that there is less pro bono work performed in Australia than the US (probably because in Australia, law is a significantly less lucrative profession). Moreover, the peculiar American innovation of public service firms that subsist on donations and federal grants to provide representation to indigents do not exist in Australia.

As a consequence, people who do not receive aid but who cannot afford private counsel have no recourse but to represent themselves. This is a commmonplace occurrence in property claims in the Family Court following the separation of spouses - it is estimated that up to 75% of the participants in these proceedings are self-represented.

External links

  • Scottish Legal Aid Board (http://www.slab.org.uk) - 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 (http://www.legalservices.gov.uk/) - Legal Aid in England and Wales
  • Pine Tree Legal Assistance (http://www.ptla.org/international.htm) - General reference site for legal aid throughout the world
  • Legal Aid Program in Canada (http://www.justice.gc.ca/en/ps/pb/arr/legal_aid.html) - From the Department of Justice of Canada website
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