On January 5 the New York Times posted an editorial criticizing New York governor Andrew Cuomo for vetoing a bill that would have increased state expenditure on legal aid.
The article explains that the bill sought to assist poor people by providing additional funding for criminal defense as well as for legal assistance with civil legal matters, such as child custody and wills and estates. Cuomo seems not to oppose additional funding for criminal defense, given that providing it is a constitutional obligation. For that reason, he stated he is willing to sign a bill that focuses on funding for criminal defense, but it must exclude legal assistance for civil matters.
The article concludes:
With his veto, Mr. Cuomo missed a chance to show leadership by demonstrating New York’s broader commitment to well-funded legal services, which is critical not only when a person faces jail time, but also in noncriminal contexts like family court, where judges can remove children from their parents and order juveniles into state custody. Providing legal counsel to the poor in those cases will have to wait for another bill.
This editorial is incredibly lazy journalism, for two reasons:
The first reason is that it implicitly accepts without questioning the unstated assumption that the only way to increase the availability of legal services for poor people for civil matters is to increase public funding for legal aid.
Of course, it is not just the poor but also the middle class that do not have access to civil legal services in the US. The research of Gillian Hadfield demonstrates that current levels of funding for civil legal aid is only one-tenth of what is needed to provide just one hour of legal assistance for all the households in the US with an unmet dispute-related need (current level is $3.7 billion per year as contrasted to $50 billion per year that would be needed). It is clear that as necessary as increased funding is, it will never come close to being enough. Anyone who is genuine and fully honest in their calls for the poor to have greater access to legal services recognizes this, and understands the huge importance of identifying alternative solutions.
Which leads to the second reason why this editorial is incredibly lazy journalism. It ignores the multitude of solutions that other countries have come up with. For example, it ignores organizations like Australia’s Salvos Legal and Salvos Legal Humanitarian. These sister companies are both owned and managed by The Salvation Army. The first provides commercial legal services to corporations and other institutional clients on a paid basis. The fees it collects, less expenses, are used to fund the second, which provides free legal services to the “disadvantaged and marginalized.” Neither company receives public funding or funding from The Salvation Army.
The reliance upon public funding to provide legal services for the poor is neither sustainable nor scalable. In contrast, Salvos Legal has proven its model to be both of those, having now opened 16 offices across eastern Australia and provided free legal assistance on nearly 18,000 matters to date.
Organizations like Salvos Legal cannot legally operate in the US, because of the lawyer monopoly on legal services and ABA Model Rule 5.4, which prevents lawyers from sharing fees with nonlaywers. (Don’t think for one minute that organizations like Catholic Charities in the US are comparable – to the extent they provide legal services, they rely extensively upon public funding).
Immense energy is spent calling for greater funding for legal aid. Much of that energy should be directed instead to identifying alternative solutions to meet our country’s acute unmet need for legal services, including changing our regulations to allow for organizations like Salvos Legal to operate in the US. Calling for greater funding for legal aid while ignoring the potential of alternative solutions is, at best, incredibly lazy journalism.
The article ends with the sentence “Providing legal counsel to the poor…will have to wait for another bill.” If that is the case, then powerful media outlets like the New York Times share responsibility for that result. This is because they persistently fail to mention — much less to question — the lawyer monopoly on legal services and its devastating effects for the poor as well as the middle class.
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