Should District-Funded Lawyers Be Able to Sue the District? was originally published on City Desk on Mar. 27, 2009, at 2:39 pm
For the past two years, the District of Columbia has budgeted millions of dollars to help the poor hire lawyers to do civil legal work. This year, for instance, $3.6 million has been handed to the D.C. Bar Foundation to be in turn disbursed to various groups that do legal work for the indigent. This money was appropriated after all sorts of reports were done and editorials were written holding that those living in poverty suffer from a lack of access to legal services.
Some of that money, no doubt, is used to sue the District government. Poor people, after all, find themselves often in conflict with the government they depend on for basic services like housing, food, health care, education, and more. But should they have the right to a District-paid civil lawyer to settle those conflicts?
Attorney General Peter Nickles sees that as a potentially untenable biting-the-hand-that-feeds-you situation. Thus draft budget legislation [PDF, Title III, Subtitle D] submitted last week includes language that requires the Bar Foundation to itemize in quarterly reports “the amount of grant funding used…to prepare for or conduct litigation against the District of Columbia,” among many other requirements. Furthermore, the legislation authorizes that attorney general to issue rules on the “permissible use of grant funds.”
Nickles says he just wants the information for now but adds that, if the data indicates a problem, he’s fully prepared to issue rules restricting grantees’ rights to sue the District. “Seems to me there’s something wrong with the system when I, as the taxpayer, am paying money to be sued.” Further, in a budget crunch this tight, he says, the trade-offs are stark: “If it comes to a decision between firing my lawyers and giving the Bar Foundation funding…I will choose not firing my lawyers. They’re doing important work.” Important public service work, he adds—suing slumlords and such.
Things have been brewing for weeks. On Feb. 24, Nickles sent a letter to the Bar Foundation asking for similar information; the foundation’s executive director, Katherine L. Garrett, replied by saying that her group did not collect precise information along those lines, but did point out that “it is certain that some poverty lawyers…handle client matters adverse to the District concerning, for example, public benefits issues (TANF, Food Stamps, Medicaid), public housing issues involving the DC Housing Authority, child support enforcement defense; matters involving the Child and Family Services Agency; and matters within DCPS, among others….[I]t is inevitable that legal representation of those residents [living in poverty] will involve matters against the District.”
The conflict heated up this week with the release of the budget, which in addition to the proposed reporting requirements, cuts city funding for civil legal assistance from $3.6 million to $2.6 million.
In an interview, Phil Mendelson, who has oversight of Nickles’ office as chair of the council judiciary committee, questioned the wisdom placing restrictions on grantees: “I don’t think we should be getting into the content of litigation. If we’re going to support indigent advocacy as in landlord-tenant [matters] or lead paint or food stamps, unemployment benefits, if we’re going to help provide representation to the poor, we can’t then be qualifying that.”
At a budget hearing yesterday, Mendelson and Mary Cheh both questioned Nickles as to his intentions. Cheh warned the AG to proceed at his peril, calling the idea of restricting grantees from anti-District litigation “astonishing,” “highly objectionable,” and “potentially pernicious.”
Peter Edelman—a Georgetown University law professor who is chair of the Access to Justice Commission, which agitated for the District funding in the first place—testified earlier in the day that the language “could chill the legitimate work of lawyers on behalf of clients” and pointed out that “surely these were the type of cases that we all envisioned.” In addition, Edelman testified that the proposed cuts to the civil legal funding would be “disastrous” and “ultimately self-defeating” since the program saves money in other areas.