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High court appears skeptical of rules for legal services lawyers

By Tony Mauro
Special to
The Freedom Forum Online

10.05.00

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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. Velazquez, 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. Sullivan, 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 Amendment."

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 help.

"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 relationship.

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. Sullivan 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.

Related

Supreme Court agrees to hear Legal Services case
Conflict stems from 1996 congressional action barring use of Legal Services funds for lawsuits seeking to change welfare laws.  04.03.00

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