Getting Closer To Civil Gideon

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In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that criminal defendants have a right to counsel under the Sixth and Fourteenth Amendments. No such right exists for low income persons in civil proceedings (with few exceptions), therefore the goal of Civil Gideon must be met by state and federal funding of counsel for low income individuals.

Enter the Legal Services Corporation (“LSC”), a private non-profit corporation founded by congress in 1974, and the largest funder in the nation of civil legal services. Each year, LSC distributes hundreds of millions of dollars to independent nonprofit legal aid programs throughout the country, limited to serving “households with annual incomes at or below 125% of the federal poverty guidelines.”

Each year LSC publishes tables of those income limits based on Federal Poverty Guidelines published by the Department of Health and Human Services. Given the breadth of LSC’s funding, $316 million in 2013, these tables have a great impact on who can qualify for free legal services.

Importantly, since 2005, there is an exception to the 125% limit where low-income applicants can earn up to 200%  of the Federal Poverty Guidelines as long as one of several factors are present. 45 C.F.R. § 1611.5. Those factors include current income prospects (i.e. is the income seasonal), medical expenses, debts, taxes, and most importantly, “Other significant factors that the recipient has determined affect the applicant’s ability to afford legal assistance.”

The exception to the 125% limit is written so broadly that all LSC funded legal aids should be able to qualify the majority of their prospective clients under the 200% limit. What legal services applicant earning less than $20,000 per couple, or less than $39,000 for a family of five, does not have problems with debt, shaky income prospects, medical expense, or some other significant factor? Consumer advocacy by definition draws clients with debt problems.

Why is increased eligibility so important? Take a look at the tables to find out: a family of two earning $20,000 would not qualify for legal services at the 125% limit. At 200%, that couple can earn $31,000 and still qualify. Few would argue that a couple earning over $372 per week can afford to hire legal counsel.

State courts will also waive court fees for those individuals that qualify for legal assistance. This is a critical benefit, especially in debt buyer lawsuits against consumers, where defendants do not show up for court in a majority of cases. A hefty fee to enter the case is just one more barrier. In Cook County, the court fee owed by the defendant is nearly $200.

The benefit of fee waiver can also extend to non-LSC funded legal aids as well. For example, in Illinois, all legal services providers are authorized to enter a fee waiver on the behalf of a person whose income is 125% or less of the current official federal poverty income guidelines or who is otherwise eligible to receive civil legal services under the Legal Services Corporation Act of 1974. 735 Ill. Comp. Stat. 5/5-105.5. Pro-se litigants, on the other hand, are limited to the 125% level.

Therefore, the increase in LSC eligibility effectively grants all legal aid clients in the state the right to have their fees waived by the court if they earn up to 200% of Guidelines.

Not all states are as proscriptive as Illinois, requiring 125% or LSC eligibility to qualify for a court fee waiver. Some states grant that right to all legal services clients (e.g. New York, North Carolina). Others simply set their own income limit statewide (i.e. Washington’s limit is 200%).

While the exception to the 125% limit has been in place since 2005, it is not well publicized (note its absence from the LSC fact sheet),  nor is it always used. For example, a large LSC funded organization in Illinois only this year increased their eligibility guidelines from 125% to 200% by default. Therefore, whether to establish eligibility for free legal services, or for a court fee waiver, legal services providers should leverage 45 C.F.R. § 1611.5 more often as the factors listed are almost always present for low-income families.

About the Author

Michael Wood has been a member of NACA since 2011, when he left Fortune 100 corporate management to attend law school in Chicago, IL. Mike practices as a senior law student under Ill. S. Ct. Rule 711, and is currently working with other consumer advocates to address the debt buyer problem in Cook County, IL, through a new project called Debtors Legal Aid, which provides direct legal services and education to consumers experiencing predatory debt collection. Mike can be found on twitter @mikewoodondebt, or by email: mike[at]michaeljacobwood.com.