Issues/Causes

Between a Rock...Frye v. Tenderloin Housing Clinic

by Gary F. Smith, LSNC Executive Director

The 2004 Court of Appeal decision in Frye v. Tenderloin Housing Clinic threatened the ability of virtually every non-profit law organization (including LSNC) in California to practice law as a corporate entity.  The Court of Appeal opinion held that all non-profit law organizations must comply with certain obscure State Bar registration requirements, of which most such organizations were unaware, and which the State Bar had never enforced.  Virtually none of the hundreds of public interest law organizations in the state (including LSNC) could comply with all the registration requirements. For example, the State Bar requirement that all members of the board of directors be licensed attorneys was in direct conflict with the Federal Legal Corporation's requirement that we have client board members.

On behalf of the 65 member Legal Aid Association of California, I wrote an amicus letter in support of the defendant's request for review of the Court of Appeal decision, which was granted.  We also filed an amicus brief on the merits, urging the Supreme Court to reverse the decision.

Today the California Supreme Court, in a unanimous opinion, reversed the Court of Appeal opinion, and held that legal services and other non-profit law organizations are not subject to the State Bar registration requirements at issue.  The Court's opinion (No. S127641, Cal S.Ct. March 9, 2006) cited to the "significant and unusual instance of unanimity across the political spectrum," as organizations ranging from the ACLU to LAAC to the Pacific Legal Foundation all urged reversal of the appellate decision.  The opinion can be found online at www.courtinfo.ca.gov.opinion/documents/S127641.PDF.  The Supreme Court cited to a specific argument I raised in LAAC's amicus brief, concerning the Legal Services Corporation regulation requiring all LSC grantees, like LSNC, to include non-attorneys on their boards of directors.

Seperate and Inequitable

Published: Dec 6, 2005 New York Times

When the Republicans won control over both houses of Congress in 1994, they declared war on the federally financed program that assists poor people with civil legal problems. While they stopped short of abolishing the program, they imposed deep budget cuts and restrictions designed to restricted lawyers for the poor.

In 2001, a 5-to-4 Supreme Court majority struck down one of those restrictions, an attempt to bar lawyers for the poor from challenging welfare laws. Now there is hope that another far-reaching limitation, the "separate facilities" rule, may be headed for extinction. This rule applies to poverty-law programs that receive federal money and wish to use funds from private charities and local and state governments to pursue class-action lawsuits and other types of cases barred by Congress. To do so, they must maintain a physically separate office, a prohibitively expensisve undertaking.

But a federal district court has ruled, correctly, that there is "no legitimate justification" for the duplication of costs and has declared the separate-facilities rule an unconstitutional restriction of free speech. The federal Legal Services Corporation appealed that ruling, which is before a three-judge federal appeals panel in Manhattan. In arguments last month, Burt Neuborne of the Brennan Center for Justice at the New York University School of Law said the rule hobbled the representation of poor clients. He noted that the Bush administration did not require religious groups that receive federal funds to offer secular services, like counseling, to maintain a costly separate operation for that work.

The fact that Washington provides money for legal representation does not give it unlimited authority to control what lawyers say or do, or to restrict the use of private money so severely. The appellate court needs to make that crystal clear.