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The New York Times
December 20, 2002
Editorial
Legal services for the poor across the country
are seriously underfinanced. One key source of money for them
is an ingenious program that exists in all 50 states. It pools
the short-term deposits that lawyers hold in trust for their
clients and uses the interest produced to finance indigent
legal services. The Supreme Court heard arguments last week
in a challenge to these programs, brought by a conservative
legal group that says this practice is an unconstitutional
taking of property. It is not. Striking down these programs
would be a serious blow to poor people's ability to defend
their rights in court.
Lawyers are ethically obligated to put money they hold in
trust for their clients into accounts separate from their
own. In the early 1980's states started requiring lawyers
to pool their smallest, short-term client accounts. The interest
that any one account would earn is negligible, but added together
they generate $160 million a year, 15 percent of legal services
funding nationwide.
The Washington Legal Foundation has challenged these programs
in state after state, arguing that they violate the Fifth
Amendment because they are a taking of the property of the
owner of the money. In a 1998 case challenging Texas's program,
the Supreme Court ruled that the interest generated by these
accounts belongs to the owners of the funds on deposit. In
the current challenge, to a program in the state of Washington,
the court is being asked to decide whether using this money
for legal services for the poor constitutes a taking.
It is clear that it does not. The accounts at issue here are
small and short-term. If the program did not exist, the Ninth
Circuit found, the money would be put, as it once was, in
non-interest-bearing accounts, because it would not be worth
the expense and effort to figure out how much interest each
client earned. In fact, Washington's program stipulates that
only funds that would not earn interest on their own can be
placed in these accounts.
The real purpose of this case is not to restore taken property,
but to defund legal services. Money raised through lawyer
trust account programs helps poor people fight wrongful evictions,
get heat in the winter and challenge corporations that are
taking advantage of them. If the Supreme Court uses a baseless
claim that property is being taken to deprive poor people
of legal representation, this nation's commitment to equal
justice before the law will be the real loser.
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