by Christine Hines
A new Oregon law just sent a feel-good message: Legal work performed free of charge for low-income consumers is as crucial as legal representation of paying clients. The new law gives access to justice a boost by requiring favorable treatment and consideration of pro bono and legal aid work in cases where reimbursed attorneys’ fees are awarded.
“Oregon consumers who need but can’t afford legal representation to resolve consumer disputes are now in a better position to get it,” said Young Walgenkim, an Oregon consumer attorney.
A disturbing trend arose for advocates representing low-income consumers in pro bono civil cases. Free legal work conducted for people of modest means was not valued the same as legal work for other clients. In fact, the perceived worth of attorneys’ work in pro bono cases was significantly lower.
This became clear in cases where consumers were entitled to reimbursed legal expenses, specifically attorneys’ fees, after they prevailed against bad actors. It turns out that some courts or arbitrators would reduce reimbursed fees for pro bono cases, including disputes won by attorneys at legal aid organizations on behalf of their consumer-clients.
So for example, in legal actions where a legal aid or pro bono attorney helped a consumer prevail on a claim against an abusive debt collector and was entitled to reimbursed fees under the law for their work, the adjudicator increasingly would reduce the amount of the awarded fees.
Reduced reimbursed fees in pro bono cases make it more difficult for low-income consumers to get legal help because attorneys are discouraged by the shrunken value of their hard work after delivering a good outcome for their clients. Meanwhile, the practice shortchanges legal aid organizations of resources for the good work they perform for the individuals and families they represent.
Oregon’s legal community quickly identified the “access to justice” problems these cases created, and sought a solution. The state bar backed a bill in the legislature that would add pro bono work as a factor to the list of criteria that judges use under state law when calculating the appropriate amount of awarded reimbursed fees. It will require courts to consider whether the legal work was performed on a pro bono basis and whether it would promote access to justice for Oregon residents.
The bill passed the legislature this month with widespread support.
“The new law promotes pro bono representation and legal aid representation as a worthy endeavor that will encourage more attorneys to help vulnerable Oregonians,” Walgenkim said.
As the Oregon lawmakers concluded, free and low-cost civil legal aid should be encouraged, not deterred. When low-income consumers are entitled to reimbursed legal fees from a bad actor under the law, their pro bono attorneys should not be shortchanged on the value of their labor simply because their clients are poor.
As a matter of fact, the work of legal aid and pro bono attorneys is not only critical to help the most vulnerable among us, their success also helps the broader community by stopping and deterring ongoing harms.
In a 2017 report, The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans, the Legal Services Corporation determined that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help. The new Oregon law which now will require a fair calculation of legal aid and pro bono work has taken a worthy step forward to narrow the justice gap.