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The courts have issued orders to show cause why they should not deny plaintiffs’ counsel’s motions to withdraw in these related actions in which plaintiffs’ counsel made conditional motions to withdraw pursuant to recently enacted restrictions on Legal Services Corporation (LSC) grantees. The LSC restrictions, enacted as part of Pub. L. No. 104-134, purport to prohibit attorneys working at LSC-funded programs from engaging in class action litigation. Counsel assert that their withdrawal may violate the canons of professional responsibility and that Congress’ attempt to prohibit legal services lawyers from using nonfederal funds to provide effective legal representation to indigent clients is unconstitutional. By directing legal services lawyers to refrain from making important substantive and procedural arguments that are in their clients’ best interests, Congress violates both the Equal Protection Clause and the First Amendment associational rights that bind a legal services lawyer to an indigent client. In Varshavsky the district court asked the parties, LSC, and other interested persons to show cause why it should not enjoin LSC from terminating funding to Legal Services for New York City (LSNY) or Legal Services for the Elderly (LSE) as a consequence of counsel’s complying with the court’s order to continue representing the class. Pending hearing on the order to show cause, the court has enjoined plaintiffs’ counsel from withdrawing, has enjoined LSC from taking any steps to defund LSNY, and has enjoined LSNY from taking any steps to defund LSE. In response, the U.S. attorney submitted a letter brief arguing that if the court determined that plaintiffs’ counsel’s ethical duties precluded her withdrawal, or that her withdrawal was not required, it would be improper for the court to address the constitutionality of the LSC restrictions in this case. In Stieberger, Chater, and Robinson, the district courts issued similar orders asking the parties, the Attorney General, and LSC to show cause why orders should not be entered denying plaintiffs’ counsel permission to withdraw.

Prior History:

Preliminary Injunction Requiring Home Hearings for Persons Unable to Participate in Telephone Hearings Upheld The New York Appellate Court has upheld the lower court's order preliminarily enjoining defendant New York Department of Social Services (DSS) from refusing to accept requests for home hearings for applicants and recipients of public assistance who are homebound due to disability. Recipients of public benefits unable to travel due to disabilities depend on the state to hold fair hearings at their home when local social services agencies reduce or terminate their benefits. Plaintiffs, who are elderly and disabled, brought this class action challenging defendant DSS's abrupt elimination of this "home fair hearing" program. The lower court granted a preliminary injunction allowing DSS to hold telephone hearings for plaintiffs and requiring home hearings for plaintiffs who lost, or cannot participate in, a telephone hearing. These backup home hearings would guarantee a fair hearing for persons who lack telephones, cannot communicate well by phone, are hearing or speech impaired, or need to submit documents or cross-examine a witness to help their case. DSS appealed. Affirming, the appellate court found that plaintiffs would suffer irreparable harm from the termination of home hearings, especially in light of DSS's practice of deeming plaintiffs' requests for home hearings abandoned or waived when they do not appear at the central hearing sites. Noting that DSS's own regulations prohibited interference or limitations on the right to request a fair hearing, the court held that recipients were entitled to have a hearing--taking into account circumstances such as physical inability to travel to the hearing site--at a time and place convenient to them.