Can My Foundation Fund Legal Aid for Individuals?
Legal aid provides assistance to people who would otherwise not be able to afford legal representation or access to the court system. While it is an integral part of the American justice system, especially to the most vulnerable in our society, many legal aid programs are unsustainable or have seen their budgets slashed dramatically.
It is uncontroverted that public charities, including community foundations, may fund legal aid programs. Such programs include those sponsored by local bar associations and nonprofit public-interest law firms. These organizations, themselves, are recognized by the IRS as public charities. As such, community foundations may grant to these organizations without the need to exercise due diligence as the foundation can assume monies granted will be used for charitable purposes. Furthermore, funding legal aid programs would likely be considered an activity that lessens the burdens of government.
But can foundations fund legal aid for individuals?
Legal Affairs has analyzed this and believes making a grant to an indigent individual for the purpose of funding his/her legal representation is a charitable purpose. This is especially true in the case of a criminal defendant who, under the Sixth Amendment to the U.S. Constitution, has the right to be represented by an attorney. In this regard, one can argue that funding legal aid for an individual, too, lessens the burden of government.
Similar to “Good Samaritan Fund” programs that many foundations have set up to help community members in need due to unexpected circumstances, the legal team believes foundations may set up funds to assist low-income individuals obtain access to justice. Therein, the Council’s legal team offer the following suggestions:
- Ensure that all referrals come from an existing social service agency or other organization accustomed to reviewing individuals' needs. The community foundation should not be assessing income levels and spending requirements.
- Ensure that checks can be processed and delivered quickly.
- Ensure that no one raises money for the fund by promising that any particular individual or family will be receiving aid.
- Consider establishing a rule that payments will only be made for legal services provided to recipients after submission of legal bills.
