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CAN LEGAL SERVICES ACHIEVE EQUAL JUSTICE? Can legal services achieve equal justice? That is, can legal services provide low-income persons 100% access to the justice system? And can legal services help secure equality under the law for the poor? This latter--more substantive notion--is imbedded in our country's notion of equal justice. The historical facts are these: Civil legal assistance for poor people began in New York City in 1876 with the founding of the Legal Aid Society of New York. However, it was not until 1965 that a national program was created in the Office of Economic Opportunity as part of the War on Poverty. In 1965 there was less than $4 million in civil legal aid funding and civil legal aid was provided by legal aid societies in most urban areas. At the end of the OEO era, federal funding had increased to $71.5 million and programs legal services were established throughout the country in both urban and rural areas. OEO
created a unique structure, building on the civil legal aid model
and on the demonstration projects at New Haven, New York, Boston and
Washington, DC funded by the Ford Foundation in the early 60s. Many
of the early giants of civil legal aid--Edgar and Jean Cahn, Gary
Bellow and Ed Sparer--began their work in one of those demonstration
programs. The architects of the new federal program realized two fundamental propositions: First, that "something new" was needed--well-funded legal aid would not do.(2) Second, the architects realized that the law could be used as an instrument for orderly and constructive social change as was being done by lawyers for the civil rights and civil liberties movements. In the words of Clint Bamberger, legal services was designed to marshal "the forces of law and the powers of lawyers in the War on Poverty to defeat the causes and effects of poverty."(3) Unlike other legal aid systems, the US system utilized staff attorneys working for nonprofit entities, not private attorneys participating in judicare programs. Full-service providers, each serving one geographic area, had the obligation to provide high-quality legal assistance in all forums and to ensure access of all clients and client groups to the legal system. Legal services also developed a unique infrastructure--found nowhere else in the world--that, through national and state support, training programs and a national clearinghouse, provided both leadership and support on substantive poverty law issues. State and national support centers also engaged in major litigation and undertook representation before State and Federal legislative and administrative bodies. The structure put in place by OEO was carried over fundamentally unchanged by the Legal Services Corporation when it began to function in 1975. The LSC Act had a long gestation period, from 1971 through July of 1974, in large part because compromise on the specific design of the Corporation was exceedingly difficult to achieve. One has to be skeptical--today even more so--about LSC as a panacea for all problems that existed when legal services was part of the Executive Branch of government. While President Nixon called the Corporation a new direction to make legal services "immune to political pressures and ... a permanent part of our system of justice," the legal services program has been subject to political pressures and the whims of Congress since its inception, including restrictions on what the program could do and the types of clients that could be represented. The "something new" for legal services involved five elements which have remained central to the legal services movement and continue to be viewed as critical to effective legal services. The first is the notion of responsibility to all poor people as a "client community." Legal services programs served, as a whole, the poor people who resided in their geographic service area, not just individual clients who happened to be indigent. Second, legal services emphasized the right of clients to control decisions about the solutions pursued for their problems. Legal services was an advocate whose use was to be determined by poor people rather than an agency to give services to poor people. The third was a commitment to redress historic inadequacies in the enforcement of legal rights of poor people caused by lack of access to the institutions that created those rights. Legal services pursued "law reform," a phrase coined by Justice Johnson to create a goal for the legal services program during the early years. The fourth element was a responsiveness to legal need rather than to demand. Probably the greatest deficiency of the legal aid societies was that they responded only to uninformed demand--to those who walked into the office--so that large parts of the legal needs of the poor legal services were not addressed while resources legal services were committed to the generally narrow range of legal problems that poor people recognized. Through community education, outreach efforts and physical presence in the community, legal services programs legal services were able to assist clients to identify critical needs and fashion legal responses. The fifth and final element was a full range of service and advocacy tools, as full a range as that offered by private attorneys for the affluent. Has the legal services system that evolved from OEO through LSC been successful? Were the decisions on funding, structure and advocacy correct? These decisions were made by OEO, supported by the American Bar Association (ABA) and continued and maintained by LSC. Given the political environment in which LSC operates, it is quite remarkable what it has accomplished. LSC expanded civil legal aid to reach all areas of the country with some type of program. Federal funding through LSC grew to $415 million in early 1995. Today, the LSC funding level through LSC is $283 million and total funding for LSC-funded programs is approximately $530 million and there is roughly another $300 million to $350 million provided to non-LSC funded civil programs. The staff attorney model remains the primary means of subsidized delivery of civil legal assistance, although, since 1981, there has been a substantial growth of pro bono programs and private attorney involvement in the organized delivery system. Over 130,000 lawyers provide civil representation to the poor under pro bono programs. The support structure remained in place until 1996. While legal services did not end poverty, nor could legal services have rationally supposed that legal services could end poverty, legal services did improve the lives of the poor and prevented other low-income persons from becoming poor. First, legal services successfully created new legal rights through judicial decisions and representation before legislative and administrative bodies. For example: legal services won landmark decisions such as Shapiro v. Thompson which ensured that legal welfare recipients legal services were not arbitrarily denied benefits. Perhaps the greatest victory was Goldberg v. Kelley, which led to the due process revolution. Goldberg required the government to follow due process when seeking to terminate benefits. A series of latter cases expanded due process to large areas of public and private spheres. Escalero v. New York City Housing Authority required public housing authorities to provide hearings before evictions from public housing; and later decisions such as Fuentes v. Shevin ensured that private parties must follow due process when seeking to recover possessions such as automobiles. Equally significant legal services were judicial decisions stimulated by creative advocacy by lawyers which expanded common law theories on retaliatory evictions and implied warranty of habitability. These insured that the poor could not be evicted from housing when the landlord failed to meet statutory and common law obligations Legal services also effectively enforced rights that were theoretically in existence but honored in the breach. Legal services representation ensured that federal law benefiting the poor was enforced on behalf of the poor. King v. Smith led to the enforcement of federal statutory law not only in the legal welfare area but, until recently, set the framework for enforcement of federal law across the board. And, more recently, legal services programs won Sullivan v. Zebley, the case providing SSI benefits to hundreds of thousands of families with disabled kids. Creative legal services lawyers took six words in the 1967 Social Security Amendments--"early, periodic, screening, diagnosis and treatment"--and through litigation, regulatory activity and additional legislative advocacy--turned them into the key child preventive health and treatment program that is now a critical part of Medicaid. Perhaps most important, through sustained and effective legal services' advocacy, public and private agencies and entities dealing with the poor were fundamentally changed. Legal services advocacy fundamentally altered the court system by simplifying court procedures and rules so that they could be understood by, and made more accessible to, the poor and by highly effective representation of the poor. Legal services advocacy also forced the legal welfare and public housing bureaucracies, schools and hospitals to act according to a set of rules and laws and to treat the poor equitably and in a manner sensitive to their needs. And legal services has been on the forefront of the efforts to assist women subject to domestic violence. These accomplishments only happened because the initial leaders of OEO legal services(4) understood the need to fund innovative, new programs like California Rural Legal Assistance (CRLA) and, because of these new programs and other initiatives, attracted the "best and the brightest" young lawyers into legal services through the Reggie program. These accomplishments would also not have occurred if the US legal aid system been designed along the lines of most other legal aid programs. This era of legal services is over. Two years ago the basic structure of the Federal program came under substantial and unrelenting attack by a legal well-organized, legal well-financed cadre of right wing activists and organizations that do not believe in civil legal assistance to the poor. As a result: LSC's funding was cut by 30% nationally from $415 million to $283 million. 12.9% of program staff left and 12.7% of local offices legal services were closed. In addition, state and national institutions that made up the legal services support and infrastructure lost all of their LSC funds, although much of the infrastructure and these programs are still in existence because of other funding. Congress imposed a whole new set of restrictions on what LSC-funded programs could do with any of their funds. And today, the struggle to preserve federal funding for civil legal assistance to the poor continues. The
debate over whether there should be governmental funding for civil
legal assistance is not limited to Congress. Many of the same debates
are occurring at the state level. Moreover, IOLTA funding is under
constitutional attack in several states and in the federal system.
This term, the Supreme Court is considering a case that could help
determine whether IOLTA can continue to be a significant funder of
civil legal assistance. In response to these funding cuts and restrictions, the legal services delivery system underwent profound change. Many current or former LSC recipients have given up LSC funds. In addition, new efforts have begun to expand IOLTA funding and earmarking state general revenue appropriations and filing fee surcharges for civil legal services; there are new bar initiatives, including expanding pro bono efforts and increased efforts to raise private funds from local foundations, private law firms, United Way campaigns and individual contributors. As a result, what is emerging in many states is a new delivery system that includes both programs funded with LSC funds but restricted in its activities, as well as programs funded with substantial non-LSC funds. And, in a number of jurisdictions, the private bar is becoming significantly more involved in delivering the full range of civil legal services as legal well as undertaking those activities that LSC recipients are restricted from handling. One fundamental consequence of these developments is that State-level advocacy and funding have become a primary focal point for the future of civil legal services. How civil legal services for low-income Americans are provided will be dependent as much on actions taken at the State as on the national level. As legal services leaders and the bar struggle with new directions in delivery at the State level, it is time to face the fact that past efforts have not achieved access to the justice system and that legal services leaders and the bar are not trying very hard to do so. Virtually every legal needs study that has been done over the last ten years tells us that the current system is meeting at most 20% of the legal needs of the population legal services are supposed to be serving. In addition, the ABA Comprehensive Legal Needs Study shows that the legal problems of low- and moderate-income households are more alike than different, and that households just above and below the current LSC eligibility line of 125% of poverty are especially disadvantaged. It is quite clear that the many legal needs of low-income Americans cannot be met by the current legal services program without fundamental changes in how it operates. New methods of delivery are essential if the civil justice system is to effectively meet the legal needs of low-income Americans. Better ways for people to obtain information about their options when facing a legal situation must be provided.
To ensure full access to our civil justice system, legal services providers will need to form strategic alliances with social service providers, nonprofits, community-based organizations and other public and private institutions to marshal the services and resources needed. To increase the availability of affordable legal services to moderate-income individuals and households, provider will utilize sliding fees and other entrepreneurial approaches. And, such a system will have to use the most up-to-date technology to ensure efficiency and effective communication, coordination and collaboration. To achieve full access additional funding will be needed. This will have to include funding from the federal government both because civil legal services is a federal responsibility and because there are many parts of the country that have not yet developed sufficient non-LSC funds to operate civil legal assistance without federal support. There will have to be increased funding from state and local sources, including both governmental and private sources. Stable federal funding and increased state and local funding will not materialize unless the civil legal assistance system has broad public support that reaches far beyond the organized bar. And that essential public support will not be possible unless legal services serves more clients. Thus, in order to survive, legal services must change how it operates and must find ways to serve more clients, more efficiently. There
is a grave danger here, however. As legal services moves to achieve
100 percent access, it must continue to serve all those low-income
clients that are in political disfavor or are ethnic minorities or
who are perceived as undeserving. As legal services have learned all
too legal well in the last three years, our opponents, if they believe
at all in civil legal assistance, believe it should only be available
to the deserving poor and they have now begun to state so publicly
and forcibly. The debate cannot be held on those terms and the vision
of the future cannot embrace the notion that clients who are politically
or socially unpopular should not receive civil legal assistance. CHANGES FACED BY LOW-INCOME AMERICANS Ending here would only tell half of the story that needs to be told. Achieving equal justice is not solely a matter of obtaining access to the justice system, it is also a matter of obtaining equality under the law as well. Within the last year, many of the social programs on which our clients have relied have undergone fundamental change. The Personal Responsibility and Work Opportunity Reconciliation Act ended legal welfare as we know it by eliminating AFDC and the federal entitlement to cash assistance for needy families and replacing it with a block grant, known as Temporary Assistance for Needy Families or TANF. This structural change gave States almost total discretion to shape their programs of cash assistance, employment and training, child care and related health care services--States can now determine who will receive assistance, what form that assistance will take and under what conditions it will be available. The same legislation cut $54 billion in funds that the poor would have otherwise received by reducing Food Stamp benefits, denying benefits to legal aliens and changing the eligibility for SSI of severely disabled children. While recent legislation restored $13 billion of the $54 billion in cuts, there still remains $41 billion in cuts over six year have not been restored. Fundamental changes are also occurring in health care for the poor. The Balanced Budget Act reduces Medicaid funding by $14 billion and Medicare funding by $119 billion and permits states to move Medicaid beneficiaries into managed care which are made up solely of Medicaid recipients. At the same time a new child health block grant includes $24 billion for children's health over five years. Taken together, the child health block grant and the Medicaid managed care discretion creates something akin to a block grant with substantial state discretion and limited federal protections. Federal housing programs for the poor are also facing substantial restructuring and funding reductions. Housing legislation will soon pass which will relax or eliminate longstanding federal rules governing which households should be aided when housing vouchers, certificates, and public housing units become available through normal turnover or for other reasons. The legislation gives the nation's 3,300 local public housing authorities (PHAs) the authority to alter program admission rules and rent structures in order to serve more moderate-income tenants. Moreover, Congress is striping assisted housing tenants of their federally guaranteed rights. These fundamental changes in Federal and State income support and housing programs do not tell the whole story. In our inner cities, there is an increasing concentration of poverty and racial isolation as well as fewer jobs, poorer schools, wretched housing and higher crime and substance abuse. In some communities like Washington, DC as many as 50% of young black males are under the jurisdiction of the criminal justice system and young inner-city residents and families face terrible barriers to jobs, education and family formation as a result of the criminal justice system. A special mismatch exists between where many minority poor reside and jobs are available. In rural areas, high poverty continues along with the lack of jobs and critical support services. And it is our young children who are suffering the most--the poverty rate for young children under six is one in four--25% of our young children are poor. Over the last 20 years, there has been a long-term increase in the rates of poverty and extreme poverty among young children with a disproportionate high percentage of black and Hispanic children being poor. Not only will these social policy changes cause increased hardship, greater homelessness and less family stability for low-income persons, they will also fundamentally change the legal structure in which many poverty law advocates have effectively functioned in the past. There will be fewer legal rights to assert because the new Federal legislation eliminates many Federal mandates, entitlements and private rights of action, and a number of States have eliminated any State duty to provide assistance. Today,
it is far more difficult, if not impossible, to create new rights--whether
on the Federal or State level. It is equally difficult to prevent
curtailment of rights. And as Supreme Court decision this term in
the child support enforcement case of Blessing v. Freestone
indicates, poverty lawyers will have a much harder time
enforcing Federal rights that have been created. Can legal services effectively respond to this new environment? It can, if four approaches are adopted. First--both the leadership of the movement and the key advocates within it must focus on what can be done, not on what can't. To quote Ramon Arias, the director of San Francisco Neighborhood Legal Assistance: "We need to look beyond what we struggled against and look toward what we struggle for." The reality is that legal services programs can continue to address systemic problems faced by low-income persons in virtually all substantive areas. Over 95% of the work done in legal services in 1995 can continue in 1997 and over 98% of the cases brought to court in 1995 could be brought in 1997. This is not to say that legal services leaders and the bar should concede the fight at the Federal level--and they have not done so and will not do so. However, It is time to move forward. There are no quick solutions to ending the restrictions; the key players in the Congress, the ones who control the future of legal services, believe strongly in the key restrictions and will not alter them to accommodate the historic supporters of a federal legal services program. Moreover, there is little likelihood that the courts will provide relief on the fundamental issues of whether Congress can restrict LSC-funded programs even with their non-LSC funds. The August decision in the Hawaii case upheld the power of Congress to restrict activities of legal services programs, so long as the programs could transfer non-LSC funds to other entities. Thus, legal services must continue to provide high-quality, effective representation in the trial courts and administrative agencies. Only by sustained, continuing representation will low-income persons realize their rights. However, that representation will have to be more holistic--a practice that does not isolate client problems into narrow categories, but sees the essential connections between income support, housing and neighborhood, family and consumer law. In addition, individual representation will be more fact based--it will rely less on legal claims and more on factual arguments about why a certain policy should not apply to an individual, or how the policy should be changed to take into account the individual's circumstances. Second--the lawyers and staff in legal services, and those who have the opportunity and freedom to think, must use creative skills to forge new advocacy approaches and strategies--even if it means learning new skills and specialities and approaching problems differently than legal services have in the past. Legal services must develop new approaches with the same creativity and commitment that legal services took on the challenges of poverty and race and gender discrimination in 1965. The problems of low-income Americans today continue to be created by social and economic conditions often beyond their control, the lack of accessible jobs, lack of health care and child care as legal well as deteriorating neighborhoods and schools. The problems of the poor continue to be rooted in the confluence of poverty, race and gender. However, the solutions of the past will not work--they lack political support and financial commitment. Thus legal services must seek new solutions that offer the possibility of political support - new solutions which will work today. We live in a time in history when there is serious doubt among the populace about whether the Federal government remains essential to the betterment of the poor and to all Americans. Many Americans are skeptical of government, particularly the Federal government. A majority believe that state and local governments can better serve the needs of the poor. Whether one agrees with this or not, and I don't, it is the fact of social policy in this country today and will be so for the foreseeable future. In this climate, the solution is not to bemoan our fate or to fight a battle legal services cannot win--tilting at windmills is not going to help indigent clients. Instead legal services must explore, develop and utilize the many possible ways for creative lawyers to approach the problems of low-income persons and families. There are many creative ideas that legal services need to explore. For example, Edgar Cahn has developed a concept of time-dollars to enable clients to be producers, an approach that legal services needs to experiment with throughout the country in different settings.(5) Gary Bellow and the staff at the Hale and Dorr Legal Services Center have developed and implemented a focussed representation approach that provides a model that legal services need to utilize more than ever.(6) Many non-profit legal advocacy organizations have effectively marshaled social services agencies, business, labor and other strategic allies to improve education, health, housing and employment for low-income households. A similar approach can be utilized in legal services.(7) In my view, legal services needs to focus more attention on our clients relationship to work and jobs. This will mean work on job creation, including community economic development and community service employment. It will also mean addressing barriers to employment for woman and particularly minority males, including health and child care and transportation and mobility strategies. In addition, legal services needs to focus attention on strategies to assist family formation which involves both income support eligibility and income deduction issues and a set of issues on child support, paternity establishment, visitation and the like. Legal services also needs to focus on alternatives to old cash assistance approaches, including child support assurance; expanded child care; public service employment. In addition, legal services needs to utilize a much broader range of advocacy strategies including media advocacy, more effective community legal education; collaborations with human service providers. It is clear that legal services cannot win the battles legal services face through the courts or by working in isolation from others. Not only must legal services continue and form new alliances with labor, church groups, women's groups, civil rights organizations, citizen action groups and the like. But legal services must also form alliance as legal well with legal welfare administrators, public housing authorities, health providers and business groups. And legal services must form partnerships, collaborate with and effectively utilize the private bar. There are creative possibilities that are only beginning to be explored, such as the legal welfare reform initiatives of the Bar Association of San Francisco's Volunteer Legal Services Program.(8) Just as legal services cannot undertake advocacy in isolation from strategic allies, social services organizations and the private bar, legal services also needs to join forces with our colleagues in the criminal defense bar. As difficult as it will be, it is also time for those on the civil side of legal aid to face the fact that the indigent criminal defense system is in very serious trouble and yet serves many of the same clients as legal services does. Legal services cannot do its job effectively if its leaders continue to ignore what happens to indigent Americans who are in the criminal justice system. For that reason alone, legal services leaders need to learn more about and become more involved in the problems facing colleagues who are devoting their professional lives to criminal defense. Representation before administrative and legislative bodies must change as well. Legal services advocates no longer have the luxury of opposing policy changes on either legal or moral grounds and cannot hope to improve the lives of those clients affected by state decision making if advocates focus only on limiting TANF or stopping managed care. Instead, advocates need to focus on alternatives and to ask-- a. What should a state's social policy look like? b. What should antipoverty programs, early childhood education, employment and training, health care and other areas look like in a state? c. What should the balance be between work, family and social policy? d. How should states assist families in low-wage jobs? e. How should states spend child care dollars to assist low-income families whose parents are working? Third--legal services staff must be in constant touch with the low-income persons and families in its communities so that legal services staff understand what community members are facing and how they are reacting to changes directly affecting their lives. Legal services needs to hear our clients' stories and communicate their stories to policymakers and the public. If legal services is to make a difference to our clients in these times, both staff and pro bono lawyers must become engaged with clients in a variety of community settings and must participate in real and constant dialogue with those who are economically disadvantaged as legal well as other service providers and community leaders. Legal services leaders need to consider how programs and staff can assist clients become co-producers and develop both financial and human assets. To be clear, I am not talking about client involvement as legal services have traditionally used that term. Client involvement works well when there are strong, viable client groups that represent broad constituencies and when client representatives are themselves involved in leading social change. Unfortunately, that is not the case today in many communities. Thus, without giving up our strong commitment to client involvement, legal services must focus on client engagement--an active, outreach effort that involves community lawyering and the development of options and opportunities for clients. Finally, legal services needs to invest in young lawyers and advocates, offer them opportunities to be creative and give them the freedom to become leaders. They have new and creative ideas about how to address problems of the poor through both individual and collective strategies. Legal services must hire more young lawyers and others and take advantage of programs like the NAPIL--Open Society match which will match funds for programs to hire young lawyers. Legal services must also reach out to young lawyers in private practice and young graduates of public policy schools to encourage their participation in advocacy for the poor. Legal
Services can make a profound difference for low-income Americans--indeed
for all Americans--as it has made in the past; to do so legal services
must be creative--staff must adjust strategies to meet the challenges
of today. Legal services leaders and the bar must begin now to transform
the delivery system for a new era. And all of us must maintain a passion
for justice and hope. Unless legal services maintains a passion for
justice and hope, legal services will fail. * * * * * This article is taken in large part from remarks presented at the Town Hall Meeting on Equal Justice In American, "Where We've Been and Where We're Going," on September 20, 1997 at the Washington College of Law at American University. This forum was part of the dedication of the Equal Justice Library. A few points were made at a talk given at the NLADA Substantive Law Conference in Berkeley, California in July of 1997 and in a speech given at the Kentucky Statewide Conference in September of 1997. 1. Edgar and Jean Cahn helped convince Sargent Shriver to include legal services in the package of activities that could be funded under the Office of Economic Opportunity. In addition, they developed one of the conceptual frameworks for the program in their seminal article in the 1964 Yale Law Review, "The War on Poverty: A Civilian Perspective." Gary Bellow worked for the United Planning Organization in D.C., one of the Ford Foundation demonstration projects, and helped form California Rural Legal Assistance. Ed Sparer worked for Mobilization for Youth in New York City, another of the Ford Foundation demonstration projects, and also began the first support center on welfare law. 2. The notion of "something new" came from a speech given by Attorney General Nicholas deB. Katzenbach at the 1964 Conference on the Extension of Legal Services to the Poor where he discussed the "long and devoted service to the legal problems of the poor by legal aid societies" and then went on to say: "But, without disrespect to this important work, we cannot translate our new concern into successful action simply by providing more of the same. There must be new techniques, new services, and new forms of interprofessional cooperation to match our new interest." 3. Clint Bamberger was the first Director of the Office of Legal Services within the Office of Economic Opportunity. 4.
I refer to Clint Bamberger and to Earl Johnson, the second director
of the 5. See Edgar S. Cahn, "Reinventing Poverty Law," 103 Yale L. J. 2133 (1994). 6. See Gary Bellow and Jeanne Charne, "Paths Not Yet Taken: Some Comments on Feldman's Critique of Legal Services Practices," 83 Georgetown L. J. 1633 (April 1995). 7. See Alan W. Houseman, "Political Lessons: Legal Services for the Poor: A Commentary," 83 Georgetown L. J. 1669 at 1706-1709 (April 1995). 8. See "A Community-Based Response to Legal welfare Reform," July-August, 1997, Clearinghouse Review, pp. 165 et seq.
Written By Alan Houseman - Document provided by clasp.org
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