Early Legal Aid Programs
Beginning in the late 1800s and throughout the early years of the 20th century, the American legal profession expressed its commitment to the concept of free legal assistance for poor people in the form of legal aid societies and bar association legal aid committees. Since 1964, the United States government has supported its commitment to "equal justice under the law" with federal funding for civil legal assistance to low-income people. Today, the federal appropriation of $329 million represents less than half the resources devoted to civil legal services in the U.S. State-based civil legal services systems in all 50 states rely in varying degrees on funding sources that include national, state and local governments, Interest on Lawyer Trust Account (IOLTA) programs, foundations, attorney fees and private attorney resources.
At the beginning of a new century, justice for all is not yet a reality in America. However, a recent round of federal funding cuts and restrictions has prompted creative new approaches, energetic new allies and new funding sources to provide poor people the information and assistance they need to address their legal problems and promote their legal interests. These developments make it possible to envision a 21st century in which we can fulfill the promise of equal justice in America.
The concept of free legal assistance for the poor was promoted by the publication in 1919 of Reginald Heber Smith's Justice and the Poor. Smith challenged the legal profession to consider it an obligation to see that access to justice was available to all, without regard to ability to pay. "Without equal access to the law," he wrote, "the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented."
Smith's book had a major impact on the legal profession. In the early 1920s, the American Bar Association created the Special Committee on Legal Aid Work, and recommended that every bar association create such a committee. By the middle of the twentieth century, virtually every major metropolitan area had some kind of legal aid program. Some were part of bar associations and relied primarily on the donated time of lawyers. Others were run by law schools, social agencies or municipalities and had paid staff. Some were private, nonprofit corporations.
This patchwork system of legal aid fell far short of meeting the legal needs of poor people. It has been estimated that it reached less than one percent of those in need. Many areas of the country had no program at all. Where legal aid existed, its resources were stretched so thin that services were very limited and usually perfunctory. Legal assistance was viewed as a form of charity, and clients deemed not to be among the "deserving poor" were turned away. Services were provided on a purely individual basis, with no effort to address the fundamental problems of poor people.
In the early 1960s a new model for legal services emerged. Foundations, particularly the Ford Foundation, began to fund legal services programs located in multi-service social agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort. Mobilization for Youth in New York, Action for Boston Community Development, the Legal Assistance Association in New Haven, and the United Planning Organization in Washington were among the earliest legal services programs of this type.
In 1964, the U.S. Department of Health, Education and Welfare held a conference on the Extension of Legal Services to the Poor. Attorney General Nicholas deB. Katzenbach set the tone for the conference. While acknowledging the long and devoted service of legal aid societies, he called for "new techniques, new services, and new forms of intra-professional cooperation . . . to analyze the rights of welfare recipients, of installment purchasers, of people affected by slum housing, crime and despair. "There are signs, too," he noted, "that a new breed of lawyers is emerging, dedicated to using the law as an instrument of orderly and constructive social change."
The design for local legal services programs was set out in the OEO Legal Services Guidelines, produced by the program?s National Advisory Committee, made up primarily of representatives of the organized bar. The Guidelines included a number of provisions that differentiated the new concept of "legal services" from traditional "legal aid." They required representatives of the poor be on the boards of local programs. They indicated that poor people's organizations would be eligible for services. They required programs to provide service in all areas of the law, other than criminal defense, and to advocate for reforms in statutes, regulations, and administrative practices. They identified preventive law and client education as essential activities. In the words of E. Clinton Bamberger, the first director of the program, legal services attorneys were to "do no less for their clients than does the corporation lawyer checking the Federal Trade Commission for sloppy rulemaking, the union lawyer asking Congress for repeal of 14(b), or the civil rights lawyer seeking an end to segregation in bus stations."
By the end of fiscal year 1966, OEO had made 130 legal services program grants. By 1968, the number had grown to 260 programs, covering at least part of every state except North Dakota. In addition to local programs, OEO funded "back-up centers," including a national information clearinghouse, a national training program, and specialized programs to work in areas of substantive law (such as welfare and housing) or particular client populations (such as Native Americans and the elderly). This unique national infrastructure of centers engaged in national litigation and legislative and administrative representation of eligible clients, while providing support, assistance, and training to local programs.
As its designers had intended, the new program soon resulted in major changes in the legal circumstances of low-income Americans. Major Supreme Court and appellate court decisions in cases brought by legal services attorneys recognized the constitutional rights of the poor and interpreted statutes to protect their interests in the areas of government benefits, consumer law, landlord-tenant law and access to health care, among others. Advocacy before administrative agencies assured effective implementation of state and federal laws and stimulated regulations and policies that helped shape programs that affected the poor. Advocacy before legislative bodies helped the poor redress grievances that were otherwise not addressed by the courts. Equally important, representation before lower courts and administrative bodies helped individual poor clients enforce their legal rights and take advantage of opportunities to improve their employment, income support, education, housing, and working and living conditions.
Inevitably, these successes led to efforts in Congress and within OEO to limit the activities of legal services programs. Even more threatening, however, was the continuous political interference in the operation of many local programs. The most serious fight occurred when Governor Ronald Reagan vetoed the grant to California Rural Legal Assistance, a program known for its advocacy on behalf of farm workers and its successful challenges to some of the governor's welfare and Medicaid policies. Although OEO retained the power to override the veto, it responded instead by appointing a blue-ribbon commission to investigate the charges of misconduct, most of which had been instigated by the California Farm Bureau. The commission's report concluded that the charges were unfounded, and Governor Reagan was persuaded to withdraw his veto in return for a $2.5 million grant to set up a demonstration judicare program.
The CRLA controversy, along with similar fights in other states, made it increasingly clear that political interference would continue so long as the program remained within the Executive Branch. Within the organized bar, the Nixon Administration, Congress, and the legal services community, the idea of an independent Legal Services Corporation began to take shape. In 1971, both a study committee of the ABA and the President's Advisory Council on Executive Reorganization (known as the Ash Council), recommended creation of a separate corporation to receive funds from Congress and distribute them to local legal services programs. A bipartisan group in Congress introduced authorizing legislation in February of 1971. In May of that year, President Nixon introduced his own version of the legislation, calling the Corporation a new direction to make legal services "immune to political pressures . . . and a permanent part of our system of justice."
The gestation of the Legal Services Corporation Act lasted until 1974. Controversy arose first over whether the President would have unrestricted power to appoint Board members. Meanwhile, conflict at OEO escalated. In 1973, Nixon proposed to dismantle the agency, and appointed Howard Phillips, a critic of the legal services program, to do the job. However, despite heavy lobbying from Phillips in favor of a revenue-sharing approach that would have delegated control of legal services to the states, Nixon again proposed legislation authorizing the Corporation in 1973. After protracted debate in both Houses and in conference, the Legal Services Corporation Act was finally enacted and signed into law on July 25, 1974.
The Act represented a compromise between two different approaches. One, adopted in the bipartisan bill that had been the basis of Congressional action in 1971 and 1972, favored a broad, generally unrestricted mandate for legal services. The other, embodied in the legislation introduced by the Nixon Administration, contained a variety of restrictions on case types and the activities that legal services attorneys could engage in on behalf of their clients. After lengthy debate, Congress agreed to a list of restrictions, with a number of them qualified by exceptions. One result of this approach was differing understandings among Members of Congress and others as to what was permitted and what was prohibited by the Act. These disagreements led to a number of controversies in the following years.
The debate in Congress also made clear a fundamental difference of opinion about what the mission of legal services should be- whether it should continue the very broad, anti-poverty approach that had characterized OEO legal services, with its focus on addressing the problems of the client community as a whole, using tools such as legislative and administrative advocacy and class actions, or whether it should revert to the older "legal aid" model, limited to resolving individual problems on a case-by-case basis.
As enacted, the Act endorsed the broader approach, allowing legal services programs to continue most of their previous work, with a few new restrictions - prohibitions on representation involving non-therapeutic abortions, school desegregation, the military draft, and some juvenile cases. The Act permitted legislative and administrative advocacy, although it contained a provision bringing in-house at LSC functions such as training, production of manuals, and the national information clearinghouse. It also included a requirement that the Corporation study alternatives to the staff attorney model, such as judicare. Ultimately, the study, concluded in 1980, proved inconclusive, although it determined that no model performed more effectively and efficiently than the staff attorney model. The underlying debate about the Corporation?s mission was not resolved, however, and has continued for the past twenty-five years.
Beyond this disagreement among the supporters of legal assistance to the poor was a steady ideological opposition to legal services on the part of the emerging "new right." Fueled by a well-funded effort to discredit the program through publicity about "horror stories," opposition to legal services was to become an article of faith in some conservative circles in the coming decades. The constant stream of attack, which escalated in the 1980s and 1990s and regularly flared up over particular cases, sought to create a perception of legal services as "controversial." Nevertheless, the program continued to earn mainstream support from Congress, the organized bar, and the public.
The first LSC Board was appointed by President Gerald Ford and confirmed in mid-1975. The Board's decisions on major policy issues-selecting a staff with experienced legal services advocates, continuing the national back-up centers, maintaining a national training and communications capacity, adopting regulations that permitted full professional representation for the poor, and maintaining the basic staff attorney structure of the program-all reflected a desire to ensure that the poor received effective legal representation and an appreciation of the merits of the existing delivery system.
Most of the initial effort of the new Corporation went into obtaining increased funds from Congress to expand the reach of the legal services program. A study of the funding levels of local programs in relation to the population they served found that over 40 percent of the nation's poor people lived in areas served by no legal services program, and many of the remainder had only token access. On the basis of the report, the Corporation developed a "minimum access" plan, with the goal of providing a level of funding in every area of the country that would support two lawyers per 10,000 poor persons. The strategy proved successful. Congress rapidly increased the Corporation's appropriation from $91 million in FY 1976 to the "minimum access" level of $321 million in FY 1981. With the additional funding the Corporation increased funding levels in comparatively underfunded areas and funded new programs in previously unserved areas, mostly in the South and Southwest.
By 1981, LSC was providing funding to 325 separate grantees, covering every county in the United States, as well as Puerto Rico, the Virgin Islands, and Micronesia. These included basic field programs that provided general legal assistance to eligible clients within their geographic services areas, a system of separate programs to address the special legal needs of Native Americans and migrant farm workers, and a comprehensive system of state and national support centers, regional training centers, and a national information clearinghouse.
In 1977, the Corporation was reauthorized for another three years, without significant controversy. Some restrictions were lifted and others were clarified. "Improving opportunities for low-income persons" was added to the list of purposes of the Corporation, explicitly endorsing broad efforts to address the problems of the client community as one of the program's goals. Client participation on local boards was mandated. The provision of the Act restricting the policy research, training, and technical assistance activities of back-up centers was eliminated.
LSC began to focus on making local programs more effective through improved monitoring and evaluation systems. Efforts were begun to increase the involvement of private attorneys in the delivery of legal services. The development of state support became a high priority, and a number of new state and national support centers were funded. A centralized training program and an ambitious project to develop and produce legal services practice manuals in areas of poverty law were initiated.
Although in most parts of the country legal services had come to be accepted as an institutional presence, the expansion of the program into previously unserved areas was sometimes met with suspicion on the part of the local bar, politicians, and community leaders, who feared that the new breed of lawyers would upset the social order in assisting the poor to assert their rights. Many of the issues that had led to controversies a decade earlier in areas served by OEO legal services arose again in newly served areas.
As a result, congressional scrutiny of the program began to increase. In 1980, supporters of legal services in Congress decided not to proceed with the final phases of legislation reauthorizing the program because of the number of amendments imposing new restrictions that were pending. Instead Congress waived the rule requiring that appropriations be based on authorizing legislation and passed an appropriation for LSC for FY 1981 without an authorization. Several new restrictions were imposed on the program as appropriations riders, including limitations on legislative advocacy and representation of aliens, two issues that had become increasingly contentious. The Corporation's legislative difficulties in 1980 presaged problems to come. Congress has not enacted authorizing legislation since it expired in 1980, and the formula of waiving the rules to permit enactment of an appropriation with substantive riders has continued down to the present.
In response to pressure from the White House, Congress reduced funding for the Corporation for 1982 by 25 percent, slashing the appropriation from $321 million in FY 1981 to $241 million in FY 1982. The cut represented an enormous blow to legal services providers nationwide. Programs were forced to close offices, lay off staff, and reduce the level of services dramatically. In 1980, there were 1406 local field program offices; by the end of 1982 that number had dropped to 1121. In 1980, local programs employed 6559 attorneys and 2901 paralegals; by 1983, those figures were 4766 and 1949, respectively. Programs also cut back on training, litigation support, community education, and a host of other efforts. All of these reductions coincided with a national economic recession and a marked reduction in federal support for income maintenance, disability, food stamps, and other programs affecting poor people, substantially increasing the eligible population and the demand for legal services.
At the end of 1981, President Reagan replaced a majority of the confirmed Carter Board with new recess appointees. The balance of the confirmed Board members were replaced in 1982. The Senate refused to confirm the Administration's nominees, and for much of the Reagan presidency, LSC was governed by a series of Boards consisting of recess appointments and holdover members. Many of the Board members who served during that period expressed outright hostility to the program they were charged with administering. Others professed to support the concept of legal services for the poor, but advocated changes that would have eviscerated the system. Many expressed open disdain for the organized bar, particularly the ABA, which had emerged as a vigilant supporter of the program.
The Corporation's management became increasingly hostile to local programs. Compliance monitoring of local programs was conducted in a highly adversarial manner and included demands for information and access to records that were frequently at odds with attorneys' ethical obligations to their clients. The Corporation withheld funds or provided only short-term funding for many programs because of technical violations, such as board vacancies, and attempted to reduce funding for a number of programs.
On the legislative front, Corporation staff members actively lobbied and hired others to lobby against appropriations, and hired a consultant to write a legal opinion expressing the view that the Corporation was unconstitutional. Staff and Board worked together to develop a series of new regulations and policies designed to restrict legal services activities far beyond the Congressionally imposed limitations of the LSC Act and appropriations riders. As an extension of its oversight responsibilities, Congress, led by Senator Warren Rudman, often found it necessary to intercede to block actions by the Corporation.
One of the major sources of strength and support for legal services during this period was the private bar. Two new requirements instituted during the 1980s increased the involvement of individual private attorneys in the governance and delivery of legal services. One required that a majority of each LSC-funded local program's board of directors be attorneys appointed by state or local bar associations. The other required each recipient to devote one eighth of its grant award to activities that involved private attorneys in the direct delivery of legal services to the poor on a reduced fee or pro bono basis. The new requirements helped private attorneys appreciate the difficulties of serving poor clients with severely limited resources, decreased the distance of legal services attorneys from their colleagues and enabled them to take their place as respected peers within the legal community, and strengthened the role of the organized bar as a champion of legal services.
Another important positive development in the 1980s was the growth of non-LSC funding for legal services. In most areas of the country, programs had always received some funds from private sources or state or local governments. However, outside funding for most LSC recipients represented only an insubstantial portion of their budgets. Faced with a major funding cut and the real possibility of the loss of all federal funding, in the 1980s programs began aggressive efforts to obtain funding from other sources, including United Way agencies, foundations, bar associations, private donations, state and local grants and contracts, and non-LSC federal funds such as the Older Americans Act, Community Development Block Grants, and Revenue Sharing.
At the same time, most states began developing IOLTA (Interest on Lawyer Trust Account) programs. IOLTA programs were instituted by state bars, courts, and legislatures in cooperation with the banking industry to capture pooled interest on small amounts or short-term deposits of client trust funds that had previously been held in non-interest-bearing accounts. While resources created by IOLTA are used to fund a variety of public service legal activities, most IOLTA funding has gone to civil legal services programs, including the cast majority of LSC-funded recipients.
Despite this infusion of non-LSC funds, the cuts in LSC funding, inflation, and a growth in the poverty population all contributed to a devastating decline in the resources available for legal services. By 1990, the poor were served by many fewer legal services attorneys than in 1981, when the modest level of "minimum access" was briefly achieved.
With the election of President Bill Clinton, the legal services community anticipated an end to the long period of insecurity and inadequate funding. Congress increased the appropriation to $400 million for FY 1995, the largest increase since the early years of the Corporation. Congress prepared to take up the LSC reauthorization. With the majority of Congress continuing to favor a broad role for legal services, and a supportive president, it seemed likely that the statutory framework of the program could be resolved for the rest of the 1990s.
Clinton's appointees to the Board, confirmed in late 1993, were uniformly supportive of a strong, well-funded LSC. However, in the wake of the 1994 congressional elections, the Corporation's political situation changed dramatically. The leadership of the new Congress was committed to the elimination of LSC and ending federal funding for legal services. The House of Representatives adopted a budget that assumed that LSC's funding would be cut by one third for FY 1996, two thirds for FY 1997, and eliminated thereafter. It seemed possible that the federal commitment to equal justice might be abandoned altogether.
Fortunately, a bipartisan majority of the Congress remained committed to federally funded legal services. However, key congressional decision-makers determined that major changes in the delivery system would be required if the program was to survive. Grants were to be awarded through a system of competition. More fundamentally, Congress redefined the role of federally funded legal services, restricting the broad range of program activities that it had mandated in the past. In essence, Congress determined that federal funds should go to programs that focus on individual cases, while broader efforts to address the problems of the client community should be left to entities that do not receive federal funds. Certain kinds of advocacy that had previously been deemed to be important tools for legal services attorneys to employ on behalf of their clients would no longer be permitted by LSC recipients, even if the program used non-federal funds to pay for them.
Congress imposed a number of new restrictions on LSC grantees. Legal services attorneys could no longer initiate or participate in class actions. They could not engage in direct or grassroots lobbying on behalf of their clients, although they could use non-LSC funds to respond to written requests from officials for information or testimony. They could not represent certain categories of aliens or engage in litigation on behalf of prisoners. They could no longer collect statutory attorneys' fees. They could not challenge welfare reform measures as unconstitutional or otherwise illegal. With a few minor exceptions, these restrictions applied to funds from non-LSC sources as well.
Along with the new restrictions came a major reduction in funding, down to $278 million from the $400 million for FY 1995. Final 1996 statistics revealed the cost of the funding cuts: the number of cases closed fell from 1.7 million in 1995 to 1.4 million in 1996; the number of LSC-funded attorneys nationwide fell by 900; and 300 local legal aid offices were closed.
The combination of the new restrictions and the cut in LSC funding resulted in major changes in the civil legal assistance delivery system and the role of the Corporation. National and state support centers and the national information clearinghouse could no longer receive LSC funds. Those that survived the loss of LSC funding developed new resources and financial support, often from sources that had not traditionally supported LSC funded entities or from entrepreneurial efforts to market their services to non-LSC funded legal services programs.
In many states new delivery systems emerged that included both LSC-funded programs and non-LSC funded programs, the former restricted in scope and the latter free to undertake the broader representation that had previously been within the Corporation's mandate. By mid-1996, 23 local programs in 14 states had given up their LSC funding and continued to operate with their non-LSC funds. New entities were established to receive LSC funds for those service areas. In addition, in at least 15 other states, new entities were established to receive non-LSC funds that had previously gone to LSC-funded programs. As a result, state-level planning and coordination of services became increasingly important, while the Corporation itself no longer had direct control over a significant portion of the delivery system. State planning efforts, encouraged by LSC, sought to increase and diversify state, local, and private funding for legal services and to expand pro bono efforts. As new legal services resources were cultivated, LSC funding became an ever-smaller proportion of the overall resources that supported civil legal services in many areas of the country.
Despite the 1996 the funding cuts and imposition of new restrictions, broad bipartisan support remained in Congress for the continuation of LSC. Although opponents of federally funded legal services continued their campaign against the program, their success in obtaining the changes in the system they had called for left them with little ammunition to refute the record of legal services achievements. Supporters in Congress, along with the continued strong support of the Clinton Administration, succeeded in maintaining the structure of the Corporation and in securing modest increase in funding for the program. Funding for FY 1999 had rebounded to $300 million.
The Corporation's efforts to promote state planning, statewide coordination and collaboration in the delivery of legal services and development of state justice communities have increased significantly since the beginning of the new century. A major part of that effort has been devoted to the encouragement of mergers and consolidation of LSC-funded programs into statewide and regional providers. LSC's efforts to reconfigure legal services program service areas, combined with state-based planning and local decisions to give up LSC funding and form new non-LSC funded providers continue to reshape the legal services map and the legal services delivery system.
Legal services has fundamentally changed the ways in which institutions relate to the poor. It has provided an essential link between government and private programs and their intended beneficiaries. It has functioned to ensure that programs designed to benefit the poor actually do so. Legal services has made the justice system more responsive to the needs of the poor. It has brought tens of thousands of private attorneys into the civil legal assistance system as providers of pro bono services. It has produced successive generations of skilled poverty lawyers, some of whom have remained in legal services, while others have gone on to serve as law professors, judges, state supreme court justices, and government executives and elected officials at the state, local and national levels.
Many challenges lie ahead. The circumstances of many low-income Americans have changed dramatically. The federal welfare reform act of 1996, which made the most sweeping changes in social welfare programs since 1935, eliminated critical federal entitlements and legal rights to cash assistance, health care and child care for families with children. States can now decide wider questions of social policy that for the past 60 years have been addressed primarily by federal policies and programs. Welfare rolls have decreased dramatically, yet there are few mechanisms in place to protect those no longer receiving public benefits. Work and participation requirements, time limits, and new opportunities for access to childcare and health care are reshaping the individual legal needs of low- income people. The needs of low-income populations as a whole are also affected as states continue to make key decisions about who receives assistance, in what form and under what conditions.
Legal services providers also confront significant challenges. The resources available for legal assistance remain woefully inadequate to meet the need. As some states develop sources of non-LSC funding, including direct state legislative appropriations, disparity in the level of resources among the states is increasing. The most important source of non-LSC funding, state IOLTA programs, has been thrown into jeopardy by the U.S. Supreme Court?s 1998 decision in Phillips vs. Washington Legal Foundation. As the civil legal assistance system becomes more diverse, initiatives to increase coordination and avoid fragmentation are increasingly necessary. New technology offers potential to change the ways in which legal services are provided, as well as opportunities to improve the circumstances of low-income people.
For most of the last quarter of the 20th century, many in the legal services community subscribed to a vision of full and unrestricted federal funding of the Legal Services Corporation and its grantee providers as the way to fulfill the promise of equal justice. The threat to federal funding in 1995-96, and the resulting 30 percent cut and new restrictions, prompted the development of a new, more complex, more powerful vision for how this goal could be achieved. A continued national commitment to federal funding must be combined with the creation in every state of comprehensive, integrated, statewide systems of civil legal assistance.
These newly emerging, state-based systems will enlist the efforts of all possible participants and resources, not just as supporting players, but as full partners. A community of advocates will share the responsibility to ensure equal justice, a community that includes not just legal services programs but the private bar, social service and community organizations, law schools, courts, advocacy groups and poor people as advocates for themselves. These equal justice leaders in each state will share responsibility for effective legal assistance not just in their local programs or communities, but also throughout their entire state.
The energy and resolve which have characterized the advocates for equal justice throughout this century will ensure continued successes in this latest, unfolding chapter of legal services history in America.