The Continuation of the Vital Legal Services Program

By Alan Houseman

[Part 4 of the series on the 40th anniversary of the Legal Services Corporation]

We are continuing our blog on the War on Poverty and the Federal Legal Services Program with an emphasis on 40 years of federal legal services under the Legal Services Corporation (LSC). This series will examine each of the fundamental objectives for LSC set out in the Statement of Purpose of the LSC Act. Here we will focus on the objective: to “continue the present vital legal services program.”lsc_logo

My first blog described the structure created by the Office of Legal Services within the Office of Economic Opportunity (OEO). The structure put in place by OEO was carried over fundamentally unchanged by the Legal Services Corporation board and staff when it began to function in 1975. Then LSC expanded the program to reach every county in the country by using the OEO model of one staff attorney program for a particular geographic area. LSC also expanded representation to Native Americans and migrant farm workers by continuing and increasing those separately funded and structured delivery systems.

LSC also retained, reorganized and expanded the support structure. Between 1976 and 1981, it brought certain functions in-house, as required by the original 1974 Act (Green Amendment) and created an Office of Program Support and a Research Institute. These provided training, technical assistance, and a range of other support tools such as manuals, poverty law research and new issue development. The National Clearinghouse which published the Clearinghouse Review was also brought in-house.

support1

Excerpt from the LSC Annual Report, 1981, p. 11.

shriver_centerIn 1982, the National Clearinghouse became an independent entity that now is known as the Sargent Shriver National Center on Poverty Law. The Research Institute was eliminated. Training and technical assistance was granted out to regional training centers and NLADA.

It is truly remarkable that the basic structure of the program remained in place without significant change until 1996. At that time, Congress eliminated $25 million in funding for support and training, created a new system of competitive bidding for grants and imposed a host of new restrictions on whom programs could serve and what could be done for those eligible to be served. The regional training centers, national support centers and state support centers no longer received direct LSC funding.

In part, continuation of the fundamental framework for the program was due to the effectiveness of the structure in delivering legal assistance and to Congressional support for the basic elements of the program. Perhaps equally important, the legal services system had become an accepted and somewhat entrenched bureaucracy, supported by local bar associations, operating with very structured administrative systems and capable of preserving itself against outside and inside attack.

Overall, it was very important to maintain the OEO structure when LSC took over the federal program to insure that an effective and economical program continued. Moreover, it was far easier to expand by using an existing and accepted model that was supported by both the organized bar and the Congress.

The OEO structure ensured that the attorneys who represented the poor specialized in poverty law and that they had access to state and national support, technical assistance, training and information about poverty law developments.

Since 1996 the basic structure that was originally put in place has changed and adapted to respond to a number of factors. Some change was necessitated by federal funding reductions, the imposition of restrictions on who can be served and what can be done for those eligible to be served and the changes in federal funding for the support structure. As a result of these changes, the number of LSC providers has been sharply reduced from over 300 to 134 because of forced mergers and reconfigurations. In a number of geographic areas, there is more than one full-service provider and there are a number of large non-LSC funded programs (e.g., Community Legal Services in Philadelphia, Greater Boston Legal Services, Advocates for Basic Legal Equality and Columbia Legal Services) that now operate where only LSC programs once operated.

The national support structure has been fully privatized and often operates somewhat independent of the legal aid programs it once served. Many of the national support centers funded in 1995 still exist. Many are thriving and have become highly regarded institutions within the anti-poverty national policy world (e.g., National Immigration Law Center, National Employment Law Center, National Housing Law Center, National Consumer Law Center, National Health Law Program, National Senior Citizens Law Center, National Center for Youth Law and the National Center for Law and Economic Justice). The state support system has changed in many states as well with fewer entities providing training and support and more engaged in state policy advocacy and direct affirmative litigation. However, many key state support centers still exist and are thriving (e.g., Western Center on Law and Poverty, Massachusetts Law Reform) and new centers have developed (e.g., Tennessee Justice Center, Michigan Poverty Law Project, Colorado Center on Law and Poverty).

Civil legal aid also recognized the need to utilize information technology more effectively and the need to expand access to more eligible clients within ongoing resource constraints. Technological innovation in virtually all states has led to the creation of Web sites that offer community legal education information, pro se legal assistance, and other information about the courts and social services. Most legal aid programs now have Web sites with over 300 sites. All states have a statewide website, most of which also contain information useful both to advocates and clients. Dozens of national sites provide substantive legal information to advocates; other national sites support delivery, management, and technology functions. Many program, statewide, and national websites are using cutting-edge software and offering extensive functionality. I-CAN projects in many states use kiosks with touch-screen computers that allow clients to produce court-ready pleadings and access to other services, such as help with filing for the Earned Income Tax Credit. Video conferencing is being used in Montana and other states to connect clients in remote locations with local courthouses and legal services attorneys.

Moreover, increasing numbers of legal aid programs across the country, in partnership with the courts and legal community, are using document assembly applications, most notably HotDocs, to expand and make more efficient the provision of legal services to clients.   These projects generally focus on the use of document assembly for pro se resources used by the public and automated documents used by legal aid staff to more efficiently represent their clients. A2J Author uses HotDocs Online software to assist self-represented litigants in a web mediated process to assess eligibility, gather pertinent information to prepare a set of simple court forms, and then deliver those forms ready to be signed and filed.

In addition, there has been a rapid expansion of efforts by courts, legal aid providers, and bar associations to help people who are attempting to represent themselves in courts. Civil legal aid programs are devoting substantial time and resources to address the issue of assistance to pro se litigants. Many legal aid programs throughout the country operate self-help programs independently or in conjunction with courts. Some programs provide only access to information about the law, legal rights, and the legal process in written form, on the internet, on videotape, through seminars, or through in-person assistance. Other programs actually provide individualized legal advice and often provide also legal assistance in drafting documents and advice about how to pursue cases. Often, programs provide both printed and internet-accessible forms for use by persons without legal training, and they may provide also assistance in completing the forms.

A critical part of expanding access has focused on a range of limited legal assistance initiatives to provide less than extended representation to clients who either do not need such extended representation in order to solve their legal problems or live in areas without direct access to lawyers or entities available to provide extended representation. Many legal aid programs now operate legal hotlines. Finally, more and more states have a central phone number (or several regional phone numbers) that clients can call to be referred to the appropriate program or to obtain brief advice about their legal problems.

LSC has been instrumental in encouraging innovative technology through its Technology Initiative Grants Program (TIG). Since its inception on 2000, TIG has funded more than 570 projects at more than $46 million. LSC has recently set out a broad strategy to expand access in its “Report of The Summit on the Use of Technology to Expand Access to Justice” (http://tig.lsc.gov/resources/grantee-resources/report-summit-use-technology-expand-access-justice) The strategy for achieving this includes five components: First, create unified “legal portals” in each state that direct persons needing legal assistance to the most appropriate form of assistance and guide self-represented litigants through the entire legal process via an automated “triage” process; second, deploy sophisticated but easy-to-use document-assembly applications to support the creation of legal forms and documents by both legal services providers and self-represented litigants; third, take advantage of mobile technologies to reach more persons more effectively; fourth, apply business process analyses to all access-to-justice processes to make them as efficient as practicable; and fifth, develop “expert systems” and checklists to assist lawyers and other services providers.

Expanding access through technology is not the only innovation that developed within the civil legal aid community. Another successful innovation had been Medical Legal Partnerships (M LP). MLPs integrate lawyers into the health care setting to help patients navigate the complex legal systems that often hold solutions to many social determinants of health – income supports for hungry families, utility shut-off protection during cold winter months, and mold removal from the home of asthmatics.

Doctors and lawyers are now partnered at over 190 hospitals and health centers in 40 states nationwide, in Pediatrics, Family Medicine, Internal Medicine, Oncology, and Geriatrics.   This new health care team addresses families’ unmet basic needs – for food, housing, income, education and stability – needs that families report to their doctors, but that have legal remedies. MLPs rely on legal aid agencies for case-handling and expertise and receive pro bono assistance from dozens of law firms across the U.S. Over 100 civil legal aid programs and over half of LSC-funded legal services programs have an active medical-legal partnership program. In addition, 45 private law firms are providing pro bono assistance for MLP programs, over 44 law schools are engaged in MLP activities; and more than 20 post-graduate law fellows have been funded to work in medical-legal partnerships.

A National Center for Medical-Legal Partnership supports local programs in their efforts to reorient legal interventions into the health care setting for early detection, prevention and efficiency in legal matters in order to maximally impact health and legal outcomes of patients, their families and the community. In 2008, the ABA established a national support center to assist medical-legal partnerships in securing pro bono participation, promoting best practices related to MLP-pro bono practice, and ensuring quality service delivery.

The fundamental question today is not whether the delivery system of the past can change and adapt, because it has shown that it can and has done so effectively. The fundamental question is whether more far reaching changes are necessary in the structure of the civil legal assistance system to increase funding for civil legal aid, to respond to the changed legal needs of clients and to ensure continued evolution of new and innovative approaches to efficient and effective support and delivery.

My own view is that maintaining the existing system is essential to ensuring equal justice for low-income people in the United States. Our goal is not solely access to the courts, but also to help improve opportunities for, and achieve the greatest possible benefits and systemic solutions for, low-income people. Our goal is equal justice for our primary clients – the low-income people of our country.

To be clear, civil legal aid is not solely about access. It is also about providing legal advice and representation to solve the legal problems of low-income people. It is about addressing the problems of low-income people that arise from the economic, racial and social status. Civil legal aid programs should help low-income clients:

  • Connect to benefits, services, employment, education and housing that help lift them out of poverty.
  • Avert costs that could drive them into poverty or increase their existing poverty.
  • Stabilize their lives so that they can move out of poverty.
  • Disentangle from administrative systems that prevent them from receiving benefits and services to which they are entitled.

How we help clients achieve these results must evolve as we move forward. What we do to achieve effective representation will require constant innovation and experimentation. We must create a climate of flexibility where programs feel they can take greater risks to develop innovative approaches to problem solving. Once this climate is established, funders should then evaluate the innovations and build on and replicate those innovations that work.

What works in one state may not work in another. We must seek new methods of delivery, such as medical legal partnerships. We must consider new legal strategies for achieving results whether they are in the courts or the policy making branches. We must also constantly explore how best to utilize all of the resources at our disposal and through collaboration including pro bono assistance from small firms, solo practitioners, large firms and corporate legal offices as well as law students and law schools, non-lawyers, public and private social service agencies, community groups and others.

The key challenge for civil legal aid program leadership is how to apportion scare resources among many competing activities that programs could be involved in. Some resources must go to access initiatives such as websites, hotlines, video conferencing, Access to Justice Author (“A2J Author”) and many others including those set out in the LSC Technology Summit. However, resources must also be allocated to the provision of legal representation by lawyers and paralegals to provide representation to individuals to resolve their legal problems and to achieve the greatest possible benefits and systemic solutions for other low-income people.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library.

 

A Momentous Event in Legal Services History: ABA’s 1965 Endorsement of the Federal Legal Services Program

By Earl Johnson, Jr.

This February marks the fiftieth anniversary of a momentous event in legal services history and its role in the War on Poverty—an event that both shaped and eventually saved the program more than once in the decades since then. In early February, 1965 the American Bar Association’s House of Delegates, its policy-making body,  convened for its regular mid-year meeting to ponder a series of resolutions, some quite significant, others rather routine. But on its agenda that year the House considered what was perhaps the most consequential resolution to come before it during the 20th Century—at least in terms of its influence on the ABA’s policy, actions, and activities since that time. This was the decision whether to endorse federal government funding of civil legal aid in the form of the War on Poverty’s legal service program to be administered by the Office of Economic Opportunity. In retrospect, that may seem an obvious choice given the ABA’s long record of strong support for the OEO Legal Services Program and its successor, the Legal Services Corporation, in the years since 1965. Yet in the months and weeks before the February, 1965 meeting, it was far from a foregone conclusion the House would vote to endorse rather than oppose federal funding of civil legal aid. To understand why, a bit of history is in order.

resolution_feb_1965

ABA Journal, vol. 51 (June 1965), 551.

Only a decade earlier, in the 1950s, the organized bar had opposed government financing of legal aid. A few lawyers, along with the National Lawyers Guild, had proposed the United States follow England’s lead and start a national legal aid program funded by the federal government. In a sense, it was a conservative proposal. Like the English program at the time, the proposal was for what we would call a “Judicare” system with private lawyers supplying the services and the government picking up the tab for their work for the poor. Nonetheless, the suggestion only aroused outrage among leaders in the ABA and the organized bar in general. Typical was former ABA President Robert Story, who stormed:  “The greatest threat …aside from the undermining influence of communist infiltration, is the propaganda campaign for a federal subsidy to finance a nation-wide plan for legal aid and low cost legal services.” The ABA House of Delegates passed a resolution condemning “growing efforts to socialize the legal profession” and saying legal aid should be a “privately supported community services” while SCLAID publicly promoted the “private legal aid office” as the “American way” to meet the need for legal services to the poor.

So any resolution endorsing federal government funding of civil legal aid would require a major shift in attitude by the leadership of the American legal profession. Further putting the February 1965 resolution in doubt was the reaction of rank-and-file lawyers to a November, 1964 speech by OEO Director Sargent Shriver that received widespread coverage in the media. In that speech he talked about including legal services as one component of OEO’s plan to spread “supermarkets of social services” throughout the country. ABA headquarters was soon flooded with letters and phone calls from members demanding the organization vigorously oppose any plan to have lawyers includes as a part of the War on Poverty program. Theirs was a noble and honorable profession and not to be considered a mere “social service.”

shriver_1964_speech

Legal Aid Briefcase, vol. 23 (1964-65), 132.

This was the uncertain situation when a fateful meeting was held at the ABA’s Washington headquarters on the day after Christmas, 1964. OEO in the form of Edgar and Jean Cahn and the ABA in the form of SCLAID chair John Cummiskey and Bill McCalpin (soon to be Chair of the ABA’s Special Committee on the Availability of Legal Services) sat across a conference table to explore whether there was any common ground and any way of heading off a confrontation between the War on Poverty and the organized bar. By the end of the meeting, the two sides settled on the upcoming mid-year meeting of the ABA House of Delegates as the test. Would the ABA leadership be willing to put an endorsement of the OEO Legal Services Program before the House? And if they did, would it pass?

Cummiskey and McCalpin took the results of the meeting back to then ABA President Lewis Powell. It was largely his decision whether and how to proceed. Powell’s top announced priority was expanding the availability of legal services to low and moderate income people. While that initiative had not included government funding of civil legal aid, such funding certainly advanced his priority. Moreover, opposing such an opportunity would seem inconsistent with the broader mission he had urged so often and so eloquently. In any event, with some trepidation about how it would fare in the House of Delegates, a concern which he shared with his top staff and key advisors, Powell authorized the filing of a resolution endorsing the OEO Legal Services Program. More than that, he took the unusual step of personally drafting the resolution.

powell_1965

Lewis F. Powell, Jr.

Powell also masterminded an unprecedented campaign to maximize the chances what was now his resolution would pass. It was like a series of concentric circles. He first lined up all the members of all the relevant committees to not only support but reach out to others to support the resolution. Then he arranged a presentation to the Board of Governors and obtained their unanimous endorsement. Then at a breakfast meeting before the House’s opening session, he convened a special meeting that included not only the Board of Governors and key committee chairs, but those House members he deemed to be opinion leaders in that body. At that meeting, Bill McCalpin made an persuasive presentation. mccalpinThe essence of his message was two-fold? First, this federal funding will be a boon to legal aid and should be welcomed by the organized bar. But if you don’t like that carrot, here is the stick. That OEO Legal Services Program is coming whether we endorse it or don’t. If we don’t get aboard others less friendly to our profession will take it in directions we wouldn’t like.

At the House of Delegates meeting on February 7, 1965, John Cummiskey introduced the resolution in his capacity as Chair of the Standing Committee on Legal Aid and Indigent Defendants. A roster of former ABA Presidents and other prominent ABA leaders were lined up ready to speak in support of the resolution. But someone on the floor yelled, “Second.” Another shouted, “I move the previous question.” The chair asked for a voice vote and a chorus of “Ayes” followed. When he asked for the “Nays” the hall was silent and the resolution passed without dissent. Among other things, the resolution read:

“The Association, through its officers and appropriate committees, shall cooperate with the Office of Economic Opportunity…in the development and implementation of programs for expanding the availability of legal services to indigents and people of low income….”

bar_faces_forward

William McCalpin, The Bar Faces Forward, ABA Journal June 1965, 548.

Bernard Segal, one of the leaders in the House of Delegates and a future ABA President who was destined to help save the program during a fierce congressional battle in 1969, said the passage of that resolution “was the proudest moment I experienced in the House of Delegates since the decision to oppose packing of the Supreme Court back in 1937.” But that earlier resolution was a one-time event with no long-term consequences for ABA policy and activities after Roosevelt abandoned his attempt to pack the Court. The resolution endorsing the OEO Legal Services Program, on the other hand, made the ABA the major supporter of federal-funded civil legal aid in the political arena for the succeeding five decades. Just a few examples of that that meant to the program of federally funded legal services for the poor.

When Senator George Murphy introduced an amendment in 1967 to bar legal services lawyers from representing clients against federal, state or local government agencies, it was the ABA that led the charge against that bill.

Again, in 1969, the ABA was instrumental in defeating another Murphy amendment that would have allowed any governor to quash any legal services program in his or her state.

In 1971, an ABA task force legitimized the Legal Services Corporation option and later helped gain its passage.

In the 1980s, when the Reagan administration sought to defund the Legal Services Corporation, the ABA organized a “march on Washington” with lawyers brought in from around the country to meet with their Senators and Congressman (which march was later instituted as an annual “ABA day” on the Hill. The ABA backed that up with a well-orchestrated campaign to ensure LSC’s survival. This campaign led one congressional staffer to observe “The credible lobbying on LSC’s survival was done by the ABA; they dumped money and time and lawyers into this project. They were the biggest help.”

In the 1990’s the ABA allocated over $100,000 a year and organized a national effort to save LSC from the “glidepath to oblivion” the congressional leadership had plotted for its demise. As then LSC President John McKay remarked, ”In my view, the ABA saved the Legal Services Corporation from the Gingrich Congress’ attempt to kill it. SCLAID and the ABA’s legislative advocates and the lawyers they mobilized were very, very effective. I personally think it was the Association’s proudest moment.”

So from the perspective of the “war on poverty” and the contributions legal services for the poor can offer to that mission, what Lewis Powell and his allies in the organized bar did in the ABA House of Delegates a half century ago stands as a remarkable and probably essential achievement—certainly a historic one. After spending six years researching the full span of civil legal aid history in this country, I seriously question whether federal funding of civil legal services for the poor would have survived but for the dedicated support of the American Bar Association. And I doubt it would have had that support but for the passage of the resolution endorsing the OEO Legal Services Program in February, 1965.

Earl Johnson, Jr., Visiting Scholar, University of Southern California Law School and the Western Center on Law and Poverty. He is the author of: To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States (Praeger, 2014).

Johnson, who had served as the Deputy Director of the Neighborhood Legal Services Project in Washington, DC since 1964, was chosen to be the first deputy director of the Office of Economic Opportunities Legal Services Program in October 1965.  Eight months later, Johnson succeeded Clinton Bamberger in that position, and served as director of the OEO Legal Services program until July 1968.

The National Equal Justice Library collections includes the William McCalpin papers, the John Cummiskey papers, and the Edgar and Jean Cahn papers.

RFP: Digital Trust Foundation: Understanding Socioeconomic Status and Online Privacy and Security

The Digital Trust Foundation  has issued a RFP for projects on understanding online privacy from the perspective of low-income people.  The Foundation wants to fund research on the experience of low-income people with digital privacy and security, and online direct services and information and dissemination.  For more information about grants available, see: http://digitaltrustfoundation.org/pa2/

The Long Crisis: Economic Inequality in New York City, video of November 2014 event

CUNY Law School had an excellent War on Poverty event on November 12, entitled The Long Crisis: Economic Inequality in New York City on Nov. 12th, which focused on the role that economic inequality and injustice play within the context of social justice legal issues and practical solutions lawyers and activists are employing to help overcome the inequality.  Proceedings will be published in an upcoming issue of the New York City Law Review, and you can also watch it online at https://www.youtube.com/watch?v=pSht2NV_ZcE

The panel featured Fahd Ahmed, acting executive director of DRUM–South Asian Organizing Center, Tom Angotti, professor of Urban Affairs and Planning and Director of the Hunter College Center for Community Planning and Development, Jennifer Jones Austin, CEO and executive director of Federation of Protestant Welfare Agencies, Shawn Blumberg, legal director of Housing Conservation Coordinators, and Robin Steinberg, founder and executive director of The Bronx Defenders.

Rationing Justice: Access to Justice and The 40th Anniversary of the Legal Services Corporation

Rationing Justice: Access to Justice and the 40th Anniversary of the Legal Services Corporation

TUESDAY, MAR. 3, 2015

9 A.M to 1:00 P.M.

Gewirz Student Center, 12th Floor

In 1974, President Richard Nixon signed the Legal Services Corporation Act, creating a federally funded program for providing legal services to the poor. The participants in the Georgetown Journal on Poverty Law & Policy symposium will discuss the past, present and future legal services in the United States 40 years later.

High Quality Legal Assistance

[Part 3 of the series on the 40th anniversary of the Legal Services Corporation]

By Alan Houseman

We are continuing our blog on the War on Poverty and the Federal Legal Services Program with an emphasis on 40 years of federal legal services under the Legal Services Corporation (LSC). This series will examine each of the fundamental objectives for LSC set out in the Statement of Purpose of the LSC Act. Here we will focus on the objectives: to provide “high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel,” “to provide the most economical and effective delivery of legal assistance” and “to assist in improving opportunities for low-income persons.”

One of the great accomplishments of the federal legal services program, during both the OEO and LSC eras, has been the quality and effectiveness of the legal representation provided by the program and its advocates. Legal services representation successfully created new legal rights through judicial decisions and representation before legislative and administrative bodies. For example: legal services attorneys won landmark constitutional decisions such as Goldberg v. Kelly, which led to the due process revolution.

Goldberg v. Kelly, 397 U.S. 254 (1970), excerpt from The Burger Court Opinion Writing Database, George Washington University, http://supremecourtopinions.wustl.edu/files

Goldberg v. Kelly, 397 U.S. 254 (1970), excerpt from The Burger Court Opinion Writing Database, George Washington University, http://supremecourtopinions.wustl.edu/files

Equally significant 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 attorneys 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. For example, legal services lawyers won Sullivan v. Zebley, the case providing SSI benefits to hundreds of thousands of families with disabled kids.

Perhaps most important, through sustained and effective legal services representation, public and private agencies and entities dealing with the poor were fundamentally changed. Legal services representation altered the court system by simplifying court procedures and rules so that they could be understood by, and made more accessible to, the poor. Legal services representation also forced the 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 programs have been on the forefront of the efforts to assist women subject to domestic violence.

Standards for Providers of Civil Legal Services to the Poor: Discussion Draft, December 1981. Washington, DC: NLADA, 1981.

Standards for Providers of Civil Legal Services to the Poor: Discussion Draft, December 1981. Washington, DC: NLADA, 1981.

Over the years, there have been significant efforts to develop standards and performance measures for civil legal aid. At the beginning of the 1980s, the legal services community began work on a long-term process to develop standards for providers of legal services to the poor.   This process culminated in 1986 in the adoption by the American Bar Association’s House of Delegates of a set of written standards, Standards for Providers of Civil Legal Services to the Poor. These were aspirational standards for legal services providers and focused on processes that should be in place in programs to assure quality. They were not intended as a framework for specific performance measurement or program evaluation. They included neither a measurement process nor specific prescriptions for assessing levels of performance. Even so, some programs and some state funders have adapted these Standards as part of their efforts to evaluate the performance of staff or individual offices and units within the program.

Standards for Providers of Civil Legal Services to the Poor, ABA: SCLAID, 1986.

Standards for Providers of Civil Legal Services to the Poor, ABA: SCLAID, 1986.

In 1992, the Advisory Committee for LSC’s Comparative Demonstration Project began to develop a performance assessment approach for use in evaluating the programs participating in the demonstration project. The Comparative Demonstration Project was set up to compare the performance of LSC grantees. The Advisory Committee developed a set of Performance Criteria that were to be used in a peer review process. These criteria were originally developed to provide a framework for peer reviewers to use by peer reviewers in their inquiries. There were four major performance areas: (1) effectiveness in identifying and targeting resources on the most pressing needs of the low-income community; (2) effectiveness in engaging and serving the client community; (3) effectiveness of legal representation and other activities intended to benefit the low-income population in its service area; and (4) effectiveness of administration and governance. Each performance area set forth criteria to be considered in assessing the program’s performance in that area. Indicators and possible areas of inquiry were also included for each criterion to further guide the peer reviews in assessing program effectiveness.

LSC uses the Performance Criteria, as well as other reports and data sent to LSC by grantees, to periodically monitor all 134 grantees to ensure quality and economic and effective delivery. Unfortunately, the peer review process that LSC had initially developed was never fully implemented, in part because some Members of Congress criticized LSC for not focusing sufficient attention on monitoring for compliance. However, some state funders did develop a peer review system using the LSC Performance Criteria.

In 2006, the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) revised the ABA Standards for Provision of Civil Legal Aid. These revised Standards were adopted by the ABA House of Delegates at its August 2006 meeting. The revised Standards, for the first time, provide guidance on limited representation, legal advice, brief service, support for pro se activities, and the provision of legal information. The revised Standards also include new standards for diversity, cultural competence, and language competency. LSC has also completed a revision of the LSC Performance Criteria. See http://www.lsc.gov/pdfs/LSCPerformanceCriteriaReferencingABAStandards.pdf.

Many civil legal aid programs have developed their own evaluation systems, which are designed to help individual programs perform better and to better market what they accomplish to state appropriators, funders, the public, and the press. Some programs have developed rigorous internal evaluation systems, including the use of outcome measurements, to evaluate whether they have accomplish what they set out to do for their clients. The programs have used a variety of creative techniques to conduct their outcome evaluations, including focus groups, client follow-up interviews; interviews of court and social service agency personnel, courtroom observation, and court case file review. In California, the Legal Services Trust Fund, which is the state IOLTA funder, and the Administrative Office of the Courts (AOC) teamed up to support the development of a “tool kit” of program self-evaluation tools for use by programs as a part of the statewide system of evaluation. The Management Information Exchange’s (MIE) Technology Evaluation Project (TEP) also developed a set of tools—also referred to as a “tool kit”—that is available for programs to use to evaluate their Web sites and their use of video conferencing and legal work stations, which serve clients through “virtual law offices.”

Generally, outcome measures have not been used extensively, although five state IOLTA/state funding programs require their grantees to report on outcome measures. New York, Maryland, Virginia, Texas, and Arizona measure specific outcomes that could be achieved for clients in specific substantive areas, such as housing, and which focus primarily on the immediate result of a particular case or activity (such as “prevented an eviction”). These systems do not capture information on what ultimately happened to the client. All of these states use the information collected to report to their state legislatures and the public about what the grantees have accomplished with IOLTA and state funding.

However, there is renewed discussion about the use of outcome and performance measures and renewed initiatives to help programs to establish their own outcome measurement systems that are keyed to the outcomes the programs themselves have determined are relevant to their own program management objectives, and should develop templates and tools to assist grantees to set goals and measure outcomes. This approach will encourage programs to be deliberate about what they are trying to achieve and to develop systems to measure whether they are achieving what they set out to do. This approach would also begin to give LSC, IOLTA, other state funders, Access to Justice (ATJ) Commissions, and private foundations information about what the programs are doing and how well they are doing it, and it would provide LSC and other funders with a laboratory to learn what works and does not work to improve program quality and effectiveness.

Furthermore, we will see new data collection systems that will give funders data that will help them make the case for increased funding and ensure accountability to Congress and other government funders. The current data collected by LSC and most other funders is not sufficient to explain the breadth of actual services legal aid programs provide or to review quality, efficiency and effectiveness. That is why LSC has moved forward with a project funded by the Public Welfare Foundation designed to improve LSC’s data collection and reporting mecha­nisms, to educate LSC grantees about collection, analysis, and use of data, and to require grantees to establish their own outcome measures to improve program performance.

legalaidresearch.org

legalaidresearch.org

Finally, NLADA established a staffed initiative to direct its on-going efforts to support and improve the quality and impact of civil legal aid programs. First, to make existing research easily accessible and understandable to busy administrators and lawyers within civil legal aid programs, NLADA created a blog-database – www.legalaidresearch.org – that captures the information about successful evidence-based practices and the results of research and posts those findings in an easily accessible web-based format. A second initiative (Strategic Advocacy for Lasting Results or SALR) provides direct assistance to member programs to help strengthen the quality and impact of services to clients and low-income communities.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. 

War on Poverty Lessons for the Appalachian Region

An interview by WMMT (Mountain Community Radio Station) on the impact of the Office of Economic Opportunity mandate: “Maximum feasible participation of the poor” in Appalachia, featured on the “Making Connections” platform:

http://www.makingconnectionsnews.org/2015/02/war-on-poverty-lessons-for-soar/

Call-for-Proposals: Poverty Law: Academic Activism Conference — Seattle University School of Law — Feb. 19-20, 2016

(Cross-posted from the Poverty Law blog.)

Call-for-Proposals: Poverty Law: Academic Activism Conference — Seattle University School of Law — Feb. 19-20, 2016 .

Call for Proposals:

We invite proposals for presentations at a Spring 2016 conference, “Poverty Law: Academic Activism” to be held on Feb. 19-20, 2016, hosted by Seattle University School of Law.  The conference will focus on the connection between academics and activism, broadly understood.  Just as “poverty law” is a broad category that includes everything from welfare and education programs to immigration and tax policy, so too, “academic activism” includes a wide range of activities.  This conference will explore how members of the legal community directly engage with activists to effect social, legal, and policy changes; how scholarship can help improve the lives of the poor; and how to educate the next generation of poverty warriors.

The conference is organized around these three tracks – direct engagement, scholarship, and teaching – and the hope that the conference will be a large gathering of those whose work (including direct involvement as well as scholarship) focuses on or relates to poverty law.  The deadline for proposals is Friday, April 24, 2015.  Please submit the title of your presentation with an abstract or overview of no more than 300 words to erosser@wcl.american.  To submit a full panel presentation, include the above information for all panelists.

Additionally, for those who are interested (though this is not a requirement for participation in the conference), conference participants may have publication opportunities with both the Seattle Journal for Social Justice and the Seattle Law Review.  Conference attendees will be responsible for their own travel expenses. We look forward to seeing you in Seattle in Feb. 2016!

If you have any questions, please contact the conference organizers: Sara Rankin (Seattle University School of Law) and Ezra Rosser (American University Washington College of Law)

A pdf copy of the CFP can be found here.

 

Achieving Equal Access to Civil Justice

By Alan Houseman

We are continuing our blog on the War on Poverty and the Federal Legal Services Program
with an emphasis on 40 years of federal legal services under the Legal Services Corporation (LSC). This series will examine each of the fundamental objectives for LSC set out in the Statement of Purpose of the LSC Act. Here we will focus on the objective: to ensure “equal access” to our system of justice “for individuals who seek redress of grievances.”

The current civil legal assistance system is a locally based system of independent staff-based service providers, supplemented by pro bono programs, law school clinical programs and self-help programs. Funding comes to the providers from a variety of sources; less than one-third comes from federal sources, and over one-third comes from state sources. Between 1965 and 1985, civil legal assistance was funded primarily by LSC and other federal funding sources. Over the last two decades, there has been increased state funding and involvement of state-based funders in the overall operation of the civil legal aid system. Since 1996, LSC and state funders have been moving from a locally-based legal services delivery system toward establishing a more comprehensive, coordinated, and integrated statewide system for the delivery of civil legal aid to low-income people.

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LSC logo 5 years of progress, 1974-1979. LSC Annual Report 1979.

The major accomplishment of LSC, certainly during its first five years, was the expansion of the federal legal services program from a predominantly urban program to one that provides legal assistance throughout the United States and in most U.S. territories. In 1975, LSC inherited a program that was funded at $71.5 million annually. By 1981, the LSC budget had grown to $321.3 million. Most of this money went into creating new programs and expanding old ones. Based on the 1970 census figures, in 1975 there were 11.7 million out of 29 million poor people who had access to no program and 8.1 million who had access only to programs that were inadequately funded. By 1981, LSC funded 325 programs, operated in 1450 neighborhood and rural offices throughout the 50 state, and the District of Columbia, Puerto Rico the Virgin Islands, Micronesia and Guam. Poor people in every county of the United States had access to a legal services program. While perhaps not full 100% access, substantial access had been achieved.

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Hillary Rodham, Chairman of the Board, Preface to the LSC Annual Report, 1979, 5.

Expansion was not without substantial difficulty. In many parts of the country, expansion was received with initial hostility by some local bar associations and others. Soon, members of Congress complained about which entities were being funded and why. For example, LSC decided to create a new program for central Virginia instead of funding the Lynchburg Legal Aid Society, which then complained to Representative Caldwell Butler, a member of the House subcommittee with jurisdiction over LSC and a key supporter of LSC among House Republicans. These initial problems were overcome and the program developed throughout the country. Moreover, initially, LSC did not have adequate staff to engage in expansion and carry out other essential tasks, nor did LSC have technical assistance and essential materials available for new and expansion programs. This changed by 1979. In the end and whatever the difficulties, expansion was a massive and successful undertaking. Since 1981, LSC has been unable to obtain funding sufficient to maintain the level of access achieved then and has lost considerable ground because of the three significant budget reductions (of 1982, 1996 and 2012) and the inability to even keep with up inflation when funding was increasing. While non-LSC funding has grown considerable and now exceeds LSC funding in terms of the overall system, it has been concentrated in the Northeast, Mid-Atlantic, Midwest and Northwest states. Uneven resources have led to substantially uneven access, particularly the South, Southwest and Rocky Mountain states.

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LSC Annual Report, 1981, dealing with a year of “extraordinary challenge.” NEJL.

Thus, there is a huge gap between the actual legal needs of low-income people and the capacity of the civil legal assistance system to meet those needs, as well as severe inequality in funding among states. This “justice gap” was most recently demonstrated by LSC in a report updated in 2009 entitled, “Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans.” The two key findings were (1) for every client who actually received service from an LSC grantee, one eligible applicant was turned away; and (2) less than 20 percent of the legal needs of low-income Americans were being met. The study also identified the number of legal aid lawyers in both LSC and non-LSC funded programs, and compared that number to the total number of attorneys providing personal legal services to the general population. The study determined that, at best, there is one legal aid attorney for every 6,415 low-income persons. In contrast, the ratio of attorneys delivering personal legal services to the general population is approximately one for every 429 persons, or fourteen times more.

Equal access cannot be achieved without additional funding. While federal funding remains essential, because civil legal assistance is a federal responsibility, federal funding is not likely to fill the huge gaps between needs for assistance and capacity of the system to meet that need. In part this is because of limitations on domestic federal spending generally and, in part, because the political leadership of the US remains divided about whether there should be a federal program, and, if there should be one, how it should be structured. Since the budget gridlock and political situation may not change over the next several years, one fundamental lesson for the future is this: growth in the civil legal assistance system will come primarily from state and local sources.

Achieving equal access will also require new methods of delivery and new approaches to support and training and the development of a comprehensive, integrated statewide system of delivery. That has begun in most states and in some states is substantially developed. The elements of this comprehensive, integrated state system discussed below were set out in August of 2006 by the American Bar Association in Principles of a State System for the Delivery of Civil Legal Aid (hereafter Principles). NLADA developed a similar set of principles.

First, state systems for the delivery of civil legal aid must provide services to the low-income and vulnerable populations in the state, including those with distinct, unique, or disproportionately experienced legal needs. As a corollary, no vulnerable population or specific group that has experienced disparate treatment should be institutionally excluded from receiving legal assistance.

Second, state systems for the delivery of civil legal aid must provide a full range of services in all forums. A full range of services includes information about legal rights and responsibilities; options for services; outreach and community legal education; legal advice and brief services; support and assistance for individuals capable of representing themselves; representation in negotiation and alternative dispute resolution; transactional assistance; representation in administrative and judicial proceedings; extended representation in complex litigation, in class actions, and on systemic issues; and representation before state and local legislative and administrative bodies that make laws or policies affecting low-income and vulnerable people.

Third, state systems for the delivery of civil legal aid must provide services of high quality in an effective and cost efficient manner to help low-income persons and others who cannot afford counsel meet their legal needs.

Fourth, state systems for the delivery of civil legal aid must provide services in sufficient quantity to meet the need by seeking and making the most effective use of financial, volunteer, and in-kind resources dedicated to those services.

Fifth, state systems for the delivery of civil legal aid must fully engage all entities and individuals involved in the provision of those services, and they must be central to the effective administration of justice in the state.

Sixth, state systems for the delivery of civil legal aid must make services fully accessible and uniformly available throughout the state. The ability of low-income and vulnerable people to obtain civil legal assistance should not depend on where that person resides in the state.

Seventh, state systems for the delivery of civil legal aid must engage with clients and populations eligible for civil legal aid services in planning and in obtaining meaningful information about their legal needs; and they must treat clients, applicants, and those receiving services with dignity and respect.

Eighth, state systems for the delivery of civil legal aid must engage and involve the judiciary and court personnel in reforming their rules, procedures, and services to expand and facilitate access to justice. The judiciary should ensure that the courts are inclusive, respectful of differences, and culturally competent. It should also make sure that they are accessible to and responsive to the needs of all residents, including low-income and vulnerable populations and those facing financial, physical, and other barriers to access.

Ninth, state systems for the delivery of civil legal aid must be supported by an organized bar and judiciary that are providing leadership and participating with legal aid providers, law schools, the executive and legislative branches of government, the private sector, and other appropriate stakeholders in ongoing and coordinated efforts to support and facilitate access to justice for all.

Tenth, state systems for the delivery of civil legal aid must engage in statewide planning and oversight of the system for the delivery of civil legal aid to coordinate and support the delivery of services and to achieve the nine principles set forth above.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. 

A Brief Review of Civil Legal Aid History

By Alan Houseman

Civil legal assistance for poor people in the United States followed several traditions. In the aftermath of the Civil War, the Freedman’s Bureau had provided legal assistance to liberated slaves and poor whites in the South. The first legal aid society was established in New York City in 1876, the Legal Aid Society of New York, a private and charitable program created largely by lawyers.

Legal Aid Chicago, Clients in Waiting Room, ca. 1914. Original source unknown. NEJL photo collection.

In the following decades, the legal aid movement caught on in the urban areas of the United States. By 1965, virtually every major city had some kind of program. Nearly three hundred (300) organizations employed over 400 full-time lawyers with an aggregate budget of nearly $5.3 million (or approximately $40 million in 2015 dollars).

The world of legal aid was heterogeneous. There was of course no national program. Many legal aid programs were private corporations. Others were parts of bar associations, relying primarily on donated time of lawyers. Some were part of governmental units, usually municipalities. Some were part of other social agencies.

There were some common characteristics. First and foremost, the resources were impossibly inadequate.   Partially because of limited resources and a high number of eligible clients, legal aid generally gave perfunctory service to a high volume of clients. Going to court was rare. Appeals were virtually nonexistent. Administrative representation, lobbying, and community legal educations were not contemplated. Legal aid had little effect on those it served and no effect on the client population as a whole. As a practical matter there was no poverty law before 1965. For example, although many legal aid clients received public assistance, no effort was made to challenge questionable policies adopted by agencies providing such assistance – i.e., no “welfare law” had been developed. Similarly, much what we know as “housing law,” “consumer law,” “health law,” and the like did not exist.

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Clinton Bamberger Papers, NEJL.

The federal Legal Services Program began in the Office of Economic Opportunity in 1965. 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. The architects of the new federal program recognized that civil legal assistance did not exist in many parts of the country and realized two fundamental propositions: First, that “something new” was needed—well-funded legal aid would not do. 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.

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Clinton Bamberger in 1966. Photo in: ABA Coordinator and PR Bulletin, vol. 14, no. 2, Feb. 14, 1966. Clint Bamberger Papers, NEJL.

Clint Bamberger, the first director of the Legal Services Program, told the annual meeting of the National Legal Aid and Defender Association in 1965 that “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of [the] OEO program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty. Each day, I ask myself, how will lawyers representing poor people defeat the cycle of poverty?” A year later, Bamberger told the National Conference of Bar Presidents: “We cannot be content with the creation of systems of rendering free legal assistance to all the people who need but cannot afford a lawyer’s advice. This program must contribute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope and ambition.”

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Address by Clint Bamberger to the Annual Meeting of the NLADA, Scottsdale, Arizona, Nov. 18, 1965. Clint Bamberger Papers, NEJL.

Unlike other legal aid systems in developed countries, the US system utilized staff attorneys working for nonprofit entities, not private attorneys participating in Judicare programs. Later, pursuant to the findings of the Delivery System Study completed in 1980, LSC encouraged the development of pro bono programs and subsequently required programs to use 12.5% of the funding for private attorney involvement, most of which went to increase pro bono efforts. Today, over 30,000 private attorneys participate in pro bono efforts with LSC-funded programs.

OEO also funded full-service providers, each serving one geographic area, which had the obligation to ensure access of all clients and client groups to the legal system. The only national earmarking of funds within the OEO Office of Legal Services was for Native Americans and migrant farm workers, for which OEO created separate funding and a somewhat separate delivery system. It was expected that funding would continue for each provider unless they substantially failed to provide service or abide by the requirements of the Act.   OEO 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.

See also:

Alan Houseman and Linda Perle. Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States. Washington, DC: CLASP Publication 2003; rev. 2007 and 2013. Online at: http://www.clasp.org/resources-and-publications/publication-1/Securing-Equal-Justice-for-All-2013-Revision.pdf

Earl Johnson’s 2014 articles on this blog on the history of the federal legal services program:

* Fifty Years Ago on January 8th, America Declared a War on Poverty — Without Mentioning the Denial of Justice to the Poverty Population

* JOHNSON’S CHOICE OF SHRIVER TO HEAD THE WAR ON POVERTY