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.”

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.

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

In 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. The opinions presented in this blog series are his own.

[Part 2 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 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.

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.

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.

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. The opinions presented in this blog series are his own.

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.

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.

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.”

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