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.
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.”
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 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. The 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….”
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.