By Alan Houseman

[Part 8 of the series on the 40th anniversary of the Legal Services Corporation, support: p.1]

This series of blogs will focus on the development, growth and demise of the federally funded support infrastructure: national support centers; state support; training; technical assistance; and information sharing and dissemination. While there is no longer funding by the Legal Services Corporation (LSC) for this infrastructure, much of it remains. The first blog will focus on the development of this infrastructure.

The second director of OEO legal services–Earl Johnson· (1967-68) – focused on “law reform” for the poor as the chief goal of OEO legal services. Johnson chose atypical implementation methods and among many tactics (including the Reginald Heber Smith Fellowship Program) created a unique national structure of advocacy, support, training, technical assistance and information sharing. No other legal aid system had such a structure.

A large investment was made in the “back-up centers”: national programs, initially housed in law schools, organized around substantive areas or a particular part of the eligible population. These centers engaged in national litigation and legislative and administrative representation to eligible clients while providing support, assistance and training to local programs. These centers provided specialized representation and specialized knowledge that was essential to the development of new areas of poverty law. They also provided leadership on key substantive issues and worked closely with the national poor people’s movements of the early legal services years (e.g., the National Welfare Rights Movement and the National Tenants Organization). At the end of the OEO era, the following national centers were fully functioning:

Center for Law & Education–Cambridge, MA

Center on Social Welfare Policy & Law–NY, NY

Indian Law Support Center–Boulder, CO (Part of the Native American Rights Fund)

Migrant Legal Action Program–Washington, DC

National Consumer Law Center–Boston, MA

National Economic Development & Law Center—Berkeley, CA

National Employment Law Project–NY, NY

National Health Law Program–Los Angeles, CA

National Housing Law Project–Berkeley, CA

National Juvenile Law Center–St. Louis, MO

National Senior Citizens Law Center~-Los Angeles, CA

National Social Science & Law Project–Washington, DC

Youth Law Center–San Francisco, CA

Earl Johnson, in his first History on the OEO Legal Services Program (Justice and Reform: The Formative Years of the OEO Legal Services Program, New York: Russell Sage Foundation, 1974 at 180-82) emphasized the major strengths of the back-up centers as follows:

• They were funded solely to bring test cases and advocate for legislative change.
• They would not be accountable to local boards of directors.
• They were responsible for an “inordinate proportion” of the program’s impact on economic and social problems.
• They were experts.
• They could provide training and research materials.

These national centers were supplemented by a national publication to describe poverty law developments, the Clearinghouse Review produced by the National Clearinghouse, and by a case reporter, the Poverty Law Reporter. For a brief period, .OEO also published Law in Action to publicize legal services victories and provided funds to NYU Law School to publish the Welfare Law Bulletin. The Clearinghouse Review still exists, though it no longer publishes a hard copy. The Poverty Law Reporter, a Commerce Clearinghouse loose-leaf service, was discontinued by LSC in 1980.

OEO also funded national training and technical assistance programs first at Northwestern University Law School and later at Catholic University Law School. The national training events played a key role in assuring effective coordination among programs over newly emerging issues and provided a means of linking key substantive advocates within local programs to each other and to the national experts in the support centers or elsewhere. Technical Assistance on management issues was provided by the National Legal Aid and Defender Association. A National Paralegal Institute provided support to paralegals.

A few state support programs were also developed. State support centers were created in Massachusetts (Massachusetts Law Reform Institute), California (Western Center on Law and Poverty), Michigan (Michigan Legal Services), Ohio (Ohio State Legal Services), New York (Greater Upstate Law Project) and New Jersey (Legal Services of New Jersey). Such state support programs provided state level advocacy (major litigation, administrative and legislative policy advocacy) and coordination in states with a larger number of local programs. They increased training and facilitated a more direct link between local advocates and national experts.

While this support structure took several years to develop by the early 1970s it was fully operational and faced few threats from federal officials or from Congress. However, beginning in January of 1973, President Nixon appointed Howard Phillips, a critic of the war on poverty and of the legal services program, to head OEO. Although Phillip was to preserve legal services for the eventual transition to the Legal Services Corporation, he declared: “I think legal services is rotten and it will be destroyed.” He put legal services programs on month-to-month funding, cancelled law reform as a program goal, and moved to defund migrant programs and back-up centers. Marshall Boarman, who was put in charge of research and development, wrote several memos on back-up centers, arguing that they were duplicative, unaccountable, focused on social change and unnecessary to providing legal services to the poor. These provided the intellectual support not only to Phillips but also to Congressional critics such as Edith Green and later to opponents in the Reagan era.

The assault on legal services and the back-up centers by OEO was stopped when a federal court enjoined Phillips from acting as director of OEO because his name had not been submitted for Senate confirmation. See Williams v. Phillips, 360 F Supp. 1363 (D.D.C. 1973) and Government Employees, Local 2677 v. Phillips, 358 F. Supp. 60 (D.D.C. 1973).

However, stopping OEO and Phillips did not end the threat to the support structure and back-up centers. That threat became real again during consideration by Congress in 1973 of the creation of the LSC Act. In June of 1973, the House took up the bill to create LSC and during floor debate, which got quickly out-of–hand, added a number of amendments to the Committee bill that would curtail many law reform activities by legal services programs. One of those amendments was by Congresswoman Edith Green, a Democrat from Oregon.

The Green Amendment modified §1006(a) (3) of the proposed Legal Services Corporation Act (42 USC §2996(c) (3)) to specify that LSC could undertake directly, and not by grant or contract, the following activities: (a) research; (b) training and technical assistance; and (c) information clearinghouse activities. The sponsor believed that these activities described the back-up centers and that requiring the activities to be performed directly within LSC would eliminate the back-up centers as well as the National Clearinghouse, the National Paralegal Institute, the national training program, and possibly even state support centers.

Congresswoman Green’s intent was clear. However, she made a serious drafting error in amending only part of the LSC legislation. Because she was familiar with the OEO legislative provisions on research, under which the support centers had been previously funded, she assumed that the back-up centers would be funded under the research and technical assistance provisions of the LSC bill. She did not take into account the provisions in the legal services legislation that provided for funding of programs providing legal assistance including specialized legal assistance.

Ms. Green was not aware of the direct advocacy activities of the support centers and their professional relationships with poor clients. She assumed that the centers were primarily  research organizations that developed new theories. In her view, the centers were the brains and the local program staff were the workers that carried out the orders of the back-up centers. This belief was never accurate and it assumed a role that the back-up centers never played. She used a series of examples provided her by conservative critics of the program. However, many of these examples involved the activities of local programs, the legal services training program or (in many cases) non-LSC-funded organizations.

When the Senate took up consideration of the House passed bill in late 1973 and early 1974, it significantly modified what the House had done including fundamentally changing the Green Amendment. The compromise reached during the Conference Committee on the legislation also preserved the back-up centers and the fundamental support structure created by Earl Johnson in OEO. In Mat 1973, the conference report barely passed the House (190-183) after a recommittal motion to include the Green Amendment. The national centers became the focus of opposition to legal services because they were perceived as the brains behind the activism of legal services programs, or the “cutting edge of social change” as Congresswomen Green charged. At that point the legislation became embroiled in the politics of the impeachment process. Key conservative leaders in the House and Senate (and several conservative supporters of the President) made their continued support for President Nixon dependent upon his promise of a veto if national back-up centers were not eliminated. The President then demanded that the Green Amendment be added to the bill in exchange for his support. Ultimately the Senate agreed and a final compromise was passed by both houses. President Nixon then signed the bill on July 25, 1974.

But the question then became: what would the new LSC do to interpret and implement the Green Amendment?

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

[Part 7 of the series on the 40th anniversary of the Legal Services Corporation]

From the beginning of the Legal Services Corporation (LSC), there have been restrictions on who can be served and what can be done by LSC-funded civil legal aid programs. The original 1974 LSC Act included a number of restrictions. Congress added more in 1982 and 1989 through appropriation provisions that in most cases only restricted a program’s LSC funds. In the FY96 appropriations legislation, modified slightly by the FY98 appropriations legislation, and incorporated in the FY99 and subsequent appropriations legislation, Congress added many more and made these new restrictions apply to all funds received by a program with LSC funding. This blog reviews the history of restrictions on programs funded by LSC.

The LSC restrictions imposed in 1996 and subsequently, left legal services programs and their staff with less capacity to effectively represent low-income persons in the courts and before other forums that affect their rights and responsibilities. Even so, over 95% of the work done in legal services in 1995 could continue and over 98% of the cases brought to court in 1995 could still be brought. Moreover, there continue to be many critically important representational activities that can still be done by LSC-funded entities, and programs can continue to address systemic problems faced by low-income persons in virtually all substantive areas.

Note that some states and other funders have also imposed restrictions on their funding. Most of the state restrictions are identical to the LSC restrictions. A few states and some other funders have imposed additional restrictions to funding not included in the LSC restrictions.

RESTRICTIONS IN ORIGINAL LSC ACT

Restrictions on types of cases that could be handled: The 1974 LSC Act prohibited (1) litigation involving nontherapeutic abortion; (2) representation in school desegregation cases; (3) representation in selective service and military cases; (4) representation in certain juvenile cases; (5) representation in criminal cases; (6) representation in habeas corpus collaterally attacking a criminal conviction; and (7) bringing fee-generating cases ( defined as any case or matter which, if undertaken on behalf of an eligible client by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an awards to a client, from public funds, or from the opposing party.) The restriction on juvenile representation was removed during the 1977 reauthorization of the LSC Act.

Restrictions on clients that could be represented: The LSC Act permits representation of all aliens, public housing residents, prisoners and others so long as they met financial eligibility guidelines.

Restrictions on representation and other activities: The 1974 LSC Act included restrictions on legislative and administrative advocacy, ballot measures, initiatives or referendum, class actions, training and organizing, but there were qualifications and exceptions that significantly limited those restrictions.

Ballot measures, initiatives and referendum: Programs could not advocate or oppose any ballot measure, initiative, or referendum.

Legislative and administrative advocacy: The 1974 Act prohibited indirect or direct attempts to “influence the issuance, amendment or revocation of any executive order or similar promulgation by any Federal, State or local agency, or to undertake to influence the passage or defeat of any legislation by the Congress of the United States, or by any State or local legislative bodies, or State proposal by initiative petition. However, the Act permitted representing clients before legislative and administrative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.” The Act also permitted program staff to testify, draft, or review measures or to make representations to government agencies, legislative bodies, committee or members when requested to do so. The Act also permitted representation when agencies and legislative bodies are considering a measure directly affecting the activities of a program or the Corporation (self-help lobbying).

Class actions could be undertaken with the express approval of the project director under policies promulgated by the program’s board.

Training: While programs could not conduct or support training programs to advocate for particular public policies or encourage political activities, labor or anti-labor activities, boycotts, strikes and demonstrations, programs could train attorneys and paralegals to provide legal assistance and disseminate information about public policies.

Organizing: While programs could not organize a group, association, and the like, they could provide legal assistance to such groups.

Restrictions on personal activities of staff attorneys: Staff attorneys cannot: (1) run for partisan elective office (and must resign if they decide to run); (2) engage in any political activity during working hours; (3) engage in any illegal demonstrations, boycotts, strikes or other illegal activity at any time; or (4) engage in voter registration or transporting voters to the polls during working hours.

Funds Covered: Restrictions on the type of cases and scope of representation applied to both LSC and private funds, but not to non-LSC public funds (which included IOLTA funds).

RESTRICTIONS ADDED ON LSC FUNDS IN THE 1980S BY APPROPRIATION PROVISIONS

The LSC Act provisions remained in effect. In some areas noted below, the appropriation provisions created more restrictions than the LSC Act. Except where noted, the appropriation provisions did not cover private or non-LSC public funds.

Restriction on types of cases: Programs could not participate in representation (1) relating to abortion with LSC funds and (2) in redistricting cases or activities involving the taking of the census with both LSC and private funds.

Restrictions on clients that could be represented: As a result of provisions contained in the LSC appropriation and the Immigration Reform and Control Act of 1986, use of LSC funds was only permitted for representation of the following categories of aliens:

Lawful permanent resident aliens including those granted amnesty.

1. Lawful temporary resident aliens under the seasonal agricultural worker (SAW) program.
2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
3. Aliens granted asylum.
4. Aliens granted refugee status.
5. Aliens granted conditional entrant status.
6. Aliens granted withholding of deportation.
7. H-2A nonimmigrant temporary agricultural workers (concerning the worker’s employment contract).
8. Replenishment agricultural workers (RAW’s) admitted for temporary residence.

Restrictions on Representation

Class Actions: LSC funds could not be used to bring a class action against a governmental entity except under the following conditions: (1) the relief was sought for the primary benefit of eligible clients; (2) the program had to notify the government entity involved and attempt to negotiate the issues which adversely affect the particular clients represented; (3) the board of each program had to adopt a class action policy, which could preclude or limit class actions; (4) before filing a class action against a governmental entity, the Project Director had to: (a) expressly approve the filing consistent with program policies; (b) determine that the government entity: (I) would not change its policy or practice; (ii) that the policy or practice would continue to adversely affect eligible clients; (iii) that the program had notified the government entity of its intention to seek class relief; and (iv) that the efforts to negotiate had failed.

Representation before legislative bodies:   LSC funds could not be used for: (1) self-help lobbying; (2) grassroots lobbying; (3) advocacy on referendums, initiatives or constitutional amendments.   However, LSC funds could be used to communicate to a legislative body on behalf of an eligible client on a specific issue but only if: (1) appropriate administrative and judicial relief had been exhausted; (2) the legislative body could provide relief; and (3) the communication was not part of a coordinated campaign. LSC funds could be used to respond to requests of legislative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Participation in agency rulemaking: LSC funds could be used to represent clients in agency rulemaking if the representation was on behalf of an eligible client on a particular application, claim or case which directly involved the client’s legal rights or responsibilities. LSC funds could be used to respond to requests of administrative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Training: LSC funds could not be used to disseminate information about public policies or to train people how to lobby or participate in agency rulemaking.

Restrictions on personal activities of staff attorneys: No new restrictions.

RESTRICTIONS IMPOSED IN 1996 APPROPRIATION PROVISIONS AND CONTINUED TO DATE

All restrictions in the LSC Act remain. The 1996 appropriation provisions replaced the 1980s’ appropriation provisions which are no longer in effect.

Non-LSC funds: With regard to the 1996 restrictions described below, all of a program’s funds from whatever source (except tribal funds) are restricted. Programs cannot use funds from non-LSC sources to undertake activities that are subject to the restrictions and that cannot be done with LSC funds. However, programs may transfer non-LSC funds to affiliated or entirely separate entities to use for representation in restricted cases.

Restrictions on types of cases

Welfare Reform: Programs cannot engage in litigation on behalf of groups or participate in lobbying or rulemaking involving State or Federal welfare reform initiatives, laws or regulations (unless they fall within the exceptions for lobbying and rulemaking outlined below). However, programs can represent an individual client who is seeking relief from a welfare agency because of threatened adverse action based on a welfare reform law, regulation or policy. As a result of the Supreme Court decision in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), legal services programs representing such individuals in cases seeking relief from welfare agencies can now raise all relevant legal issues and can challenge existing statutory law or regulations.

Redistricting: Representation in redistricting cases is prohibited.   However, representation in voting rights issues not involving redistricting is permitted.

Abortion: Programs cannot participate in any litigation with regard to abortion.

Drug evictions from public housing: Programs cannot represent persons convicted of, or charged with, drug crimes in public housing evictions when the evictions are based on threats to health or safety of public housing residents or employees.

Assisted suicide, euthanasia and mercy killing: Programs cannot use LSC funds for any activities relating to assisted suicide, euthanasia and mercy killing.

Restrictions on clients that could be represented

Aliens: Programs generally cannot use any funds to represent most undocumented and several other categories of aliens. However, certain legal aliens can be represented using both LSC and non-LSC funds. Specifically:

1. Lawful permanent resident aliens.
2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen, assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
3. Aliens granted asylum.
4. Aliens granted refugee status.
5. Aliens granted conditional entrant status.
6. Aliens granted withholding of deportation.
7. H-2A nonimmigrant temporary agricultural workers, concerning the worker’s employment contract.
8. H-2B nonimmigrant forestry workers, concerning the worker’s employment                       contract.
9. Victims of human trafficking
10. Aliens who are victims (or parents of victims) of domestic violence, victims of sexual assault or certain other sexual or violent crimes, when legal assistance is directly related to the prevention of, or obtaining relief from, the violence, assault or criminal activity.

Prisoners: Programs cannot participate in civil litigation on behalf of a person incarcerated in a Federal, State or local prison or participate in administrative proceedings challenging the conditions of incarceration.

Restrictions on representation

Legislative Advocacy: Programs are precluded from directly or indirectly attempting to influence pending or proposed legislation. However, programs can use non-LSC funds to respond to a written request for information or testimony from a legislative body or committee, or a member of such body or committee, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Administrative Advocacy: Programs cannot represent clients or client interests before administrative agencies engaged in rulemaking and cannot use LSC funds to respond to requests of administrative officials with regard to rules directly affecting clients. However, programs can use non-LSC funds to: (1) participate in public comment in a rulemaking proceeding, or (2) respond to a written request for information or testimony from a government agency, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Self-help lobbying: Programs are precluded from all self-help lobbying before agencies or legislative bodies, with two exceptions. Programs can use non-LSC funds to affirmatively contact or communicate with State or local legislative or administrative officials with regard to pending or proposed agency proposals or legislation to fund the program. Programs can use non-LSC funds respond to requests of federal, State or local legislative or administrative officials with regard to pending or proposed legislation or agency proposals to fund the program, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Grass roots lobbying: Programs are prohibited from participating in any grass roots lobbying.

Class Actions: Programs cannot initiate, participate or engage in class actions, but can continue certain limited non-adversarial activities in existing class actions and can represent individuals who are members of a class in certain limited circumstances.

Attorneys’ fees: The 2010 consolidated appropriations bill eliminated the statutory restriction on claiming, collecting and retaining attorneys’ fees. Effective March 15, 2010, LSC eliminated the attorneys’ fee regulation (45 CFR 1642) and programs are now permitted to make claims for attorneys’ fees in any case in which they are otherwise legally permitted to make such a claim. Programs are also permitted to collect and retain attorneys’ fees whenever such fees are awarded to them. With the repeal of the restriction, programs are permitted to claim, collect and retain attorneys’ fees with respect to any work they have performed for which fees are available to them, without regard to when the legal work for which fees are claimed or awarded was performed.

Solicitation: Programs are prohibited from representing clients as a result of in-person solicitation. However, programs can operate community legal education programs and engage in outreach activities to client groups, and may represent clients who seek assistance as a result of those activities, but may not affirmatively seek to identify particular individual participants who have specific problems on which they need assistance and advise those particular participants to seek such assistance from the program or another program.

Training: Programs cannot conduct training programs to advocate particular public policies or political activities or to train people to engage in restricted activities.

Client identification: Except in emergency situations, programs are required to identify by name to the defendant any client who is a plaintiff and obtain a signed statement of facts from such plaintiff before the program can file suit or engage in pre-complaint settlement negotiations on the client’s behalf. Access by adverse parties to the written statement of facts is governed by the law and discovery rules of the court in which the action is brought.

Case disclosure: Upon request, programs must disclose to the public and must report semi-annually to LSC certain information about each case that is filed by program attorneys in any court (not administrative agencies). The information includes (1) the name and address of each party to the legal action, (2) the cause of action of the case, and (3) the name and address of the court in which the case was filed and the case number assigned to the case. Programs do not need to file name and address information when such information is protected by an order or rule of a court or by a State or Federal law or when revealing such information would put the client of the program at risk of physical harm. This requirement applies only where a program represents a plaintiff in an action; cases where the programs represent defendants or third parties need not be reported.

Restrictions on personal activities of staff attorneys: No new restrictions.

Restrictions on assisted suicide: The Assisted Suicide Funding Restrictions Act of 1997 prohibited the use of LSC funds for any assisted suicide, euthanasia or mercy killing activities.

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

[Part 6 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 assure that “attorneys providing legal assistance…have full freedom to protect the best interests of their clients in keeping with the [ethics codes) … and the high standards of the legal profession.”

Until 1996, it could be fairly said that that attorneys providing legal assistance in LSC funded programs had the full freedom to protect the best interests of their clients in keeping with state ethics codes and the standards of the legal profession. LSC management interpreted the LSC Act as requiring LSC to respect state ethical rules and both the state and federal attorney-client privilege in carrying out its enforcement and monitoring activities.   With a few relatively minor exceptions, LSC honored this interpretation of the provisions of the LSC Act preventing LSC from interfering with attorneys professional responsibilities.

However, the 1996 appropriation provisions gave LSC and its auditors and monitors the authority to examine eligibility records, client trust funds, timekeeping records, retainer agreements and client names except for reports or records that were subject to the attorney-client evidentiary privilege. Although such access by LSC is likely permitted under most state ethical rules, which permit access to confidential information when “required by law,” the intrusion of LSC auditors and monitors into confidential client information is a troubling development that could lead to much more intrusive review of client case files and other confidential information. Also, most recently, LSC now interprets the LSC Act as requiring it to conform only to The ABA Model Rules of Professional Conduct and the federal attorney-client privilege, and not state ethical rules or attorney-client privilege. See United States v. California Rural Legal Assistance (D.C. Circuit 2013).

In addition, the restrictions imposed by the LSC Act and, the LSC funding restrictions imposed by appropriation provisions during the 1980s and 1990s, did not significant limit what LSC funded programs could do for the clients they services. However, the 1996 LSC restrictions on what can be done for eligible clients, such as those prohibiting class actions, asserting attorneys’ fees requests, or representing clients before legislative or administrative rule-making bodies, force LSC funded legal services programs to limit the scope of representation they can provide and prohibit them from engaging in vitally important representation. So far the restrictions do not directly interfere with professional ethics and programs and their attorneys can act ethically and comply with these restrictions. While we do not foresee new restrictions, it is possible that future restrictions on what programs or attorneys can do could so limit what attorneys can do for their clients that they could not competently represent clients.   A detailed analysis of both the confidentiality and scope of representation issues in light of the 1996 provisions and restrictions is found in my article: Alan Houseman, “Restrictions by Funders and the Ethical Practice of Law,” LXVII Fordham L. Rev. 2187 (April 1999).   See also Rebekah Diller and Emily Savner, A Call to End Federal Restrictions on Legal Aid for the Poor, Brennan Center for Justice (June 2009).

[Part 5 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 keep the legal services program “free from the influence of or use by it of political pressures.”

In 1971, studies by the American Bar Association and the President’s Advisory council on Executive Organization recommended creation of a separate corporation to receive funds from Congress and distribute them to local legal services programs. President Nixon, when introducing legislation for a legal services corporation in 1971, called the Corporation a new direction to make legal services “immune to political pressures and … a permanent part of our system of justice.”

However, from the outset, LSC was never free from the influence of political pressures on its actions and activities. It was perhaps naive on the part of LSC proponents and supporters to expect that it would be free of such political influence. In fact, the long gestation period, from 1971 through July of 1974, for the enactment of LSC Act should have provided sufficient skepticism about LSC as a panacea for the political problems and attacks made upon the OEO legal services program. Compromise on the specific design of the Corporation was exceedingly difficult to achieve. In retrospect, it is remarkable that Richard Nixon proposed the Corporation and stayed with the concept. It is even more remarkable that LSC has lasted 40 years in the face of substantial efforts to eliminate LSC made initially by President Reagan in the early 1980s and later by the leadership of the 104th and 105^th Congresses in the mid-1990s.

There are two fundamental lessons we can learn from the political history of the federal legal services program. First, a federal legal services program is a part of the political process and subject to the changes in Congressional and Executive politics and ideology. No structure will make legal services immune to or free from the use of political pressures. To survive, the legal services program must have strong bi-partisan support and cannot act to undermine or significantly reduce the support of either political party.

Second, LSC is, in the end, a creature of Congress and is dependent upon Congress for it funding, its existence and the scope of its activities. Congress can protect LSC when attacked by the Executive or when the Executive wants to reduce funding, add restrictions or staff LSC with ideologues of a particular political ideology. On the other hand, LSC is vulnerable, even with a supportive Executive, when Congress decides to reduce funding, impose restrictions, eliminate program components or even eliminate the Corporation itself.   What motivated those proposing an independent corporate structure, as opposed to housing the federal legal services program in a federal agency or department, such as the Justice Department, was the fear of Presidential and executive hostility to legal services. Far less attention was paid to the consequences of a hostile Congress or the long term dynamics of programmatic survival inside the Federal government.

Neither of these lessons suggest that another structure would have been better for the federal legal services program. LSC may not have survived as a federal agency or as a program of a department. Nor do these lessons suggest that there should not be a federal program. A federal program is critical both because civil legal assistance is a federal responsibility and because only a federal program will ensure that the poor have access to civil justice.   These lessons suggest a far more fundamental proposition: Without a broad base of widespread public support, civil legal services in the United States is dependent upon having, will not survive without, and cannot achieve the fundamental purposes of the LSC Act.

We must build a base of broad public support for civil legal aid to help ensure that government and the private sector increase direct funding for civil legal aid programs. While we will continue to push for increased funding for LSC, expand state and IOLTA funding, increase the efforts to raise private funds, and consider alternative approaches such as the right to counsel in civil cases at state expense, none of this will occur until there is much greater support for civil legal aid among the general public as distinguished from private lawyers and the organized bar. Thus, the challenge for the bar and the legal services community is to develop and nurture support not just from liberal but also from conservative leaders, not just from labor organizations but also from business groups, and not just from advocacy and client groups but also from government and human services providers as well. In addition, building public support will require public awareness campaigns (such as those being promoted by Voices for Civil Justice) which highlight the work of civil legal aid programs and the importance of civil legal assistance. It will also be necessary to reach out to a wide variety of civic, business, religious, labor and educational leaders in various communities and states to educate them about civil legal aid and enlist their support for, and increased funding of, civil legal assistance. Finally, we also must show through data the effectiveness of our work.

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.