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