Category Archives: LSC anniversary

The OEO/LSC Support Infrastructure

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.

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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) JusticeandReform1emphasized 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.

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LSC Support Center Study, February 1976, vol. 2: table of contents. NEJL, Clint Bamberger papers.

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.Green-ad copy

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.

Restrictions on LSC Funded Legal Aid Programs

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.

lsc_logoThe 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.

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Cropped from PAG Update, May 21, 1996.

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).

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Memo by LSC president Thomas Ehrlich to recipients of LSC funds, Feb. 4, 1976. Clinton Bamberger papers, NEJL.

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.

Professional Ethics and Standards

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.”

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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).

Poverty Journal Symposium Highlights Access to Justice

Poverty Journal Symposium Highlights Access to Justice

Every American knows that he or she has a right to an attorney in a criminal case — thanks to Miranda warnings on TV crime shows. But what many do not know is that they could…

Go to the Law Center’s web story on last week’s Rationing Justice symposium….

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

Rationing Justice: Access to Justice and the 40th Anniversary of the Legal Services Corporation: 2015 symposium presented by the Georgetown Journal on Poverty Law and Policy, March 3.

We can look forward to the publication of the proceedings in the Georgetown Journal on Poverty Law and Policy.

View the full recording of the symposium.

The title of the symposium was inspired by Judge Learned Hand’s speech before the Legal Aid Society of New York in 1951, who had said: “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” The symposium, introduced by Professor Peter Edelman, was as thought-provoking as it was inspiring, and featured two discussion panels, as well as two key note spearationing_justicekers: Jim Sandman, the president of the Legal Services Corporation, and Chief Judge Lippman of New York. Speakers on the first panel discussed how things have changed in four decades of legal services. Panelists included Alan Houseman, former Executive Director and Emeritus Senior Fellow of CLASP; Hannah Lieberman, Executive Director of DC’s Neighborhood Legal Services Program; and Lisa Dewey, DLA Piper’s full-time Pro Bono Partner. The second panel was titled: Ensuring Justice – New Directions in Legal Strategy, and featured Rhonda Brownstein, Southern Poverty Law Center’s Legal Director; Sharon Dietrich, Litigation Director at Community Legal Services of Philadelphia, Dean Jane Aiken, Professor of Law and Director of the Community Justice Project at Georgetown Law Center; and Purvi Shah, Director of the Bertha Justice Institute at the Center for Constitutional Rights.

Political Independence

[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.”

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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.”

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Excerpt from memo by President Richard Nixon to the Senate, requesting to re-write S. 2007, the Economic Opportunity Amendments of 1971, and ensure that the proposed LSC was structured to be independent of political influences. December 9, 1971. Clinton Bamberger Papers, NEJL.

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 105th 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.

The Continuation of the Vital Legal Services Program

By Alan Houseman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

 

High Quality Legal Assistance

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

By Alan Houseman

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

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

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

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

Equally significant were judicial decisions stimulated by creative advocacy by lawyers which expanded common law theories on retaliatory evictions and implied warranty of habitability. These insured that the poor could not be evicted from housing when the landlord failed to meet statutory and common law obligations Legal services attorneys also effectively enforced rights that were theoretically in existence but honored in the breach. Legal services representation ensured that federal law benefiting the poor was enforced on behalf of the poor. For example, legal services lawyers won Sullivan v. Zebley, the case providing SSI benefits to hundreds of thousands of families with disabled kids.

Perhaps most important, through sustained and effective legal services representation, public and private agencies and entities dealing with the poor were fundamentally changed. Legal services representation altered the court system by simplifying court procedures and rules so that they could be understood by, and made more accessible to, the poor. Legal services representation also forced the welfare and public housing bureaucracies, schools and hospitals to act according to a set of rules and laws and to treat the poor equitably and in a manner sensitive to their needs. And legal services programs have been on the forefront of the efforts to assist women subject to domestic violence.

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

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

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

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

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

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

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

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

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

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

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

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

legalaidresearch.org

legalaidresearch.org

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

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.

Achieving Equal Access to Civil Justice

[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.”

lsc_logo

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

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

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

hrc_lsc_report1978

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_report_1981

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.

A Brief Review of Civil Legal Aid History

By Alan Houseman

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

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

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

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

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

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Clinton Bamberger Papers, NEJL.

The federal Legal Services Program began in the Office of Economic Opportunity in 1965. OEO created a unique structure, building on the civil legal aid model and on the demonstration projects at New Haven, New York, Boston and Washington, DC funded by the Ford Foundation in the early 60s. The architects of the new federal program recognized that civil legal assistance did not exist in many parts of the country and realized two fundamental propositions: First, that “something new” was needed—well-funded legal aid would not do. Second, the architects realized that the law could be used as an instrument for orderly and constructive social change as was being done by lawyers for the civil rights and civil liberties movements.

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

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

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

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

OEO also funded full-service providers, each serving one geographic area, which had the obligation to ensure access of all clients and client groups to the legal system. The only national earmarking of funds within the OEO Office of Legal Services was for Native Americans and migrant farm workers, for which OEO created separate funding and a somewhat separate delivery system. It was expected that funding would continue for each provider unless they substantially failed to provide service or abide by the requirements of the Act.   OEO also developed a unique infrastructure —found nowhere else in the world—that, through national and state support, training programs and a national clearinghouse, provided both leadership and support on substantive poverty law issues. State and national support centers also engaged in major litigation and undertook representation before State and Federal legislative and administrative bodies.

See also:

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

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

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

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