PATH OF THE LAW
Proceedings and Papers at the
Harvard Law School Convocation
held on the
ARTHUR E. SUTHERLAND
PUBLISHED BY THE HARVARD LAW SCHOOL
DISTRIBUTED BY THE HARVARD UNIVERSITY PRESS
CAMBRIDGE, MASSACHUSETTS 1968
THE EXTENSION OF LEGAL
SERVICES TO THE POOR:
NEW APPROACHES TO THE
Gary G. Bellow
At The American Bar Association meeting last month reports were made to the Bar by several speakers and committees on the expansion of legal aid to the poor. They stated that, with the assistance of federal funds from the Office of Economic Opportunity, hundreds of new offices had been created, and legal assistance had been provided to thousands of people who previously had no access to a lawyer.
No one who has been involved or concerned with legal aid
work can minimize the significance of these reports. From one hundred thirty-nine
(139) public defender offices in the United States in 1964 the number has
grown to two hundred sixty-six (266). There are now over one hundred thirty
(130) more civil legal aid offices than there were in 1964. Over one thousand
(1000) new positions for attorneys have been created. Cases involving the
rights of welfare recipients, the legality of consumer practices, the constitutionality
of the actions of government officials cases in almost every field in which
poor people are involved in legal difficulty
— have been handled in state after state across the nation. We have begun to make visible a system of injustice which has been so long allowed to remain invisible.
It is, therefore, with some hesitation that I express the skepticism that I feel today. A great deal has, in fact, been done and much has been changed in three short years. Nevertheless, it seems to me that, even in establishing the neighborhood offices, the test case units, the legal education programs — even in creating this whole panoply of legal and supportive services — we have made a number of very narrow assumptions concerning the problems with which they deal and the scope of what needs to be done:
1. We have assumed that the provision of legal aid service to the poor is separate from the general problem of the unavailability of legal service to others in our low-income areas and to much of the rest of the nation.
2. We have assumed that, with adequate financing, legal aid services can be fully provided within the present structure and organization of the profession.
3. We have assumed that the provision of legal advice and representation, in and of itself, will fully fulfill any responsibility that the Bar has to the nation.
In my view these assumptions are in error. They will, as they are pursued, inevitably create new problems which will themselves one day have to be faced and solved. For this reason they deserve examination and questioning.
Nevertheless, such an approach is, at best, short sighted. We cannot focus only on those we consider poor, nor can we define the problems of the disadvantaged in terms of the destitute alone. We cannot continue to ignore the millions upon millions of people in the ghettos and throughout this nation who are almost poor, who do not qualify for legal aid, and who, in reality, are without sufficient funds to hire an attorney. The fact that so many of those who stole and rioted in our streets this summer were, in fact, employed and owned some property should give us insight into the impossibility of coping with the problems of our cities’ slums, legal or otherwise, in terms of any one group or category. Poverty is a relative concept. To assist people to income levels above the "poverty line" where they will find themselves without services or concern previously available to them can hardly lead to any permanent solutions.
Nor can we ignore the impact that our attempt to divide the poor from the non-poor has on the actual operation of legal aid programs. In practice, the standards applied by legal aid organizations usually set dollar limitations on eligibility without reference to whether the client will ever actually get legal help. In some cases ownership of a car or household goods is, itself, ground for exclusion no matter how much debt the client has incurred. the result is that legal aid attorneys are faced with unworkable standards which they administer arbitrarily, without reference to priorities or realistic guidelines. Service is rendered or denied with very little basis for the distinctions that are drawn and with no rationale that can l)e understood by the client who is turned away. More serious, the limitation that the case not be one that could produce a fee, results in cases being handled differently than they would be handled in private practice. Damages or punitive damages, properly called for by the case, are not sought. Issues which should be litigated are compromised, often because the legal aid attorney feels he will be criticized for handling a fee-generating matter, or rendering service to an ineligible client.
We forget that the establishment of the indigency standard, the line between the poor and the non-poor is and was more a political than a logical decision. It represented an accommodation with those members of the Bar who were willing to handle cases for very low fees and speculative recovery. If these cases, in fact, are not being handled, or are being handled inadequately, as many are, it is no answer that tills is the price that must be paid for Bar support of legal aid. In the long run we will have to face the implications of competition between legal aid programs and attorneys earning four or five thousand dollars a year or willing to handle cases for twenty or thirty dollars a case. We will have to design methods to enhance the economic potential of such attorneys and to increase the competition among them so that there will be some guarantee of quality of service. Most basic, however, we will have to increase the ability of those who do not qualify for legal aid to obtain and pay for the service they need from attorneys of their own choosing. We will have to do so, moreover, without total reliance or government funds, if we are to retain the independence the profession now enjoys.
This means the cost of legal service to the client must drastically be reduced.
It means, even now, that we should implement the group legal service proposals that have been made, whether by community organizations, labor unions, or consumer associations.
We should seriously explore ways technology can reduce the cost of legal service.
We should systematically encourage arrangements for the use of pooled facilities by lawyers and the establishment of group law practices.
We should forthrightly re-examine our attitudes toward forms of legal insurance.
The cost of legal service will either be reduced or spread among large numbers of people in accordance with risk or it will, as now, be denied. To assume that we can avoid this problem or take less certain steps is to insure that there will never be any basic response to the problem of adequate representation for the disadvantaged.
In choosing this approach we have virtually ignored the problem of priorities in allocating the limited resources available. We have also chosen an impossible task. No matter how many hours a day the offices remain open, no matter what systems are used to streamline intake and processing, the attorneys cannot handle the floods of people that come to them for legal help.
There are, of course, many who do try to handle every case, do seek to squeeze the last case into the last ten minutes of an overburdened day. For their efforts we pay an enormous price. The process exhausts the attorney and his staff, and very, very quickly creates the same self-protective formality, the same need for categories, the same dehumanization which has been so often criticized in welfare and other agencies working with the poor. In the same manner, the quality of the legal work steadily declines. Issue after issue is ignored in the name of a quick compromise and in the face of the growing caseload. Those of us who have worked in such offices know 110w few depositions are filed, interrogatories taken, appeals sought or equitable remedies utilized in the thousands of cases now being handled. It is no answer that these are simple cases. They are simple, by and large, because they are superficially handled. Of course many problems can be resolved by negotiation or even a phone call. But in how many cases could the clients interests be far more adequately protected if there were time to investigate the facts or research the issues involved?
The National Legal Aid and Defender Association has stated that an attorney can handle as many as nine hundred (900) cases per year. No attorney call handle such a caseload without doing far less than what needs to be done. Nor is it consistent with the obligation of fidelity owed to the individual client to ask the attorney to do so.
In addition, the volume makes it impossible to train or supervise the young attorneys in the offices. There are too many young lawyers in these programs that have already developed the habits that come with mass production law practice. There are many others who have not been willing to enter legal aid work because they feared that they would not get the supervision they needed in their early years of practice.
It seems to me, hard as it is, that we should stop trying to give every person a little bit of help. We should recognize the price we are paying, the limitations on our resources, and, with the community we serve, attempt to develop some order of priorities for the use of these services. More important, we should recognize that the problem is not merely a problem of resources. the profession, as it is currently constituted, will never be able to cope with the need. There are approximately three hundred thousand (300,000) attorneys in the United States, Last year, civil legal aid offices handled over five hundred thousand (500,000) cases. The National Crime Commission estimates that counsel will be needed in over seventy-five thousand (75,000) felony cases and a half-million misdemeanor cases every year. In cities that have opened legal aid offices, the caseload has increased three and four times. In Washington, D.C., in its first year, the legal service pro— grain handled over seven thousand (7,000) cases as compared to approximately one thousand (1,000) the year before. If all the attorneys in the United States did only legal aid work, the resources would still be inadequate.
Must we not recognize that the present system for providing legal service cannot cope with volume of this nature? Must we not ask ourselves how many of the thousands of cases and problems that arise daily could be handled as well by trained laymen as by lawyers? Every clay the poor and near-poor have to fill out forms, negotiate agreements, express grievances and challenge public and private decisions without recourse to any adviser or advocate on their behalf. Much of this could in fact be clone by non-lawyers
— legal technicians, if you will — trained in special undergraduate courses or in a one year law school program. Some of it can be and even now is clone by members of the low-income community themselves. This is, of course, not to say that the Bar would or should relinquish supervision and control. It is merely evident that three years of law school are not needed to calculate a welfare budget or recognize all unfair interest charge. We can surely supervise the way advice is given on these matters without, in every instance, giving that advice ourselves.
Were such trained technicians available, could not many of the cases that fill our courts and add to the congestion of our court calendars — domestic relations problems, minor misdemeanors, even issues of fault in tort cases — be resolved outside traditional litigation by mediation and arbitration processes staffed and administered by such technicians? There would, of course, have to be scrutiny of the fairness of such processes. But to provide adequate procedural safeguards in the orderly resolution of disputes does not depend in every instance on the presence of an attorney, nor is the courtroom the only forum in winch such disputes could or should be resolved.
We have, as a profession, been granted a monopoly over who can engage in the practice of law. In exercising this monopoly we, by and large, also determine the forum in which disputes will be resolved. For the wealthy, the narrow confines of the unauthorized practice rules have been modified. the use of lawyers and courts to resolve all legal difficulties has proved just too expensive and time consuming. Commercial arbitration and negotiation have therefore, provided other forums; accountants, real estate brokers, banks, insurance agents have become alternatives to reliance on attorneys in every instance where a legal question is resolved. For the people in the slums of our cities there are no such forums and no such alternatives. Until and unless such alternatives can be developed people in need will not be helped, 110 matter how strong the myth of total representation. To assume that these alternatives are the province of lawyers alone is probably to guarantee that they will not be developed at all.
We talk of the need for changes in attitudes of the poor, and the potential for such changes through contact with lawyers and through exposure to fairer treatment. This may be true. But the changes will not be very lasting, if they are not accompanied by some real changes in the political and economic position of the poor as well. The poor are victims of a whole system of injustice well beyond a particular case or litigation. the slum dweller is the victim not only of the slum landlord. He is the victim of inadequate transportation systems, segregated suburban housing, the depreciation allowance of the internal revenue code, all of winch give the landlord his monopoly and control. the California farm worker is not merely the victim of the unscrupulous labor contractor. Unenforced labor codes, illegal recruitment of competing foreign workers, exclusion from protective legislation give the contractor the power that he possesses. The absence of attorneys for the poor is merely symptomatic of the absence of justice. Providing more lawyers will not necessarily make ally changes in the injustices that envelop the poor. Nor can we be satisfied with such a goal. If justice is the responsibility of the Bar, as I think it is, then it is the national problem of poverty, itself, with which we must deal.
To deal with this means that the profession will have to be concerned with more than service to more and more people. It will have to recognize the political nature of the problem of poverty, and the relevance of the law as a political instrument to cope with it. "Poverty law" consists of more than the legal problems of welfare or retail installment buying. It also necessarily involves the internal revenue code, the federal reserve system, grant-in-aid legislation — all those rules, regulations, practices and procedures that affect the distribution of wealth and power in our society. It is in this context that the obligations of legal aid and the Bar must be defined.
Historically’, the law has often served as an instrument of change and reform. the history of the challenges to the income tax by a group of Philadelphia lawyers on behalf of their corporate clients more than fifty years ago is just one such example. The poor need a similar kind of advocacy — an advocacy which will have available to it the legislative as well as the judicial forum —an advocacy which will seek to enhance the organization and political power of its clients.
Tile law has also, many times in our nations history, been used to build institutions which advance the economic interests of particular groups or organizations. M Much of the economic history of the United States is a chronicle of such efforts. Forms of corporate financing, the tax structure, even the regulatory machinery
of countless administrative agencies are products of lawyer-work seeking to order and advance the financial affairs of clients. Today attorneys for the wealthy spend far more time in developing and using such systems and structures than in litigation. the same must eventually be true of lawyers who work with the poor. Credit unions and other financial institutions can be developed to provide alternatives to loan sharks and unfair retail sellers. Businesses owned by the low-income community, itself, can be organized and established to provide for the community a stake in its growth and expansion. Cooperative housing can be made an alternative to the landlord-tenant relationship that exists in the slums. These tasks will take attorneys, trained and oriented to do such jobs, and supported by the entire profession.
The Appellate Division of the New York Supreme Court recently expressed concern that legal aid lawyers may be providing representation to groups "of social and economic protest." To me, the degree to which we can effectively do just that is the very question facing our nation. The question is whether we can channel the grievances that are now in the streets into the political and legal process. the question is whether the law and lawyers can be the instruments of the kind of changes that will begin to cope with the conditions that produced the violence of this summer —with automation, unemployment, discrimination, caste, population growth.
There will be, I fear, other nights of violence like the
ones we have seen. That they may one day be a part of our history and not
a prediction of the future is why, as lawyers, we must look far beyond
our work of the last few years. That is the challenge to the profession
— and to the nation.