A. THE VIEW FROM ABOVE: THE EXPANSION OF FEDERAL SUBSIDIZED LEGAL SERVICES FOR THE POOR *
The federal Legal Services Program has been considered by many commentators the most successful of the poverty programs of the sixties. Begun in 1965 as part of the efforts of the Office of Economic Opportunity to generate community action in poverty areas throughout the country, the program quickly gained support from the national bar, explicit recognition (and legitimation) in the Economic Opportunity Act of 1965, and increased appropriations through its first five years. When Sargent Shriver first committed nineteen million dollars of OEO’s discretionary funds to legal services for the poor, less than two-tenths of one percent of the money spent nationally for lawyers in civil cases was being devoted to persons financially unable to hire their own attorney; what service was available came from charitably endowed legal aid societies or the volunteer efforts of private practitioners.
Today, the Legal Services Corporation Act, which places direction of the program under an independent non-profit corporation, supports the expenditure of over one hundred million dollars yearly to finance a network of local agencies and programs which hire attorneys to provide civil legal representation for the indigent throughout the country. Over three thousand full-time lawyers are employed in this way in local, neighborhood-based programs, and in spec-ialized litigation centers which provide representation to particular groups (the aged, children), in particular geogra-phic areas (states, regions) or with respect to specific subject matter concerns (welfare, housing). In addition, the Legal Services Corporation itself is engaged in training, experimentation, research and lobbying on behalf of the program. Most recently, it has established a Research Institute for the purpose of producing research and specific recommendations on a wide range of public policy issues affecting the legal rights of the poor.
Even the enormous wave of hostility 1 that confronted financing legal aid programs at the local level has subsided with the establishment by Congress of the Legal Services Corporation. The Board of the Corporation, although not entirely committed to the directions of the past, seems quite willing to continue the program in its current form and has enormously increased its appropriations. Many of its former critics, as well as its supporters now speak of the “legal services movement” and publicly extol accomplish-ments which were the source of deep conflict earlier in the program’s history. These claims include the following: First, it is pointed out that there has been a significant expansion of legal services to the needy throughout the country. Lawyers working for local programs financed by the Legal Services Corporation presently handle over one million cases per year on behalf of poor persons. Since the inception of the program, representation has been afforded in over a billion cases. It is argued that this has not only helped individuals but has, to some degree, increased the general knowledge among poor persons of their legal rights and the willingness of the Bench and Bar to enforce them.
Secondly, it is claimed that acceptance of the program among lawyers generally has significantly increased; most local programs now have representatives of the client community as well as lawyers on their Board of Directors, and enjoy relatively good relations with lawyer referral services and other local Bar-supported activities. 2 Among the National Bar leadership, this support has been remarkable, given the Association’s very conservative history. ABA Presidents have consistently testified before Congress on behalf of the program’s requests for appro-priations and recently an ABA Committee called for a voluntary contribution of five percent of every lawyer’s time to pro bono activities.
Finally, even the controversial efforts of legal services lawyers to change legal rules and institutional practices on behalf of the poor, are now seen as positive (and real) accomplishments of the program. 3 A significant amount of litigation has been generated by legal services lawyers seeking changes in existing rules and doctrines. A variety of judicial decisions—striking down one year state residency requirements in welfare as unconstitutional, establishing the right of tenants to challenge threatened evictions by landlords retaliating for complaining about housing condi-tions, enlarging the protections available to defrauded consumers—were the direct result of actions which arose out of grievances brought by poor people to program attorneys.
This has meant real gains for the poor as well as an increase in their
security and freedom from being victim-ized and harassed. In California,
for example, Governor Reagan was prevented from cutting over a million
dollars from the state’s medical assistance program as a result of a suit
brought by a legal services attorney. Similar actions challenging a variety
of welfare practices nationally are estimated to have produced over three
hundred million dollars for recipients whom they would not have received
without judicial intervention. One historian of the program has calculated
that the program has produced benefits for the poor in the billions of
Unfortunately, it’s not possible, without a good deal of analysis, to separate the wheat from the chaff in these celebrations of the program’s virtues. Services have been extended to thousands of people, but the pattern of expansion seriously underfunded the south and southwest, the volume of service only scratched the surface of the need, and the character and quality of the service still raises serious questions.
There is unquestionably more acceptance of the program by lawyers throughout the country but this may be because the program is no longer seen as seriously challenging existing social and institutional arrangements.
There were, indeed, a number of important lawsuits brought and won. There were, however, a number that were lost, a good many that accomplished little more than affording publicity for the lawyers and the programs which brought them, some that “lawyerized” the issues they raised in ways that undercut potential grass roots political organization, and many more which, although successful, were never effectively enforced. Changing rules can be an empty act if there is not an organized, political base to implement the newly established mandates.
Similarly, much legislation fostered by the program, although responding
to some of the worst abuses suffered by the poor, has not prevented new
patterns of domination from arising. Landlords have passed on the costs
of new tenant protections in the form of higher rents. Credit companies
faced with restrictions on their collection practices have abandoned low
income areas to even less reputable loan sharks. The market economy is
not a very reliable institution for any lasting distribution of wealth
and power from the haves to the have nots.
Such plans surely present an attractive vision. In a law-dominated society
such as ours, it would be hard to imagine a process of change on behalf
of the poor without access to, or at least protection from, the legal system.
What the vision ignores, however, is the day-to-day operation of the “delivery”
system, which is being created. When we abandon a view “from above”, it
appears that the legal aid system (like the welfare system, the public
housing system and other government-funded social services that preceded
it,) may be supporting the very inequalities that brought a federally financed
legal aid program into being.
B. THE VIEW FROM BELOW: THE EXPANSION PROFESSIONAL CONTROL IN THE LEGAL SERVICES SYSTEM
To shift focus from the national program to the experience of those who are affected by it, it’s necessary to have a working image of what legal services to poor people actually looks like. One must try to picture waiting rooms, telephone conversations, office conferences, library re-search, files, documents, court appearances—the para-phernalia of any busy law office—in an enormous variety of settings and physical arrangements. Moreover, in evaluating such efforts, one must make allowance for different styles, personalities, work rhythms, modes of interaction that fairly reveal the diversity rather than the quality of service being provided.
Nevertheless, if one spent time in enough programs, on enough days, with enough patience, common strands would soon emerge. Despite their commitment to avoid the kind of cautious, detached, client controlling service that so many public bureaucracies—public housing authorities, welfare departments—seem to provide, my guess is that, if one looked carefully, one would conclude that this is precisely the kind of service our clients are receiving. What research now exists suggests the following recurrent features:
Routine Processing of Cases
Problems presented by clients in legal services offices by and large are dealt with routinely and perfunctorily. If a case is not considered to be a “legal problem”, a referral is suggested. There is no follow-up to see if the client actually got to the referral agency or any collaboration with the referral agency after the client is referred. If the case is considered appropriate for a lawyer, it is typically “slotted” into a standardized pattern; i.e., getting the client time to move out in an eviction case; working out a payment schedule in a debt case. Only rarely does such “repre-sentation” involve any research, investigation or courtroom work. Indeed, in most cases, the lawyers do not leave the office, making arrangements for resolving most cases over the phone. Only if a particular case raises an “interesting” issue, or the client is unusually attractive or demanding, will any unusual amount of time, effort or planning be expended in providing representation.
Low Client Autonomy
Relationships with clients are dominated by these routines. The definition of the client’s problems and the “best” available solutions are not mutually explored and elaborated; they are imposed by the lawyer’s view of the situation and what is possible within it. In most discussions between lawyer and client, the lawyer does almost all of the talking, gives little opportunity for the client to express feelings or concerns, and consistently controls the length, topics and character of the conversation. Insofar as the client must elaborate the facts, they are obtained by a series of pointed, standard questions rather than any process that resembles a dialogue. Clients take this as “all they can expect” and are rarely aware that a different relationship with a lawyer is possible.
Narrow Definitions of Client Concerns
The corollary of this limiting mode of inquiry is that the only problems handled by the lawyers are those actually presented by the clients. Thus, if a client seeking a divorce has been defrauded in purchasing consumer goods, or is not receiving the social security benefits to which (s)he is entitled (but is unaware that a lawyer might be of assistance with such difficulties) the lawyer will not initiate inquiry into such problems. There is no concept of a “legal check-up” in legal services practice. Indeed, many clients actually feel discouraged from discussing other possible legal difficulties. 4
Not surprisingly the vast majority of cases handled in this way result in settlements. Clients “agree” to move out, or to accept a percentage of back benefits claimed from the welfare department, or to give up a damage action against a credit company in return for a reduction of an indebtedness. In any given case such results may or may not be desirable. That is, whether a settlement is a “good” one depends on (a) how much more could have been obtained if settlement were rejected and aggressive representation continued; (b) whether what is settled for is more than the discounted value to the clients of what would have been obtained if the case went to trial. The utility and probability calculations here are, to say the least, very difficult. 5
Nevertheless, when potential damage claims (for rat bite, lead paint poisoning, or clear violations of State protective legislation) are being “traded off” for insubstantial reduc-tions of back rent or past debts, without any adequate discussion with the client of the possible recovery (as is the case in a number of legal services offices) because that’s the “way we’ve been handling those cases here”, one can say that such results are unacceptable. Although the research is still limited in scope, reviews of typical settlements in legal services programs by panels of experienced lawyers suggest that results are often lower than they need be. That is, despite the prevailing pattern (which generates its own expectations and makes a higher settlement more difficult to obtain), the cases should have been far more aggressively pursued.
Finally, a surprising number of clients are inappropriately “helped” to recognize that settlement is the best course to follow. That is, acquiescence in negotiated settlements by clients is secured by the lawyers overstating the risk of not settling, and systematically manipulating the client’s per-ceptions of the benefits of the suggested resolution and the difficulties the lawyer encountered in obtaining it. To use Erving Goffman’s phrase, the client is “cooled out” to guarantee that what (s)he gets is as much or more than (s)he has been led to expect. A particularly troubling form of this practice involves participation by lawyers in the so called “short trial” in which, after a perfunctory hearing and a few questions of one witness, the judge imposes on the resistant client a settlement which has been agreed to in advance by both lawyers. How conscious the lawyers are of their action in these instances is unclear, but here, as elsewhere in the provision of governmental assistance, the complex pattern of professional control and client acquies-cence in existing social arrangements is evident.
Taken together, these orientations produce recognizable patterns in large numbers of legal aid cases which vary considerably from the legal profession’s commitment to partisan representation of client interests. The two case file summaries in the appendix represent variations of practice which speak more forcefully than I can to the extent of the problem.
Two qualifications, however, should be kept in mind in reflecting on the meaning of this picture of legal aid practice. First, it’s important to recognize that the legal aid attorney, as an individual, is sympathetic and concerned about the plight of clients. Most legal services lawyers are not aware of the patterns that have begun to emerge. Their actions are experienced as reasonable responses to client difficulties. Indeed, there appears to be relatively little of the “blaming the victim” syndrome in legal aid work which William Ryan found prevalent in government service to poor and minority-group clients. Although there is some stereotyping and a good deal of paternalism toward clients, the more common attitude among the lawyers is that the clients are victims of an unresponsive and essentially unchangeable system. Often the most a legal services lawyer feels he or she can do is to “ease” the burden” a little, as efficiently as possible, for as long as possible. To do this over any period of time seems to require a good deal of detachment, “realism” and resistance to investing too much of one’s time, energy (and credibility) in any particular case or controversy. 6
C. THE VIEW FROM WITHIN: THE NATURE OF THE LEGAL SERVICES EXPERIENCE
That a gap exists between being provided a lawyer and receiving adequate
“legal care” should not be very startling. Some of the rhetoric of the
Legal Services Corporation not-withstanding, the “delivery” of legal assistance
is not comparable to providing vacuum cleaners. What is made available
when lawyers are paid to represent the poor is not a commodity but a relationship—a
relationship in a system of relationships—in which roles, possibilities,
and patterns of action are continually being defined, altered and given
new form. Such relationships are invariably subject to influences which
shape their character and quality. The question for those of us concerned
with aggressive legal services for the poor is why relationships between
lawyers and clients and actions by lawyers on behalf of clients reflect
the contours that they do. 8
Why, after all, should professional legal advice to the poor become shallow, cautious, and incomplete? Why should cases be handled passively, routinely, unaggres-sively? The lawyers who work in these programs are decent, committed human beings who have often given up better paying jobs and working conditions to do this sort of work. They come from a cross section of the nation’s law schools as well as the upper stratum of the nation’s successful students, and enter such poverty-type programs well aware of the dangers of bureaucratization and unresponsiveness in social services. Why are they not more cognizant of and resistant to influences which tend to undermine profes-sional norms that support personal, partisan “legal care”?
The thesis is that these realities create enormous pressures for routinized,
mass processing of cases. It is posited that, given the need, most recipients
would rather receive a little help than none at all. The legal aid bar,
which is subsidized, after all, to serve the community, feels it must respond
to this need by taking many, many more cases than can be carefully, aggressively
handled. The patterns of practice that emerge are the “best that can be
done” under these circumstances.
The problem with this notion (which is widely articulated within programs) is that it functions far more as justifica-tion than explanation. Obviously, the service being offered does not simply reflect what clients “really want”. Clients are not told they are receiving only minimal assistance, or that there may be approaches to some of their problems which are not being explored with them. They are also not afforded a choice between efforts which might more generally affect the conditions in the neighborhood or community in which they live, and some lesser attention to their immediate concerns. What people “want” is inevitably indeterminate, depending on their knowledge and what they consider possible and desirable. It’s an unusual client who would know without being so advised, that a lawyer less committed to routine service might stimulate litigation and concerted action to control exclusions of their children from school, or might offer a way of doing something about the garbage on the Street, or the rats in the walls.
Nor does the fact that some people with legal problems want some service
rather than none answer the question of whether service should thereby
be diminished to those who are already being helped. The legal profession’s
ethics insist that a lawyer not take more cases than he or she can reasonably
handle, on the obvious ground that a client has very little ability to
prevent the lawyer from cutting corners or otherwise compromising a case.
A policy which ignored this mandate would seem to need more justification
than “the greatest good for the greatest number”, especially when the number
is still so small. In circumstances in which available resources are grossly
inadequate, it’s a puzzling (and perhaps cynical) judgment that the small
expansion of service that a “minimal help—maximum
numbers” policy permits should essentially be paid for by limited attention to the program’s existing clients.
Most important, such a policy reflects a choice by the lawyers of the priorities they pursue and the character of the service they offer. No program has ever been required by formal policy of either OEO or the Legal Services Program to process large numbers of clients in the routinized modes I’ve described. Indeed, the public pronouncements of the Legal Services Corporation embrace a far more partisan orientation in legal aid practice. The legal aid bar decides to handle the cases in the way they do, no matter how inevitable this course of conduct comes to be perceived and experienced. What is needed is to understand why the following may offer some clues to this puzzle.
1. The Demands for Accommodation
The most pervasive influence on the legal aid lawyer (and all lawyers in the United States) is the enormous pressure to settle. It is a given of the administration of justice in this country, whatever its performance in the show-case situation of a murder trial or other highly publicized hearing, that neither our judicial nor administrative machinery could function without primary reliance on, and powerful inducements to, agreed-upon outcomes.
The legal aid lawyer practices uncomfortably at the center of many of these pressures for settlement. Though the clients often have real potential claims and defenses, they are also highly vulnerable to loss and often unable to handle the uncertainties that lengthy legal procedures inevitably entail. Legal aid programs are in a similar situation. They have clear authority to aggressively assert the client’s claims but are often vulnerable to political reprisal, including loss of funding, if they depart too dramatically from the “way things are done” in their communities. It’s not surprising that the legal aid lawyer feels real pressure from clients and superiors not to take too many risks in the way cases are handled. This is compounded by further pressures from opposing lawyers and agency personnel, many of whom could not do their jobs or make a living unless large numbers of cases were smoothly processed and resolved, and judges and other “deciders” as well, who clearly recognize that they don’t have the resources, time, or energy to hear every case on its merits. All have a very real stake in disputes being speedily and informally resolved.
The pressures created by clients and programs are very seductive. A negotiated settlement “satisfies” all interests with virtually no possibility of criticism. How, after all, is one to determine what is a “good” settlement? The client must rely on the lawyer’s judgment about the risks of going to trial, or whether a settlement in a particular case is the best possible under the circumstances. An outsider can only compare the results in any given case with similar cases. Since most offices regularly settle for low value and rarely go to trial, there is usually no reasonable basis for saying that in any specific instance, a trial or different settlement was preferable to what was obtained.
The potential power of adversaries and judges over the lawyers and clients further adds to the settlement solutions. Opposing counsel or a court can bestow many benefits on lawyers willing to play by the bureaucratic rules of the game. This includes a break now and then for a client with a weak claim, accommodation to a busy schedule, or even being helped to “look good” when public performance slips a little. Law practice is an uncertain business; the need for some predictability in doing the “law job” essentially depends on good working relationships with other pro-fessionals engaged in it.
Indeed, to do otherwise, can invite very real sanctions. Most legal aid lawyers are well aware of the possibilities for retaliation available to the hostile social worker (initiating a fraud investigation against a client, for example) or the angry landlord’s attorney (who can almost always serve the client with a “late rent” eviction notice). Few have not seen or known of judges who have punished clients for taking too much of the court’s time, or for filing “frivolous motions”. Bureaucratic imperatives speak loudly in the parts of the legal system in which legal aid lawyers work.
In combination, these pressures—from clients, employers, adversaries,
and judges—press legal services lawyers strongly
2. The Vulnerabilities of Inexperience
The foregoing pressures demand considerable skill and experience of any legal services attorney who would act more politically or aggressively than the norms of law-as-practiced generally permit. There is always the danger that opposing counsel or even the court will devote energy and resources to “teaching the lawyer a lesson”, however legitimate the client’s claim, or that settlement will be refused in cases when it is appropriate and necessary. Even when the lawyer has been relatively successful in obtaining his or her client’s goals, there is never any assurance that these goals were not initially set too low, or that the lawyer has, by not pressing the particular case, severely limited his or her effectiveness in the future. Partisan representation of client interests in a highly bureaucratized legal system is always a source of considerable strain and uncertainty. These tensions are enormously exacerbated when the lawyer’s client is poor.
Unfortunately, very little in the lawyer’s training or education provides the skill, confidence, or orientations necessary to protect clients in such a system. Whatever his or her initial motives or politics, the attitudes and skills of a young lawyer are almost entirely shaped by the prevailing patterns of practice; that is, “rookie” lawyers, like their counterparts in welfare departments, police departments and baseball teams, tend to conform to established ways of doing things. Although this is a common dimension of work adjustment, there are a number of reasons for the particular vulnerability of inexperienced lawyers in this process.
—First, there are not articulated (or enforced) criteria defining competent legal work (beyond recognition of “really” good or bad work when one sees it). The lawyer is supposed to exercise “sound” judgment on the basis of “adequate” preparation, but instances in which such standards are given more precise content are few and far between.
—Second, other than in large firms, there is virtually no review or supervision of a lawyer’s performance. Most legal advice, even by a neophyte, is given in private and without subsequent review by colleagues or supervisors.
—Thirdly, a lawyer certified by the bar to practice is generally not competent to do so. That is, he or she has, in most instances, never handled a case, interviewed a client, examined a witness or negotiated a settlement. A lawyer learns (often without any instruction or supervision) to “practice on”, his or her clients.
The reasons for these perhaps surprising propositions lie in the history and structure of American legal education. Generally, the law schools have adopted a mode of instruction which, whatever its ability to assist students to “think like lawyers”, essentially prepares students to perform the entry-level jobs—legal research and memoran-dum writing—in large firms. Thereafter, the firm is expected to shepherd the student through learning additional lawyer tasks, and incrementally introduce the young lawyer to increased responsibility for clients and their problems. For the lawyer who goes from law school to the large or middle-size firm, this division of educational responsibility between firm and law school functions reasonably well (albeit more expensively and with a considerably less critical perspective than I’d like to see). Where, however, the student goes directly into sole practice, or joins a small partnership (as is the case for many lawyers), or enters legal aid work, he or she must learn on the job, usually with emphasis on the “way we do things here” and on the skills needed to “get along” in the system. Without any models or alternative ways of handling cases, or much opportunity or encouragement of any critical perspective on what is being learned, conformity to pressures for settlement and routine case handling becomes a reasonable and almost inevitable response to conflicting role demands.
The legal aid lawyer is particularly vulnerable to these influences. Clients are usually not sufficiently knowledge-able and demanding to hold lawyers accountable to quality standards. The lawyers are unlikely to have had any law school instruction for a practice which, to be done well, requires knowledge of a large body of law and a complex panoply of skills. This is compounded by a turnover rate among experienced attorneys in legal aid work which is so high that there is virtually no training or supervision in the offices to supplement these deficiencies.
The massive caseloads perform complex functions in these circumstances.
On the one hand, the number of cases confront the inexperienced lawyers
with demands that prevent them from ever adequately developing their skills
and knowledge. The high turnover rate among legal services attorneys is
undoubtedly related to the persistent feeling of being confronted daily
with too much need for far too long.
3. The Availability of Acceptable Justifications
The ambiguous functions of caseload as both a cause and a consequence of routinized responses to clients suggests a third layer of explanation for prevailing modes of practice in legal aid work. They are embedded in, reinforced and justified by more general beliefs and orientation.
Beyond the general class biases in our culture toward the poor, and the low status of those who help them, (which surely does affect some of the behavior and attitudes of the lawyers), the most important cluster of such attitudes relates directly to definitions of the lawyer’s role. Prevailing conceptions within the legal profession of how a lawyer should relate to his or her client further legitimate the way legal aid clients and cases are dealt with.
The emotional detachment, for example, which is generally considered among lawyers as essential to giving careful legal advice, also permits legal services lawyers a good deal of distance from the exploitation and poverty with which their clients must deal. It is a short step from such detachment to the impersonal routines which the offices have adopted. Similarly, the “professional focus” on the client’s “legal” problems justifies not making inquiries beyond what the client explicitly complains about. Pro-fessional neutrality, an essential ingredient of keeping personal biases out of lawyer-client relationships, provides an acceptable rationale for narrowly defining what the lawyer can do, and discourages the lawyer from dealing with the underlying causes of the client’s situation or his or her reaction to them.
Professional authority justifies the decision not to explore this judgment
with the clients themselves. The political implications of these views
must be understood in the context of the profession’s deep commitment to
individualism which, in extolling person-alized service of unique persons,
also insists on the separateness of each of the problems and clients with
whom a lawyer deals. Each of these orientations gives some support for
what representation has come to mean in legal aid work.
In addition, routinized case handling in legal aid practice receives validation from the widely held view among lawyers (including legal aid lawyers) that individual client service, although desirable, bears little relationship to efforts to use the law for political or social change. The notion that has prevailed generally in the program is that reform, at least insofar as it is sought by lawyers using legal skills, means rule change. The model of this sort of political action is the constitutional challenge in court to an existing law or practice, the “test case”, The day-to-day complaints clients bring to the neighborhood offices—against creditors, landlords, welfare workers—are not considered fuel for political action or reform. On the contrary, “service” to clients is generally thought to be simple, routine, often dull and readily manageable with only minimal attention and effort. Thus, lawyers who do service work are thought to be quite justified in handling large numbers of cases and are not expected to raise “test case issues” or spend too much time on any particular case. 9 Indeed, advancement and status in legal aid work often is associated with leaving such routine matters to the younger lawyers for work on specialized litigation and other “law reform” efforts.
It’s my own experience that these views—of the limited change potential in aggressively representing individual clients, and of the degree of professional circumspection, detachment and apoliticalitv necessary in legal aid work are simply wrong. Both personal involvement and a political orientation in legal aid work seem to me essential to avoiding its further bureaucratization. Indeed, the conception of the legal problems of clients as capable of division between large (and political) “test case” claims, and routine (apolitical) grievances not only depreciates the importance of day-to-day legal aid work but actually fosters the very limiting perceptions of what can and could be done in those cases to which it purports to respond.
Nevertheless, like the other aspects of professional experience, such orientations take on a given matter-of-fact quality. For the new recruit, they are part of what must be mastered, understood and “known” to get along in a new environment. For the lawyer who has been around, they are part of the framework which gives professional life stability and regularity. Correct or incorrect, insofar as they justify and explain particular ways of responding to clients and adversaries, they develop considerable legitimacy and staying power. Given the pressures of the system and the vulnerabilities of the legal aid lawyers who must confront it, this is a crucial element of how prevailing patterns of representation are fostered and maintained.
D. WHAT CAN BE DONE? SOME SUGGESTIONS
If the foregoing description of what is actually going on in the Federal Legal Services Program is accurate, the issue again becomes what can be done about it. It does no good to rail at attorneys who are at least struggling with realities that most of the Bar wish would disappear. Indeed, “blaming” the attorneys for the character of legal aid practice not only grossly distorts the power of the situational pressures I’ve described, but also adds to the tendencies toward withdrawal and uninvolvement that so dominate the legal aid experience.
Nor does it make sense to wait until resources increase, lower court judges become willing to actually hear cases on the merits, the law schools begin to assume responsibility for educating lawyers who might serve all segments of the population, and the system operates with the civility, thoroughness, fairness and concern for individual and group claims that one reads about in high school civics courses. Unfortunately, America seems to have the sort of legal system it deserves—and wants, if one looks carefully at the repressive and legitimating functions. it serves.
Moreover, neither waiting nor blaming offers much help to the clients in the outer offices, or to the lawyers who are trying to serve them. The question is whether there are approaches that might be followed now which hold the possibility of reversing the present trends. With due regard for the many qualifications they deserve, I’d suggest the following:
Systematic Self-Scrutiny of the Character and Quality of Practice
Critical to any steps to guarantee quality legal work within the legal services system are mechanisms for accurately and continuously assessing the representation being provided. Although the pressures of legal aid practice are quite real, we don’t know how far and effectively they can be altered. The problem now is that most legal services lawyers are only dimly aware of the degree to which their work has become routinized, impersonal and controlling. What is needed are ways in which the prevailing patterns within offices can be exposed and discussed without generating resentment and defensiveness.
Such efforts would have to come largely from the lawyers themselves (but with the support of their programs and the Legal Services Corporation). Offices might experiment with (a) systematic review of case files; (b) case presentations (similar to post-mortums in medicine); (c) regularly circu-lating case files within the offices; (d) pairing lawyers in handling cases; (e) regular in-office testing of staff, on skills and information; (f) surveying clients to assess their reactions to the service; (g) review of the office’s practices by outside consultants. Whatever method is used, its purpose must be to encourage the lawyers to articulate the implicit standards and attitudes they are bringing to the work and to systematically examine the ways cases are being handled.
For the foreseeable future, my hunch is that this is possible only if
such efforts are divorced from refunding efforts, and from decisions concerning
internal staffing, advancement and hiring. Evaluation has its most important
effects, I think, when it functions as a stimulus for dialogue rather than
a psuedo-precise form of measurement.
Secondly, it is important that the lawyers agree to accept some direction in the way they are handling cases. Despite their formal structure, at the present time most legal aid offices are administered neither hierarchically nor colla-boratively; each lawyer functions with virtually total discretion in handling his or her caseload. The importance of individual judgment in legal work notwithstanding, it is essential that lawyers in the offices begin to accept some limits on their freedom to practice law “as they choose”.
For example, it may be important to establish office policies requiring (a) visits to a client’s home before a hearing in which housing conditions are an issue, (b) regular reviews of welfare and other benefits which clients may be eligible for before closing a case, or (c) memoranda to the file justifying critical decisions, e.g., settlement, inactivity for a long period of time. My own preference would be for such general guidelines to evolve in a dialogue between clients, client groups, legal and non-legal staff within a work environment in which there is considerable rotation between lawyers and staff, and between supervisory and supervisee roles. But any number of alternative arrangements are also possible and may be desirable. My main concern is that self-scrutiny in legal aid offices be directed to creating real standards and contin-ually critiquing actual practices. It should not merely be an exercise in consciousness raising.
Client Education and Participation
A related way to increase the accountability of lawyers to legal aid clients (and both lawyer and client awareness of the character of the service being provided) is to educate clients to evaluate the service themselves. Programs interested in this approach might encourage or institute: (a) written materials on what can be asked, expected, and obtained from/by lawyers in different kinds of cases (to be distributed in the waiting rooms and throughout the community served); (b) meetings and communications among clients and former clients interested in the work of the office; (c) more client participation in preparation of their cases; (d) regular legal “check-ups”, benefit reviews and other directly beneficial educational programs designed to make clients more cognizant of their rights; (e) enlarged opportunities for paralegals and other office personnel to critique the quality and character of the service; (f) an effective procedure for receiving, investigating and deciding client grievances against the lawyers and the office; (g) regular public reports and meetings with the “client community” (through local press, travel and community groups, etc.); (h) inclusion of substantial numbers of clients on the Board of Directors.
None of these, of course, offer any kind of panacea. Several have been tried and have been more or less successful in given programs and communities. What they all have in common is the belief that there must be real attempts by the office to make itself accountable to the people it serves, both in individual cases and with respect to its overall operation. Whatever its limits, a real commitment by the programs’ staff to explaining, disclosing and listening to criticism, not only from each other but from clients as well, is basic to altering the patterns that now dominate legal aid practice.
STAFF TRAINING AND DEVELOPMENT
Client education and on-going self-evaluation within the offices are unlikely to evolve very far unless the syndrome of settlement pressure, adaptation and justification which I have described is also dealt with. The routinized imperson-ality and low risk character of legal aid practice represents a very reasonable response by the lawyers to a very limited number of alternatives. Unless the rewards and potential sanctions involved in processing clients in the way it is now done is significantly altered, so-called commitments to evaluation and accountability will soon have a very hollow ring.
This will require a far more complex kind of education in the offices than seems currently envisioned by the well-received training programs of the Legal Services Corporation. Given the almost totally non-clinical character of contemporary legal education, the lawyers surely do need a good deal of instruction in lawyering skills. Indeed, there is an excellent argument for requiring an internship for every law school graduate, if some of the most exploitive features of the medical model could be eliminated.
But legal services lawyers also need examples, personal success, a developmental
orientation to their work experi-ence and a way of looking at themselves
and their growth which makes the effort, the many defeats, the loss of
status and other “goods” worthwhile beyond the current transient time frame
in which they function (even when legal services lawyers have stayed with
programs for five or six years, they are somehow always about to leave.)
This would require: (a) salary structures which permit longer tenures and
less turnover; (b) staffing patterns which do not require giving up representing
clients to obtain advancement (right now, “getting ahead” in most legal
services programs involves becoming a director or going to a support center
or law reform unit. Only a few programs have senior staff regularly representing
clients in day-to-day cases); (c) three to five year commitments from young
lawyers entering the program; (d) systematic and regular internal staff
training; (e) rotation of jobs and locations; (f) sabbaticals for senior
staff (with appropriate allocation of time for this activity); (h) guided
and incremental introduction of responsibilities for work on cases in the
first year of practice (despite their inexperience, many new lawyers are
“thrown into” clearly excessive caseloads).
Again, none of this offers any guarantees. More security, high salaries, attention to working conditions can as easily make bad practices harder to change than be the source of new work experiences. Nevertheless, without long-term commitments and the possibility of personal and profes-sional growth in the work itself, there seems little chance of altering the already deeply imbedded routines.
Focused Legal-Political Action
Finally, the offices and their staffs will have to be much more explicitly engaged in efforts to affect institutional practices and conditions than they are now. I don’t want to minimize the difficulties of such undertakings. An open commitment to changing the conditions of the poor in a given community is an invitation to reactivate a largely dormant opposition to most programs. Nor can I be positive that there is any necessary link between handling day-to-day cases with an eye to systemic change and avoiding the kind of routinization and depersonalization that currently exists throughout the legal services system. It seems certainly possible to handle a client’s problems much more responsively and assertively without seeking, at the same time, to alter some of the conditions that produced these problems.
Nevertheless, my own experience in legal aid work in the past ten years suggests that an explicit political perspective, directed towards specific changes in particular institutions that affect the poor, and accountable individual legal service are intertwined. There are a number of reasons for this suggestion. First, legal aid programs function in a political world in which the opposition to their client’s claims is often powerfully organized. Such opposition has considerable ability to undercut the financial resources of the program or otherwise impose sanctions on both lawyers and clients. Unless a program’s efforts over time build coalitions and support for their clientele, it may be unable to cope with the increased pressure that successful advocacy on behalf of the poor inevitably generates.
Secondly, the lawyers themselves often enter legal aid work with attitudes and backgrounds that cause them to be influenced easily by their own professional orientations. A more explicit political orientation seems to encourage the sort of scrutiny of institutional accommodation that is necessary to the program’s continued accountability.
Thirdly, specific discussion with clients about political choices in the handling of their cases is far more likely to empower and educate them than continuing the myth that their cases are being resolved by an apolitical body of rules in an apolitical legal system. Few lawyers who have been involved with clients in political activity (rent strikes, boycotts) have not been struck by the degree to which their ability to understand and “tell their lawyers what they wanted” increased in the course of the experience.
In addition to the foregoing is the real possibility that such an orientation in the day-to-day work of legal aid offices offers a way without re-introducing the test case-service case dichotomy of reconciling accountability to individual clients and the need for larger systemic changes in the private and public institutions that daily shape their lives. There is an enormous gap between existing laws and the practices of most public and private institutions. The country’s willingness to enact new rules to quell demands for change, followed by their nullification by bureaucratic manipulation or non-enforcement, has created a situation in which there is hardly an aspect of economic and political life today which would not be significantly altered if behavior was made to conform to officially promulgated norms and regulations. Such compliance becomes a reality when claims (“rights”) authorized by existing laws and procedures are aggressively asserted by lawyers subsidized by government funds against litigants who must pay their attorneys in the process. Adversaries in such a position often find that accepting a sought-for reform is preferable to resisting it in a large number of cases.
In describing such representation as political, I don’t mean to evoke here a simplified vision of marches, protests, and demonstrations as “poor people’s politics”. Nor do I intend to suggest that the “big” law suits are inconsistent with day-to-day services. What I have in mind is an approach that includes the following features:
1. A sufficiently limited number of day-to-day cases so the lawyers can coordinate and compare the way they handle cases;
2. Selection of “target” institutions whose illegal practices affect a significant number of the program’s clients. (The gap between rule and practice in most private and public institutions that deal with the poor is so large that there is usually no difficulty in identifying such practice. Examples might be the living conditions maintained in public housing, the treatment of welfare recipients, the discipline and education of low-income students.)
3. Representation of large numbers of clients who have been victims of these practices, through referrals, in-depth interviews, and solicitation (the latter is now permitted under the Code of Professional Responsibility).
4. Service to clients that maximizes individual claims and increases the office’s knowledge of the personnel, practices and vulnerabilities of the target institutions.
5. Coordination and communication within the office to crystallize strategies and goals directed to the target institutions. This might include legislative efforts, support for community organization or class action litigation.
6. Direct contact by the office with the target institutions to seek change in the policies and practices documented in handling the cases.
7. Coalitions with other community groups seeking similar changes.
My own experience is that, where such a “focused case” strategy is followed, illegal and exploitive practices that affect poor people can be changed. This is so because they are often the product of cost calculations which are radically altered when (a) confronted with a substantial number of complainants; (b) with a real stake in the outcome; (c) who do not have to absorb the attorney and other costs which would ordinarily be involved in pursuing such grievances to completion. Indeed, the success of such efforts tends to generate new claims and claimants as well as the kind of group supports that encourage and bolster their continuation. The very factors that prevent so many of the poor from successfully using the system make it risky and costly for a company or agency to resist regularized challenges to legally questionable practices of the sort I’ve described. 10
E. THE TROUBLING ALTERNATIVES
Perhaps none of this will be effective in altering the current directions of the national legal services program. Social services have been stubbornly resistant to the attempts to change the established way of doing things even from their own staffs and directors. Nevertheless, such efforts are especially important in a service, which has the possibility of becoming an instrument of the very class biases its founders hoped it might confront. Lawyers inevitably translate client claims into legal form and, in so doing, shape much of what clients see as possible and desirable. The relationship between lawyer and client can be a source of security and autonomy, but it can also generate dependence and subordination. It can focus or diffuse, enlarge or narrow the pattern of grievances that clients experience in an unjust social order. Whatever their dynamics, such consequences cannot be neutral. At stake in every interaction between a lawyer and a client, particularly a poor client, are questions of interpersonal power and how expert knowledge will be used.
A massive expansion of minimal, routinized legal assistance throughout
the low-income areas of the country, mediated by selective efforts at “law
reform”, is potentially a powerful system of social control, capable of
defining and legitimating particular grievances and resolutions and ignoring
others. Legal aid lawyers, unwilling or unable to respond to client concerns
in ways which link them to a larger vision of social justice, can readily
become purveyors of acquiescence and resignation among the people that
they are seeking to help. Clients can be literally “taught” that their
situations are natural, inevitable, or their own fault, and that dependence
on professional advice and guidance is their only appropriate course of
action; that is, legal assistance for the poor can become a bulwark of
existing social arrangements. To echo a now familiar phrase, a profession
that is not part of the solution can soon become part of the problem. The
legal aid experience may soon be a troubling illustration of the modern
*A shorter version of this article appeared in the Spring,
1977 issue of Working Papers for a New Society. It was written as part
of a larger discussion of the nature and content of human services in welfare
state capitalism. Some of it is, therefore, oriented to a non-lawyer audience,
less familiar with the history and functions of legal services than the
readers of this journal.
This version is published here as part of what I think is a real interest within the legal services community in discussing and confronting the nature and quality of the service we are providing. Undoubtedly, some of my generalizations will be modified, or, perhaps, refuted as our knowledge and reflections on our own experience deepen. Hopefully, this essay will encourage and add to such efforts. —Gary Bellow
1 In 1967, the State Bar Association in Tennessee produced
a pamphlet entitled “Et Tu Brute” bitterly denouncing the program and accusing
OEO of surreptitiously fostering the socialization of the entire legal
profession. In California, the Stanislaus County Bar Association
sued a legal services program for Indigent farm workers (California Rural
Legal Assistance) before it had taken a single case on the ground that
the program’s attorneys “would act unethically” if they were ever permitted
to represent clients. Public officials were no more receptive to
permitting poor people to effectively assert their legal rights.
A number of governors vetoed grants to legal services programs under the
Economic Opportunity Act and an enormous variety of bills and amendments
were introduced in Congress to restrict the program in a variety of ways.
For example, a proposed amendment to the Economic Opportunity Act which
would have prohibited any lawyer employed by a federally financed
legal services program from suing a government agency was defeated by a
vote of 50 to 36 in the United States Senate. The first decade of
the program reflected much of the acrimony of the sixties, from persistent
claims by critics that all legal services lawyers were “bearded and barefoot”
to the characterization by then Vice President Spiro Agnew that the
programs were dominated by “ideological vigilantes”.
2 Although the degree of acceptance in any particular city or community varies, this claim seems well founded. There is often substantial support among the Bar leadership, acceptance among these lawyers who have little contact with the program, and only isolated hostility from lawyers who feel either that they are losing small fee business because of the program or that the program has made their debt collection or landlord-tenant practice more difficult. Despite the many lawyers who would prefer to see the program financed by medicare-type arrangements (which would be far more profitable to the Bar than the present staff programs) it is fair to say that the Bar is no longer threatened or actively opposed to the program.
3 This has included an enormous increase in the general level of activity, research, and interest generated by the program about the ways the legal system affects poor people. One only has to look at the mass of publications on poverty law issues that have come out in the last ten years, and changes in curriculum and teaching materials in many law schools to recognize that a new set of concerns has found its way into the business-oriented world of legal education and the legal system. In the early sixties, it was strongly argued by a number of law school faculties that “welfare law”—the rules, regulations and procedures that govern a wide range of government benefit programs—was not a “legitimate law school subject.” This would not be taken seriously among most legal educators today.
4 A further dimension of these narrow definitions of client grievances is that they are always dealt with individually. No efforts are made to enable clients with related problems to meet and talk with each other, or to explore the possibilities of concerted challenges to an institutional practice. Nor do the lawyers systematically review cases to expose patterns of problems, to deepen their knowledge of the bureaucracies with which they deal, or to express concerns as individuals or as an office about what they have uncovered. Despite the enormous volume of cases, there are legal services lawyers who’ve been handling landlord-tenant or welfare cases for several years who cannot describe the nature of the housing market in the area they service or the supervisory structure of the welfare departments with which they deal.
5 LegaI aid clients, for example, may place a much higher value on relief from the tensions and pressures of a pending collection action than do many corporate clients of large law firms. On the other hand, many are in so much debt that the risks of a judgment may have considerably less importance than they would for others in the population. Calculations by clients of this nature reflect a complex of personal and cultural factors, see Calanter, “Why the Haves Come Out Ahead”, 9 Law and Soc. Rev. (1975).
6 The problem with this view, of course, is that in many ways it produces the same effects as a much more hostile, unsympathetic orientation toward clients. Its consequence is to further narrow the admittedly limited options available to a poor person in legal trouble. That is, the lawyers’ vision of the routine nature of the cases and his or her relationship with clients become self-fulfilling prophesies of the available possibilities. What is, quickly comes to be seen as what must be.
7 The research from which these conclusions are drawn
involved (i) reviews of approximately 150 case files from programs around
the country; (ii) direct observations of practice (including interviews
and court appearnaces) in a few programs and (iii) a continuing dialogue
with legal services lawyers throughout the system. It is buttressed by
a review of now over 600 case files handled by students engaged in “clinical”
work in a variety of settings.
There are several studies identifying similar patterns in other "pubIic service bureaucracies” and, more particularly, in public defender’s offices. See generally, Sudnow, “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office”, 12 Social Problems 255 (1965); Skolnick, “Social Control in the Adversary System”, 11 J Conflict Resol. 52 (1967).
8 I’ve chosen to discuss here only some of the elements
of what is undoubtedly a larger syndrome of “causes” of these patterns.
Other elements include (a) the “elastic” character of the demand for legal
services (the need for services tends to increase to meet the supply unless
limited by cost); (b) the most unlimited character of what “can be done
for any client in a case”; (c) the difficulty of judging good or bad practice
in legal work, or even of reconciling conflicting ideas of how the lawyer
is supposed to act in particular situations; (d) the class position of
the lawyer and their clients; (e) the absence of any systematic scrutiny
of law practice.
There isn’t space to elaborate here on how these factors “work” in relation to each other. I mention them, however, to emphasize that it is likely that similar patterns will be found in large areas of private practice as well. Routine service stereotyping, and justificatory explanations are responses to the pressures of difficult work Situations. Whenever these pressures exist, variants of the “view from within” will be present and some combination of the elements I’ve identified are likely to account for them.
9. The structure and financing of the Federal Legal Services Program further reinforces this orientation Most programs are funded to handle large numbers of cases in neighborhood offices, with reform work, if any, left to separate units or individuals in the “central office”. Reform activity is further separated from program operation by making such efforts primarily the responsibility of separately funded specialized programs organized by subject matter (welfare, housing), jurisdiction (state-wide, regional, national) or the group served (the aged, youth, Indian). Lawyers working for such programs are generally better paid, more professionally mobile, and in closer touch with the leadership of the national bar and the larger firms than their counterparts in the neighborhoods. They also have much greater opportunity for personal visibility and recognition, and considerably more participation in the planning, training, and policy-making aspects of legal services work. Even when reform or impact litigation (as it is sometimes called) is undertaken by a staff attorney in a local office, it tends to be seen as separate from his or her regular caseload. It should not surprise anyone that lawyers working in the “service sector” of this sytem—with its high caseloads, limited legal help, inadequate investigative staff and daily confrontations with emergencies that often seem to be more social than legal—feel that their ways of handling cases are “all that can be done” under the circumstances. “Full representation”, particularly if it seeks to confront underlying economic and social conditions, is seen as requiring lengthy litigation and advocacy that is better left to others less burdened.
10. I don’t mean, of course, to oversimplify
what is involved in such efforts. Problems of poverty and inequality are
not easily resolved in a framework which permits private power to set public
priorities. In many situations, the increased “costs’ of such hard-won
successes would immediately be passed on to the same group (sometimes the
same individual) in increased prices or withdrawal or modification of the
service. In some instances, the problem for the poor is not the failure
to enforce the rules and regulations, but the bias of the rules and regulations
themselves. Situations differ and more precise judgements concerning where
such strategy would be effective would always have to be made.
Nevertheless, there is a great deal of potential for organization and leverage for low-income clients in systematically focusing intake and advocacy in individual cases in this way. Given the limited resources of the program, the pervasiveness of such patterns of lawlessness in low-income communities and the neighborhood structure of the national legal services programs itself, it is a model that would seem to deserve considerably more experimentation and encouragement than it has thus far received.