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Friday, August 14, 2015

Thoughts about the National Legal Services Program

The “New Vision” of Legal Services

In 1971, we asked a federal court to prevent municipal officials from demolishing a building as a part of the city's urban renewal program. Our complaint was that the government was destroying housing without assuring the tenants of adequate, safe relocation housing and moving expenses. The case was brought as a nation-wide class action, a form of action which provides relief to all the unnamed members of the class and which, previous to the inception of the Legal Services program had rarely, if ever, been used on behalf of poor people. The judge gave us a lecture about politics and the judiciary. Suddenly, he turned to me and asked, "Are you lawyers legal aid or are you that newfangled thing they have?"

The judge was curious about us because prior to the establishment of Legal Services as a part of the War on Poverty in the 1960s, legal aid had had a "charity" perspective of helping poor people with legal matters. This entailed writing a letter or negotiating to assist a poor person but rarely litigating a matter affirmatively. With the establishment of the Legal Services program as part of the Office of Economic Opportunity in the mid-1960s, the Government began funding an agency with a broad mandate to use all of the tools available to lawyers. Besides litigation and lobbying, Legal Services attorneys were encouraged to educate poor people about their rights and to assist them in organizing action groups such as tenants' unions and associations of consumers, prisoners and welfare recipients. And, poverty law became a career option rather than merely a way for new lawyers to learn the ropes.

Lawsuits were encouraged and supported financially to correct many systemic wrongs, such as housing and school segregation, disparities in municipal services, police brutality and inhuman prison conditions. Farmers and corporations which hired migrant laborers came under legal attack. Landlords for the first time were considered merchants of services rather than as lords of the manor. Government agencies that dispense benefits were told by the courts that what they considered generous gifts were property interests to which poor people could claim entitlement and from which recipients could be dispossessed only with elaborate procedural protections.

The theory that welfare benefits should be treated as a property interest under the due process clause of the Constitution was proposed by Charles A. Reich in "The New Property," [73 Yale L. J. 733 (1964)]. The tenor of the times, that welfare could be a constructive force in people's lives, is reflected also in Reich's article "Individual Rights and Social Welfare: The Emerging Legal Issues," [74 Yale L. J. 1245, 1257 (1965)], where Professor Reich writes, "[i]n a constructive alliance of law and social welfare there lies hope for a fundamental change in the status of the disadvantaged in our society - a bill of rights for the disinherited." Indeed, in Goldberg v. Kelly, 397 U.S. 254, 265 (1970), a landmark welfare and due process case, Justice William Brennan, stated:

"Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community... Public assistance, then, is not mere charity, but a means to 'promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity....'"

Governmental agencies and corporations have a great advantage if they can give a litigant what he's asking for and then go on doing the same wrong to hundreds or thousands of other people. So, when poor people's lawyers began bringing class action lawsuits challenging the wrongful conduct of government administrators and corporations, Legal Services' clients were empowered to obtain relief not only for themselves but for others as well. The class action saved many cases from dismissal as moot, and it obtained community-wide, state-wide and nation-wide remedies against many wrongful policies. And where lawsuits were not altogether successful in accomplishing the goals of poor clients, there was legislative and administrative advocacy. Legal Services attorneys were often successful in persuading legislators to change the rules to provide relief from unfair situations which were not amenable to solution by litigation.

Additionally, the Legal Services program encouraged its staff attorneys to get together and strategize in regional and national conferences. There were national back-up centers to help with sophisticated research and co-counseling of large litigation. There was money available for expert witnesses and other litigation expenses. The attorneys, in turn, helped organize people in their communities and provided people with information about their rights concerning health and welfare, landlord-tenant law and consumer law, to name a few areas of Legal Services practice.

Examples of How This Worked:

1. Seeking Decent Housing With The People's Housing Movement

The People's Housing Movement was a joint project of a local Community Action Program and a Legal Services branch office which involved every aspect of Legal Services work as it was understood in the late 1960s - grass roots organizing and lobbying, welfare rights, community legal education, legislative and administrative advocacy, individual and group representation and class action federal litigation. The issues involved slum housing, an urban renewal agency's land use decisions and an agreement between a city and a private developer to exclude welfare recipients from a newly constructed moderate income housing development.

2. Protecting The Privacy Of Homeless Families With A Class Action

This case involved a former summer colony converted for use as a shelter for homeless families. Security guards at this facility would search the cottages from 10:00 p.m. until 2:30 a.m. One guard would search the closets, cabinets, drawers, bathroom and bedrooms while the other remained outside with a guard dog. Children were awakened in the middle of the night and sometimes the dog entered as well and jumped up on a child's bed. If an unauthorized person were found, he would be detained and the family would be summarily expelled from its cottage. The problem called for interviewing many families, informing them of their rights in the circumstances, holding meetings of the tenants, and bringing a class action to terminate the abusive conduct of the owner.

Over the years from 1981 to 1995, Legal Services' funding was cut by 25%, and by 1995, the poor were served by one-third fewer attorneys than in 1981. Then, in 1996, many more Legal Services staff were laid off or quit when Congress cut the program an additional 30% and eliminated all funding for the national back-up centers. The reduction in funding is only one aspect of the degradation of Legal Services for the poor. During the 1980s much of the funding for Legal Services offices no longer came from the national government, but instead, it came more and more from state and local government agencies. The increase in local funding led to greater political control of Legal Services programs. State and local agencies decided whom Legal Services attorneys serve, what work they did and, in some instances, they determined who may be sued with their money. Moreover, there was an intensification of management and bar association control over staff, closure of neighborhood offices, mounting pressure to increase the number of cases opened and closed each year and reluctance to expend money and time on impact litigation.

Here is an example of interference by a funding source. A person who oversees a government funded program made these statements at a meeting with Legal Services advocates:

"Load up on technical assistance, information referral and education. They want to see a lot of numbers. Train as many as you want just don't advocate. There aren't a lot of court cases, we're not aggravating a lot of people."

This official also informed the advocates that the state agency did not want Legal Services attorneys to appear at administrative hearings where they would be in an adversarial position to county officials.

A second example: beginning in the late 1980s, eviction prevention grants from the State Department of Social Services were conditioned on the agreement of a Legal Services office not to sue the state or county Social Services departments with any of the grant funds. Consider also a letter written by an experienced Legal Services attorney to an Assistant Attorney General:

"When Ms. X. went to court she told us she asked about the repairs and the landlord replied he would only repair when she vacated. That needs to be challenged but this office lacks the resources to do it. The best we can do is try to locate suitable housing for our clients."

The 1990s brought a so-called "new vision" to the Legal Services Program. The new policies imposed massive restrictions on what Legal Services attorneys may do for their clients. The restrictions imposed by Congress in 1996, I believe, cut the heart out of the Legal Services program. I will briefly outline them:

No Class Actions [45 Code of Federal Regulations (C.F.R.) Part 1617]

Without class actions, many poor people who are injured by an unlawful practice remain without a remedy. High impact lawsuits are at risk of dismissal when defendants seek to moot the issues presented by giving relief immediately to the person or persons who bring the law suit. By doing so, defendants often seek to continue their illegal conduct with respect to people other than those who brought suit. By immediately giving relief to one or several wronged individuals, defendants reap the benefits and advantages of continuing their illegal conduct with respect to hundreds or thousands of other people. Class actions often avoid this obstacle to justice.

No In-Person Solicitation, No Training Programs Advocating a Particular Public Policy and No Grass Roots Lobbying (45 C.F.R. Parts 1612 and 1638)

In developing cases attacking illegal policies and practices, it is essential for the Legal Services lawyer to solicit clients by, for example, handing out flyers at welfare centers and at other public locations where poor persons are likely to be found and then speaking directly with potential clients concerning their rights. Without in-person informational sessions and on the spot solicitation of clients, much illegal conduct will remain unchallenged. These regulations also prohibit Legal Services attorneys from advocating for particular public policies.

No Legislative Lobbying and No Advocacy to Change Administrative Policies (45 C.F.R. Part 1612)

Much of the work of Legal Services attorneys involves persuading government administrators to alter policies and practices so as to conform their policies to constitutional and statutory requirements. Since advocacy concerning administrative policies is now prohibited, Legal Services attorneys have to rely on litigation to provide protection of the rights of their clients. But Legal Services attorneys are unable to bear such a burden of litigation and the poor suffer the consequences. Moreover, there are laws and polices which injure poor people which are not amenable to solution in the courts, but which might be altered through legislative lobbying by lawyers and by grass roots lobbying.

No Claims for Statutory Attorney's Fees (45 C.F.R. Part 1642)

In addition to denying Legal Services organizations the funds they desperately need to function after the reductions of the past 25 years, this prohibition turns Legal Services attorneys into second class lawyers. They are deprived of an important tool with which to negotiate for the best settlements in lawsuits where a statute gives the prevailing party a right to an award of attorney's fees. The prospect of having to pay substantial attorney's fees is a strong incentive for a defendant to agree to terminate an illegal practice early in a lawsuit rather than to play it out and continue the unlawful conduct as long as possible. A former Legal Services attorney, David S. Udell, gives a devastating example of the effects of this prohibition in "The Legal Services Restrictions: Lawyers in Florida, New York, Virginia and Oregon Describe the Costs," [17 Yale Law and Policy L. Rev. 337, 360 (1998)]. After the Government prohibited Legal Services attorneys from seeking fees, a housing authority brought a frivolous eviction case against a family based on a bogus claim of criminal conduct by the mother. A Legal Services attorney obtained a dismissal of the case, but the lawyer could not seek an attorney's fee even though it was available in principle. The authority brought the same claim a second time and the Legal Services lawyer obtained a second dismissal. Unfortunately, the third time the housing authority sought the family's eviction on the same unfounded basis, the Legal Services office was not available and the family was evicted. Had the attorney's fee restriction not been in effect when Legal Services did represent the family, the housing authority likely would have been required to pay fees to Legal Services. The threat of additional fees most likely would have prevented further harassment of the family.

No Representation of Illegal Aliens (45 C.F.R. Part 1626)

Illegal aliens are entitled to the equal protection of the laws, and they should have lawyers to enforce their rights. Citizen children of illegal aliens may find themselves homeless or without food and clothing because this prohibition cuts off legal assistance to their parents.

No Representation of Prisoners (45 C.F.R. Part 1637)

Prisoners, too, are entitled to the equal protection of the laws and to access to the courts. The prohibition on representing prisoners applies not only to claims concerning the conditions of confinement but to all claims and defenses, including those in domestic relations, consumer and landlord-tenant cases. Thus, if a client is merely arrested and jailed while an eviction proceeding is pending, the Legal Services attorney cannot defend the client in housing court.

No Representation In Eviction Proceedings Brought By A Public Housing Authority Against A Person Accused Of Certain Drug Offenses (45 C.F.R. Part 1633)

Under this restriction, a public housing tenant who has been charged with drug-related conduct is precluded from being represented by a Legal Services attorney regardless of the merits of the accusation.

No Welfare Reform Cases (45 C.F.R. Part 1639)

Litigation to secure subsistence income for poor people lies close to the heart of the mission of Legal Services. The restriction on challenging welfare rules and policies was invalidated by the U.S. Supreme Court in 2001 on first amendment grounds.

I fear we have gone a long way back to the legal aid of earlier times. John McKay, a recent president of the Legal Services Corporation has written about a "new vision" for Legal Services. "Federally Funded Legal Services: a New Vision of Equal Justice Under Law." Tennessee Law Review 68 (2000) pp. 101–18.Mr. McKay embraces the 1996 restrictions and urges that:

"Taken as a whole, the restrictions on the types of cases LSC programs are allowed to handle convey a strong Congressional message: federally funded legal services should focus on individual case representation by providing access to the justice system on a case-by-case basis. Therein lies the key to bipartisan support and the future of federally sponsored legal services."

I cannot agree with this concept of a "New Vision" of legal assistance to poor people in America. The prevailing view of the federal government seems to be that individualized service - handling a poor person's everyday problem - and seeking reforms of systems which injure groups of similarly situated poor people are mutually exclusive alternatives. They are not; they never have been. Indeed, I do not believe that there really is a new vision of Legal Services for the poor. What some call a new vision strikes me as little other than the same myopic vision that opposed zealous and thorough representation of poor people throughout its history.

Moreover, in recent years, there has been an increasing emphasis on counting numbers of cases and giving poor people pieces of legal help rather than full service. Thus, we see increasing resources devoted to brief service, advice, referrals, internet-based information and assisted pro se litigation. While these components of legal assistance can play a useful role, today, systemic injustices, such as segregated housing, due process deficiencies in agency procedures and environmental hazards impacting poor neighborhoods are not likely to be addressed often by lawyers associated with that "newfangled thing."