Why We All Need CCLP
By James L. Kaller, Esq.
Verdict, April 2007
When CCLP volunteer attorneys and organizers discuss the need for meaningful access to legal recourse with other professionals and business people, we are frequently asked: “Aren’t these needs already being met by local legal aid societies and programs funded by the Legal Services Corporation (LSC)?” The short answer is “NO.” This article traces the history of the LSC and other current volunteer “legal aid” programs to show why only a truly independent organization, such as CCLP, can take a stand to find systemic solutions to the lack of legal recourse suffered by a growing portion of our society, including low-income and working people.
Precursors: Legal Aid Societies and the OEO
The idea of free legal services for low-income and working class persons is not a new one. Beginning in the 19th century, local mutual aid societies and bar associations formed organizations to provide legal services to their members. In 1876, the German Society of New York founded an organization to provide legal services to protect German immigrants from exploitation. The group later expanded its mission to include other groups and became the Legal Aid Society of New York, which is still one of the largest organizations of its kind. In 1888 the Ethical Culture Society of Chicago established the Bureau of Justice, which was the first organization designed to offer legal assistance without regard to nationality, race or gender. Other municipalities followed suit, and by the early 20th century, many major municipalities had at least one legal aid office.
The publication, in 1919, of Reginald Heber Smith’s book Justice and the Poor had a major impact on the legal profession. Smith challenged the legal profession to guarantee equal access to justice for all. Smith wrote,
Without equal access to the law, the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented. The law itself becomes the means of extortion … The poor come to think of American justice as containing only laws that punish and never help. They are against the law because they consider the law against them. A persuasion spreads that there is one law for the rich and another for the poor.
In the early 1920s, the American Bar Association created its “Special Committee on Legal Aid Work” and recommended that all local associations form similar committees.
By the middle of the 20th century, the result of these efforts was that every major metropolitan area had some kind of legal aid program. Some were administered by bar associations and relied on donated time by member lawyers. Others were run by law schools, local government social service agencies or nonprofit corporations.
In the early 1960s, a number of large private foundations, such as the Ford Foundation, began to fund legal services programs, based on the idea that legal services should be one part of an overall anti-poverty program.
The events of the 1960’s, particularly the riots in America’s urban ghettoes and a growing movement among youth dissatisfied with poverty and racism in a nation that trumpeted its superiority, spurred the federal government to intervene. Michael Harrington’s book The Other America was extolled by President Kennedy, who advocated poverty programs. With riots breaking out in Newark, Harlem and Watts, the U.S. Department of Health, Education and Welfare held a conference in 1964 on the “Extension of Legal Services to the Poor” as part of President Lyndon Johnson’s proposed “war on poverty” campaign. One result of that conference was a broad realization that existing legal aid programs were woefully insufficient to meet the need. Legal services had been viewed as a form of “charity” and had been provided on an individual volunteer basis. Many parts of the country (particularly rural areas) were still not served by any legal aid programs.
Even in major metropolitan areas where programs existed, many applicants were turned away for lack of resources. Most importantly, all of these programs worked independently, on a case-by-case basis, without any effort to address the fundamental problems of the poor and working class.
The passage in 1964 of the federal Equal Opportunity Act, which created the Office of Economic Opportunity (OEO), provided a platform for creating a new approach to delivery of legal services. Because the new law did not specifically discuss provision of legal services, a National Advisory Committee — formed primarily with representatives of the organized bar — created “guidelines” for the program. The guidelines contained a number of provisions that differentiated the new OEO-funded programs from traditional “legal aid.” The guidelines allowed organizations of and for low-income people to receive funding for legal projects instead of requiring that all funds go directly to individuals. They required programs to provide service in all areas of the law (other than criminal, since representation in felony criminal cases had already been mandated by the U.S. Supreme Court’s decision in Gideon v. Wainwright in 1961). Moreover, the guidelines allowed those receiving the funding to advocate for reforms in statutes, regulations and administrative practices. As E. Clinton Bamberger, the first director of OEO’s legal services program, said, legal services attorneys were to,
Do no less for their clients than does the corporation lawyer checking the Federal Trade Commission for sloppy rulemaking, the union lawyer asking Congress for the repeal of 14(b), or the civil rights lawyer seeking an end to segregation in bus stations.
The OEO-funded legal service attorneys began to make waves as they took on constitutional issues on behalf of their low-income clients and challenged the government’s administration of welfare and other entitlement programs. The lawyers took on class action cases that might set precedent, that might “reform” the law, in what were billed as “test” cases in the field of housing and welfare. By 1968, the agency had 260 grant programs, with at least one in every state except North Dakota. While the United States Supreme Court refused to recognize poverty as a category prohibited from invidious discrimination under the equal rights provision of the Fourteenth Amendment to the United States Constitution, pressure from litigation brought by OEO-funded legal services attorneys, coupled with their representation of low-income clients before legislative and administrative bodies, highlighted the contradictions inherent within the unequal application of the law based on the economic disparity of the parties.
Not surprisingly, however, these challenges on behalf of low-income persons angered many politically influential persons and groups. Reaction to the involvement of the OEO legal services program attorneys was particularly strong where those attorneys worked closely with grass roots efforts for change springing up in the wake of the civil rights movement and expansion of labor organizing into farm labor, domestic worker and other organizing not under the National Labor Relations Act. Myron Moscovitz, a professor at Golden Gate University Law School who was General Counsel for OEO in 1966 and founded the California Rural Legal Assistance (CRLA) office in Marysville, California, said that there were two approaches to addressing the lack of legal recourse during the 1960s. One was the more conservative approach of expanding Legal Aid to assist individuals with disputes against landlords and others and this approach garnered support from Congress. The other approach was to make change in society and that approach, with its challenges to change institutions and practices, is what drew the most fire.
The increased activism led to frequent attempts in Congress to limit or abolish the OEO legal services program and return to the previous era of limited ad hoc individual programs, including federal monies becoming block grant money parceled out to the states to allocate under controls placed on those working under federally funded programs. From what had once been private charitable effort, public interest law had become public sector law, financed and controlled by the government.
In addition, a number of local governments attempted to hamstring OEO-funded organizations. The most infamous example of this was then-Governor of California Ronald Reagan’s attempt to eliminate funding for California Rural Legal Assistance (CRLA). CRLA was well known for its successful legal efforts on behalf of farm workers and its challenges to Governor Reagan’s attempt to restrict welfare and Medicaid programs. Based on complaints of alleged CRLA misconduct instigated primarily by the California Farm Bureau (an organization of growers opposed to CRLA’s representation of farm workers), OEO conducted an extensive investigation of CRLA. While OEO eventually concluded that the misconduct charges were unfounded, CRLA essentially spent several years defending itself instead of serving its clients.
The Legal Services Corporation Act: the Early Years
By 1974, the battle between supporters of OEO’s approach to legal services and the corporate interests that opposed the programs reached something of a crescendo. President Nixon proposed to dismantle the agency. Proponents of the OEO program resisted, and the immediate result was a new approach — the Legal Services Corporation (LSC) Act.
The LSC Act was a “compromise” bill. Federally funded legal services programs for low-income persons were to continue, but with new restrictions. The law created a new non-profit corporation, the “Legal Services Corporation” (LSC), which was to be managed by an 11-person bipartisan board of directors. No more than six members were to be from any one political party and the LSC board was required to include some individuals who would actually be eligible for LSC services.
The 1974 law allowed LSC-funded attorneys to continue engaging in legislative and administrative advocacy. LSC programs were prohibited from engaging in representation involving abortion, the military draft, school desegregation and some juvenile cases, but otherwise were still authorized to pursue group representation on a wide basis. The Act also created a national information clearinghouse for use by LSC attorneys, and provided centralization for training and production of procedures manuals.
The primary mission of the LSC was to make federally-funded grants to local, independent legal services programs, which were allowed to have their own boards of directors and make their own decisions about what cases to accept, subject only to the general guidelines laid down by Congress.
From the beginning, the existence and independence of the LSC and its funded programs were subjected to continuous attacks and resistance from political conservatives known as the “new right,” who identified the stream of test cases brought by those they deemed “liberals” as being an attack on the government, when in reality the philosophy underlying the suits was to try to prove the system would work to ameliorate the problems of poverty by passing and enforcing certain laws. The immediate effect of the changeover to the LSC-controlled program was to ban local LSC-funded legal services organizations from representing organizations of the poor and placing limitations on the types of cases they could take on. LSC funded attorneys were limited to representation of individual clients, although the outright prohibition against LSC-funded lawyers engaging in class actions did not come until later. Throughout this period, a number of prominent and well-regarded attorneys committed to the LSC concept served as officers and directors.
In 1975, President Gerald Ford appointed the first LSC Board of Directors, chaired by Roger Cramton, Dean of Cornell Law School. The Board was sworn in by Supreme Court Justice Lewis Powell who, a decade earlier as President of the ABA, had led the movement for ABA endorsement of legal services programs. In 1976, Thomas Erlich, Dean of Stanford Law School, was sworn in as the first President of the LSC. The corporation opened its headquarters office in Washington, D.C.
In 1977, the LSC Act was re-authorized by Congress with an expanded appropriation of $125 million. President Carter added new members to the Board, including a University of Arkansas professor and former legal services lawyer named Hilary Rodham Clinton. In 1978, Hilary Rodham Clinton was elected Chairwoman of the LSC Board.
In 1980, the LSC released the results of a National Delivery System Study confirming that the staff-attorney model of delivering legal services was more effective than other proposed methods, such as subsidizing private attorneys. As a result of the study, Congress increased the LSC’s budget to $300 million — the highest in its history up to that time. The increased funding allowed LSC to fund 1450 local offices.
The Reagan Years: LSC’s Battle for Survival
Ronald Reagan’s election as President in 1980 resulted in eight years of constant attacks and attempts to abolish federally funded legal services programs.
Shortly after taking office in 1981, President Reagan called for the LSC to be disbanded and replaced with a system of block grants. ABA President William Reece Smith and over 200 other prominent lawyers traveled to Washington to fight for the LSC’s life. They held press conferences, testified before Congressional committees and met with key Senators and Representatives.
President Reagan’s response to opposition in Congress was to use the controversial practice of “recess appointments” — temporary appointments made when Congress was not in session — to fill the LSC Board with members that agreed with his views. Many of these appointees had no experience whatsoever related to anti-poverty programs or legal services. Reagan’s appointed LSC Board Chairman, Michael B. Wallace, actually argued that the existence of the LSC was “unconstitutional” and illegally hired lobbyists to urge Congress to eliminate the agency.
Since the Senate refused to confirm Reagan’s proposed Board, it devolved into an unworkable combination of holdover appointments from the Carter administration and unconfirmed recess appointees by Reagan, with directly opposing viewpoints on all major issues.
In 1982, Congress rejected Reagan’s proposal to eliminate the LSC, but began the first of several budget cuts and added new restrictions on LSC programs. The 1982 Congress reduced LSC’s appropriation by 25%, forcing the closure of 285 offices, layoffs of 1793 attorneys and 952 paralegals. Even more significant than the budget cuts, however, Congress imposed significant restrictions on LSC-funded organizations’ ability to engage in legislative lobbying and administrative rule-making on behalf of their clients, expanded existing restrictions on representation of non-citizens, and made it much more difficult to file class actions.
Institutionally, LSC management became increasingly hostile to the programs it was supposed to fund, actually lobbying Congress against further appropriations. Compliance monitoring of local programs was conducted in a highly adversarial manner and included demands for information and access to records that were frequently at odds with attorneys' ethical obligations to their clients. LSC withheld funds or provided only short-term funding for many programs because of technical violations, such as board vacancies, and attempted to reduce funding for a number of programs.
In reaction to the Reagan administration’s opposition to federally funded legal services programs for low-income workers, many local bar associations and the ABA worked to increase their own legal aid programs during the 1980s.
Furthermore, many state bar associations adopted the IOLTA (interest on lawyer trust accounts) as an additional source of revenue for legal services and legal aid programs. The concept of IOLTA is that all interest earned on client deposits held in lawyers’ trust accounts would not be paid to the lawyer or the individual clients, but would instead be paid to a Bar-administered fund which would disperse the monies to legal services programs for low-income clients. Various conservative property rights groups challenged the IOLTA programs on constitutional grounds, alleging that the mandatory payment of interest earned on client funds to legal services organizations constituted a “taking” without compensation in violation of the Fifth Amendment. In Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), the U.S. Supreme Court ruled that IOLTA programs do not violate the U.S. Constitution.
Even the United Way attempted to use its auspices to increase funding for legal services programs. Just as in the 1950s and 1960s, however, these private resources proved insufficient to meet the demand. By the end of the 1980s, poor and working class persons had far fewer attorneys representing them than in 1980.
The 1990s: Political Football
While not an enthusiastic supporter of the LSC, President George H. W. Bush was not nearly as hostile to the program as Ronald Reagan. Funding gradually increased again, from $328 million in 1991, to a record $350 million in 1992. President Clinton’s election in 1992 seemed to mean that LSC’s fortunes would improve, and, in the first few years of his administration, they did. Funding was increased to a high of $400 million in 1995 — and the Clinton administration appointed members to the LSC Board that were committed to the program.
The initial euphoria about LSC’s prospects after Clinton’s election disappeared with the mid-term Congressional elections in 1994. The rise to power of opponents to government-funded legal services, such as House speaker Newt Gingrich and his allies, resulted in the greatest attacks on the LSC programs since the Reagan era. The House adopted a budget that proposed to cut LSC’s funding by 1/3 in 1996, an additional 2/3 in 1997, and to totally eliminate the agency after that.
While a bi-partisan majority of Congress favored maintaining the LSC, those politically opposed to the idea that an attorney dedicated to provision of legal assistance for low-income workers must then take on a system that is not responsive to it through more than one-on-one legal representation were successful in severely restricting what legal services could be provided by LSC-funded organizations.
They could no longer engage in direct or grassroots lobbying on behalf of their clients, although they could use non-LSC funds to respond to written requests from officials for information or testimony.
They could not represent certain categories of undocumented workers or engage in litigation on behalf of prisoners.
They could no longer collect statutory attorneys’ fees.
They could not challenge welfare reform measures as unconstitutional or otherwise illegal.
Furthermore, with a few minor exceptions, if an organization received any funding from the LSC, it could not engage in any of these activities even if it used outside sources of funding for the restricted activities.
One example of how these restrictions impacted LSC-funded organizations is in the farm worker housing class action lawsuit, Vega v. Mallory (and its predecessor, Orejel v. Coyle), brought by CCLP volunteer attorneys when LSC-funded California Rural Legal Assistance was forced to drop a class action they had brought to challenge regulations imposed by the State of California on 26 migrant labor camps which effectively doubled rents on the camps without notice to the farm workers. It was only through CCLP locating, among its membership, attorneys willing to fight what became a ten-year battle for recompense that the farm workers statewide finally received compensation from the State of California for the overcharged rents. CRLA was not allowed to bring the suit.
Along with the new restrictions on LSC-funded organizations came a major reduction in funding, down to $278 million for FY 1996 from the $400 million for FY 1995. In short, the funds authorized for the LSC in 1995 were actually less (without even adjusting for inflation) than the amount allocated by Congress 15 years earlier in 1980.
Despite the continued efforts of LSC opponents, supporters in Congress kept the program alive and even obtained small budget increases. The allocation for FY 1999 was back up to $300 million.
The George W. Bush Era: The Increasing Gap in Service
President George W. Bush has essentially followed the same political program with respect to the LSC that his father maintained in the 1980s. While not a vocal advocate of the LSC, he has not consistently engaged in the type of open hostility that Ronald Reagan encouraged — and that George W. Bush’s neo-conservative allies still pursue. The result has been a series of small budget increases (essentially level funding when inflation is considered) and no expansion of the existing inadequate programs. Congress has authorized $338 million for the LSC for FY 2007, only $38 million more than the amount allocated in 1980 [Editor’s note: in 2022 Congress authorized only $489 million for LSC’s budget when the $300 million in 1980 adjusted for inflation would be $900 million.] LSC programs remain subject to the same restrictions on lobbying, administrative rule-making, class action litigation and welfare reform cases that were adopted in the mid-1990s. These rules are enforced by frequent audits of LSC-funded organizations by the Office of Inspector General (OIG). A recent controversial practice by the OIG is to subpoena client records in relation to these audits, a practice which probably violates lawyers’ rules of professional ethics and substantially impairs LSC-funded attorneys’ ability to represent their clients. In the case of CRLA, the OIG has demanded some 30-40,000 client files.
In 2006, the LSC itself released a report that graphically demonstrates the unmet needs for legal services for poor and working class persons in America. The culmination of a year-long project, “Documenting the Justice Gap in America: the Unmet Needs of Low-Income Americans” concludes that at least 80% of the legal needs of low-income Americans are not being met. As part of this report, LSC offices participated in a comprehensive “Unable to Serve Study,” the first national statistical study of this type ever conducted by the agency. LSC offices documented that for every eligible client whose case they accepted, another eligible client was refused service simply because of inadequate funding and resources. In other words, over 50% of eligible clients are being denied legal services by LSC-funded programs simply because of inadequate agency resources. The statistics in the report were all compiled before September 2005, so the additional problems resulting from Hurricane Katrina are not even included in these estimates.
Despite widespread support from both the American public and many influential members of Congress, the LSC continues to be subject to frequent attacks, both in Congress and by conservative media. A recent Associated Press wire service article emphasized alleged excessive and lavish spending by LSC Board members on meals, travel, limousines, conferences and the like. The same media that is willing to widely circulate reports about an $18 breakfast or occasional use of a limousine by LSC Board members shows little interest in covering the day-to-day work of legal services attorneys or the work done by LSC-funded organizations.
The Need for Alternatives to the LSC
While the LSC was created as a means to provide wide-ranging legal services to low-income people without regard to partisan politics, the agency and its budget have become permanent political footballs kicked around between factions within Congress who disagree on the role Legal Services attorneys should be allowed to play in efforts to change the way the legal system functions and what recourse is made available to the low-income population of our country. As shown by the LSC’s own 2006 study, the result has been that the LSC has little current impact on the daily legal needs of the population it is dedicated to serve. The combination of inadequate and fluctuating budgets and severe restrictions on the types of cases LSC-funded organizations can pursue has essentially returned the nation to the situation that existed in this country prior to the OEO in the 1960s. Legal services for low-income and working class persons are now again provided on an individual basis with no ability to address systemic problems in the legal and political systems that result in laws that are unfair and unequal. Huge numbers of people still have no access to legal services, even if they are poor enough to qualify for LSC programs.
Unlike the LSC, CCLP is not subject to the whims of constantly changing Congressional and Presidential administrations. Because CCLP does not receive federal funds, it can organize without being subject to arbitrary restrictions on representation, audits of client files, unpredictable fluctuations in income, and general harassment from LSC and OIG bureaucrats, all of which are the plight of an LSC-funded attorney in the 21st Century. Unfortunately, the over 30-year history of the LSC shows that these conditions are likely to continue for the foreseeable future. CCLP does not focus merely on individual representation or the issue-oriented litigation which others rely on to gain backing. Instead CCLP bases itself in the community at the street level, dealing with the everyday problems that people encounter through its educational Know Your Law and free-of-charge legal advice sessions that CCLP conducts or sponsors throughout the country, working hand in hand with community organizations, unions, churches and religious institutions. CCLP embodies the self-help concept that we do better to build organization and teach individuals how to fight through knowing and applying the law, than to simply solve a legal problem with no involvement.
The current condition with respect to available legal services for the poor in the United States is that the government appears to be providing such services, but isn’t. Instead, the government maintains a legal system under which more than 80% of the population’s legal needs are not being met. Join with CCLP today in our efforts to change that situation.
