Kenneth W. Mentor, J.D., Ph.D.
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Rhetoric, Roadblocks, and Rebuilding: The Perils of
Providing Legal Services to the Poor

Kenneth Mentor

ABSTRACT

Similar themes have run through the long running debate over federally funded legal services to the poor. The rhetoric has remained relatively constant and the key themes have been active for more than 30 years. These themes have provided a basis for repeated efforts to end federally funded legal services to our poorest citizens. Multiple roadblocks have been placed before those who support, and would expand, these programs. In spite of these roadblocks, supporters, programs, and the attorneys who work in the programs continually rebuild. The rhetoric, roadblocks, and rebuilding cycle is described in this paper.

The Legal Services Corporation (LSC) is one of the most controversial of all federally funded programs. Polarized political debate has resulted in funding cuts which are typically coupled with limitations on the activities of LSC funded law offices and attorneys.1 Debate has centered on the political ideology of these attorneys, as well as the methods used to represent clients. At the core of the critics' arguments is a concern that politically liberal LSC attorneys use their clients to advance ideological issues. In particular, critics contend that LSC attorneys rely heavily on class action suits, challenges to legislation, lobbying, and other tools intended to force social change. The accuracy of this contention has been assessed through an examination of daily activity in LSC funded law offices. The data indicate that the opinions of LSC critics are based on false assumptions.

If debate regarding the LSC is limited to issues regarding "access to justice," the majority of Americans are likely to support the LSC. However, if increased access is seen as an effort to make widespread social change, the support lessens, especially if these efforts are funded with tax money. For example, Bennett and DiLorenzo argue that the LSC "has routinely used taxpayer funds not to defend the poor, but to promote radical political objectives that are often irrelevant or detrimental to the poor" (1985:2). They suggest that legal services clients are used as "pawns" to procure taxpayer funding to advance the personal political agenda of LSC funded attorneys.

The critics' arguments, at least overtly, are related to attorney ideology and strategy, rather than the issue of access to justice. In effect, critics have diverted attention from the access issue by shifting the debate to the ideology of the attorneys. LSC critics, through their focus on lawyer ideology and activity, have made the "client/cause" issue a dominant theme in the public debate over the LSC. Critics suggest that LSC attorneys should represent an individual "client," in a single intervention, rather than attempt to make broader change, with the potential to impact many in the client population, in a class action or other "cause" based effort. By using this argument, the critics have been able to place significant limitations on legal services attorneys. LSC critics have defined the parameters for debate over federally funded legal services to the poor, making the client/cause issue a central theme in a discussion that has redefined the roles of attorneys who represent the poor.

ORGANIZATION OF THIS PAPER

This paper is organized around an LSC time line. The time line begins before the LSC was formed and continues to the present. Early on the time line we see debate over the nature of, and need for, civil representation of the poor. From the start, the debate referred to the client/cause issue. Next on this time line we discuss the political climate in which the LSC was formed. The early history of the LSC is discussed, again with a focus on criticism related to the client/cause issue. The rhetoric, as well as funding levels, are each documented.

The next major event on the LSC timetable involves the efforts of President Ronald Reagan. At this point in the LSC time line we begin to see significant funding cuts. Moving further down the line, funding slowly recovers as debate cools.

The next major event in the LSC time line is again market by significant funding cuts. These cuts, mandated by the Republican led Congress that took control in 1995, were coupled with major restrictions on LSC activity. At this time the LSC continues to function under the limitations imposed by the Republican led Congress. Funding cuts during these two time periods were so severe that it has been difficult to develop a system in which the legal needs of even a minimal percentage of the poor are being addressed.

This paper concludes by summarizing events along the LSC time line. Patterns of belief, throughout the life span of the LSC, have had a strong impact on debate regarding the need for, and scope of, federally funded legal services for the poor. The patterns are examined, along with suggestions for alternate directions.

Common Themes in the LSC Debate

Criticism of the LSC includes reference to the political motivations of the LSC, local organizations funded by the LSC, and the attorneys employed in these organizations. Critics see the LSC as an organized, politically progressive, public interest group. Critics assume that local offices are politically liberal and base many of their comments on the perception that local offices set case priorities in a way that favors client oriented representation. Critics also express concerns regarding individual attorneys. A common concern is that these attorneys, as individuals, prefer ideologically liberal impact litigation over the representation of individual clients. Critics are concerned that LSC attorneys use their clients to advance ideological issues that are consistent with the presumed liberal ideology of the attorney and the office in which he or she is employed.

The LSC debate has followed consistent themes from the beginning. The consistency is so strong that it can be difficult to trace any historical changes in the debate. The reality is that each side has been saying many of the same things for over 30 years. The frequency of comments from one side or the other my change over time, generally in reaction to moves to expand or restrict the LSC, however the content of the debate remains consistent with issues raised before the LSC was formed.

A major point of dispute is whether lawyers to the poor should focus on individual representation or impact litigation. Critics do not routinely question whether lawyers should be provided. Instead, they question the role these attorneys play. Three other common themes are intertwined with concerns regarding the attorney's role. Critics, even if supporting the idea of legal services to the poor, may question the merits of federal funding to achieve this goal. Another common criticism is related to the perception that the LSC is anti-business or anti-government. Finally, LSC critics believe that the LSC, and the attorneys funded by the LSC, are using the poor to advance a liberal political agenda. Each of these themes is explored below.

The Role of LSC Funded Attorneys

The first clear definition of the client/cause issue was presented in a widely cited article by Edgar and Jean Cahn (1964). The Cahns suggest that it is useful to "distinguish between a service function (providing legal services to all persons in need) and a representative function (providing representation to individuals and cases which have broad institutional implications and widespread ramifications)" (Cahn and Cahn, 1964:1346). The "service function," as defined by the Cahns, suggests a client based orientation, while the "representative function" correspond to a cause orientation. The Cahns placed priority on the representative function. Their opinions strongly influenced early debate regarding OEO2 provided legal services (Hannon, 1969) and set the stage for the debate which continues today.

Following the Cahn's lead, Carlin, Howard, and Messinger call for "facilitating the development of legal rights in areas where the law is now vague or biased" (1966:60). Carlin et al. also discuss the protections and benefits "the law could be made to provide" (1966:61). They suggest that attorneys should act to alter the law, and the legal system, in an effort to expand legal protection of the poor. They are endorsing the Cahn's suggestion that poverty lawyers should develop skills other than those needed to simply serve the individual client's needs.

In contrast to the tone of criticism since 1980, early debate was often dominated by those who wanted OEO legal services to move away from client, and toward cause, based litigation. Hannon, citing the Cahns, suggests that the "distinction between kinds of cases lies at the heart of the current (1969) contests for control of the legal services offices" (Hannon 1969:237). The Cahns had cut to the heart of a debate which continues over 30 years later.

Federal Funding of LSC Activity

Once the LSC was formed, those opposed to cause oriented work began to make their voices heard. Their criticisms often centered on federal funding for impact litigation, especially when there was no clear method for determining the ideological direction this newly embraced impact litigation would take. Senator Orrin Hatch was a strong LSC critic in the 1980's. The issue of federal funding was troublesome to him, especially when combined with issues of impact litigation and "anti-business" litigation. Hatch (1985) complained about using taxpayer funds to sue taxpayers, the government itself, and corporations on the behalf of special interest groups who may not care about the needs of the poor. Similarly, Bennett and DiLorenzo write that "hundreds of millions of taxpayers' dollars have been used to fund the political goals of a determined group that has used the needs of the poor as a pretext to obtain vast sums of money from the government" (1985:19). They suggest that taxpayer dollars have been diverted to elect candidates, defeat or support litigation, to finance lobbying, and a number of other activities. McCalpin refers to LSC activity as "the greatest political fraud ever perpetuated" (1990:84) as he discusses the spending of federal money in pursuit of political goals that do not correspond with the needs of the poor. Isaac writes that the LSC "is a giant laundering operation that converts federal into private dollars" (1997:44).

Each of these statements was made by individuals with an ideological perspective which is in conflict with perspectives they presume exists in the LSC. The fact that these statements are made in forums such as The National Review, and publications of the CATO Institute and The American Enterprise Institute, may motivate the reader to discount their merits. This may be a mistake in light of the long running political nature of the debate over legal services to the poor. Each side claims that the other is ignoring facts in the pursuit of goals. While there may be truth to this assertion, there is no doubt that these beliefs have had a significant impact on funding and activity in the LSC funded law office.

Anti-Business Activities of the LSC

DiLorenzo (1988) discusses LSC efforts which he believes are intended to promote governmental control over private sector decisions as well as government takeover of private enterprise. For example, Isaac (1997) writes of farmers who, she believes, are faced with extortion threats posed by the LSC. The farmers are forced to create certain working conditions, or face potential lawsuits brought by workers. OEO funded litigation, directed toward California farmers, brought the anti-business issue to the attention of then Governor Ronald Reagan (Weinstein, 1995). President Reagan, and Republicans who have followed, strongly endorse the idea that LSC activities are harmful in a free enterprise system. For example, a Republican Policy Committee statement informs Senate members of the Committee's belief that LSC grantees have filed spurious cases in an effort to harass Texas landowners, again on behalf of migrant workers (Nickles, 1995).

Many cases cited in support of the anti-business nature of the LSC are related to farming. Critics report anti-business activity in other areas, especially banking and housing, as well. DiLorenzo (1988) argues that LSC funded attorneys who oppose bank mergers under the Community Reinvestment Act are acting contrary to the public interest by forcing side payments to the community groups and wasting the bank's assets. In this article DiLorenzo (1988), a long time LSC critic, continues with a long list of grievances regarding anti-business activity.

The LSC's Liberal Political Agenda

Many LSC critics believe that LSC funded attorneys use the poor to advance a liberal, or even left-wing, political agenda. The theme is that LSC attorneys, with little real concern for the poor, use their clients to redistribute wealth, expand the welfare system, undermine the rights of private property owners, and encourage alternative lifestyles (Bennett and DiLorenzo, 1985). Bennett and DiLorenzo argue that legal services attorneys seek cases with "social significance," as defined by the attorneys, rather than society as a whole. They write that "Legal Services is a radical political movement, and tax-financed politics have permeated the agency since its inception" (1985:5).

It is difficult to separate concerns regarding ideological bias from other concerns raised by LSC critics. For example, the "pawn" status of LSC clients was raised in relation to critic concerns regarding taxpayer funding. It is safe to assume that if the LSC endorsed conservative issues, or served to replicate a status quo that discriminates against the poor, there would be less concern, at least from the current set of critics, regarding the behavior of LSC funded attorneys. But then, if past patterns hold true, another set of critics will enter. Presumptions regarding political ideology, ideas about funding sources, opinions regarding litigation strategies, and identification with the targets of litigation each work together to create beliefs either for or against the LSC. This interaction of factors can make it difficult to separate the issues.

An issue related to assumptions regarding reform oriented public interest lawyers is the suggestion that these lawyers have a predictable, left leaning, social change agenda. This agenda is presumed to motivate the attorney to consider the broader implications of a case. For example, do public interest lawyers prefer clients with social change agendas? Must the lawyer agree with that agenda? Do lawyers seek to advance their own social change agendas through the selection of clients? Do public interest lawyers adequately inform their clients of choices, and the implications of those choices, or is their role more paternalistic?

These questions are applicable to public interest lawyers in ways that are not necessarily comparable to corporate attorneys. The corporate lawyer is, in most cases, working for a powerful client with the resources necessary to dictate the direction of the attorney's efforts. In contrast, the public interest lawyer, especially within the LSC, is working for clients with very little political or economic power. DiLorenzo suggests that since LSC attorneys do not rely on the poor for funding, they are "more accountable to their own political activities than to the legal needs of the poor" (1988:200). He argues that LSC attorneys, who have more power than their clients, will take advantage of that power imbalance in an effort to assert their own political agenda. Implicit in this argument is the suggestion that the poor have no ideological foundation, that the poor are easily manipulated to suit the needs of the LSC attorney, and that the party with the most money and relative power will naturally use that imbalance to achieve goals that are in opposition to the needs of the less powerful party.

The power issue is not limited to the role of the attorney. LSC clients, being poor, are somewhat powerless. The balance of client or cause litigation is impacted to the extent that groups on either side of an issue have equal access to all the tools available in an effort to impact public policy. Historically, this balance has not existed. The poor have most typically been excluded from courtroom based forms of policy formation, especially if forced to finance cause based litigation without financial resources provided by the government or other source. Public interest lawyers play an important role in our society, yet they are often faced with structural issues that limit their availability and effectiveness. Galanter (1975), in his widely cited article, discusses the skills and motivations of those who litigate regularly. The repeat players are able to structure the process in ways that disadvantage those with fewer legal experiences. Public interest lawyers, especially if prevented from engaging in cause oriented litigation, are unable to address the structural issues that limit their effectiveness.

Many lawyers work for the status quo. These lawyers are often employed by big business and individuals who control great amounts of power and wealth (Kennedy, 1983). As we know, law and lawyers can be very expensive. Those who want justice must be able to pay a price, but in a free society it is accepted that the price should not be prohibitive. The idea that legal representation is important to those who are facing a legal battle with a much stronger foe has led to an acceptance that individuals in criminal cases are entitled to legal representation (Gideon v. Wainwright, 372 U.S. 335). This constitutional protection applies only in criminal cases, and only in certain situations. State provision of civil legal services is more complicated, and far less available. Many in our society are uncomfortable with the reality that the poor are often shut out of the legal system. As a result, we have taken steps to provide legal services to the poor. Although it can be argued that we have not gone far enough, the fact that we have acted at all provides evidence of our belief in this ideal.

The historical role of public interest law is to speak for the powerless, either as advocates for individuals or in broader reform oriented cases intent on changing the laws and/or structure of our society. If the law's role is to create and interpret rules in our society, the role of public interest law is to provide for the legal needs of those who have fallen through the cracks. Most Americans, even those opposed to the LSC, are likely to agree with this definition of the role of public interest law. However, there is less agreement that the role of public interest lawyers includes efforts to fill in the cracks. In effect, the support for federally funded legal services to the poor is dependent on how we define the role of public interest lawyers. That role definition relies heavily on the client/cause issue.

Client/Cause Dichotomy

The client/cause issue is directly related to society's conception of the role of lawyers. This issue is based on questions of whether public interest lawyers should work for social change as reformers, or limit themselves to representation of individuals, as advocates, without consideration of the broader societal implications that could stem from that representation. LSC critics have focused on this role distinction. Critics argue that the attorney's role is to represent his or her clients. The attorneys interviewed for this research agree with that definition of role. Differences in opinion arise as the attorneys and critics consider issues related to "zealous representation," which may not be possible if all the tools of a lawyer are not available. Paternalism and power differences are also considered as the attorneys and critics consider issues regarding the role of the public interest attorney. Conception of role is also impacted by beliefs regarding whether social change should occur as a result of litigation, legislation, or a combination of other factors.

The categories of client or cause representation are not necessarily mutually exclusive. A lawyer may view the cumulative effect of helping many individuals, in an advocate role, as an effective tool for social change. The lawyer acts as an advocate for an individual, but the attorney may have reform motives that he or she believes are best achieved through a series of individual representations. Is this a client or cause oriented attorney?

Other attorneys will act in ways that are consistent with the needs of the client, yet know that a victory will have a major impact on similarly situated individuals. Others may paternalistically lead their clients down certain paths, believing that this path is best for the client, yet failing to recognize that personal issues are preventing the attorney from making unbiased recommendations to his or her client. Still others may actively seek clients with traits, either related to the legal issue or the enhancing the attractiveness of the client, that will increase the odds of a successful challenge of a statute or regulation that is personally offensive to the attorney. In reality, the client/cause distinction may be more of a spectrum that a dichotomy. In this case the perception is as important as the reality. Although the client/cause distinction may be based on a false dichotomy, policy decisions have been made in reliance on this dichotomy.

Issues involved in the debate over legal services to the poor have consistently centered on questions regarding the means through which this representation might best be achieved. The question of whether service should be provided is somewhat resolved. However, the mechanics involved in implementing this decision are very unsettled. Several issues are at the heart of the debate. The primary issue involves questions of the attorney's role. If the attorney's role includes cause oriented impact litigation, is it appropriate for the government to fund this litigation? This question becomes more difficult if there are concerns regarding the political orientation of the attorneys who provide legal assistance to the poor.

Since 1974, much of the debate has focused on the activities and motivations of LSC attorneys. It is clear that those with the power to make decisions which lead to funding for legal services prefer to retain control of those funds well after they have been disbursed. They support federal funding for legal services until that support threatens their interests. The question for those on one side of the issue involves the problem of providing for the legal needs of the poor in a way that assures that legal services will be provided as a commodity rather than a tool for change. If not for the fact that law may threaten their interests, many on this side believe in the importance of access to justice. If critics could control the LSC they would be less likely to suggest that all funding be removed. In short, if the LSC would "behave," they would potentially be funded to meet the legal needs of many more poor Americans.

On the other side we have a conflicting definition of justice, along with conflicting ideas regarding the role of the public interest attorney. Many LSC funded attorneys realize positive rewards from a role that is limited to individual representation. These individuals might remain satisfied with legal services work even if cause litigation were no longer possible. Others, who believe in the power of impact litigation, will use that tool, to the extent that it is available, to make social change that will impact the largest number of real or potential clients. This is especially likely in a situation where available funding is inadequate. This is exactly the situation which has been created through the actions of LSC critics.

Early History of the LSC

The roots of the LSC can be found in President Lyndon Johnson's war on poverty. The Office of Economic Opportunity (OEO) began making grants to local legal aid organizations in 1965. The result of these grants was felt in poor communities as OEO lawyers handled more than a million cases each year (Brill, 1973). From the beginning, critics of legal assistance to the poor were concerned with the use of public money to challenge the status quo. Early debate centered on the use of class action suits that challenged general practices and policies of both private and public institutions. Critics preferred to limit the use of federal funds in a way that favored client representation with relatively little impact on the status quo. While critics pushed for limitations, legal service providers were concerned with protecting the autonomy of groups that were providing legal services to the poor. The providers believed that decisions regarding strategy should be made at the local level, or in combination with other legal service providers. Based on their experiences, providers had concluded that class action suits were necessary in an effort to effectively address the needs of their clients. Providers believed that individual representation, while important and still a major percentage of their caseload, would prevent the type of systemic changes needed to correct the problems faced by the poor.

In 1974, OEO legal services was replaced by the Legal Services Corporation. The LSC was created to provide basic legal assistance to poor Americans. It is a private nonprofit corporation established to help provide low income Americans with equal access to justice under the law. In reaction to experiences faced by early legal service providers, the LSC was designed as an independent corporation to make it "immune to political pressure" (ABA, 1996). The LSC does not directly provide legal services to the poor. Assistance is provided by local legal aid offices that receive grants determined by a formula based on poverty rates in various service areas (Nickles, 1995). The local legal aid offices also receive funding from states, IOLTA (interest on lawyer trust accounts), and from private nonprofit groups ranging from the United Way to groups interested in narrower issues such as housing, elder law, and education.

Ronald Reagan and the LSC

Ronald Reagan was a longtime opponent of the LSC. While Governor of California, Reagan had lost several battles over OEO funded legal services. In September 1967, legal assistance lawyers obtained an order restraining the Department of Labor from importing Mexican workers in the bracero program. Two months later, the California Supreme Court ruled that Governor Ronald Reagan should be prohibited from dropping 160,000 indigents from the Medi-Cal health care program. Soon thereafter, legal aid lawyers won a case that forced California farm owners to pay a minimum wage of $1.65 an hour, the highest in the nation for farm workers at the time. Legal aid lawyers also prevailed in suits requiring all California counties to adopt a government food program and to participate in federal school lunch programs for poor children (Weinstein, 1995).

These legal services experiences became the foundation upon which Reagan built his fight against government funded legal services for the poor. Reagan made numerous attempts to kill the LSC before it became law. As California Governor, he attempted to veto federal funding for legal assistance in California. His attempt was thwarted as the Office of Economic Opportunity overrode his veto (Siegel and Landau, 1983). In reaction to Reagan's efforts in California, which illustrated the potential for political interference, the American Bar Association and others called for the creation of a separate nonprofit corporation to receive funds from Congress and distribute them to local programs. In response, the LSC was created, as an independent private corporation. However, the LSC had not heard the last of Mr. Reagan, who was elected President in 1980.

Throughout the 1980's, Reagan's dislike for the LSC was coupled with a great deal of political support, wielded by a President who enjoyed a high level of public support. Reagan tried to remove funding for the LSC in 7 of the 8 budgets he submitted to Congress. While Congress refused to end the LSC, they did approve a 25 percent budget cut in 1981. This cut reduced funding to $241 million. Reagan also appointed legal aid critics to the LSC board of directors. These appointments resulted in open warfare on everything from lobbying and class action suits to the financial management of local programs (Jost, 1989). Between 1981 and 1982 the LSC lost 1,773 of its attorneys. This was a cut of 28%, which was coupled with a cut of 31% of non attorneys. The total staff shrank from 15,539 to 10,906 within months (Siegel and Landau, 1983).

These cuts were devastating at the local level. For example, the San Francisco Neighborhood Legal Assistance Foundation, a group Reagan had attempted to de-fund as Governor, went from 43 to 17 lawyers (Siegel and Landau, 1983). In most cases, those who left included the most experienced attorneys. These attorneys, who due to their level of experience had increased options elsewhere, left as they grew "tired of the constant wondering from one moment to the next what the President was going to do with the program" (Siegel and Landau, 1983:10). These losses occurred at a time when demand for services was increasing. The diversity of cases was also increasing. In effect, local offices were losing their best people at a time when the organizations would most benefit from the input of experienced legal service attorneys.

During the Reagan years, the client/cause issue was at the root of many complaints regarding LSC funded law offices. Restrictions on class action litigation were clearly related to this issue. Restrictions on litigation intended to challenge or amend existing welfare law provide another example. Funding restrictions are also related to an effort to restrict complex, and expensive, impact litigation. If we examine the basis of many of these restrictions, we see that the client/cause issue is very important to LSC critics.

As we move further down the LSC time line it is clear that the Reagan years played a major role in defining the LSC, the job duties of LSC funded attorneys, and the context in which LSC funded attorneys worked in 1994. His efforts to kill the LSC were, up to this point, the most difficult events ever faced by the LSC as a whole. Although he was no longer the President, Reagan's legacy remained, in spite of the fact that the LSC now had a friend in the White House. By the early 90's the general feeling was that things were going as well as could be expected, given funding that was far short of that necessary to address the legal needs of those the client population (Spangenberg, 1993). By the late 1990's it was clear that things were going from bad to worse in the LSC funded law office.

Reagan Again?

As we know, the LSC survived the Reagan presidency. An important factor in the survival of the LSC was that Democrats, who supported the LSC, controlled the House and Senate. The Democrats and their Republican allies kept funding the LSC, although not at levels seen before the Reagan years. Starting in 1984, funding began to increase again. The budget continued to rise gradually during the Bush administration and hit $400 million for the first time a year after Bill Clinton was elected president (LSC, 1996). LSC funding took a major nosedive after the Republicans won control of the U.S. Congress.

Did Reagan Fail?

Ronald Reagan failed to kill the LSC due to the efforts of the organized bar, along with the support of the Democrat controlled Congress, enhanced by Republican Senator Warren Rudman's vocal support for the LSC. This experience led some in to believe that the LSC would survive the current assault, just as they had survived the Reagan years, as long as the foundation for a future LSC remained intact. This thinking allowed commentators, as well as LSC funded attorneys, to see Reagan's efforts as a failure. He didn't kill the LSC, so they lived to fight another day. However, there are other ways of viewing the impact of Reagan's attempts to kill the LSC. While it is true that he failed to remove all funding, he was successful in limiting available resources, and he did so over an extended period of time. He was also successful in bringing significant support to the idea that the LSC was an organization that did not deserve federal funding. Many of those who were sympathetic to this idea have continued in their criticism of the LSC. More important, they appear to have learned from their Reagan era experiences with the LSC. This knowledge made them much more effective during the second major assault on the LSC.

If the LSC had continued to grow at levels seen in the late 1970's, it may have been difficult, no matter how well prepared, for the Republican majority to suggest a complete phase out of the LSC. Federal funding for legal services, in real as well as 1997 dollars, increased until 1979 (see figure 1). Although the budget increased each year, LSC funding failed to keep up with inflation after 1979. It appears that the tide may have turned for the LSC even before Ronald Reagan was elected President. While there is no doubt that he was able to initiate a large funding cut, the cut may have been the result of timing as well as his personal distrust of the LSC.

Figure 1: LSC Annual Budgets - In Millions of Actual and 1997 Dollars3

Reagan's first budget, in 1982, resulted in a significant cut in funding. There was a slight increase in 1984, followed by another slight increase in 1985. The 1986 cut was the result of across the board spending cuts required by the passing of the Gramm-Rudman bill. This budget limitation, which applied to all federal spending, was sponsored by a strong critic of the LSC, as well as the Senator often named as a hero of the LSC.

When using inflation adjusted figures, we see that LSC funding was fairly consistent from the first Reagan budget of 1982 until 1995, as President Clinton sent his budget to the last Democratically controlled Congress. Funding was significantly cut in 1996. These cuts brought federal funding for civil legal services to the poor down to levels not seen since the 1970's. Of course, those who argue that Reagan failed to kill the LSC are correct. The LSC survived the Reagan administration. Yet funding levels have never returned to those seen before Reagan. The reality is that the LSC has seldom, if ever, been funded to function at levels initially envisioned. Funding came close to the desired level in 1979. However, the climb began to slow, and fell significantly with Reagan's 1982 budget.

Weinstein writes that "despite cyclical attempts to kill the program, despite its inclination to raise the anger of conservatives and big business, despite the shrinking federal purse, the history of federal legal aid to the poor since its birth 30 years ago has been one largely of remarkable growth and expansion" (1995:1). An examination of funding, when the dollars are adjusted for inflation, suggests that this statement is not entirely accurate. This section begins by asking whether Reagan failed in his efforts to end the LSC? While it is true that he did not kill the LSC, he certainly inflicted serious damage. This damage was so severe that the LSC has never fully recovered. LSC critics have been able to refocus their agenda and have made significant strides toward finishing a job Ronald Reagan started in 1981. An examination of funding levels indicates that Reagan's efforts had a long lasting legacy. It is clear that in 1995, this legacy is very strong. Our time line now turns to the events of the Republican Congress.

The Republican Congress and the LSC

In 1996, criticism of the LSC, coupled with a Republican majority in the United States Congress, resulted in severe funding cuts. These cuts were similar in nature to those imposed during the early years of the Reagan administration. Again we heard calls to end the LSC. While the LSC survived, funding for 1996 was cut by a third to $278 million. Critics in Congress expected to cut funding further and hoped to "zero out" the LSC by 1998. Along with funding cuts, significant restrictions were placed on LSC activity. LSC funded law offices are now forbidden from engaging in redistricting litigation and class action suits of any kind. Other provisions in the 1996 funding bill limit representation of certain non citizens and prohibit representation of persons accused of drug use in public housing evictions. LSC attorneys are also prohibited from litigation, lobbying, or rulemaking in an effort to amend or challenge existing welfare law.

The most significant restriction on the LSC is related to outside funding sources. Regardless of where the funding for such cases originates, legal services agencies that accept federal funds cannot pursue cases involving legislative redistricting, abortion, prisoners' rights, welfare reform, public housing evictions for alleged drug crimes, alien representation, or class actions. In effect, all funding to LSC funded clinics is subject to the same restrictions as funds provided by the federal government

What Next?

The controversy over federally funded legal services will not end soon. Some critics contend that they will not be satisfied until the LSC is abolished. They may get their wish. However, an end to the LSC will not likely put an end to the debate. Those who feel that legal services to the poor are too important to eliminate also have strong voices. We have heard these voices in the past, and can expect to hear them in the future. This is clearly a time of change in the area of legal services to the poor. Whether through legislation or litigation, the role of the LSC is being redefined. The real issue is the provision of legal services to clients who face difficult battles. These battles are made even more difficult by power imbalances and systemic disadvantages for those who fall through the cracks.

For the time being, Congress appears to have backed down from threats to end the LSC. Funding for 1998 was $283 million, the same as that in 1997. This funding level, while still well below what is needed, indicated a retreat from a 1995 threat to zero out the LSC within two years. The LSC has requested $340 million, and received $300 million, for fiscal year 1999. The request for fiscal year 2000 is again at $340 million.

Grantees Fight Back

While many LSC backers are willing to settle for the fact that the LSC was saved, others have directly challenged the legislation that placed the most recent set of restrictions on the LSC. In February of 1997, a federal judge in Hawaii issued a preliminary injunction which blocked, on First Amendment grounds, many of the restrictions Congress imposed on LSC funded activity. The injunction applied only to non LSC funds, and applied only to areas of California, Hawaii and Alaska where LSC-funded programs challenged the restrictions (Legal Aid of Hawaii v. Legal Services Corp., 97-00032). Among the activities U.S. District Court Chief Judge Alan C. Kay said were unconstitutionally prohibited were lobbying for welfare reform; lobbying on reapportionment; representing prisoners; representing public housing tenants accused of drug dealing in eviction proceedings; participating in any litigation involving abortion; lobbying on legislation; and conducting training programs to teach people to lobby. Judge Kay did not strike down the congressional ban on class action litigation. As this case made its way through the courts the LSC prevailed. The case ended with a summary judgment from the District Court in Hawaii, through the unanimous opinion in the Corporation's favor from the Ninth Circuit, and on up to the Supreme Court's denial of certiorari

A second suit challenging the restrictions, filed in U.S. District Court in Brooklyn, N.Y., less than a week after the Hawaii case, challenges not only the restrictions on non federal funds, but on LSC funds as well (Velazquez v. Legal Services Corp., CV 97-00182). A New York state trial judge was the first to rule on the issue. She held that restrictions which prohibit legal aid organizations from engaging in class action suits are unconstitutional.

In the face of Congressional threats to kill the LSC, the LSC board had reached a compromise with Congress and agreed to require LSC funded offices to withdraw from more than 630 pending class action suits nationwide (ACLU, 1996). This was an important victory to LSC critics, who have been critical of these suits. This agreement was problematic according to Acting Manhattan Supreme Court Judge Beverly Cohen. In her opinion in the Velazquez case, she called the restrictions "a blatant attempt to inhibit the First Amendment rights of LSC lawyers, their clients and anyone who agrees with them" (CV 97-00182). Judge Cohen rejected a Congressional mandate that all Legal Services lawyers withdraw from pending class action suit and refrain from filing such suits in the future. Cohen ruled that the restrictions are unconstitutional, saying Congress had no right to tell the corporation how to spend the money it got from other sources. Cohen wrote that "the rhetoric of budget reform is being used to thinly disguise an attack on basic freedoms" (CV 97-00182).

When the Velasquez case moved to the district court, the restrictions imposed on Legal Services Corporation (LSC) grantees were held to be valid. In an appeal the New York Court of Appeals rejected plaintiffs' claim that the restrictions prohibiting "welfare reform" litigation discriminated against certain speech on the basis of viewpoint and were therefore unconstitutional even as applied to the use of federal monies. However, the court did invalidate that portion of the restrictions that would prevent LSC grantees from representing individuals contesting the legality of an existing welfare rule" (Velazquez v. Legal Servs. Corp., No. 98-6006).

In different circumstances the LSC might be thrilled with these challenges, in spite of the fact that they are the target of the litigation. However, the LSC was concerned about Congressional reaction to cases that use federal funds to tell Congress that they cannot limit the use of federal funds. LSC supporters warn that the grantee groups have found the quickest way to inflame Congress against the LSC. They warn that the plaintiffs are playing Russian roulette with clients' lives, as well as the jobs of other legal aid lawyers. The grantees counter that the LSC is caving in to budgetary blackmail (Rovella, 1997). The truth is, whether the LSC likes it or not, they are charged with implementing regulations, as defined by Congress. They are attempting to do so, at times in the face of lawsuits from those who receive LSC funds. In a recent resolution the LSC referred to "statutory restrictions which, while clearly unpopular within the legal services community, the Corporation not only had the duty to implement, but were also central to continued Congressional support for federal funding of legal assistance" (LSC, 1999).

From the start, LSC supporters feared the backlash from these lawsuits. Alan Houseman says that the critics will argue that the LSC can't be reformed, so let's just eliminate it (Hansen, 1997). Elimination of the LSC is exactly what some of its critics have in mind, according to Kenneth Boehm, a longtime critic of the LSC. Boehm says the litigation will undoubtedly cost the LSC some crucial support in Congress, increasing the likelihood of deep budget cuts, if not outright elimination. Boehm said that if these grantees "sat around and tried to figure out a better way to jeopardize their funding, they couldn't do it" (Hansen, 1997:28).

IOLTA Funding is Challenged

Another issue that may threaten the future of legal services is related to attempts to restrict the use of IOLTA (interest on lawyer trust accounts) funds. The basis for Phillips v. Washington Legal Foundation (No. 96-1578), a suit that originated in the Texas courts, is that clients retain property rights in interest bearing accounts. In every state, IOLTA funds have been used to fund numerous programs and scholarships. LSC funded clinics are a major recipient of these funds. Richard Samp, chief legal counsel for the Washington Legal Foundation, argues that "most people don't know that hundreds of millions of dollars are siphoned away from law clients to support legal services" (Chanen, 1997:42). Samp's group believes that clients' property right are violated as they are forced to give money to political causes they do not support.

It is interesting to note the language Samp's group uses as they discuss "political causes" in the context of stopping money that may go to LSC funded organizations. The rhetoric used to challenge the use of IOLTA funds is familiar, and comes from familiar sources. The Washington Legal Foundation has been a long time critic of the LSC. They are now attacking the use of IOLTA funds with the same vigor, and the same rhetoric, as they suggest that these funds are used by liberal attorneys to promote their own political agendas. David Brock, Chief Justice of the New Hampshire Supreme Court, suggests that it is the Washington Legal Foundation who is, in fact, promoting a political agenda as they "use the federal Constitution as a sword to eliminate an effective state-based program that's directed towards providing legal services and assistance to low income individuals" (Totenberg, 1998:2). David Hall, director of Texas Rural Legal Aid, states that the Washington Legal Foundation "just doesn't want poor people to have access to the justice system, period. And that's a very political kind of statement. They gussie it up with a political attack on the claim that IOLTA funded programs are themselves political. But that's just so far from the truth, it's ludicrous" (Totenberg, 1998:2).

In June 1998 the U.S. Supreme Court, in a 5-4 vote, ruled that under Texas law interest earned on client funds held in IOLTA accounts is the property of the client. The Court expressed no view as to whether Texas had "taken" client property or whether "just compensation" was due, and sent the case back to the lower court in Texas for further consideration.

Changes in LSC Funded Law Offices

Political changes, forced by LSC critics, created new organizational structures that the critics may not have anticipated. The LSC, prior to 1996, moved forward, slowly, under a set of restrictions that allowed them to continue. They continued in ways that they may not have selected if funding levels and restrictions were different, but they stayed together nevertheless. The 1996 restrictions were too onerous to withstand. These restrictions led to the creation of new organizations that were devoted to doing exactly the kind of work the critics sought to limit. If the critics' goal was to stop federally funded cause litigation, their efforts were very successful. If they expected their efforts to end all cause oriented litigation on behalf of the poor, they seriously underestimated the resolve and commitment of the attorneys and organizations who provide these services.

As the result of the 1996 restrictions, much of the legal work done on behalf of the poor will now be funded by a somewhat disorganized collection of state, local, private, and non-profit funding sources. LSC efforts to coordinate legal services to the poor will be less effective. In some cases the legal needs of one group, although valid, will be met through the efforts of legal services offices, perhaps with narrow goals, and funded by a source with similarly narrow goals. An equally needy group, without a funding champion, may not receive legal assistance. As funding is splintered among groups with narrow interests, certain groups may fall through the cracks.

These new organizations are looking to the future. In some cases new partnerships will be forged. In some cases the new organizations are struggling with the partnerships that were formed as IOLTA money went in a direction other than the LSC funded office. LSC work will continue to be redefined. New delivery systems will develop. Organizations are beginning to form alliances with other organizations, some of whom may have been seen as competitors in the past. In some cases these new organizations are sharing resources with other legal services providers.

Alternate delivery systems have begun to develop as these organizations have been forced to consider new ways of addressing the legal needs of their clients. New alliances will be formed and new organizations structures will be created. In communities where this resource is available, legal representation of the poor may be done through increased reliance on law school clinical programs. We may see an increased role for alternative dispute resolution or other negotiated settlements. State and local governments may be forced to play a bigger role in the provision of legal services to the poor. The private bar will also be called to assist through pro bono or other mechanisms. Perhaps funding will be directed through private law firms rather than exclusively through law offices established and maintained through taxpayers funding.

These are not new ideas. In fact, several were considered in the "Delivery Systems Study" (LSC, 1980). These alternatives were, in fact, positively reported and appeared to perform at levels comparable to staff-attorney offices (Schwartz, 1983). In reality, "performance measures do not indicate the superiority of staff-attorney offices over alternative (i.e., private attorney) delivery systems" (Schwartz, 1983:v). Professor Schwartz writes that the Delivery Systems Study (DSS) report "makes assumptions and reaches policy conclusions that favor staff-attorney offices as the major mode of legal-service delivery. These assumptions and conclusions do not inevitably follow from DSS findings" (Schwartz, 1983: iv) . The LSC chose to ignore evidence regarding the potential effectiveness of alternatives to the staff-attorney model that LSC supporters fought so hard to maintain. LSC supporters, including apparently, those within the organization itself, had a vision of how they thought the LSC should function. Without challenging or supporting that vision, it is safe to say that this vision ran contrary to the desires of LSC critics.

The decision to proceed with a narrow model of legal services to the poor was obvious in the fight against Reagan's efforts, as well as the LSC's interpretation of the Delivery Systems Study. This decision set LSC supporters and critics on a collision course. The stubborn refusal to change solidified the debate and obscured many of the real issues. The fight over the LSC has been long and contentious. There has been little effort to seek middle ground. Perhaps the current situation regarding legal services to the poor provides an opportunity to develop systems that address the legal needs of the poor, while at the same time satisfying the concerns of LSC critics.

Conclusion

Legal representation of the poor will, in many cases, no longer be funded by the federal government. Although a victory for LSC critics, the end result may disappoint those who thought that taxpayers should not be supporting ideologically liberal legal services. Some critics believed they could control certain types of legal challenges through limitations on the LSC. The reality is that certain forms of litigation, especially those that are most troubling to certain critics, may actually increase. LSC critics won the battle over funding and restrictions. However, LSC critics did not, in this microcosm, appear to be entirely successful. The critics failed to accurately foresee the full impact of their policies.

Cause oriented representation is related to efficiency rather than ideology. However, criticism of cause oriented representation is rooted in ideology. The real issue, to the critics, may be "how do we provide legal services to the poor, but at the same time limit the effectiveness of this service." This is especially true when effectiveness involves successful challenge to ideological positions held by LSC critics. In effect, the problem may be much wider than is evident in debate over the ideology and activity of LSC funded attorneys. However, this is how the problem has been defined, by critics as well as supporters.

Throughout the LSC debate the critics have been successful in painting the LSC, and the organizations and attorneys funded by the LSC, as ideologically driven. Perhaps those who cry foul regarding ideological bias are the ones with the true ideological bias. Many LSC critics are motivated by a right wing ideology that marginalizes the poor and prevents them from being full participants in our society.

LSC supporters have allowed critics to frame the debate. The debate has diverted attention from another issue that may have led to more support for the LSC. If debate had focused on access to justice, rather than the ideological motivations of LSC funded attorneys, it would have been difficult for LSC critics to develop support for their ideas. In reality, the client/cause issue may be little more than a smokescreen to shield a covert agenda. The critics' true agenda might be more related to preventing justice, protecting their position in society, and replicating a hierarchy that prevents many Americans from becoming active participants in our society.

REFERENCES

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Chanen, J. (1997). "Not With My Money You Don't," ABA Journal, 83, 42.

DiLorenzo, T. (1988). The Anti-Business Campaign of the Legal Service Corporation. St. Louis, MO: Center for the Study of American Business.

Eakeley, D. (1998). "Prepared testimony of Douglas S. Eakeley, Chairman, Legal Services Corporation," Federal News Service, February 25, 1998.

Galanter, M. (1974). "Why the ‘Haves' Come out Ahead: Speculation on the Limits of Legal Change," Law and Society Review, 9, 95.

Garcia, D. (1995). "Legal Services Corporation's War on the Family," Family Research Council, http://www.frc.org/townhall/FRC/infocus/if95f3gr.html

Garth, B.C. (1990). Strategic Research in Law and Society, Florida State University Law Review. 18, 57.

Hannon, P.J. (1969). "The Leadership Problem in the Legal Services Program," Law and Society Review, 4(2), 235.

Hansen, M. (1997). "Loosening Congress' Purse Strings: Two courts enjoin restrictions on the use of non federal funds to legal aid groups," ABA Journal, 83, 28.

Hatch, O. (1985). "Myth and Reality at the Legal Services Corporation," in Orrin Hatch et al, the Robber Barons of the Poor? Washington: Washington Legal Foundation.

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1

"LSC funded law office" is an accurate description of these organizations. They may also be known as law clinics, law firms, or legal services providers, terms which are used interchangeably in this paper. Regardless of terminology, the focus is on law offices that receive (or previously received) funding from the LSC. Another term, similarly cumbersome, is "LSC funded attorney." Attorneys interviewed for this research may also be referred to as LSC attorneys, although they do not work for the LSC. The attorneys are employed in offices that receive funding from the LSC.

2

The Office of Economic Opportunity (OEO) funded civil legal services for the poor prior to the creation of the Legal Services Corporation.

3

The 1970 figures reflect OEO funding. LSC amounts start with the second column (1975). These figures come from a variety of sources. Pre-1980 figures are from the Federal budget figures. Figures after 1980 are found at the LSC web page, www.ltsi.net/lsc/app80-96-html. Inflation adjustment figures, for the pre-1975 data, were computed using Consumer Price Index statistics from Historical Statistics of the United States (USGPO, 1975). Post-1975 inflation adjustments are made with data from the annual Statistical Abstracts of the United States.

 

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