Kenneth W. Mentor, J.D., Ph.D.
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A Tale of Two Offices: Adaptation
Strategies of Selected LSC Agencies

Kenneth W. Mentor Ph.D.
New Mexico State University

Richard D. Schwartz Ph.D.
Syracuse University

Mentor, Kenneth W. and Schwartz, Richard D. (2000). A Tale of Two Offices: Adaptation Strategies of Selected LSC Agencies. The Justice System Journal, 21(2), 143-169.

ABSTRACT

Between 1995 and 1998, restrictions placed by Congress led to many changes in the activities and organization of law offices funded by the Legal Services Corporation (LSC). The impact of these restrictions was intensified as a result of significant funding cuts. Congressional restrictions and funding cuts differentially affected two LSC-funded offices studied during this period. One of the two offices, more oriented than the other toward "cause" litigation, split into two unequal parts, the larger of which ≠ refusing LSC funding ≠ intensified its pursuit of cause litigation. The other office found a way of delegating cause litigation, while preserving its standard program of client representation. If the LSC critics had hoped, as many claim, to diminish effective representation of generic legal needs of the indigent, they did not succeed in one of the offices and had limited success in the other.

Efforts to provide government funded legal services to the indigent client population have consistently been among the most controversial of government programs. The role of federally funded attorneys has been at the root of much of the criticism. In particular, the debate centers on whether these attorneys should include work with the potential for broader, "cause-oriented," impacts. "Cause" based representation is in contrast to "client" centered representation that seeks to address the problems of individual clients on a case-by-case basis. Critics of federally funded legal services argue, and have made policy changes intended to ensure, that the role of these attorneys be limited to client-based representation.

This debate has continued throughout the history of the Legal Services Corporation and, in fact, predates the LSC. Federally funded legal services for the indigent, prior to the mid 1970's formation of the LSC, had been funded through the Office of Economic Opportunity. The OEO was a significant factor in the "War on Poverty" that sprang from the social activism of the 1960's. Using his mastery of Congressional lawmaking, President Lyndon Johnson secured federal funding for a wide range of programs, among them Legal Services. The OEO began making grants to local legal aid organizations in 1965. The result of these grants was immediately felt in poor communities as OEO lawyers handled more than a million cases each year (Brill, 1973).

At its inception, the OEO Legal Aid program embraced the "cause" concept as a central feature. This role sparked controversy, especially in California, where Ronald Reagan was Governor. In September 1967 legal assistance lawyers obtained an order temporarily restraining the federal Department of Labor from importing Mexican workers in the bracero program. Two months later, the California Supreme Court enjoined Governor Reagan 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. The program also prevailed in suits that required all of California's 58 counties to adopt some form of government food program and to participate in a federal school lunch program for poor children (Weinstein, 1995).

These and other legal services victories became the foundation upon which Ronald Reagan built his fight against federally funded legal services for the poor. Even before the LSC became law, Reagan made numerous attempts to kill the program in his state. 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 efforts (Siegel and Landau, 1983). In reaction to Reagan's efforts in California, 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 legal services programs (Weinstein, 1995). President Nixon signed the Legal Services Corporation Act in July 1974. In doing so he argued that the LSC should be designed as an independent corporation to make it "immune to political pressure" (ABA, 1996).

By the 1980s, critics of Legal Services had a vigorous ally in the White House. In each annual budget, for several of his years in office, President Ronald Reagan recommended that the Legal Services Corporation receive zero funding. Although Congress did not go that far, it did impose severe budget cuts and restraints on the cause-oriented work of the offices supported by federal funds. The restraint demonstrated by Congress during the Reagan Presidency allowed the LSC to continue, although under-funded, throughout the next few years. LSC budgets increased slightly at the beginning of the Clinton Presidency. In inflation-adjusted dollars, however, funding never reached the levels seen in the late 1970's.

The relative quiet of the early 1990's was shattered as the Republicans won control of the House and Senate in 1994. Calls to end the LSC immediately resurfaced. As before, the major theme sounded by Congressional critics and their allies asserted that LSC offices were engaged in pursuing a leftwing agenda under the guise of offering legal services to the poor. Earlier amendments had restricted LSC-funded offices from engaging in legislative lobbying. This time, the attack was more clearly focused on cause-lawyering. Again, critics favored abolition of the Legal Services Corporation. As in the 1980's, critics could not muster a majority in Congress to support this move. Accordingly they settled for a strategy that sought to further restrict the activities of LSC-funded offices. Again, the limitations sought to prohibit recipients of LSC funding from pursuing broader legal changes.

In 1996, criticism of the LSC, coupled with a Republican majority in the United States Congress, resulted in severe funding cuts. Funding was cut by a third to $278 million. Along with the funding cuts, significant restrictions were placed on LSC activity. LSC-funded law offices were forbidden from engaging in class action suits of any kind. LSC attorneys were also prohibited from litigation, lobbying, or rulemaking in an effort to amend or challenge existing welfare law. Another significant restriction is related to outside funding sources. Regardless of where funding for a case originates, legal services agencies that accept federal funds cannot pursue cases involving abortion, alien representation, legislative redistricting, prisoners' rights, public housing evictions for alleged drug crimes, welfare reform, class actions, or any other restricted activity (Public Law 104-134, 110 Stat. 1321; see 45 CFR Part 1609-1640 for Final Rules).

Political alignments have played a major role in funding cuts and restrictions of activity in LSC-funded offices. Debate, renewed each time a funding bill is considered, centers on a presumption that these offices are biased toward liberal or progressive change. Critics, in Congress and out, question the ideology of the attorneys employed in these offices 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 progressive social change. 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, p.2). They suggest that legal services clients are used as pawns to procure taxpayer funding to advance the political agenda of LSC-funded attorneys.

Client or Cause?

Should lawyers for the poor address systemic problems, in a cause-oriented role, or limit themselves to the representation of individual clients? This question, at the heart of much of the LSC debate, goes back to the end of the 19th century. Jack Katz (1982) describes the competition between these themes in Chicago.

The impulse for cause lawyering played an important role in the establishment of Chicago's Legal Aid Society, founded in 1905 by a merger of two organizations (the Protective Agency for Women and Children, and the Bureau of Justice) that had their origins in the late 1880s. Leading figures in both organizations had been identified in their early public careers with social action causes. Frank Tobey had been a leading abolitionist and Henry Demarest Lloyd led a petition drive aimed at clemency for the Haymarket bombers.

Cause lawyering found early opposition within the Legal Aid Society. Under the leadership of Rudolph Matz, the Society explicitly downplayed the law reform agenda and moved toward a client service orientation. Matz took the position that it would be "a mistake for the Legal Aid Society to attempt preventative legislation except in an incidental way" (Katz, p.37). Nor were the courts to be used by the Legal Aid societies as instruments for law reform. The dominant purpose of Legal Aid, as expressed by Reginald Heber Smith (1919), was to accord the poor "their day in court." In effect, the concept of cause lawyering, with its principal focus on changing the legal balance toward greater equality for the poor, was not central in the Legal Aid movement. On the contrary, it was feared that any substantial move in that direction could result in the movement being labeled "radical." This would jeopardize the moral support of the bar and the financial base of the Legal Aid effort.

A reluctance to practice cause lawyering was also reflected in the organizational structure of the legal aid societies. Legal Aid organizations, governed by senior partners of the major law firms, were dominated by the philosophy of noblesse oblige. They saw their support as a charitable obligation in which their expertise, prestige, and some of their money were available to help individual poor people in need of legal representation. Legal aid given to the poor was to be adequate, but not superb. It was certainly not to be provided by the best minds of the profession (Katz, 1982). Legal Aid offices thus reflected the two-class system of the American bar. For their various reasons, board and staff could agree on the "day in court" standard, which became the accepted philosophy for the Legal Aid movement. In general, those lawyers who proposed to change U.S. society, using law as the principal lever, found no place on Legal Aid boards or in Legal Aid offices. That state of affairs continued through the first half of the twentieth century, including the New Deal. It did not change substantially until the coming of Lyndon Johnson's War on Poverty in the 1960s.

As limitations of the Legal Aid model became apparent, some began to call for a renewed effort to utilize the law as a tool for structural change. Edgar and Jean Cahn provided one of the first definitions of the client/cause issue (1964). The Cahns suggest that it is useful to "distinguish between a service function and a representative function" (Cahn and Cahn, 1964, p.1346). The service function suggests a client-based orientation, while the representative function corresponds to a cause orientation. The Cahns placed priority on the representative function. Their position strongly influenced early debate regarding legal services provided by the Office of Economic Opportunity (OEO). Following the Cahn's lead, Carlin, Howard, and Messinger called for "facilitating the development of legal rights in areas where the law is now vague or biased" (1966, p.60). Carlin et al. also discussed the "protections and benefits the law could be made to provide" (1966, p.61). They suggested that attorneys should act to alter the law, and the legal system, in an effort to expand legal protection of the poor.

By the mid 1960's, debate over legal services to the indigent was dominated by those who wanted OEO legal services to move away from client-oriented, and toward cause-based, models. Hannon observed 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, p.237). This statement remains true today. The Cahns and others had cut to the heart of a debate that continues more than 30 years later.

In contrast to the 1960's critique, today's critics assert that the LSC spends too MUCH time on cause-oriented representation. Contemporary critics have shifted the focus to attorney ideology and the presumed motivation for cause-oriented representation. As a general matter, this argument ignores the trend in the activities of LSC-funded offices. In reality, the amount of cause-oriented activity in these offices has declined precipitously as restrictions have narrowed the types of cases that could be handled. Arguably, the focus on cause-oriented activity obscures the issue of access. Since these offices serve less than 15 percent of the client population (Spangenberg, 1993) it is apparent that access to legal services, irrespective of the client/cause issue, remains a significant problem for the indigent client.

The contemporary critics' arguments have consistently focused on attorney ideology and strategy, rather than on the issue of access to justice [1] . In effect, critics have diverted attention from the access issue by shifting the debate to attorney ideology. The question of whether and how amply legal services should be provided is different from the question of HOW these services should be provided.

Consistent with their assumptions regarding the nature of LSC funded work, critics have motivated policy changes that have greatly impacted the structure of poverty law in the United States. Our research focus has been on the impact of the most recent set of restrictions and funding cuts. Of primary interest is the question of how the two organizations examined in this research will react to funding cuts. We also asked how the broader (and arguably more effective relative to changes in the 1980's) limitations on cause-oriented work would impact these organizations. For example, would these policy changes impact the balance of client and cause work in these organizations and in the communities they serve?

Our research examines how this political debate, and the subsequent funding cuts and restrictions, has impacted two organizations funded by the LSC. A primary purpose of our examination is to describe how these offices have adapted to the altered state of poverty law. The contrast between these offices illustrates differing reactions related to the organization's orientation along the client/cause continuum.

Research Methods

The preceding questions were addressed through comparative case studies of organizations that receive, or previously received, funding from the LSC. The research began with visits to five LSC offices in a given geographic area. Each office served a multi county area that included rural areas as well as three of the most populous metropolitan areas in the state. Interviews were initially completed with eighteen LSC funded attorneys. As the research progressed, a decision was made to limit the investigation to two of these organizations. These two organizations were similar in regard to client population, service area demographics, organizational size, and geographic location. While similar, the two offices were selected because they provided interesting contrasts along the client/cause continuum. Since debate regarding the LSC focuses on this continuum of service and role, the decision to limit the research to these organizations was made in an effort to contrast organizational reactions to change by reference to the initial client/cause orientation of the organization.

In total there were there were 33 interviews, ranging from 45 to 90 minutes each. Our decision to focus on two organizations reduced the number of attorneys from 18 to 7. These seven attorneys were each interviewed at three separate times. All interviews were tape-recorded and transcribed. [2] Permission to record was granted prior to the interviews. The attorneys were told that direct quotes would be used but that their anonymity would be protected.

Initial contact was made with the executive director of each organization. The initial contact was in the form of a letter that briefly described the research. The letter also included the initial request for permission to interview the director and two or three attorneys. Letters were followed up with phone calls that gave the director an opportunity to ask questions. A certain amount of bias may have been introduced by allowing the director to choose who would be interviewed. However, since we relied on the directors' generosity with valuable organizational time, it seemed inappropriate to place too many restrictions on the request for access. The executive director of each office was interviewed. Interviews also took place with the litigation director and one or two staff attorneys in each office. [3] The directors scheduled the interviews on the basis of availability. Since we asked to be able to complete these interviews during a set period of time, selections were most likely made on the basis of scheduling availability rather than any effort to alter our perception of life in these offices. We believe that the openness with which the attorneys spoke indicated that they were providing an honest assessment of their situation.

The information reported here should not be treated in terms of conventional sampling techniques. What we did was to study the two offices by using informants who were available to us over three time periods. The stories we were told in our lengthy interviews provided a consistent picture. There can be little doubt of the basic findings for each of the offices, namely, that one split up and the other stayed together. The interviews essentially tell us in detail the background of each office and the process by which the breakup occurred in one of the two.

Having studied only these two offices in detail, we make no generalizations about the effects of Congressional actions on other LSC-funded offices. The value of this research is the illustration that the actions in Washington generated unanticipated consequences as one of the two offices, Bradley, preserved its cause orientation by splitting into two unequal units ≠ the larger of which pursued cause litigation more vigorously than Bradley Legal Services had done before. Whether other offices funded by the LSC reacted similarly is a question for additional research. Such research is needed to determine how many offices split or left the LSC entirely and what part the office's initial cause/client orientation played in determining this outcome.

Data for this project were collected in three rounds of interviews, each somewhat unique. During the first round, in early 1994, the organizations were in a period of relative calm. A long siege, which began with Ronald Reagan's efforts to end the LSC, had ended. While the organizations were struggling with financial limitations that prevented them from serving more than a small percentage of the client population, the attorneys were generally optimistic. Office work and policies were relatively stable and morale was good.

Things changed considerably just prior to the second round of interviews, conducted in 1995. The Republicans had just won control of the U.S. Congress and were threatening to limit and/or end the LSC. The House and Senate were each considering bills that would severely limit funding, as well as case selection, in LSC-funded law offices. It appeared that the LSC would survive, although in a different form, and perhaps for a relatively short time. At the end of 1995 the attorneys were concerned about the loss of funding, the potential for staff cuts, and the possibility that the LSC would be eliminated over the next two to three years. This was a period of extreme stress and uncertainty.

The attorneys were visited for a third time in the summer of 1997. As anticipated in 1995, Congress had placed significant restrictions on the LSC. The organizations had made decisions in anticipation of this legislation. As a result, by the middle of 1997 many of the most difficult decisions had been made. For the LSC, the local organizations, and the individuals employed in these organizations, the immediate crisis had passed. Although serious problems remained, intense frustration and uncertainty had been replaced by reasoned planning.

Since our goal was to describe changes during the period that followed the redefinition of the LSC, this paper places an extensive reliance on interview data collected during the third round of interviews. It is important to note that each of the seven attorneys included in the final research had been interviewed during each round of interviews. Several were in the somewhat different work roles, but still in the same city, still working in the area of poverty law, and to varying degrees still in contact with former colleagues. There was no way of knowing, three years earlier, that the group from which these attorneys were drawn would shrink significantly over the next three years. We were fortunate to have a continuous dialogue with a group of individuals (approximately one-third of the attorneys employed by these organizations in 1997) who were intimately involved with the issues addressed in this research.

The focus of questions was different in each round. Our interest in the client/cause issue remained constant, but the context of each round of interviews required a different set of questions. In each round the interview format was relatively unstructured. During the first round our goal was to document the daily activity, especially along the client/cause continuum, of these organizations. While we retained this goal, events during the second round of interviews created an environment that was so stressful that it was difficult for the attorneys to focus on anything other than the immediate situation. In round three we discussed organization changes, altered role expectations, and the attorneys' satisfaction with their new roles. In the third round the attorneys were asked to talk about organizational changes. Their comments were followed with additional questions that sought to identify and understand the range of concerns and changes. Our discussions focused on changes, individual reaction to the changes, problems associated with the changes, attorney perceptions regarding the motivations for the Congressional restrictions, and issues related to the future of the organizations.

In addition to interviews, various documents provided by the LSC and the individual organizations were examined. These documents included annual reports, budgets, and various documents that were available to the public. Although helpful, these documents had several limitations. Although fact based, the tone of the documents often indicated the political nature of the information being presented. The tone itself was interesting. However, the political nature of these documents limited their use as purely factual sources of information. Another limitation was that the organizations did not produce comparable documents and did not use comparable terminology. As a result, a comparison of these organizations, purely on the basis of archival materials, would have been unsatisfactory. The combination of interviews and documentary reports provided a clearer picture than either alone might have done.

The Organizations

As mentioned above, an effort was made to select two organizations that were similar, but with different orientations along the client/cause continuum. The following descriptions are based on personal observation, interviews, and documents provided by the organizations. The names of the organizations have been replaced in order to protect the anonymity of the individuals and organizations. Citations to written documents that would identify the organizations are omitted and the real names of the attorneys are not disclosed.

Summit Legal Services

Summit Legal Services was formed in 1968, with a goal of "bringing the reality of equal justice to those who cannot afford a lawyer." In 1996, SLS received 40 percent of their funding from the LSC. The state, several state agencies, IOLTA (Interest on Lawyer Trust Accounts), the County of Summit, the United Way, several county agencies, a private foundation, and the City of Summit also provided funding. SLS is supported by 17 different grants and is constantly searching for additional funding. The organization has been successful in securing funding from a variety of sources. Special grants extend services to individuals with mental illness and developmental disabilities in an additional twelve counties. Clients generally have an income at or below federal poverty guidelines. SLS also receives funding for special projects that provide representation to certain clients (for example, those over 60) without regard to financial eligibility.

Following LSC guidelines, the SLS Board of Directors established priorities to allocate SLS resources. Priorities were established in light of local legal needs including shelter, income security, health, and family matters. Income security cases were listed as the highest priority, followed by housing, family, and social security. SLS, in their 1995 publication, tells how they have made children a high priority, with more than 50 percent of the cases closed in 1994 having an impact on children. In the City of Summit, 37 percent of the children under five live in poverty. As SLS points out, attempts to focus on children in poverty are evident in case priority decisions. For example, income maintenance cases help children obtain food, health care, and general income for their families. Housing representation prevents homelessness and keeps families from being unfairly evicted. This representation also helps insure that children have safe and healthy housing. In contrast to critics who argue that the LSC funds anti family litigation, Summit Legal Services point out that family representation "enhances the physical safety of children where there is family violence, resolves family conflict to allow rebuilding of lives, and ensures that critical support services are provided to help kids remain with their families or in settings that will allow them to develop healthy, useful lives."

Each year, SLS lawyers and paralegals "close about 4,000 cases, directly impacting the lives of more than 10,000 people". SLS attorneys go to court in just 13 percent of their cases and nearly 60 percent of their court cases are settled. The vast majority of their cases are client-based representations. Of these, many can be defined as emergency cases in which the attorney needs to intervene within days, or perhaps hours, to avert eviction or other negative events in the client's life. Each of the attorneys interviewed for this research discussed the importance of, and demands resulting from, these emergency cases.

Much of the descriptive information regarding SLS is found in their publication subtitled "Fulfilling the Promise of Equal Justice." This, and similar documents provided by Summit and Bradley, may be interpreted as political documents. While these documents provide fact-based information, the personality of the organization is often apparent. The Summit document begins with a discussion of the right to legal access. While not an official mission statement, the statements made in this document provide evidence of the organization's philosophy. The document points out that the majority of Americans assume, incorrectly, that legal representation is guaranteed in civil cases. SLS suggests that Americans believe the "justice for all" phrase in the Pledge of Allegiance, or the equal protection and due process clauses found in the Constitution.

The document does not mention goals related to systemic change. In fact, in a statement that provides evidence of a philosophy tilted toward individual, client-based representation, the SLS document hints that justice can come one person at a time. SLS quotes Learned Hand's statement that "it is the daily, it is the small, it is the cumulative injuries of little people that we are here to protect." SLS proceeds in the belief that democracy exists only when justice is available to all, and that their mission involves addressing the cumulative injuries of many, as opposed to the wholesale solution of inequality. This entire statement is reminiscent of the philosophy expressed by the Legal Aid Societies in the period prior to the establishment of OEO Legal Services and the Legal Services Corporation.

Bradley Legal Services

In contrast to Summit Legal Services, Bradley Legal Services speaks of legal issues in broader terms. BLS begins their 1994 annual report with a statement regarding philosophy. They write that "the elderly, disabled, and children became the targets for reprisals for the vanishing American Dream. While the rich got richer than everyone else in America, the ideological gulf between the poor and middle class became alarmingly large. In the past, our most effective weapon was often our passionate plea for what was fair and just and right. We have had to learn to change our weapon of choice in the fight to ensure that the law remains a tool for the poor as well as the rich."

Further evidence of a cause mentality is found throughout the report. For example, "while staffing at one of the regional offices was reduced, the job losses were somewhat ameliorated by the knowledge that the office would not just survive but would remain a viable agent for change." The focus on change indicates a strong cause orientation. When we say that BLS had a cause-oriented mentality, we are contrasting the organization with SLS. Evidence of this difference becomes clear in the reports of the two organizations in 1994 and 1995. Additional evidence comes from the frequency of class-action cases.

BLS discussed a number of impact cases, either ongoing or completed, in their 1994 annual report. Ten cases, including issues related to Medicaid, the Americans with Disabilities Act, health care proxies, the timely processing of requests for Food Stamps and Aid to Dependent Children, and several housing related problems were discussed. BLS also reported having worked with several state agencies in a cooperative effort to design more effective mechanisms to respond to the needs of the client population. While this cause-oriented litigation and activity comprised a small percentage of the caseload, during the interviews it was clear that each of these cases required more organizational resources than an individual or client oriented case. BLS attorneys were quick to point out that these cases impacted a large number of current or potential clients.

Quantitatively, neither organization behaved as a primarily cause-based law firm. The ratio of client to cause-based cases was very high for both organizations. If we compare the types of cases, however, the Bradley office did handle ten class actions in 1994, compared with one in the Summit office. Class actions, seeking a change in policy affecting members of the class, tend strongly toward the cause end of the cause/client continuum. The prominence of Bradley class action suits in 1994 indicates a cause orientation. The cause orientation was probably manifested in other cases as well, though these are not as easily placed on the cause/client continuum.

The interviews tend to support the proposition that several attorneys originally in the BLS office had a strong commitment to cause litigation. In the detailed accounts that follow, evidence to this effect is available. In the SLS office, only one attorney, Ryan Fuller, explicitly stated this view. Fuller himself found a way to implement his cause orientation through his affiliation with a law-school clinic program.

We are cautious nevertheless in drawing from our data the inference that the individual staff members in BLS were more cause oriented than those in SLS. Much of our interview material was obtained from both sets of attorneys after the BLS breakup. That event could make a big difference in the thinking and statements of those BLS attorneys who switched to the new Public Interest Law of Bradley (PILB). Having made the switch, these attorneys had little reason to conceal, and much reason to emphasize, their commitment to a cause orientation.

It is possible that BLS attorneys were more cause oriented to begin with. That could have resulted from the recruitment process and from the culture of the BLS office. But the initial round of interviews gave little evidence of individual difference between the attorneys in the two organizations. What we can report is the official organizational differences that are clear in the reports of the two organizations and in the propensity of BLS to develop class action cases. To predict future defections from the LSC, such as occurred in Bradley, the organizational behavior might forecast such a development better than interview data.

BLS case priorities appear to have been determined by the flow of clients. The Bradley office defined case priorities by focusing on legal needs that became apparent through client intake. The organization then directed resources to subgroups that were staffed in reaction to identified community legal needs. This procedure, not inconsistent with either a cause or client orientation, could favor a cause approach by its specialization. In 1994 the disability law project had two attorneys, three paralegals, and a volunteer. The children and families unit consisted of two attorneys and a secretary. The housing unit was staffed with four attorneys, an IOLTA fellow, a paralegal, and a secretary. The staff of the public benefits unit included two attorneys, two paralegals, and a secretary (Bradley, 1994). Any of these specialized units might have generated a class action whose need and legitimacy might have become more apparent by virtue of this practice of specialization.

In contrast to the somewhat political 1994 Annual Report, which talked in sweeping terms about the goals of the organization, the 1995 BLS Annual Report had changed in tone. [4] By this time the Republican majority was actively challenging the LSC. The opening comments were "just the facts." However, this discussion was still somewhat politicized in light of changes the organization had faced in the previous year. While there were no specific statements to that effect, the tone of the document, and the politicized presentation of data, continued to indicate a more active cause orientation than was apparent in the Summit office. For example, rather than broad statements about the impact of cases, the 1995 report listed case names and numbers of people affected. The 1995 overview listed 3,913 individual representation cases that benefited 10,422 people. Ten impact cases, and six non-litigative impact interventions were also listed. BLS listed the number of people affected by impact work as over 320,000, suggesting, through data alone, that their cause-oriented work provided a greater contribution to the community.

By the summer of 1997 a third organization, not accepting LSC funds, had spun off from the BLS office. The new organization was formed with the intent of accepting cases, primarily cause-oriented, that BLS could no longer accept. The new organization, Public Interest Law of Bradley, employed ten staff people, including six attorneys, who had previously worked at BLS. Two of the three BLS attorneys interviewed during this research left BLS to join the new organization. This organization was so new, at the time data were collected, that there was no historical record of activity, goals, or achievements. It was clear in discussion with the attorneys that the mission of this new organization was decidedly cause oriented.

Both Summit and Bradley had experienced significant changes just prior to the third round of interviews. SLS lost more than $600,000 in annual revenue from two major funding sources. SLS had a staff of thirty-nine, with twenty lawyers and seven paralegals. By 1996, SLS had reduced their staff to thirty-two, with eighteen lawyers (one on leave, several others had moved to part-time status), and three paralegals. SLS continued to serve a medium size city and a five county area.

Staff cuts were more severe at BLS. In 1994, BLS employed twenty-one attorneys. By the end of 1995, BLS employed only sixteen attorneys. By 1996, six members of the BLS legal staff transferred to Public Interest Law of Bradley (PILB), a new organization formed to continue impact cases without LSC mandated restrictions. With a reduced staff, BLS continued to provide client services for a more limited clientele in its six county service area.

Results

The work context for all of these attorneys changed significantly during the period in which this research was completed. Each organization was faced with issues that were more complex than had been faced in 1994. A primary issue was related to funding. Funding was cut at the same time as restrictions were placed on the use of non-LSC funds. Another category of issues was related to organizational structure. New jobs, new roles, and new expectations were now the rule. The role of these organizations had changed. With this change came concerns regarding client service. Issues related to client service became more complex as the organizations struggled with new limitations on their activity. Along with these changes came new role expectations for the individual attorneys. In short, the organizations have changed and the political atmosphere in which they function has changed. The overlapping issues of funding, client service, and organizational change are each discussed below.

The two original organizations, SLS and BLS, reacted to the restrictions in very different ways. SLS chose to "stay the course" and continue to function under LSC restrictions. In contrast, the dominant faction of BLS pursued and intensified its cause orientation. By the spring of 1997, BLS split into unequal parts, the smaller of which would continue to accept LSC money and would work, in a client-based mode, under the restrictions attached to that funding. The majority of the attorneys and resources went to PILB, a newly formed organization with an explicit cause orientation. To pursue that orientation, PILB committed itself to accept no federal funds.

Funding concerns

A major issue in each of these organizations was related to concerns regarding funding. In addition to federal budgetary cuts, the capacity to generate non-federal funds had also been limited. Dennis Davis, the SLS executive director, stated that "the biggest absolute restriction that we've had for years . . . is the lack of resources. That, more than any other specific restriction, has prevented us from doing as much of what we would like to do in all of our communities. So given that, we are not dealing with just a two year history of these restrictions, but what we are dealing with is, you know, thirty years. [5] " The lack of resources, as Davis points out, is not a new phenomenon. Funding restrictions have consistently prevented the LSC from addressing the client needs of the majority of the poor.

Funding restrictions were very important in the decision to split the BLS office into separate entities. Andrew Collins, the PILB litigation director, remarked that "what we faced was clients [who] needed a set of services and we actually have some obligations that were inconsistent with the restrictions. [For example] we received state money to do disability advocacy to get people on the SSI program who are currently on state funded assistance programs. The state made it very clear to us . . . that one of the things that give us an edge in the bidding process for that funding is our ability for us to do class actions. Wholesale instead of retail. That was a competitive edge we weren't willing to give up." Clearly, restrictions on outside funding were a precipitating factor in the PILB decision to split from BLS and reject LSC funds.

The choice between forming a new organization or redefining the current organization was made more urgent as these organizations attempted to maintain access to IOLTA (Interest On Lawyer Trust Accounts) funds. The IOLTA funds, a significant part of SLS and BLS budgets, were jeopardized at the state level as part of the campaign against cause-oriented legal service offices. The prospect that IOLTA funds might dry up was attributed by the attorneys to legal challenges rather than to the administrators of the IOLTA funds. BLS' Andrew Collins, for one, reported that, "the IOLTA board was absolutely clear that they were hoping to preserve those sorts of full range of advocacy." Even so, the IOLTA Board's view was not necessarily the last word. The Washington Legal Foundation, a long time critic of the LSC, has targeted IOLTA funds and received a favorable ruling in Phillips v. Washington Legal Foundation (94 F.3d 996). The U.S. Supreme Court ruled that IOLTA funds are the private property of clients and sent the case back to a lower Texas court to determine if the state had "taken" private property and therefore is responsible for compensating the owners. The uncertainty, which is not yet resolved, created stresses regarding future funding. In response, the organizations are taking steps to reduce the impact of non-favorable rulings and/or legislative decisions.

The pattern of anticipatory avoidance was seen most clearly in Summit. Ryan Fuller left SLS for a position at the Summit College of Law. The SLS executive director, the director of the Law School Clinic, and Mr. Fuller worked out a plan through which Fuller could go to an IOLTA funded position in the Law School Clinic. This situation allowed SLS to transfer its single class action suit out of the organization. More significantly, it allowed Mr. Fuller, with an energetic group of law students, to go after more cause-oriented cases. Fuller's role became the functional equivalent of PILB, although with fewer cases and resources. However, like PILB, his caseload could increase as he, and his law students, began to look for cause-oriented cases.

Another funding related issue involved a restriction that prevented LSC-funded law offices from recovering attorneys' fees. This question had strategic as well as resource implications. Two SLS attorneys discussed the strategic benefits of attorneys' fees. Each felt that attorneys' fees were an important bargaining chip when attempting to settle cases. For example, Thomas Allen believed that "attorney fees were a large factor. Not only for purposes of funding for our offices, but also because strategically, attorneys fees can be very important in whether a case is going to go one way or another simply for negotiation purposes."

In contrast to LSC funded offices, the Law School Clinic and PILB would each have the opportunity to recover and/or negotiate attorneys' fees. Jana Emerson pointed out the changing nature of these fees, as well as the contrast between PILB and private firms. "For private attorneys, a case where all you could get is attorneys' fees would be considered a pro-bono case because it's speculative, you don't necessarily get in a settlement. But for us, it is considered as a moneymaker because in the past we've got a budget and we did all the cases for free." The contrast to private law firms is especially interesting. Many law offices would not take a chance on speculative fees, especially when the fee recovery process involves a great deal of record keeping, and typically a significant amount of negotiation. However, the PILB office saw these fees as a source of funding that had previously been unavailable.

In reaction to the various funding issues the organizations began to form alliances with other organizations, some of which had been seen as competitors in the past. For example, the SLS director talked about forming an alliance with other law offices. Through the combined resources of these organizations they could hire an individual to seek external funding that would benefit each group. In effect, organizations that had previously competed for these resources would work together in an effort to increase their very limited resources. Another attorney talked about alliances with the private bar and other providers "because this round of changes is forcing us to align with the community in different ways and to . . . rethink norms, and to get introduced in new areas where we meet new people who can be helpful in new ways."

These new alliances were creating jobs in the community and had increased the organization's visibility in areas of community development. For example, one attorney served on a local health commission, along with human resources senior vice president from local industry. He pointed out that this opportunity "has given us a great entree into a community in which we had no entree and no support from before . . . the commission stepped up and brokered a deal that kept [a health clinic] operating, got them the rates that they needed to continue to run. It was a remarkable thing. It wouldn't have happened a couple of years ago." This example of new alliances illustrates the creativity of these individuals and organizations as they strive to do more with less.

Sandra Bowen talked about sharing resources with other legal services providers. She had, in an earlier round, discussed concerns regarding the coordination of multiple service providers. She was now seeing ways that this could be turned into an asset. The Bradley office had created a centralized switchboard and intake system that they shared with other service providers. A major advantage is that BLS was often the first phone call for indigent clients with legal needs. Through the shared referral system BLS was no longer footing the entire bill for intake and referral. In addition, it was cost effective for the other organizations since each organization no longer had to employ a full time switchboard operator. Additional advantages derived from the sharing of a BLS owned building and from the library resources of these organizations.

Service to Clients

Each of the attorneys interviewed in the course of this research expressed concerns about the client population. Andrew Collins felt that the LSC restrictions "disenfranchised our clients from a significant portion of the justice system [turning] ‘liberty and justice for all' [into] liberty and justice for some, [i.e.,] those who could afford to pay for it." Of course, the issues of funding and service are related. Funding concerns force the organizations to seek cost effective solutions in the hope that these changes will improve client service.

A cost effective new alliance in Bradley County sought to improve communication and training with other organizations that interact with the indigent client population. One BLS attorney commented that in the past they tended to " spend an enormous amount of time doing social work, as well as legal work. Our clients were getting cut off of welfare because they hadn't provided certain verification to the department. And we spent an enormous amount of time helping them to get that verification and get it in." The attorney pointed out that "that is not legal work." In response to this concern BLS was beginning to alter roles in a way that allowed them, in concert with other service agencies, to "provide a significant amount of our services not to people who call us on the telephone, but through caseworkers and other agencies who are providing services to poor people." This comment introduces what may be a new paradigm in services for the indigent client. LSC funded organizations can reduce their non-lawyering caseload by establishing better working relationships with counseling services, health services, housing, education, and other agencies. By establishing better relationships with various caseworkers and case managers, and providing them with the training that they need to identify legal issues, workers in other organizations will be better prepared to address the non legal issues that are currently a large part of LSC funded work. Along with improvements in client service, this type of collaboration provides funding related advantages. In this model diverse organizations are able to pool resources and combine forces as they seek external funding.

This model may provide relief for other LSC-funded law offices. The organization is allowed to focus on legal issues rather than backing up other agencies that are better situated to address the variety of needs within the client population. By teaching caseworkers to address problems that had previously been handled by LSC-funded attorneys, the LSC funded office frees resources that can be used to address legal, rather than social, needs. By the time a client gets to the attorney, he or she actually needs legal assistance. This model, being adopted within the BLS office, is an example of a creative effort to integrate a wider range of services for the poor. Other LSC-funded offices may adopt this model in the future, and along with other agencies, more effectively address the legal and social needs of the poor.

Another client service related issue that was raised in several interviews focused on the loss of legal tools. In effect, the restrictions prevented zealous representation, using the full range of tools available to the attorney. Ryan Fuller, of the Summit office, believed "an ethical issue is raised here, because, you know, as a lawyer under the rules, you have an obligation to assert whatever claims a client might have. . . . Legal services restrictions, especially in the welfare area, prohibit you from challenging the validity of a policy or regulation. . . . I would find that mentally unsatisfying [as well as] ethically problematic." Another attorney remembered a specific case in which it was in the best interest of the client to challenge a regulation. He expressed concern that if that client were to ask for help today, the options would be restricted to individual relief while leaving the offending regulation intact.

Along with concerns about the efficacy of a "one hand tied behind the back" model of legal services to the indigent client, several attorneys were concerned over the pressure to see as many clients as possible. This was an especially pressing issue for attorneys in the SLS office. The problem was complicated by changes related to intake and record keeping. One attorney was frustrated with a new client intake system that resulted in "speaking to a lot more people, and providing a lot more advice, but not representing as many clients directly. . . . I find that frustrating because I feel that I am providing a telephone service." The attorney knew that he was providing a useful service, but at the same time he acknowledged that "there is also a large group of people out there who need legal representation that I'm not able to give to them any more because of all the time spent on the phone."

Another SLS attorney talked about the added responsibilities of time keeping. "We have to enter our time, and keep track of all our time in 15-minute increments, and that takes a chunk out of the day. It has to be on the computer because that's the only way to check it, so between doing our own intake, losing some staff, and doing the time keeping it's more burdensome." She was especially frustrated with the feeling that she was using a large percentage of her time "keeping track of my hours for some people who will probably never even look at it."

Organizational Issues

During the second round of interviews morale was so low, and levels of stress and uncertainty were so high, that it was difficult to get a sense of the direction in which these individuals and organizations were heading. Issues of organizational direction, stress, uncertainty, and morale were revisited as the third round of interviews. Thomas Allen, who was in his sixth year as a staff attorney at SLS, believed the organization was back in a period of relative calm. "There is still uncertainty, but I guess we feel more calm because things are a lot better than a year ago. . . . We have been working under [LSC] restrictions for nine months now and we are relatively used to those restrictions. . . . I wouldn't say that things are real stable, but just in comparison to how things were, things appear stable." Another SLS staff attorney offered a similarly optimistic, yet tentative, observation about the state of affairs. She replied that "now I would say that we are a little more sure that we are going to be here. . . . for a while there, we were not even sure if we would exist anymore. I don't think we have that feeling, but money is still a big worry."

Ryan Fuller had served as the SLS litigation director during each previous interview. In 1997 he was on a leave of absence while working in the law clinic of the Summit University College of Law. He believed that the SLS attorneys were "doing the best they can under the conditions. But, the conditions are just awful." Fuller discussed the hope he now feels as a part of the law school clinic. "The law students do not have that frustration, they don't have that history, and it is exciting for them to begin to take cases that can no longer be accepted by SLS."

Staffers in the BLS and PILB offices also expressed concerns about the continued, although diminishing, stresses active in their respective organizations. Sandra Bowen was the executive director of BLS throughout this research. When asked about the current state of affairs within LSC supported law offices she replied that she would characterize the situation as "hopeful, exciting, you know with a little bit of trepidation." It should be noted that, to her credit, Ms. Bowen has a knack for finding silver linings. In the first round of interviews she said that "Reagan was the best thing that ever happened to us. . . . Today the money from the federal government is probably less than 40 percent, less than 35 percent of our budget, and for that we have to thank Mr. Reagan because the 80's forced us to look elsewhere for funding, and we did, and we got money elsewhere" (Bowen, 1994). Bowen was now calling on the same resources, creativity, and commitment that allowed BLS, and many other LSC funded offices, to survive the previous limitations on federally funded legal services for the poor.

Andrew Collins and Jana Emerson had recently left BLS to work in the newly formed PILB. Collins felt there was "a lot of energy about stuff that needs to be done, at the same time, tempered by an understanding of how perilous times are for our clients." Emerson felt that "poverty law, as a whole, was in a holding pattern. Everybody has come through this. I would say for the last year and a half it's been hard for people to really feel that we are at a new beginning." Emerson also mentioned a "survival mentality. Like we just have to survive." Emerson's comment mirrors our perception of the reviving albeit sober optimism felt in the offices when compared to the uncertainty and low morale so obvious eighteen months earlier. In fact, it was Ms. Emerson who provided one of the most poignant comments during the second round of interviews as she stated that she would "wake up at 4:00 in the morning in a sweat not knowing what I'm going to do if I don't have a job" (Emerson, 1995).

As indicated by these comments, these attorneys were beginning to emerge from a difficult period. The third round of interviews indicated a mixture of concern for clients, continued (although reduced) uncertainty about the future of the organization, and in some cases guarded optimism. Along with these individual issues, organizational changes were also apparent. These organizational changes led to communication concerns, stressful new relationships, and the sudden end of working relationships that had taken years to develop.

Organizational restructuring had a strong impact on communication patterns within the fractionalized and/or redefined organizations. Several attorneys discussed this issue. For example, Sandra Bowen expressed concerns about ineffective communication regarding case priorities. Bowen commented that it was "very surprising how quickly an entity develops its own history and parochialism." Bowen pointed out that PILB "has their own cases now. And there has not been a lot of communication concerning what they are working on, what they are looking for, what issues they are concerned with, what issues they've spotted that we should be looking for or that we should notify our clients about." Her sense prior to the split was that "expected the identification of emergent issues and client situations that [PILB] would want us to be on the lookout for." Bowen reports that that hasn't happened.

PILB's Collins expressed similar concerns regarding the loss of communication with former colleagues. "We have not developed terribly effective mechanisms to extract from [BLS] in some kind of a systemic way, what are the sort of problems they're seeing that would benefit from affirmative litigation or other efforts. . . . When we were all part of one office, it was frankly much easier." Ryan Fuller, now working in the Summit Law School clinic, was concerned that altered communication structures might lead to reduced cause representation. Like Andrew Collins, who had been his litigation director counterpart, Fuller was able keep track of issues that came up during intake. He "looked at those issues and tried to develop them and encourage attorneys to develop them and work with them on that. To the extent that I can't do that now with other attorneys, there is a decrease."

In effect, the result of these altered communication structures is that the LSC-funded offices see the clients, and are best able to identify trends, yet they cannot address the issues once they are identified. Each organization has identified this issue and plans to take steps to improve the amount and quality of inter-agency communication.

Increase in Cause Lawyering? ≠ The Impact of Organizational Structure

Dennis Davis, the SLS director, talked about attending meetings with Sandra Bowen, his BLS counterpart. "We both heard the same things, and we walked away with two different conceptions. I think a lot of what drove that is because of the type of work that was done." Davis commented on the fact that BLS had many more class actions and was in a position that led to the decision to form a new organization. In contract, SLS "looked at our character and on that scale we said well we are over here, maybe [Bradley] County said that they were somewhere closer to the middle on that continuum. That they could get two viable organizations out of it."

SLS had just one active class action suit. That case went with Ryan Fuller and the law school clinic. In contrast, BLS had several active class action suits. In the minds of the BLS attorneys, these class action suits addressed the needs of far more individuals than could be addressed through client-based interventions. If we, like Dennis Davis, look at the client/cause issue as a continuum, and only use the percentage of cases as the basis for placing an organization along that continuum, the two organizations were not far apart. If we use the percentage of organizational resources devoted to cause-oriented work, the gap between these organizations widens, although relative to other public interest law firms (e.g. Lambda Legal Defense, ACLU, etc.) they remained near each other. Under Congressional pressure, however, the breakup of BLS clearly freed its larger segment, PILB, to pursue cause litigation as its major strategy.

Before the breakup, each of the two organizations faced a comparable dilemma: how to continue the core of their program while remaining as an integral unit. For Summit, this issue was resolved by the transfer of its one class action suit to the Law School clinic. In addition, Ryan Fuller's move to the clinic meant that the strongest advocate of cause lawyering was no longer central to the SLS deliberations. What remained was a staff that was willing to concentrate entirely on client representation. Thus, SLS achieved full compliance with the objectives that the Congressional critics sought to achieve.

SLS attorneys did not experience the sort of structural pressure that BLS attorneys did. For the SLS attorneys, their work was much the same as it had been for the previous three years. However, Ryan Fuller, now part of the Summit Law School clinic, felt that cause-oriented work had increased because "from my own perspective, from my own activity, I am focusing much more exclusively on reform issues and doing impact litigation." From Fuller's perspective the potential for cause lawyering in Summit County had increased. However, based on their day-to-day activity, his former colleagues did not share this perception.

For Bradley Legal Services, the organizational problem was not so easily resolved. We have seen signs from the organizational report of 1994 that BLS was relatively more inclined toward cause litigation. Under the Congressional pressure of 1995 and 1996, it is difficult to see how BLS could have moved into full compliance, limiting itself to client-only representation. To do would have required a major change in the culture of the organization. That would not have been easy. Over time, it might have worked ≠ but the period of readjustment would have been troublesome. One would expect dissatisfaction and internal conflict to have resulted, with clients and causes suffering as a result. Instead, BLS responded to the pressure by splitting into two parts. The part that remained as BLS was able to comply with the client orientation ≠ primarily because PILB took with it the attorneys and the cases that were most cause-oriented. As a result, the remaining BLS activities closely approximated those of SLS.

If we return to the continuum analogy, we see that SLS and BLS are now occupying approximately the same position on the continuum, as long as we only look at organizational caseload and resource allocation. If we look at clients served through client verses cause work, they also end up at the same place on the continuum. However, the BLS office is serving far fewer clients than they did eighteen months earlier. Many former BLS clients are now being served by PILB, an organization at the cause end of the client/cause continuum. Prior to the split no local organizations occupied that position. Today, as a result of the actions of LSC critics, it appears that cause-oriented representation has increased in Bradley County. Not LSC-funded, but cause-oriented work nevertheless.

Sandra Bowen, still with the Bradley office felt that the critics had "no idea of the ramifications [of what they had] let loose…One of the reasons why I think it's working so well in [Bradley] is that clients have so many more resources available to them. Now they've got unfettered legislative administration representation. And unfettered class action representation." In effect, the potential for cause-oriented work in Bradley County has increased as a direct result of Congressional actions. Some of the critics, if not all, surely intended to have the opposite result, i.e., a diminution of cause-oriented litigation on behalf of poor clients.

Political events could soon tilt the balance toward cause-oriented representation. One attorney suggested that the balance had not tilted because "it's taken the federal government and the state government so long to implement welfare reform. . . . a whole new [welfare] system is going to be implemented and it's never been my experience that a government has been able to do that without being arbitrary and capricious and violating constitutional rights." Throughout the three rounds of interviews the behavior of government agencies has been seen as a primary motivator of cause-oriented litigation. Based on experience, the attorneys believe that the government will not behave in accordance with its own rules. If this is the case, cause-oriented litigation, or at least the demand for such work, is likely to increase.

On the other hand, legal developments could limit cause-oriented litigation. For example, according to one attorney, reductions in procedural and due process rights represent a "structural change that limits cause-oriented challenges." In effect, the legal basis for these challenges has been removed. Of course, the constitutionality of limitations on procedural due process may be the source of future cause-oriented litigation. Another external factor, the composition and personality of the United States Supreme Court, would have to be included in a decision to begin these challenges. Cause-oriented litigation, even when freed from LSC restrictions, will remain restricted in terms of funding. Cause-oriented organizations may decide not to spend limited resources banging their heads against a Supreme Court wall that will not move.

The organization's decision to position itself to take certain cases appears to be made, primarily, on the basis of extra-organizational factors. Issues of funding, the frequency of certain client problems, congressionally mandated restrictions, and organizational structure are each active in a decision to move toward a cause or client orientation. While external factors, well beyond the control of these organizations, appear to have the greatest impact on decisions regarding the structure of the organization, organizational placement along the client/cause continuum is an important issue. Although external factors were the precipitating cause, and appear to be the primary factor in an organization's decision to alter its structure, the client/cause orientation does appear to have led the organizations to respond in different ways to LSC changes.

The Bradley office, even before the 1996 restrictions, was more cause-oriented than their Summit County counterpart. This tendency seemed to be motivated mainly by the staff's preference for using a wide range of lawyering skills. Prior to 1996 the Bradley office was devoting a greater percentage of their resources to cause-oriented work through litigation, lobbying, or other activity. It appears that the cause orientation of BLS was a precipitating factor in the decision to form two organizations. This was a difficult decision as BLS, in effect, cut off eighty percent of its funding. As we have pointed out, many variables were active as the organization sought to best continue serving the needs of the client population. However, the BLS office, when compared to SLS, was slightly more progressive, more prepared for and experienced in cause-based actions, and was led by a director who believed in the need for social change. These factors, when combined with external factors, were active in a choice that, in many ways, represented the end to the organization.

SLS went through the difficult process of analysis and came to a different conclusion. Although the organizations served adjacent service areas, with very similar demographics, the organizations were different enough that each, through logical processes, came to a different conclusion. SLS stayed together, although with reduced funding, and is now exclusively engaged in client-based representation. It should be pointed out that the disengagement from cause lawyering was not difficult since they had just one class action suit, which was on the verge of settlement. SLS was client oriented before the restrictions, and remains so today.

The situation in each organization has stabilized relative to 1996, yet remains unsettled. Each appears to have made rational decisions about their future. The Bradley decision made it possible to maintain a full range of client services by splitting into two organizations. However, if the courts further limit the use of IOLTA funds, or outside funding sources choose to place their money elsewhere, attorneys in PILB may wish they were back in the LSC. The SLS decision was the more conservative position to take, especially in light of the fluid nature of the debate over legal services. This organization has the option to split into separate entities at some point in the future, though that seems unlikely. SLS has so far remained consistent with an approach that is conservative relative to their counterpart in Bradley County. In contrast, BLS may have made a decision that is somewhat irrevocable.

Discussion

This paper examines the reaction of two LSC funded offices to these newly imposed conditions. It is clear in this study that the restrictions and funding cuts put each office under tremendous pressure. This shows up in the interviews over the period of greatest pressure. It also becomes clear that options exist, as exemplified in the path taken in Bradley, that reject the restraints imposed by federal legislation. The interviews reported in this paper provide some insight into individual motives and organizational dynamics that led the two organizations into such markedly different patterns of response. Whether the Bradley pattern will prove to be typical or not, it does appear that for the Bradley office at least this less traveled path has ≠ in Robert Frost's famous words -- made "all the difference."

The interviews reported here provide many examples of how Congressional policies reduce the legal options of the poor. Several attorneys discussed LSC constraints that diminish their capacity to effectively represent the indigent. LSC funded organizations see clients at a volume and pace that prevents the attorneys from addressing the legal needs of more than a small percentage of the client population. Arguably, the newly formed cause-oriented law firms are in a better position to address systemic causes of legal problems. However, these new organizations have not yet developed effective mechanisms for communicating with each other. The most recent LSC restrictions forced the creating of new organizations that have not yet figured out how to coordinate their efforts. This problem is apparent to the attorneys interviewed for this research and is sure to be addressed.

The attorneys are functioning with structural restrictions that prevent them from fully addressing client needs. Financial limitations are a serious issue. This issue is made more complex as restrictions are placed on non-LSC money. Legal service providers and those who provide funding for such services are being forced to redefine their relationships and goals. The funding issue is further complicated by the fact that LSC attorneys can no longer recoup their fees. Perhaps as important is the fact that these attorneys cannot use the threat of legal fees as a bargaining chip. In addition to financial issues, LSC funded attorneys are being forced to represent their clients with a restricted set of legal tools. This creates a situation, often in conflict with the attorney's professional obligations, in which the attorney can represent his or her client in a relatively simple litigation, but cannot move forward with a class action. Parties who are typically on the other side of the issues that impact the poor continue to have a full range of tools at their disposal.

LSC clients, being poor, are somewhat powerless. The poor are excluded from courtroom-based forms of policy formation when they are forced to finance cause-based litigation without financial resources provided by the government or other sources. Cause 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. In the case of poverty law the repeat players have taken tools away from the legal services lawyers. Initially, legal services provided to the poor many of the advantages that, in the Galanter analysis, accrued to repeat players. As the restrictions have restrained legal services lawyers from a variety of tactical moves, these advantages have been lost. In particular, without cause-oriented litigation, lawyers for the poor are unable to address the structural issues that have limited their effectiveness.

Through their actions, LSC supporters allowed critics to frame the debate. The debate has diverted attention from an issue that may have led to more support for the LSC. If debate had focused on access to justice, rather than the motivations of LSC-funded attorneys and the potential for systemic change, 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 may well be to oppose the principle of equal justice under law, whether that takes the form of cause OR client lawyering.

Attorneys interviewed for this research provide a clear example of this problem. Their ability to assist clients with welfare related problems was taken away just as the government embarked on a massive program of welfare reform. The structure of our welfare programs has been greatly revised in the past few years. Regardless of the merits of this reform, it was clear before the changes that those impacted by the reform would experience legal needs that had not existed prior to the reform. LSC restrictions took away legal rights in anticipation of their use, reducing the legal options of those most impacted by welfare reform. Similarly, due process rights have been restricted just as government actions have motivated attorneys to fight for the rights of their clients.

The findings in this study indicate that neither office saw itself as engaged in any revolutionary or radical effort to change society. Prior to the Congressional action BLS more vigorously pursued cases that sought changes in policy. As a result, the legislative change had more of an impact on the Bradley office. The Congressional action led the Bradley lawyers to shift their organizational affiliation so that they could continue, if not enhance, their efforts at cause lawyering. In fact, the future of these organizations may include increased cause-oriented activity, which ironically, is the situation the critics sought to limit.

Prior to the most recent restrictions these law offices were willing to accept certain restrictions. Funding restrictions were successful in keeping these organizations together, although in a way that restricted cause-oriented representation. The 1996 restrictions took away even more funding, as well as most opportunities for cause-oriented representation. This created a situation in which cause-oriented attorneys had nothing to lose by rejecting LSC money and going off on their own. Critics controlled the pre-1996 LSC. They may not have realized it, but they had control to the extent that the providers, as well as outside funders, were willing to play the game as defined by the LSC. Today, the rules of that game are so restrictive that new organizations, funded by those with different ideas about how legal services should proceed, have begun to play a different game.

Different responses in these offices suggest a dynamic that could foreshadow major changes in the delivery of legal services. The Summit office accepted the restrictions and cuts, essentially continuing the pattern of client-oriented service that has in recent years become the dominant if not the exclusive activity of LSC funded offices. By contrast, the Bradley office made the unusual move of separating much of the original office from LSC support, so that PILB could continue and even increase its cause-oriented work. The difference in these two responses merits close scrutiny as a potential harbinger of the future forms of legal services in this country. As noted in chaos theory ≠ small changes can develop into massive differences. When LSC lawyers see Congress reducing and then further reducing their capacity to handle causes, they may reach a point at which the call to get out from under these constraints (i.e., restrictions and cuts) will become powerful enough to promote institutional change. Such an action is likely to reflect the perceptions and motives of those who make the decision. Interview data, gathered from key actors before and after the constraints were imposed, help to illuminate individual and organizational responses to the constraints.

If the change imposes a radical reduction in funding there will inevitably be a consideration of whether and whence the lost funds can be replaced if not increased. The motives of those considering the change will also be in play. To what extent did the decision makers become involved and stay involved in the work of the organization out of motives to meet the needs of the poor? How were those needs defined? Were the needs of the poor perceived to be best met by individual counseling or by cause lawyering?

The decision makers ≠ staff, board, and leadership -- in a given office might lean toward a cause orientation to such an extent that externally imposed limitations could push them to a major organizational change. This is what seems to have happened in the Bradley office. Such an interpretation offers a plausible explanation of why Bradley moved the way it did in the face of externally imposed restrictions.

If our interpretation is correct, we might have identified at an early stage a tendency in at least some LSC-funded offices that could profoundly change the relationship between government and localities in the organization of legal services for the poor. Are we possibly seeing the beginning of a new era in managing legal services for the indigent? Suppose the restrictions and funding cuts increase, to the point of cutting the relation between the federal government and legal assistance for the poor. Which pattern might dominate: a return to traditional legal aid, a renewed emphasis on cause lawyering, or some other approach?

Alternate delivery systems have begun to develop as these organizations are forced to consider new ways of addressing the legal needs of their clients. New alliances will be formed and new organizational 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, maintained, organized, and directed by a federally funded agency. These are not new ideas. In fact, several were considered in the Delivery Systems Study (1980). An ABA consultant (Schwartz, 1983) found several alternate delivery systems promising enough to recommend a mixed system. However, the LSC chose to ignore evidence regarding the potential effectiveness of these alternatives. LSC insiders had a vision of how they thought the LSC should function, namely through a single staff office model. Without challenging or supporting that vision, it is safe to say that this vision ran contrary to the desires of LSC critics. Perhaps a mixed system would have allayed criticism and generated wider support. Two decades later, it might still have that effect.

Conclusion

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 nonprofit funding sources. LSC efforts to coordinate legal services to the poor will become less effective. In some cases the legal needs of a group 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. The organizations studied here are aware of these problems. In response, new organizational structures will form. LSC work will continue to be redefined and new delivery systems will develop.

In the case studies reported here, several observations are relevant to the way Congress handled the Legal Services Corporation. Before addressing these, it is important to note that this article is based on an investigation of only two of the many offices across the country that were funded by the LSC. These case studies should therefore be taken more as a basis for raising questions that might, in the future, guide extensive research and analysis.

Among the questions that merit further study are these:

1. In legislating the budget and in restricting LSC-funded legal services, how well informed was the Congress concerning the actual nature of legal representation in the LSC offices?

2. Specifically, do Congressional decision makers reject cause lawyering of all kinds on the assumption that the causes supported in LSC offices are liberal or left-wing, or is the rejection based on the idea that less government is better?

3. To what extent do the operations and orientations in LSC-funded offices actually justify the foregoing ideological labels?

4. Is cause lawyering in reality a major component of LSC-funded offices?

5. Whatever its magnitude relative to client lawyering, what were the consequences of cause lawyering for (a) indigent clients, (b) indigent nonclients, (c) the structure of American justice?

6. When Congress restricts cause lawyering, as it did in 1996, how does that action affect LSC-funded firms that have, or have not, been committed to cause lawyering?

7. Can alternatives more acceptable to the critics satisfactorily accomplish the goal of equal access to justice?

Of course, these questions cannot be definitively answered. Rather, the questions are suggested by the findings of the study. And the account given in this article suggests that Congress might have shaped LSC policy more realistically, and less ideologically, if informed by substantial research on the way LSC-funded offices work.

The 1996 constraints on LSC activities and funding were too onerous to withstand. They led to the creation of entirely new organizations that are 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 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 that provide these services. The critics, if they had taken a closer look, might have learned that these attorneys and organizations are not motivated in ways that the critics assumed. The goal of these attorneys and organizations, not to advance left wing issues, but to provide equal access to the law, drives these organizations to prevail in the face of the critics' best efforts.

LSC critics may have underestimated the dedication of attorneys for the poor. Many of these attorneys do not work for material rewards. Their work brings other rewards, many of which can no longer be achieved through work in LSC-funded legal services. Many of these attorneys feel liberated and are beginning to take steps to bring greater satisfaction to their professional lives. There is no doubt that these attorneys will continue their commitment to the client population. However, there is little doubt that the critics will continue their fight as well.

References

ABA, (1996). "Arguments Against Cutting the LSC," U.S. News Online, http://www.usnews. com/usnews/wash/lsc2.htm

Bennett, J.T. and DiLorenzo, T.J. (1985). Poverty, Politics, and Jurisprudence: Illegalities at the Legal Services Corporation, CATO Institute Policy Analysis, No. 49.

Bowen, S. (1994). Transcript of personal interview, 1994.

Bradley (1994). 1994 Annual Report, Bradley County Legal Assistance Corporation.

Bradley (1995). 1995 Annual Report, Bradley County Legal Assistance Corporation.

Bradley (1996). 1996 Annual Report, Bradley County Legal Assistance Corporation.

Brill, H. (1973). "The Uses and Abuses of Legal Assistance," The Public Interest, 31 (Spring), 38.

Carlin, J.E., Howard, J. and Messinger, S.L. (1966). Civil Justice and the Poor: Issues for Sociological Research, Law and Society Review, 1(1), 9.

Cahn, E. and Cahn, E. (1964). The War on Poverty: Civilian Perspective, Yale Law Journal, 73 (July), 1317.

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

Davis, D. (1995). Transcript of personal interview, 1995.

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

Katz, J. (1982). Poor People's Lawyers in Transition. New Brunswick, NJ: Rutgers University Press.

LSC (1980). The Delivery Systems Study: A Policy Report to the Congress and President of the United States. Washington: The Legal Services Corporation.

Schwartz, R.D. (1983). Policy Implications of the Delivery Systems Study of the Legal Services Corporation: A Consultant's Report to the American Bar Association. Unpublished report.

Siegel, L. and Landau, D. (1983). "No Justice for the Poor," ACLU Public Policy Report, March 1983.

Smith, R.H. (1919). Justice and the Poor: A Study of the Present Denial of Justice to the Poor and the Agencies Making More Equal Their Positions before the Law with Particular Reference to Legal Aid Work in the United States. New York: Carnegie Foundation for the Advancement of Teaching.

Spangenberg, R.L. (1993). The New York Legal Needs Study. Albany: New York State Bar Association.

Summit, (1995). Fulfilling the Promise of Justice, Summit Legal Services, March, 1995.

Summit, (1996). Summit Legal Services Home Page, Summit Legal Services, August 8, 1996.

Totenberg, N. (1998). Legal Services, Transcript # 98011701-213, National Public Radio Weekly Edition, January 17, 1998.

Weinstein, H. (1995). "Legal Aid for the Poor Survives Cyclical Attempts to Kill It," The Los Angeles Times, Dec. 30, pg. A1.

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[1] The term, "access to justice," used here and at other points in this paper, refers to an effort to provide minimal legal representation. We are not asserting that legal representation will automatically translate to justice for the poor.

[2] During the initial round of interviews one attorney, an executive director, declined to allow recording. Since this organization was eventually excluded, the director and staff were not included in subsequent rounds.

[3] The role of several of the attorneys changed over the three-year period in which interviews were completed.

[4] We should note that the SLS report discussed in the previous section was written in 1995. As we have observed, the BLS report indicates a change in tone between 1994 and 1995. SLS does not have a 1994 document for comparison. Our sense, based on interview data, is that SLS did not alter their public persona, in a way that is comparable to BLS, in reaction to political events in Washington.

[5] This is the first of many quotes from attorney interviews. Each interview was tape recorded and transcribed. The respondents are quoted at length. Since confidentiality was promised, transcripts cannot be provided. Rather than provide citations to documents that are not available, citations to interview related quotes are not provided. Unless cited otherwise, all quotes are from 1997 interviews.

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