A (Not Brief Enough) History of Civil Legal Assistance for the

Poor in America

December 2013Bruce Perrone

Legal Aid of West Virginia

In the 1800’s - -Immigrant support systems

1876 – First formally organized civil legal assistance program in America

Consider the politics of the time – the 1876 disputed presidential election – decidedin the House - that essentially ended post-Civil War Reconstruction.

The “German Immigrants Society” predecessor to the Legal Aid Societyof New York

1905 – Legal Aid Society of Cleveland “5th oldest in the world”

1909 – Detroit Bar Association: committee to provide free civil legal services to the city’s poor

Ohio & Michigan

1911 – National Alliance of Legal Aid Societies(predecessor to NLADA)

1919 – Publication of “Justice and the Poor” by Reginald Heber Smith

Director, Boston Legal Aid Society

1920 – ABA created the Standing Committee on Legal Aid, now called the Standing Committee on Legal Aid and Indigent Defendants (SCLAID)

Between 1920 and 1930 some 30 new legal aid programs were formed

Typically a “charity” volunteer Lawyer concept, primarily providing advice and guidance.

Little direct representation in disputed cases.

1952 – founding of first legal aid program WV. What later became Legal Aid Society of Charleston

By the late-1950s, every major city in the country had a legal aid program

Early 1960’s: The Kennedy Years

Not yet reached a Supreme Court decision establishing a right to counsel for criminal defendants. Much less civil legal assistance

Private foundations, especially Ford, began to fund legal services demonstration projects as part of multi-service agencies.

Influenced by law reform efforts of organizations such as NAACP Legal Defense Fund, and the ACLU

Examples:Mobilization for Youth, in New York;Action for Boston Community Development;Legal Assistance Association in New Haven, CT;United Planning Organization, Washington, DC

1962-1963

Jean & Edgar Cahn – Community Progress Inc., in New Haven, CT

“A War on Poverty: A Civilian Perspective.” Article for Yale Law Review by the Cahns.

The Cahns’ article provided a cohesive conceptual framework. They argued that neighborhood offices and lawyers were necessary to provide a vehicle for poor residents in local communities to influence anti-povertypolicies and the agencies responsible for distributingbenefits.

Five Major Elements1. Concept of a “client community” to be served2. Clients make decisions on types of poverty

solutions pursued3. Reform of harmful law as an explicit goal4. Respond to “need,” not just the “demand” that

makes it to the door5. Full range of advocacy: court, administrative

agency, appeals, lobbying, policy advocacy, law reform

Ford Foundation Concept:Multi-service social service agencies

The Cahn article circulates in the Johnson Administration

1964-1968: OEO and the “War on Poverty”

Sargent Shriver, first director of the Office of Economic Opportunity, the central agency in President Lyndon Johnson’s “War on Poverty.” Shriver included civil legal assistance for funding by OEO, added by Congress in in 1966 & 1967.

1963 Civil Rights March on Washington

Specialized training for legal aid lawyers

Clearinghouse Review, for nation-wide circulation of resource materials, pleadings, briefs, research

Litigation

OEO Adopted the Ford Model

By the late 1960s, US Supreme Court cases being brought, and won.

April 1968 Riots in every major city in America

June 1968 RFK assassination

August 1968 Chicago Democratic convention

Advocacy in federal, state andLocal administrative agencies

Policy issues – development and lobbying

But …inevitable political pushback and resistance

April 1968 ML King Assassination

And it began to work….

November 1968 Nixon - Agnew elected

1970 – 1971: OEO Tested In The Nixon Administration

OEO Director Rumsfeld, Assistant Dick Cheney

1970 – California Gov. Ronald Reagan vetoed OEO funding for California Rural Legal Assistance. Lewis Uhler, former John Birch Society member, appointed by Reagan as state administrator of OEO funding, presented list of alleged abuses by CRLA

OEO Director Donald Rumsfeld appointed a commission of state supreme court chief justices to investigate the alleged abuses

The Commission, led by Robert Wilkinson of Maine, found that none of Uhler’s claims of abuses were supported by the evidence. Reagan’s veto was then overriden.

1971 Wilkinson Commission

1971 John Kerry, Vietnam VeteransAgainst the War

1971 – SCLC’s “Poor People’s MarchOn Washington”

1971 – ABA recommends a more independent status for LegalAssistance, to remove from direct Executive Branch control

1973 – 1974:The LSC ActAugust 1974

The LSC Act was the last Legislation signed by Richard Nixon before his resignation

1973 Arab Oil Embargo – Gasoline shortages

1973 protests of Cambodian bombing

Jan 1973 LBJ death; Roe v. Wade decision

August 9, 1974

Independent, non-partisan board (11 members, no more than 6 of one party)

Nominated by President, confirmed by Senate

Separate budget approved by Congress Largely carried over the Ford/OEO elements 1975 funding: $ 71.5 million

(equivalent to $315 in 2013 dollars)

LSC Act components

Later 1970s - Implementation

1978 Middle East Peace Plan

1978 Hilary Clinton chair of LSC Board

Roll out of LSC funding to cover every county in the US.

Creation of many new programs to cover large areas, mostly rural, previously not served.

Early 1980s – The Reagan Administration

1981 First Reagan budget proposes major reductionsin LSC funding.

1982 Congress enacts 25% reduction. From $321 million in FY 1981 To $241 million for FY 1982

Budget Director David Stockman(former Michigan Congressman)

1982 Unemployment 10.8%

- Major reduction of LSC funding for National & State Support centers- Founding of CORT- Drop from 1406 local offices to 1121

Ed Meese recycles the 1970 Uhler claims of abuses by LSC programs

The 1980s

- Reagan recess appointees to LSC Board; Senate refused to confirm, as most were overtly hostile to LSC. (E.g., hired consultant to write opinion that LSC Act was unconstitutional!)- PAI requirement equal to 12.5% of LSC funding- Highly adversarial “monitoring” by LSC of local programs- Congressional oversight sometimes acted to block actions of the LSC Board

Late Eighties – Early Nineties

Bush Administration turned away from overt hostility to LSC

Funding trends upward: to $328 Million FY 1991, and $350 millionfor FY 1992

“Monitoring” becomes more reasonable

1992 – 1994 Early Clinton Years

Congress increased funding to $400 million

Clinton appointees to LSC Board were uniformly supportive of LSC

1994 - New system for compliance monitoring- New system for peer review of programs to evaluate and improve program quality

1994-1995 Contract With America

"It's a sin to help people who ought to be helping themselves,” - John Kasich, House budget chairman

Among the House Budget Committee proposals:- Cut back rental assistance to the poor;- Cut back programs for subsidized lunchesfor poor school children;- Dismantle the Legal Services Corporation

1995House of Representatives adopts3 year phase-out of LSC funding, Beginning with 33% cut for FY 1996.First year accepted by Senate.

1996 – 1998 Major Restrictions

No participation in class actionsNo receipt of attorney fee awardsLegislative advocacy limitedRestrictions apply to all sources of funds, not just LSC Cannot challenge state or federal “welfare reform”New “competitive grant” system of fundingPublic reporting of cases filed by LSC funded entitiesClient “Statement of Facts” required before filing suit

1996 Federal government shutdown, Forced by House Republican majority

Congressional compromise: Continued funding

in exchange formajor restrictions

Non-LSC funded “unrestricted entities” in every state

Expanded IOLTA funding Broader state and local funding Strengthened private fundraising Expanded pro bono efforts Better utilization of new technology

Late 1990sRevamping the Delivery System

“State Planning” – merging and “rationalizing” programs throughout the country

“TIG” Technology ImprovementGrants from LSC

LSC Technology “baseline” criteria for all programs

2000’s

2003 – US Supreme CourtUpholds IOLTA Accounts

ABA revised “Standards for Providers ofCivil Legal Assistance for the Poor” and“Principles of a State System for Delivery Of Civil Legal Aid”

2000’s

Iraq War - 2003

2004 Abu Ghraib prisoner abuse; Worldwide US torture issues

Expanding “partnerships” with other entities, such as Domestic Violence networks

Continued diversification of funding base

2008-09 Monthly job losses

2004 Bush – Kerry election

2008 - 2010

2009 Stimulus Funding

2009 Protecting Tenants at Foreclosure Act

2009 Auto industry bailout

March 2010Obamacare

House Republicans – “A Pledge to America”

Jan 2011 Republican Speaker of the House

June 2012 ACA Upheld; Expansion of Medicaid optional

Oct 1, 2013 Government Shutdown

April 2011 – Near shutdown

2010 to now

1981 2013

1981 $321 million actual

=

2013

Trajectory of federal LSC funding

1981 2013

1981 $321 million actual

= 824.7 million adjusted

2013

Trajectory of federal LSC funding

1981 2013

1981 $321 million actual

= 824.7 million adjusted

2013 $340 million actual

Trajectory of federal LSC funding

1981 2013

1981 $321 million actual

= 824.7 million adjusted

2013 $133 = million adjusted (41%)

$340 million actual

Trajectory of federal LSC funding

Multiple Sources of Funding Not solely dependent on LSC source

Partnerships with other organizations Fundraising, and the political strength that

comes from that work Working with unrestricted entities General reputation for solid, high quality,

legal work Frequent support from local bars, as opposed

to frequent antagonism of the past

Strengths of Where We Are Today

Look at recent “First Friday” topics: Impact of the DOMA decision on legal services

practice Implementing the Affordable Care Act Fair Housing Veteran’s Issues and Protections Special Education rights of children with

disabilities Violence Against Women Act protections

against DV and for abused immigrants Predatory Lending

The Work We Do Today

And our “bread & butter” essentials: Protecting victims of domestic violence Keeping people in safe homes Unemployment benefits Food stamps TANF support Medicaid and other health care Consumer protection Bankruptcy “fresh starts”

The Work We Do Today

“Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States.” Alan W. Houseman & Linda

E. Perle, Center for Law and Social Policy. http://

www.clasp.org/resources-and-publications/publication-1/0158.pdf

“Poverty Warriors: A Historical perspective on the Mission of Legal Services.” Gary F. Smith. 45 Clearinghouse Review 34 (May=-June 2011). http://povertylaw.org/node/2466

“The Future of Civil Legal Aid: Initial Thoughts.” Alan W. Houseman. 13 U.Pa.J.L.&Soc.Change 265 (2009). https://www.law.upenn.edu/journals/jlasc/articles/volume13/issue3/Ho

useman13U.Pa.J.L.&Soc.Change265(2009).pdf

Resources