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Whence We Come

By Victor Geminiani

My all-time hero is Bob Dylan. One of his lines that I treasure most is “I was so much older then; I’m younger than that now.”1 That advice underlines for me the critical importance that learning has in our personal and professional growth. Our judgment is refined by the lessons of our own failures and successes as well as those of others who have preceded us. Understanding how we became who we are is central to understanding how we can get to where we dream to go.

I recently had the great pleasure of reading Earl Johnson Jr.’s treatise, To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States.2 The three-volume work details the history of the legal aid movement from its inception in 1876 through 2008. In 31 chapters, Johnson describes the common vision held by legal aid leaders throughout our history for a comprehensive system to deliver some measure of equal justice. He describes in great detail the strategies behind the expansion of that vision during the War on Poverty and the inevitable political backlash that still dominates legal aid development. He ends by suggesting steps forward for our community based both on our experience over the past 140 years and on models from other nations.

When I graduated from law school in 1969, I did not have a clue what I wanted to do with my new degree, much less with the rest of my life. Since my alternatives were rather stark—either Vietnam or some form of public service—I was fortunate to become a volunteer with Volunteers In Service To America (VISTA) at the Atlanta Legal Aid Society in an effort called the War on Poverty. My early on-the-job training included what seemed like never-ending debates about our program’s mission and our work. The options were just two central alternatives: should we serve the greatest number of clients possible, or should we concentrate significant resources on systemic advocacy, usually described as “law reform”? The law-reform goal used class-action litigation and legislative advocacy to remove systemic barriers to success for the poor and help the greatest number of clients access services and opportunities. Most of those debates ended with exhaustion and an agreement that we should be doing both; the decisions we needed to make were really centered on the proportion each would have in our program’s work.

Although I had been active in the regional and national politics of legal services for over nine years, I still did not understand much about what had preceded me. I knew little about the historical context in which we found ourselves in the late 1970s, the evolution of visions for our work over the past century, or the battles that had been fought over those visions.

The three-volume work details the history of the legal aid movement from its inception in 1876 through 2008.

That changed when I had the incredible good fortune to stumble upon Earl Johnson Jr.’s Justice and Reform in the library of the Legal Services Corporation (LSC) Research Institute.3 The book traced the history of the legal services movement from its inception on the Lower East Side of New York City in 1876 through the establishment of federal funding and the creation of LSC in 1974. I could not put the book down. I began for the first time to understand the important role that systemic advocacy played over the years in the common vision of the leaders of the legal services movement. More important, I began to understand the strategies that the author and his allies in Washington implemented in the mid-to-late 1960s to incorporate systemic advocacy as a component of our work.

The Early Years

A number of readers may be familiar with some parts of the early years, which Johnson describes in his treatise as “The Charitably Funded Era (1876–1964).” The idea of free legal services for those with critical needs started with the German Society in New York City offering limited legal assistance to immigrants faced with collecting wages due and fending off merchants pursuing fraudulent debt collections. In 1889 Arthur Von Breisen, a dynamic, successful, and wealthy patent lawyer, agreed to lead the effort. Shortly after accepting the position as president of the German Society, he expanded the eligibility for services without regard to national origin. The program soon was renamed the “Legal Aid Society” and was expanded through the generosity of wealthy private benefactors.

With increased funding came a new office on the East Side; the office focused on the unique needs of women and seamen. The program began engaging in proactive systemic advocacy with legislation that expanded the protection of seamen from the abuses of shipping masters and seamen’s boarding houses. These actions kept the promise in the Legal Aid Society’s charter that it would “promote protective measures” for its clients.4

Over the next 90 years the legal aid movement grew with programs located primarily in the major cities along both coasts and in parts of the Midwest and the South. Growth was encouraged by the passions of leaders who emerged from both the private bar and legal aid programs. From those ranks Reginald Heber Smith and Charles Evan Hughes energized communities throughout the nation to join this bold experiment in access to our justice system. Smith directed the Boston Legal Aid Society and in 1919 published his treatise, Justice and the Poor, which challenged the public to open our justice system to the poor because “[d]ifferences in the ability of classes to use the machinery of the law, if permitted to remain, lead inevitably to disparity between the rights of classes … [a]nd when the law recognizes and enforces a distinction between classes, revolution ensues or democracy is at an end.”5 The book was widely distributed and formed a vision for legal aid that included appeals as well as appropriate administrative and legislative advocacy to reform laws.

Soon after Smith’s book was published, two coordinated efforts began to organize support for the expansion of legal aid throughout the nation. Charles Evan Hughes had become the president of the Legal Aid Society in New York and, having recently run for president of the United States, was recognized as one of the city’s most influential and respected leaders. Hughes persuaded the American Bar Association (ABA) to make legal aid the focus of its 1920 national convention. He soon joined with Reginald Heber Smith to urge the ABA to create a standing committee to oversee legal aid policy for the association. That committee has evolved into the current Standing Committee on Legal Aid and Indigent Defendants. Smith followed that success by guiding legal aid programs to form the first national association of legal aid programs, called the National Association of Legal Aid Organizations (today known as the National Legal Aid and Defender Association), with a mission of holding annual conferences and coordinating and supporting the work of member programs.

Despite the establishment of programs across the country, any true vision of equal justice was far from being recognized as the 1960s began. Of the 236 active programs, 93 had no paid staff at all. Large areas of the country—including most of the South and an overwhelming majority of small towns and rural communities—had no legal aid organizations. Only 400 lawyers were available to represent over 37 million low-income people: one lawyer for every 92,000 potential clients.

Joining the War on Poverty

Encouraged by a small group of legal aid lawyers and law professors, the Ford Foundation in the early 1960s funded four experimental programs—called the Gray Areas programs—to test new theories of legal aid delivery. The models were created in Boston, New Haven, Washington, D.C., and New York City and shared a vision of responding to the legal needs of their local communities. Although the models differed in design, all of them included law reform as a partial, if not exclusive, focus. Each created controversy. The most dramatic was the closing of the New Haven program at Yale University within just two months of its beginning because of a staff attorney’s defense of a black client accused of raping a white woman. That attorney was Jean Cahn, who, along with her husband, Edgar Cahn, would write a pivotal Yale Law Journal article on her experiences.6

Earl Johnson Jr. became involved early on in the Gray Areas programs when Gary Bellow and Edgar Cahn recruited him to be the deputy director of the Washington, D.C., program. He started this position just as Pres. Lyndon B. Johnson was declaring the start of his administration’s War on Poverty. Within a few months, federal funding increased for Earl Johnson’s program, and 10 neighborhood legal aid offices opened throughout the district.

In his first State of the Union address in 1964, President Johnson announced his administration’s intent to wage an unconditional war on poverty with an “aim … not only to relieve the symptom of poverty, but to cure it and, above all, to prevent it.”7 With congressional approval, he soon created the Office of Economic Opportunity and placed Sargent Shriver, Pres. John F. Kennedy’s brother-in-law, as the war’s commander in chief. Shriver immediately began assembling the various components of the war by creating the Job Corps, community action agencies, and the Head Start program.

Soon after assuming his responsibilities, Shriver read the Cahns’ law review article with its vision of a neighborhood-based law firm for the poor. The law firm would offer a panoply of direct services, act as a general counsel for the community, and use law reform to “increase the economic and political power and thus the influence of the poverty community within the larger society.”8 Shriver stayed up until 2:00 a.m. reading the article and thinking of the possibilities: “It was like Columbus discovering America, an exciting thing … to discover … something that captured my mind and imagination.”9 Funding for legal aid was included in the War on Poverty’s initiatives, and, after some debate and initial opposition from the ABA, legal aid programs throughout the country began receiving significant federal dollars. Along with the funding came a new national vision for local program design and delivery.

Shriver tapped two men to create and implement that vision. He named Clint Bamberger, a corporate lawyer, as director of the Office of Economic Opportunity’s Office of Legal Services; Earl Johnson Jr. became Bamberger’s deputy director and brought to the office considerable experience in legal aid theory and delivery. Many legal aid program directors expressed some reluctance when Bamberger announced, “The role of the [Office of Economic Opportunity] program is to provide the means within the democratic process for law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of the law to combat the causes and effects of poverty.”10 Some viewed this vision as a threat to their independence, and some feared reaction from their own traditional local supporters.

Working within the Office of Legal Services, Johnson became the primary architect of initiatives to encourage and assist programs in including law reform as a major component of their activities. The Reginald Heber Smith program recruited the best law school graduates available, trained them on the techniques and skills needed to engage in successful law reform activities, created networks that provided support, and placed those law school graduates without charge with legal aid programs to influence their expansion of services to encompass law reform advocacy. The VISTA lawyer program did the same for hundreds more who wanted to join this new movement. National support programs were created to plan, coordinate, and assist local programs in major litigation in areas such as housing, welfare, health, consumer, and education law. One of these programs, the National Clearinghouse for Legal Services (the Sargent Shriver National Center on Poverty Law today), collected and circulated pleadings on successful law reform cases and published a monthly periodical called Clearinghouse Review that was sent free of charge to all attorneys and paralegals in legal aid programs. State support programs were created in California, Michigan, and Massachusetts to experiment with providing expert support in complex advocacy within those states. Monitoring visits were conducted with all grantees to review their performance and offer technical assistance on program design and delivery. Nine regional offices were established to give somewhat localized oversight and assistance to programs.

Soon the national backup centers began using the courts to lay the foundation for what we now know as poverty law. During the late 1960s and early 1970s the U.S. Supreme Court, under the leadership of Chief Justice Earl Warren, issued a string of opinions on federal antipoverty programs: Shapiro v. Thompson, which ended residency requirements for federal benefits; King v. Smith, which required states to comply with federal requirements when implementing federal programs; and Goldberg v. Kelly, which established a property interest in welfare benefits that could not be terminated without due process.11 In short order these cases fueled law-reform litigation throughout the nation. Law-reform litigation redefined the limits of prejudgment attachments, tenants’ rights to warranty-of-habitability claims, fair provision of municipal services to all communities regardless of wealth, and rights of the institutionalized, to name a few.

The Challenges for Survival

The political reaction was swift. During the early 1970s, Pres. Richard Nixon began dismantling the Office of Economic Opportunity and, with it, all federal funding for legal services programs. At a cabinet meeting he once asked if legal services lawyers had sued any of his departments, and everyone present raised a hand. The battle lasted until the last weeks of his presidency and ended with a compromise and the establishment of LSC in July 1974. The success in opposing the first significant attempt to eliminate federally funded legal services was due to the work of a coalition of the organized bar, congressional supporters, field programs through the Project Advisory Group, and the Alliance for Justice, a broad-based, publicly supported coalition.

Good fortune would prevail in unforeseen ways. Spiro Agnew, President Nixon’s vice president and ardent and public opponent of legal services, was forced to resign after a series of personal scandals, and Howard Phillips, the acting director of the Office of Economic Opportunity, was removed by the federal courts because his name had not been submitted to the Senate for confirmation. Most opportune, President Nixon’s power was significantly diminished because of the Watergate scandal.

During these same years the seeds for another attempt at elimination were planted when California Rural Legal Assistance filed a series of suits against California and its governor, Ronald Reagan. Governor Reagan attempted to veto funding for the program as was allowed under the Office of Economic Opportunity’s regulations, but his attempts were stymied when the Nixon administration appointed a commission comprising three state supreme court justices from states other than California to review the charges against California Rural Legal Assistance. The White House overrode Reagan’s veto when the commission found the charges to be without merit.

Just days before he resigned in 1974, President Nixon agreed to the creation of LSC to oversee the delivery of federally supported legal aid. The members of the board of directors of LSC were to be appointed by the president with the advice and consent of the Senate. Pres. Gerald Ford appointed the first board in the spring of 1975, and the Senate confirmed the board’s 11 members that summer. The confirmation of the board started the 90-day “transition” period at the end of which LSC was to assume responsibility for all grantees.

When first funded in the fall of 1975, LSC was poised to rejuvenate legal services’ mission and structure that had been so carefully established during the early years of the Office of Economic Opportunity and the War on Poverty. LSC’s first president, Tom Ehrlich, the former dean of Stanford Law School, brought a strong professional identity to the organization. Recognizing his limited background in legal services for the poor, he immediately convinced Clint Bamberger, the Office of Economic Opportunity’s first director of the Office of Legal Services, to be his partner and serve as the vice president of LSC. Together they began reinvigorating a sense of program purpose, improving coordination of activities among field programs, and significantly increasing funding for national and state support programs. They formed a strong partnership with the LSC board, which was chaired by Hillary Clinton. Pres. Jimmy Carter expanded the scope of LSC programs by increasing federal funding from $96 million to $321 million with a goal of offering some minimally acceptable level of services in every county of the nation.

President Reagan announced that the elimination of LSC was one of his top priorities. The battle lasted throughout his presidency.

Having been thwarted in his attempt to defund California Rural Legal Assistance for its law-reform activities while he was governor of California, President Reagan announced that the elimination of LSC was one of his top priorities. The battle lasted throughout his presidency. In volume 2 of his treatise, Earl Johnson Jr. details the story behind that battle and how close the program came to elimination. In retrospect, a series of events more peculiar and fortunate than those that saved LSC is hard to imagine.

Soon after his inauguration, Reagan submitted a budget that eliminated all funding for the program. He decided to forgo nominating new board members to the LSC board while the debate was under way in Congress. This gave time for the Carter-appointed LSC board, chaired by William McCalpin, to prepare field programs for the inevitable LSC funding cuts and to organize an effort to defend LSC from elimination. McCalpin had a long history with LSC; he was appointed in 1965 by Lewis Powell, then president of the ABA, to negotiate the creation of federal funding for legal services with President Johnson’s administration.

The battle for LSC’s survival centered on creating a supportive congressional coalition of conservative Democrats and moderate Republicans. Key to that effort was gaining the support of the local and state bar associations, especially throughout the South. I served as the LSC southern regional director during this transition. We had to mend a number of fences with local bars throughout the South; expansion of programs during the late 1970s had created bad will in some communities when bar-sponsored programs were denied funding in favor of competing groups that were more in line with LSC’s philosophy. The ABA president Reece Smith, from Florida, worked closely with the LSC board to draft a regulation that strongly encouraged local bars to join with legal services to create pro bono programs. Strong bar support developed throughout the nation for both continuing legal services funding and helping deliver services through pro bono contributions. The final congressional vote in the fall of 1981 ensured the survival of LSC, but many more battles lay ahead as President Reagan moved aggressively to replace board members with those who shared his desire to eliminate the program.

The threat of elimination lasted throughout President Reagan’s administration. There were some predictable skirmishes involving recess appointments and new leadership in the staff of LSC and some not-so-predictable infighting among the factions of the Reagan-appointed LSC board and LSC staff about LSC’s direction. Fate also blessed LSC with some extraordinary leaders including Gerald Caplan, the first president appointed by the new board; LSC board members Howard Dana and Tom Smegal, who together crafted strategies to minimize intended board damage to field programs; and Sen. Warren Rudman, who led the fight for survival in Congress. The strangest intervention of fate occurred when James Wentzel, the president of LSC, was cited for shoplifting $5.66 worth of goods from a local market; he quickly resigned after serving 17 months in that office.

After George H.W. Bush was elected president, the survival of LSC was no longer in doubt; he appointed LSC board members who were, for the most part, not ideologically driven to eliminate the program. The new board charted its own course and decided to request higher annual congressional appropriations than those requested by President Bush, and LSC saw some modest increases in funding.

The most fundamental lesson that I have learned over my time in legal services is the importance of systemic advocacy.

Those who supported a return to the “good old days” of legal services met the election of Bill Clinton with great anticipation. Hillary Clinton had served as LSC board chairwoman in the phenomenal growth years when funding increased by 500 percent during the Carter administration. A new LSC board was nominated and confirmed. The ABA recommended almost three times more federal funding for LSC: $848 million. Not to be outdone, field programs requested $3.6 billion to provide full access to clients. That optimism ended rapidly with the dramatic takeover of the House of Representatives by Republicans in 1994 and Rep. Newt Gingrich’s “Contract with America,” which proposed eliminating all funding for LSC.

Federal Funding Preserved but at a High Cost

Under new leadership, the House moved rapidly to end funding for LSC. Rep. John Kasich, chairman of the House Budget Committee, proposed phasing out LSC over a three-year period. This battle for LSC’s survival depended on many of the program’s oldest supporters in the ABA. John Robb, former chairman of the ABA Standing Committee on Legal Aid and Indigent Defendants and close friend of Sen. Peter Domenici, convinced the senator to author a plan to accept most of the restrictions on activities and funding reductions contained in the House bill but to preserve long-term funding for the program. Domenici’s effort succeeded in the Senate. The House battle was led by a new LSC board member, former Republican Rep. John Erlenborn, who was a twenty-year veteran of the House from Illinois, and Rep. Jon Fox, a Republican from the suburbs of Philadelphia. Working together, they built a coalition of moderate Republican and most Democratic representatives; the coalition voted by a margin of 68 votes to end LSC’s path to elimination. Although LSC won the battle for survival, the price paid for victory was steep and included absolute restrictions on class actions and challenges to the new welfare-reform act. And the restrictions applied to any funding received by a program, not just the funding from LSC. All funding for national and state support programs was eliminated, and competitive bidding for all future program grants was introduced.

The price was higher than some advocates thought acceptable. The national institutions, including the ABA and the National Legal Aid and Defender Association, opposed litigation to challenge the constitutionality of any of the restrictions for fear that all federal funding would be eliminated. Nevertheless, two efforts were begun by field programs aimed at obtaining injunctive relief from the enforcement of the restrictions.

Sargent Shriver, Victor Geminiani, and William McCalpin at a National Legal Aid and Defender Association conference
Sargent Shriver, Victor Geminiani, and William McCalpin at a National Legal Aid and Defender Association conference

The cases were brought in federal district court in Hawaii and New York by a group of clients, foundations, and legal services providers in Hawaii, California, Alaska, and New York.12 Although the cases were not initially connected, both secured the right of LSC-funded programs to establish affiliate corporations that could share some staff and board members. Perhaps more important, the cases established the right of an LSC-funded program to use any non-LSC funding to support any activity by other entities, including the program’s affiliate corporation.

Finding themselves without any LSC funding after 1996, state and national support centers scrambled to establish sufficient funding streams to continue their research, training, policy advocacy, and class-action litigation. Some centers successfully made the transition with the support of foundations, private contributions, and legal fees recovered after successful litigation. Programs in a number of states agreed to contribute funding to continue the functions of their state support centers. Some others did not do so well. The support networks that had been fueled by common LSC funding weakened, and coordination among centers suffered from program isolation.

Starting in the late 1990s, some states established access-to-justice commissions comprising members of the judiciary, private bar, and legal services programs with a common goal of designing and implementing activities to strengthen program delivery. Most programs continued to transition away from an antipoverty focus using systemic advocacy to an access-to-justice mission in strong partnership with the courts and the private bar. At the same time, LSC began to merge programs by using the competitive bidding process and consolidated over 300 programs into just 137.

Reading Earl Johnson’s three-volume treatise brought back so many memories, both good and bad. Johnson includes intimate details of the three national battles for survival fought between 1969 and 1996; those details reinforce my belief that all things are possible as long as vibrant networks are preserved, the right leaders emerge, and strong partnerships with supporters are maintained. In this case, those three conditions did not happen by chance. The intricate networks that supported communication and advocacy among field and support programs were carefully designed and nurtured to meet those conditions. That so many have been left to wither is our misfortune. The current isolation of so many state centers that engage in systemic advocacy as their core mission is particularly troubling.13

We have been blessed with strong leaders who often emerged at times when our community was in greatest need. Our most admired leaders not only helped guide the programs through times of peril but also, more important for me, formulated a vision for our work that inspired and empowered us to succeed. That vision usually recognized that any legitimate system of justice must use the law to attack basic barriers to fair and equal treatment from governmental institutions and people of power. Today’s dialogue about our national or local vision for justice too often omits that part of our responsibility.

Most programs continued to transition away from an antipoverty focus using systemic advocacy to an access-to-justice mission in strong partnership with the courts and the private bar.

Our critical partnerships with courts and the private bar slowly evolved during the survival battles of the 1980s and 1990s and strengthened as “access to justice” became the politically acceptable mission for our work. Over the coming years, the mission for our work will increasingly be defined by those relationships and the self-selected priorities that each party brings to the discussion. The dreamer in me hopes that courts and the private bar will embrace the critical place that systemic advocacy plays in the justice system. The realist in me suspects that that will not often happen.

The most fundamental lesson that I have learned over my time in legal services is the importance of systemic advocacy. That lesson is reinforced throughout Earl Johnson’s remarkable treatise. Because I came of age when the federal government was our community’s central and often sole funder, I presumed that its vision of using the law as an instrument of social and economic change was an inseparable part of legal services. I now know too well that that period of our history was an aberration. Systemic advocacy is usually the fault line for most political and public support.

We have accomplished amazing results by using the law to make meaningful changes in the lives of our clients. We were blessed to have the author and so many of our aging leaders chart a course that made that possible. That legacy should guide us through difficult years ahead as we struggle to find a common vision and the funding streams that will support it.

For me Sargent Shriver said it best:

It is perhaps the transcendent triumph of our age that our society was able voluntarily to provide those who suffer, the weak and the powerless, with the strength and ability to hold the highest official in the land accountable in a Court of Law. The Legal Services Program is one of the brightest achievements in our nation’s history—and it would be one of our darkest hours if we permitted this program to flicker and die.14

Victor Geminiani
Executive Director

Hawaii Appleseed Center for Law and Economic Justice
119 Merchant St. Suite 605A
Honolulu, HI 96734

808.227.3845
victor@hiappleseed.org

Notes

  1. Bob Dylan, My Back Pages, on Another Side of Bob Dylan (Columbia Records 1964).
  2. Earl Johnson Jr., To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States (2014). 3 vols. (three volumes in one, continuously paginated).
  3. Earl Johnson Jr., Justice and Reform: The Formative Years of the OEO Legal Services Program (1974).
  4. Johnson, To Establish Justice for All, supra note 2, at 854.
  5. Reginald Heber Smith, Justice and the Poor: A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position Before the Law, with Particular Reference to Legal Aid Work in the United States 12 (1919).
  6. Edgar S. Cahn & Jean C. Cahn, The War on Poverty: A Civilian Perspective, 73 Yale Law Journal 1317 (1964).
  7. President Lyndon B. Johnson, Annual Message to the Congress on the State of the Union (Jan. 8, 1964).
  8. Johnson, To Establish Justice for All, supra note 2, at 66.
  9. Scott Stossel, Sarge: The Life and Times of Sargent Shriver 433 (2004) (quoting Steven Waldman, “A Perfect Combination of Chutzpah and Soul,” Washington Post Magazine, Aug. 18, 1991, at W8).
  10. E. Clinton Bamberger Jr., Speech to the National Legal Aid and Defender Association (Nov. 18, 1965), quoted in Johnson, Justice and Reform, supra note 3, at 75.
  11. Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring that welfare departments provide “fair hearing” before terminating benefits); Shapiro v. Thompson, 394 U.S. 618 (1969) (striking down as unconstitutional residency requirements for public assistance); King v. Smith, 392 U.S. 309 (1968) (benefits could not be withheld because of occasional presence of “substitute father”).
  12. See Velazquez v. Legal Services Corporation, 985 F. Supp. 323 (E.D.N.Y. 1997); Legal Aid Society of Hawaii v. Legal Services Corporation, 961 F. Supp. 1402 (D. Haw. 1997).
  13. The tide may be turning, however. In 2014 the Shriver Center brought together the directors of many of the state-based, multi-issue unrestricted law and policy organizations with missions to represent people in poverty. The purpose of the meeting was to decide whether to form a network for purposes of mutual strengthening and finding ways to empower the advocacy through multistate collaboration and information sharing. The answer from those states was a resounding “yes.” At a second meeting the group adopted the name “Legal Impact Network” and launched three multistate collaborative projects to explore the best ways to maximize the collective impact. Further activity is planned for 2015 and beyond.
  14. Letter from R. Sargent Shriver, Former Office of Economic Opportunity Director, to Bernard Segal (Dec. 3, 1970), quoted in Johnson, To Establish Justice for All, supra note 2, at 385.
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