by A Houseman · 2018 · Cited by 2 — Legal services attorneys also worked to enforce rights that existed in theory but were honored only in the breach and to ensure that federal law enacted to

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2 Securing Justice for All: A Brief History of Civil Legal Assistance ACKNOWLEDGMENTS This short history is based on the previous wr itten work of Justice Earl Johnson, Justice John Dooley, Martha Bergmark, and the authors. This is the fourth revision to our first history originally written in 2003 and revised in 2007 and 2013. The Center for Law and Social Policy (CLASP), wh ich promotes policies to improve the lives of low-income persons, served as counsel to th e National Legal Aid and Defender Association (NLADA) and its member programs between 1982 and 2012. The National Equal Justice Library (NEJL), housed at Georgetown University Law Center’s Law Library, is a repository of archival papers, or al histories, photos, and memorabilia about the history of civil legal aid and indigent crim inal defense in the United States. See, http://www.ll.georgetown.edu/nejl/ The governing entity responsible for the creation, oversight and funding of the National Equal Just ice Library is the Consortium for the National Equal Justice Library. The National Legal Aid & Defender Association (NLADA), founded in 1911, is the oldest and largest national nonprofit organization wh ose resources are exclusively dedicated to advocating for equal access to justice for all Americans and to promot ing excellence in the delivery of legal services to those who cannot afford counsel. NLADA has more than 800 civil legal aid and public defender program member s that collectively represent thousands of attorneys in the 50 states, the District of Columbia, American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands. Alan W. Houseman was CLASP’s Executive Direct or until August of 2013 and is now President of the Consortium for the National Equal Justic e Library and a volunteer consultant to NLADA. Prior to CLASP, he was Director of the Resear ch Institute at the Legal Services Corporation and founder and Director of Michigan Legal Services. Mr. Houseman has written widely about civil legal assistance to the poor and has been directly involved in many of the initiatives described in this paper. Mr. Houseman can be reached at alan4234@aol.com or (202) 726-5291. Linda E. Perle was Director of Legal Services at CLASP until January of 2012. Ms. Perle had been involved with civil legal assistance since 1975 and worked at CLASP from 1988. She led CLASP’s “general counsel” work for the legal services community since 1996. The cover photo is by Shutterstock artist Delpixel. Copyright © 2018 by the Center for Law and Social Policy. All rights reserved.

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3 Securing Justice for All: A Brief History of Civil Legal Assistance TABLE OF CONTENTS Civil Legal Assistance History Timeline . . . . . . . . . . . . . . . . . . . . . 4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Early Years of Legal Aid: 1876-1965 . . . . . . . . . . . . . . . . . . . . 8 The OEO Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Legal Services Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 The Struggle for Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Legal Services After the Restrictions . . . . . . . . . . . . . . . . . . . . . . . 40 The Legal Services Landscape 2009 – 2017 . . . . . . . . . . . . . . . . 48 Access to Justice Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Some Thoughts About the Future . . . . . . . . . . . . . . . . . . . . . . . . . 60 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

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Civil Legal Assistance History Timeline188519051915192519601876| GermanImmigrant Society(predecessor to theLegal Aid Society ofNew York) is founded.1911 | NationalAlliance of Legal Aid Societies (predecessor to theNational Legal Aid and DefenderAssociation) is founded.1919| ReginaldHeber SmithauthorsJusticeand the Poor.1921| American BarAssociation (ABA) createsStanding Committee onLegal Aid, later changedto Standing Committeeon Legal Aid and IndigentDefendants (SCLAID).1965| O˜ce of Economic Opportunity(OEO) Legal Servicesestablished. First OEOLegal Services Director,Clint Bamberger is hired.ABA endorses OEOLegal Services.1967| First Congressionalattempt to place limits onlegal services programs.1970California RuralLegal Assistancecontroversy begins.1971 Nixon vetoes ˚rst Legal ServicesCorporation Act.18751963Ford Foundation beginsfunding legal servicesdemonstration projects.

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19851995200620051973- Howard Phillips begins to dismantle OEO,including legal services.Nixon introduces new versionof proposed LSC Act.1975- LSC is established.1974-Congresspasses LSC Act.1980- LSC reachesminimum accessfunding. RonaldReagan is electedPresident.1982- Congressreduces LSC funds by25%. New restrictionsimposed on LSC fundedprograms. PresidentReagan uses recesspower to appoint newLSC Board membersantagonistic to LSC.1994- LSCfunding reaches$400 million.1994-Conservatives sweepCongress. LSC is targeted for elimination in Republicans™ Contract for America. 1996- Congresscuts LSC funding byone-third. Fundingfor national and statesupport is eliminated.New restrictionsimposed on LSCprograms and theirnon-LSC funds. 1998- LSC beginssecond round of stateplanning and beginsprogram recon˜guration.2005- LSCissues JusticeGap report.2006- ABA issues newStandards for Providers ofCivil Legal Aid. ABA issuesPrinciples of a State Systemfor the Delivery of Civil LegalAid. ABA adopts Resolutionon the Right to Counsel inCertain Civil Proceedings.LSC issues newPerformance Criteria.1977- LSC Act is reauthorized.1990- PresidentBush supportsincreased fundingfor LSC.1995- LSC begins stateplanning e˚orts to encour-age development of statejustice communities.2003- New LSC Boardappointed by PresidentBush. Supreme Courtupholds IOLTA Program.19751993- PresidentClinton appointsnew LSC Board.

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201720152009-New LSC Board appointedby President Obama.20112013 -2012- LSC funding for 20122009-2014 -LSC issues updated JusticeGap Report.IOLTA funding beginsmajor slide.2011LSC funding cutby 4 percent.cut overall by 13.9 percent;14.8 percent for basic ˜eld.LSC adopts recommendationsof Special Task Force onFiscal Oversight.LSC issues Pro Bono TaskForce Report.2013Funding partially restoredand Pro Bono InnovationGrant Program begins.LSC funding furthercut by sequestration.2017 -The Trump Administration proposes to eliminate LSC,but LSC continues to function.

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8 Securing Justice for All: A Brief History of Civil Legal Assistance THE EARLY YEARS OF LEGAL AID 1876-1965 Prior to sustained, institutionalized e fforts to provide legal aid to the poor, organizations and individual lawyers provided legal assistance to th ose who could not afford an attorney. The Freedman’s Bureau (1865-1872) provided legal assistance in civil cases, such as debt collection, domestic violence, divorces, and labor contracts. Nineteenth-century women’s clubs and settlement houses developed a holistic approach to legal assistance for working women. For example, in Chicago, the Protective Agency for Women and Children (PAWC) pioneered an especially expansive model of legal aid. Like its counterparts in other cities, PAWC handled wage claims, but it also helped women with a range of other issues: domestic violence, sexual assault, household debt, spousal abandonment, and even, although only in extreme circumstances, divorce. Sustained efforts to provide civil legal assistance for poor pe ople in the United States began in New York City in 1876 with the founding of the German Immigrants’ Society, the predecessor to the Legal Aid Society of New York. In 1889 the Society’s outreach was extended to all low-income New York residents, and its role expanded from serving individual clients to engaging in legislative advocacy. Its once-narrow focus grew into a new mission: to promote measures for the protection of all individual p oor people. Over the years, the legal aid movement caught on and expanded into many urban areas. Between 1920 and 1930, 30 new legal aid organizations were created. Annual caseloads increased from 171,000 in 1920 to 307,000 in 1932. By 1965, virtua lly every major city in the United States had some kind of legal aid program, and the 236 legal aid organizations employed more than 400 full-time lawyers with an aggregate budget of over $5 million. The only national legal aid structure that existed prior to the 1960s was the National Alliance of Legal Aid Societies (predecessor to the National Legal Aid and Defender Association [NLADA]), which was founded in 1911. Despite the existence of this association, most programs operated in isolation from their counterparts in other jurisdictions. With no national program or commonly accepted standards or models, the legal aid world was very heterogeneous. Many legal aid programs were free-standing private corporations with paid staff; others were run as committees of bar associations, relying primarily on private lawyers who donated their time. Still others were units of municipal governments or divisions of social service agencies, and others were run by law schools. Regardless of the structure, these programs shared many common characteristics. First and foremost, no legal aid program had adequate resources. It has been estimated that during its early years, legal aid reached less than 1 percent of those in need.

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9 Securing Justice for All: A Brief History of Civil Legal Assistance Many areas of the country had no legal aid at all, and those legal aid programs that did exist were woefully underfunded. For example, in 1963, the legal aid program that served the city of Los Angeles had annual funding of approximately $120,000 to serve more than 450,000 poor people. In that year, the national ra tio of legal aid lawyers to eligible persons was 1 to 120,000. In addition, most legal aid programs only provided services in a limited range of cases and only to those clients who were though t to be among the “deserving poor” (i.e., those who were facing legal problems through no fault of their own). The American Bar Association’s Initial Involvement In 1919, Reginald Heber Smith, a young Harvard Law School graduate who had become Director of the Boston Legal Aid Society, rece ived a grant from the Carnegie Foundation to research the current legal system and its effect on the poor. Smith wrote Justice and the Poor, a book that challenged the legal profession to ensure that access to justice was available to all, without regard to ability to pay. “Without equal access to the law,” he wrote, “the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most power ful and ruthless weapon ever invented.” The American Bar Association (ABA) responded to Smith’s call in 1920 by devoting a section of its 43rd annual meeting to legal aid and by crea ting the Standing Committee on Legal Aid, later changed to the Standing Committee on Le gal Aid and Indigent Defendants (SCLAID), to ensure continued ABA involvement in the delivery of legal assistance to the poor. Many state and local bars responded by sponsoring new legal aid programs. However, the ABA initiative and the bar programs made only modest headway in achieving the goal of equal access to justice. In part, because of inadequate resources and the impossibly large number of eligible client s, legal aid programs generally gave only perfunctory service to a high volume of clie nts. Legal aid lawyers and volunteers rarely went to court for their clients. Appeals on behalf of legal aid clients were virtually nonexistent. No one providing legal aid contem plated using administrative representation, lobbying, or community legal education to reme dy clients’ problems. As a result, the legal aid program provided little real benefit to most of the individual clients it served and had no lasting effect on the client population as a whole. Most of what we know today as poverty law and law reform (e.g., welfare law, housing law, consumer law, and health law) did not exist, even in concept, in the early days of legal aid. The Need for “Something New” In the early 1960s, a new model for civil legal assistance for the poor began to emerge. This model was influenced by the “law refo rm” efforts of organizations such as the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund and the American Civil Liberties Union (ACLU), which had successfully used litigation to produce changes in existing law. In addition, private charitable foundations, particularly the Ford Foundation, began to fund legal serv ices demonstration projects as part of multi- service agencies, based on a philosophy that legal services should be a component of an overall anti-poverty effort. This new mode l also called for the programs’ offices to be

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10 Securing Justice for All: A Brief History of Civil Legal Assistance located in the urban neighborhoods where the ma jority of the poor resided, rather than in downtown areas where many of the legal aid so cieties of the time were located, far removed from their client populations. Mobilization for Youth in New York, Action for Boston Community Development, the Legal Assistance Association in New Haven, Connecticut, and the United Planning Organization in Washington, D.C., were among the earliest legal services programs of this type. These delivery models lacked a cohesive conceptual framework until legal services advocates Edgar and Jean Cahn wrote a seminal article in the 1964 Yale Law Journal entitled “The War on Poverty: A Civilian Perspective.” They argued that neighborhood law offices and neighborhood lawyers were necessary for an ef fective anti-poverty program because they provided a vehicle for poor residents in local communities to influence anti-poverty policies and the agencies responsible for distributing benefits. As the demonstration projects began to move beyond the traditional legal aid model of limited assistance for individual clients to a model that looked to the law as a vehicle for societal reform, Attorney General Nicholas deB. Katzenbach gave voice to the need for a change in how legal assistance programs wer e administered. During a speech at a U.S. Department of Health, Education, and Welfare conference in June 1964, Katzenbach set the tone for the conference and the future of legal services: There has been long and devoted service to th e legal problems of the poor by legal aid societies and public defenders in many cities. Bu t, without disrespect to this important work, we cannot translate our new concern [for the poor ] into successful action simply by providing more of the same. There must be new te chniques, new services, and new forms of interprofessional cooperation to match our new interest….There are signs, too, that a new breed of lawyers is emerging, dedicated to us ing the law as an instrument of orderly and constructive social change. The Katzenbach speech had two interrelated themes that were to recur repeatedly in the early years of federally funded legal servic es: 1) something new was needed—well-funded traditional legal aid was not adequate; and 2) the law could be used as an instrument for orderly and constructive social change.

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11 Securing Justice for All: A Brief History of Civil Legal Assistance THE OEO ERA The Early Development In 1964, Congress passed the Economic Opport unity Act, the beginning of President Johnson’s War on Poverty (Economic Opportun ity Act of 1964, Pub. L. No. 88-452, 78 Stat. 508). The Act established the Office of Econom ic Opportunity (OEO), which administered the Administration’s anti-poverty programs . For the first time, Congress made federal money available for legal services for the poor. In order to establish a federal financing niche as part of the War on Poverty, several critical sources of support needed to emerge and coalesce: a commitment from the OEO leadership to include legal services in the services OEO would fund; support for legal services from the organized bar at the nation al level; encouragement for legal services programs at the local level; and implicit Presidential and Congressional support. In late 1964 and early 1965, those elements of crucial support began to converge. Jean and Edgar Cahn convinced Sargent Shriver, the first director of OEO, to include legal services in the package of activities that could be funded by the agency, since legal services was not mentioned in the original Act. In 1966, civil legal services was added to the Economic Opportunity Act Amendments of 1966 and was made a special emphasis program in the Economic Opportunity Act Amendments of 1967. Nevertheless, the Economic Opportunity Act was premised on the idea that community action agencies (CAAs), the local planning bodies, would decide how to address poverty problems in the individual communities. Th us, a CAA could choose not to include legal services in its overall community anti-poverty strategy. And, in practice, few CAAs opted to provide legal services, in part, because legal services programs often took positions on behalf of clients that were inconsistent with CAA positions on local issues. Therefore, in adopting the Cahns’ recommendation, Sargent Shriver also agreed to earmark funds for legal services, irrespective of local CAA plans. This earmarking was, to a certain degree, a condition of ABA support. Th e organized bar took the position that the legal services program should be free from l ay control locally, regionally, and nationally. This meant that a CAA’s lay leadership could not control the local legal services program, and non-lawyer bureaucrats within OEO could not control legal services at the regional and national level. Support from the ABA was critical to the succe ss of the federal legal services program, and it was achieved with much less difficulty than most thought was possible. Under the progressive leadership of ABA President (and later Supreme Court Associate Justice) Lewis Powell, F. William McCalpin (then Chairman of the ABA Standing Committee on Lawyer Referral and later to become Chairman of th e Board of Directors of the Legal Services Corporation and one of its longest serving members), and John Cummiskey (Chair of the Standing Committee on Legal Aid), the AB A House of Delegates in 1965 passed a resolution endorsing the OEO legal services program. Although the resolution was adopted without a dissenting vote, the ABA co nditioned its support on the organized bar

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