Civil legal assistance for low-income persons: looking back and looking forward.

• Author: Houseman, Alan W.

INTRODUCTION

Civil legal assistance for indigents in the United States began in New York City in 1876 with the founding of the Legal Aid Society of New York. (1) In 1965, the federal government appropriated funds for legal services through the Office of Economic Opportunity and started the Legal Services Program. (2) In 1974, Congress passed the Legal Services Corporation Act (3) and, in 1975, the Legal Services Corporation assumed control of the programs started by the Office of Economic Opportunity. (4) Until recently, the primary funder of civil legal assistance in the United States has been the legal services program funded by the Legal Services Corporation (LSC). (5)

The Legal Services Program is currently undergoing major transformation. Since 1995, the landscape of legal aid providers has substantially changed. Six years ago, the civil legal assistance system funded by the LSC consisted primarily of full-service providers, each serving one geographic area. Each provider had the responsibility and capacity to provide high-quality legal assistance and ensure access by all clients to the legal system. (6) Today the full-service provider has been replaced in sixteen states by two direct service providers that operate statewide in the same geographic areas. In over twenty large or medium size cities, instead of one full-service provider, there are now two. (7) In addition, the number of LSC providers has declined from over 325 grantees in 1995 to 176 grantees at the beginning of 2002. Local program grantees have been reduced from 292 to 172. (8)

Moreover, because of new restrictions on advocacy and categories of persons represented, (9) LSC-funded legal services programs can no longer engage in activities previously open to them. Although there have been some restrictions on LSC-funded legal services programs, (10) in April 1996, Congress imposed a new set of restrictions on funding through appropriation provisions. LSC grantees can no longer use funds available from non-LSC sources to undertake activities that are restricted with the use of LSC funds. The new legislation restricts all of a grantee's funds regard less of the source. (11) These "entity" restrictions are unique and unprecedented.

With a few narrow exceptions, recipients are precluded from advocating and providing representation before legislative bodies and in administrative rulemaking proceedings. (12) In addition, recipients cannot initiate, participate, or engage in any new class actions, and were required to discontinue work on pending class actions by August 1, 1996. (13) Recipients cannot claim, collect, or retain attorneys' fees from adverse parties from cases initiated after April 25, 1996, even when the fees are otherwise permitted by statute. (14) Until a recent Supreme Court decision, (15) recipients could no longer challenge state or federal welfare reform laws or regulations, and some welfare reform activities are still prohibited. (16)

Recipients are prohibited from providing representation in redistricting cases, participating in any abortion-related litigation, (17) representing certain aliens, (18) participating in litigation on behalf of a person incarcerated in a federal, state, or local prisons (including pre-trial detainees), (19) and representing persons convicted of, or charged with drug crimes in public housing evictions when the evictions are based on alleged threats to the health or safety of public housing residents or employees. (20)

In addition, recipients must identify potential client plaintiffs by name and obtain a written statement of facts from any client plaintiff before engaging in pre-complaint settlement negotiations or filing suit on the client's behalf. (21) Recipients cannot conduct training programs advocating particular public policies or political activities and cannot conduct training on prohibited cases or advocacy activities, such as lobbying, rulemaking, or collecting attorneys' fees. (22)

The restrictions on and reduction in LSC-funded programs led to the emergence of a new delivery system. It includes both LSC-funded programs as well as programs substantially funded with non-LSC funds. The non-LSC providers are free to participate in class actions, welfare reform advocacy, representation before legislative and administrative bodies, and assistance to aliens and prisoners as long as their public and private funding sources permit their resources to be so used. Moreover, in a number of jurisdictions, the private bar is becoming significantly more involved in delivering basic legal services as well as undertaking those activities that LSC recipients are restricted from handling. (23)

As a result of the basic changes to the LSC delivery system, the network of federally funded entities linking LSC providers into a single national legal services program has been substantially reduced. (24) At the state level, the federal network has been replaced by non-LSC funded entities in over thirty-five states. (25)

A number of states are beginning to assemble integrated statewide delivery systems. These systems establish a single entry point for all clients by integrating institutional and individual providers. Additionally, the systems allocate resources among providers to ensure equal representation in all forums for low-income persons. Such representation provides access to all eligible clients regardless of residence, native language, or cultural or ethnic identity. (26) In some states, a justice commission facilitates the delivery systems with help from a range of stakeholders. (27)

In light of these recent developments, state-level funding has become a new focal point for the future of civil legal assistance. The civil legal assistance system of the future will be partially state-based, with funding coming from state governmental sources, the private bar, Interests of Lawyers Trust Accounts (IOLTA), private foundations, and the LSC. States will provide the basic legal framework for such representation. Moreover, future devolution is likely to increase the role of states in determining policies affecting the poor. (28) As more programs operate without LSC funding, and other funders provide greater resources, the LSC will have less influence on the overall civil legal assistance system. (29) Thus, the structure and functions of the civil legal assistance system for low-income persons will significantly depend on state actions.

1. LOOKING BACK: WHERE WE HAVE BEEN

   By 1965, virtually every major city had some program to provide civil legal assistance to low-income people. One hundred and fifty-seven organizations employed over 400 full-time lawyers with a budget of nearly $4.5 million. (30) However, there was no national program. (31)

   Because of a large number of clients and a lack of resources, Legal Aid gave perfunctory service to many clients. Court appearances were rare (32) and appeals were nonexistent. (33) Administrative representation, lobbying, and community legal education were not contemplated. (34) Legal Aid had little effect on those it served and no effect on the client population as a whole. (35) Much of what we know today as "welfare law," "housing law," "consumer law," "health law," and the like, did not exist. (36)

   The federal legal services program began in the Office of Economic Opportunity (OEO) in 1965. (37) OEO created a unique structure, building on the Legal Aid model and the Ford-Foundation's demonstration projects of the early 1960s. (38) Unlike other legal aid systems, the U.S. system utilized staff attorneys working for nonprofit entities, not private attorneys participating in judicare programs. Later, pursuant to the findings of the Delivery System Study completed in 1980, (39) LSC encouraged the development of pro bono programs and subsequently required programs to use 12.5% of their LSC funding for private attorney involvement, most of which went to increase pro bono efforts. (40) Today, over 150,000 private attorneys are registered to participate in pro bono efforts with LSC-funded programs. (41)

   OEO also funded full-service providers, each serving one geographic area, which had the obligation to ensure access of all clients and client groups to the legal system. (42) The only national earmarking of funds was for Native Americans and migrant farmworkers, for which OEO created separate funding and a somewhat separate delivery system. (43) It was expected that funding would continue for each provider unless they substantially failed to provide service or abide by the requirements of the Act. OEO also developed a unique infrastructure--found nowhere else in the world--which, through national and state support, training programs, and a national clearinghouse, provided leadership and support on substantive poverty law issues. In addition, it undertook litigation and representation before state and federal legislative and administrative bodies. (44)

   The delivery and support structure that OEO established was carried over fundamentally unchanged by the Legal Services Corporation when it began to function in 1975. On July 25, 1974, President Nixon signed the Legal Services Corporation Act into law. (45) It took almost a year to appoint and confirm the board of directors, who were sworn in on July 14, 1975. Ninety days later, on October 12, 1975, the Legal Services Corporation officially took control of the federal legal services program.

   The Act articulated five fundamental objectives: (46) continuing the "present vital legal services program"; (47) ensuring "equal access" to our system of justice "for individuals who seek a redress of grievances"; (48) providing "high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel"; (49) keeping the legal services program "free from the influence of or use by it of political pressures," (50) and assuring that "attorneys providing legal assistance ... have full freedom to protect the...