The history of legal aid, as told by a witness

By Joseph R. Grodin
Former Supreme Court justice

Grodin

There’s a memorable New Yorker cartoon in which a lawyer, confronting a prospective client in his office, smartly declares: “The good news, Mrs. Jones, is that you have an excellent case. The bad news is you can’t afford me.”

I don’t know why that was supposed to be funny. On reflection, it seems terribly sad. I remember it because I had many experiences like that as a lawyer myself. The existence of a “justice gap,” as it is sometimes called, the gap between what effective legal services cost and what people of modest means can afford, is well-known to lawyers and policymakers. It is a gap made progressively larger by increasing disparities in the distribution of wealth. And it is a problem not just for those who need legal services and can’t afford them. It is a problem for all of society. The existence (and perception) of an effective and equitable system for resolving controversies is essential to social cohesion. By denying access to that system to large groups of people, we invite distrust, alienation and breakdown of the institutions that are designed to hold us together.

This much is generally understood and accepted by thoughtful citizens, at least when they turn their attention to the problem. What is not part of that consensus is what to do about it. In recent years, bar associations, law schools, legislatures, courts and advocacy groups around the country have expressed concern and advanced a variety of remedies. Generally, their proposals fall into two categories: finding ways of making lawyers available to poor people, or finding ways of making justice available without lawyers.

The first category includes such policies as increasing public or private funding for lawyers through legal aid systems or through establishment of a constitutional right of access to lawyers in certain types of cases (“civil Gideon”); or by lawyers volunteering (or being required) to perform some legal services on a pro bono basis; or by changes in procedures that would make courts and administrative agencies more efficient and therefore less costly; or by devising ways for lawyers to assist those in need by assuming responsibility for a defined portion of the client’s legal needs (“unbundling”).

The second category aims to facilitate people representing themselves (“self-help”) or being represented by people who are not certified lawyers but who have adequate training and experience in certain types of proceedings such as to make their representation meaningful and effective. While the two approaches are by no means mutually exclusive, political realities tend to push advocates into one camp or the other.

Earl Johnson Jr., a former legal aid attorney and advocate, former law professor and retired justice of the California Court of Appeal, has brought a lifetime of experience and thought to the problem of the justice gap through a three-volume work published by Praeger: “To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States.” Carefully researched and beautifully written, the book tells the story of civil legal aid, from its earliest days in the last quarter of the 19th century through the current era. In it we learn of the period, which lasted until 1964, in which legal aid was seen as a charity, funded through private donations, mainly by lawyers and law firms. Johnson describes the development of the Office of Economic Opportunity legal services program and the political battles that ensued, the creation of the Legal Services Corp. and President Ronald Reagan’s attempts at obstructing it. Johnson also details more recent events, including President Bill Clinton’s attempts to expand legal services and the pushback by Newt Gingrich, resulting in a substantial narrowing of access to justice for the nation’s poor.

But the book is more than a history. As Johnson states in the prologue, it is “10 percent memoir,” and that extra percentage is what makes the book particularly lively and timely. Johnson was a participant in the developments he describes over the last half-century. He began his legal career as a poverty lawyer in Washington, D.C., served as deputy director and then director of the OEO legal services program, and contributed to the drafting of the legislation that created the Legal Services Corporation.

So it is not surprising that, as Johnson acknowledges, it is “history with a point of view.” His point of view starts with the recognition that history reflects “a contest of two visions of what poor people deserve in the way of legal aid” – whether, by analogy to health care, they should be afforded the equivalent of a “network of first aid stations” or whether they should be entitled to a broader range of services, equivalent to the availability of specialists and hospitals, including, in the legal context, services aimed at “law reform,” through “impact work” and “high quality legal services.” Johnson strongly supports the broader vision, and implicitly, a preference for an approach to solving the justice gap by increasing the availability of lawyers through public funding.

Johnson’s preference is for a “rights-based” system that exists in some European countries, which guarantees legal services to financially eligible people with meritorious and significant claims or defenses through government or private lawyers. He would prefer that this be done through recognition of a broad constitutional right to counsel in civil cases.

But Johnson is also a realist. He recognizes that public funding for lawyers faces formidable political obstacles, and in the last chapter of the book he considers lower cost alternatives “that might provide effective access to justice in selected situations,” including self-help, lay advocates in administrative proceedings and perhaps simple court cases and technology that delivers legal services to those unable to afford counsel. He is skeptical of each of these as a substitute for legal assistance. For example, he warns that the need to accommodate pro per litigants in courts may push this country’s adversarial system in the direction of an inquisitorial system, and that the use of lay advocates may create an imbalance unless the other party is required also to use a non-lawyer. But he addresses these and other alternatives in an open-minded manner.

It does not seem likely that the justice gap can be filled with lawyers any time soon, while support of other alternatives runs the risk of providing an excuse to those unwilling to try. In the end, it seems likely that both approaches will be necessary, but we still have a great deal to learn from other countries, from experimentation and from empirical studies which so far have been mostly lacking. For anyone interested in a road map of where we have been and where we might be going, however, Justice Johnson’s book is an excellent start.

Joseph R. Grodin, a former justice of the California Supreme Court is a distinguished emeritus professor at the University of California Hastings College of the Law. The book author, Earl Johnson Jr. serves on the State Bar’s Civil Justice Strategies Task Force, which is exploring ways to fill the justice gap.