Copyright 1990 by National Clearinghouse for Legal Services. All rights Reserved.
24 Clearinghouse Review 17 (May 1990)
Implications of Emerging Substantive Issues for the Delivery
System for Legal Services for the Poor
by John A. Tull, a private consultant to legal services programs and others. Previously, he
was Director of Southern Arizona Legal Aid and Regional Counsel at the Legal Services
Corporation.
John A. Tull prepared this article as part of the analysis of the future of legal services
sponsored by the National Legal Aid and Defender Association and the Project Advisory
Group. The ideas expressed are solely those of the author.
I. Introduction
The legal problems that legal services clients will face in the coming decade have deeply
important implications for the legal services delivery system. /1 Emerging legal issues and the
need for new approaches to familiar and persistent legal problems will call for adjustments in
the legal services delivery system at the local, state, and national levels. But to suggest that
change will be necessary is not to call for total transformation of the delivery system. Nor is it
to suggest that legal services work will be radically different in the next decade. Programs will
continue to represent their clients in the traditional areas of legal services practice, such as
eviction defense, denials and terminations of public benefits, spouse abuse, and the like. Much
of the basic work of support centers and other key elements of the delivery system will also
remain the same.
A number of issues, however, will confront clients that, for a variety of reasons, may not be
addressed effectively unless the challenges they pose are acknowledged and appropriate
adjustments in the delivery system are made. These issues will be particularly challenging
because they are likely to strain the delivery system in areas that are chronically difficult and in
which legal services is being criticized by its traditional foes as well as by new critics. /2 At
the same time, the challenges facing clients will require increased advocacy in areas that have
been out of favor politically, notably legislative and administrative advocacy. They will also
invoke difficult issues related to group--as opposed to individual--representation. The
effectiveness of the delivery system in responding to these challenges will influence whether it
evolves in a salutary way to increase its capability to deliver effective advocacy on behalf of
clients or whether control of its evolution is lost to those who, in the name of effectiveness,
would cripple or dismantle it.
This paper will explore a number of issues related to meeting the substantive needs of clients in
the next decade. It will first examine the potential impact on key aspects of program operation:
(1) the identification of clients' needs and priority setting, (2) case intake and acceptance, and
(3) substantive specialization. It will then analyze the types of advocacy that will be called for
in order to address clients' legal needs and their implications for the delivery system.
II. General Considerations
Focusing on challenges to the delivery system, primarily in the context of substantive issues
facing clients, represents a notable development in and of itself. Many aspects of the current
system have evolved in the face of pressures that were not directly related to the substance of
the legal work done on behalf of program clients. For the past eight years, the principal factors
affecting the evolution of the delivery system have been the essentially static funding levels,
coupled with an unrelenting bureaucratic assault from a hostile Legal Services Corporation.
That hostility came hard on the heels of the era during which large new service areas were
added to the existing delivery system, either through the expansion of existing programs or
through the creation of new ones. /3 In many parts of the delivery system, the primary focus
during the period of expansion, by necessity, was simply gearing up to serve new geographic
areas with significant numbers of new clients.
During the next decade, the delivery system needs to be shaped more explicitly to respond to
the legal needs of eligible clients. The current system is commendably strong, given the
pressures to which it has been subjected. However, it would be even more effective if, during
the past decade, it had been able to develop more directly in response to specific substantive
needs of clients.
Unfortunately, during at least the early part of the next decade, the development of the delivery
system will be characterized by many of the same factors that have limited its full development
until now. At a minimum, funding is likely to remain static and inadequate. /4 Hostile political
forces are also likely to remain arrayed against effective legal services delivery, although
probably with less potency than during the last eight years. /5 Nevertheless, decisionmakers
throughout the system--from individuals and organizations with responsibility that is national in
scope, to local boards and managers--will have to focus increasingly on the delivery
implications of the emerging substantive issues affecting clients.
There are manifold substantive legal problems that will affect legal services clients in the
coming decade. A thorough understanding calls for reading the papers prepared by Alan
Houseman and others as part of an examination of future issues facing the legal services
system and its clients. /6 In spite of their diversity, many legal problems share common aspects
that have direct implications for the future of the delivery system. Many problems embrace a
variety of substantive areas that have traditionally made up the practice of poverty law.
Problems such as homelessness and welfare reform may involve issues from a variety of
substantive areas, including housing, public benefits, health, education, employment, and
family law. /7
The issues also arise at a time when access to federal and state courts is itself a significant
problem affecting the representation of low-income persons. The issue of access to federal
court has affected legal services advocacy for a number of years. New access issues are
emerging, however, that increase the complexity and cost of federal litigation, and decrease the
likelihood of successful litigation against state defendants in federal courts. Restrictive
application of the eleventh amendment and the doctrines of sovereign immunity, pendent
jurisdiction, and exhaustion of administrative remedies will continue to form formidable
barriers to successful federal litigation. At the same time, state law is more frequently being
restrictively applied to reduce access to state courts. /8
The legal problems facing clients have other social, political, and economic complexities.
Major shifts in the employment market that affect wages and the lack of adequately paid work
for workers at all levels of the job market lie behind many of the emerging legal problems. The
development of an effective legal strategy to increase the availability of jobs and the adequacy
of wages paid in those jobs calls for a sophisticated understanding of economic and political
factors that will affect this strategy.
The actual impact on the client communities of many of the emerging issues may not be felt by
individual clients until the trends causing the problems have worsened or until important
decisions regarding new policies affecting large numbers of clients have already been made.
Thus, there is a need for both targeted outreach and adjustments in the case intake and
acceptance procedures utilized by many programs.
Emerging substantive issues will challenge the current delivery system in fundamental ways
related to the identification of client need, priority setting, case acceptance, and specialization.
/9 At the same time, they will provide new opportunities for creative use of private attorney
resources /10 and will call for increased advocacy at the state and local level regarding
implementation of new national policies that affect clients. /11
III. Implications for the Local Delivery Structure
Natural institutional barriers can inhibit legal services programs from recognizing and
responding to legal problems that do not fit into traditional patterns. During the past decade,
legal services programs have devoted considerable effort to setting priorities for the types of
matters they will handle in the face of static and inadequate resources. Based on these
decisions, programs have erected a host of procedures and processes centered on the intake and
case acceptance decisions that have served to filter out low-priority cases. Many have also
consolidated into fewer and larger offices, allowing specialization to target priority areas.
These developments have generally increased efficiency and effectiveness in the face of severe
resource limitations. An additional result, however, can be an institutional restraint that inhibits
addressing new issues.
This institutional restraint can become deeply ingrained in the system at all levels. The client
communities served by programs learn what type of cases are handled and forbear bringing
other types of problems to the program. Program structures develop around specialty units,
which reflect the program's substantive priorities, but may not encompass the new legal
problems that clients encounter. Staff members can become invested in the expertise that they
have developed in their specialty areas, becoming resistant to the changes required by
emerging issues. There is a natural pressure on state and national support centers to serve
programs primarily in the legal work in which they have traditionally engaged. /12
A. Priority Setting
The development of procedures and processes to limit case acceptance to priority matters has
been necessary because of the severe imbalance between resources and the demand for legal
representation by the client community. /13 Using priorities to limit work to the most critical
matters has generally been a salutary development in legal services. It is the key procedure that
has been used to target the most compelling legal needs of clients. /14 It is the principal way in
which programs have undertaken the painful but essential process of determining where to
focus resources that are disproportionately small in relation to the demand for legal assistance.
One potentially untoward result of the priority setting process, however, is that it may foster a
patterned reaction that inhibits programs' responses to new issues. A number of institutional
factors make it difficult for priorities to broaden or change. The primary cause is the resource
imbalance, which worsens each year in the face of static funding and increasing numbers of
eligible clients. Almost all internal pressures urge a program to pare back its case acceptance
priorities, rather than to adopt new ones or broaden the scope of those that exist. Clients learn
what cases a program handles, stop bringing nonpriority cases, and tend not to influence the
priority setting process as fully as do other factors. Staff members themselves may reinforce a
continuation of the status quo because of their investment in the expertise that they have
developed in the program's priority areas.
Most importantly, the addition of new areas of focus often simply means that a program will
have to reduce its work in other priority areas. The lack of adequate resources forces programs
to choose among nearly equally vital needs of clients. Legal services programs are already
turning people away who, under a theory of triage, should be served because their problem is
critical to their well-being and representation by a legal advocate could in fact assist them.
They are not being served, however, because sufficient advocates and resources simply are not
available. A program and its advocates have little incentive, therefore, to take on new areas,
because to do so would just expand the list of critical areas that the program does not serve.
In spite of the economic pressures that inhibit the responsiveness of priority setting, it is
essential that programs utilize procedures that explore new legal issues facing clients. The
legitimate function of priority setting is to make rational decisions that focus the programs'
resources on the most compelling needs of clients. To the extent that the process fails to take
into account new trends and developments, the resulting case acceptance limitations cease to
accomplish the function they are designed to serve. /15
The difficulty in identifying some client problems as "legal needs" also inhibits the capacity of
priority setting processes to identify the types of problems that will be significant in the next
decade. The typical priority setting process is not designed to identify problems that are of
such a general or pervasive nature that few clients would identify them as "their" legal
problems. The denial of municipal services to an entire neighborhood, for example, might be
the result of wrongful discrimination on the part of the municipal government or utility, but
might not be identified as a legal need by any one client. Problems that result from trends and
developments at a state or national level may not be identified as a legal need locally, because
the connection between the cause and the problems suffered by clients is so attenuated.
Problems resulting from the lack of child care, for example, are acutely felt by many clients
who might never identify such problems as a legal need.
Another set of emerging legal problems are related to the adoption of state and local policies to
implement new federal policies. The need for a legal services program to address such issues
will arise well before any client has encountered an individual legal problem. While a typical,
generalized statement of priorities might, by inference, encompass such needs, there is no
guarantee that all of the issues embedded in the question will be contained within adopted
priorities, or that the amount of resources necessary to address them will be realistically
considered.
The problem arises out of the difficulty of identifying "legal needs" generally. "Legal need" has
long since joined the lexicon of legal services, although it is a far less precise term than it is
often given credit for being. It is more accurate to say that clients experience certain problems
in common, some of which are susceptible to a legal remedy, than to say that clients experience
a legal need. The relationship between some problems and the appropriate and available legal
remedy is in some cases so widely recognized and accepted that the problem itself is described
as a "legal need." For example, personal problems readily identified as legal needs include
divorces, landlord-tenant matters, and mortgage foreclosures.
For many other problems, however, a legal remedy may not be so apparent, even to a lawyer,
and identifying the legal implications may require a thoughtful analysis of the "problem" to
determine whether there is a "legal need" embedded within it (which is to say, to see whether
the problem is susceptible to being remedied through legal process). Such problems are often
described as social issues and would not be described as legal needs until someone did the
necessary analysis and linked the problem with a potential legal remedy. Deteriorating
neighborhoods, for example, may be seen as a social and economic problem, although, in part,
they may be the direct product of a long-term and illegal policy of redlining by banks and other
lending institutions. The legal problem is not one that most clients would identify, although the
results of the illegal policy would be all too clear.
The practical significance of this analysis is its suggestion that the delivery system cannot truly
identify the "legal needs" of clients without being alert to the interplay of social, economic, and
political factors in its community. Each component of the delivery system--national, state, and
local--plays an essential role in the process of identifying compelling client needs. At the
national level, support centers and other national organizations need to examine the national
trends that have implications in local client communities. State support units must remain alert
to the statewide developments that will affect clients and portend new legal needs.
Local programs, in turn, need to be tuned in to their client communities in ways that transcend
the limitations of one-shot priority setting processes. If a program only periodically asks clients
to identify their legal needs, it will most likely obtain a list of problems with readily identified
legal remedies and may learn nothing about legal needs that may be more pressing but are
embedded in social problems, or are just emerging and require analysis to uncover. Assessing
the legal needs of clients, therefore, calls for processes that both gather information in a variety
of ways and creatively evaluate it to identify less obvious "legal needs" embedded within larger
issues.
There are a number of ways in which programs can gather and assess such information to help
to inform their priority setting processes. However, each is imperfect and invokes a set of
challenges that often make it difficult to implement.
1. Ongoing Interaction with Groups
The most effective way to gather information about the legal needs of clients is through
ongoing interaction with client groups and with organizations that work with clients. One
advantage of this means of gathering information is its dynamic nature. The flow of
information between clients and a program is ongoing and is not limited to periodic "snapshots"
of community concerns. Interaction with such groups also permits a level of communication
that can penetrate the surface of generalized client community problems to discern underlying
legal issues. Such interaction also increases program awareness of trends that will affect
clients and enhances the flow of information to clients regarding changes in the law that will
affect the community.
Although a great deal has been written regarding client relations and client involvement in legal
services over the years, it remains an area in which uncertainty abounds. Quality standards,
such as the ABA Standards for Providers of Civil Legal Services to the Poor, focus on relations
with individual clients in the conduct of representation, and on program relations with
individuals who interact with the program as applicants or accepted clients. There is less
agreement regarding the institutional relations with clients and the client community. Client
councils serving as liaisons with the client community and providing input regarding a
program's policies and operation is a role that is largely missing in many programs.
In the future, legal services needs to develop new relationships with client groups that are
grounded in the community's substantive needs, not merely in the governance of programs
divorced from community needs. At bottom, the issues are (1) how will the system, at all
levels (national, state, and local) maintain links with clients in order to keep informed of their
needs in a changing society and economy, and (2) how can programs increase their utilization
of clients as a resource to respond to those needs. /16
Effective interaction with client groups is not easily accomplished. In some communities, there
are potential conflicts among groups or subsets of groups (particularly ethnic) and identification
of a program with one group may inhibit effectively relating with others. Such limitations may
critically restrict the information that a program is able to acquire.
In other areas, particularly rural ones, client groups may not exist in an organized fashion that
readily permits the kind of relationship that can provide information on clients' legal needs. In
such circumstances, programs need to experiment with new (and old) techniques to identify
leaders in the client community and establish relations with them and their constituents. /17 To
the extent that client groups already exist, program personnel should establish contacts with
them and cultivate the relationships, as long as they provide insight into the client community's
needs.
Other internal factors of programs also constrain the effectiveness of interaction with groups.
To interact effectively requires skills that not all personnel possess. /18 Many casehandlers
simply feel more comfortable working with more traditional problemsolving modes. Group
interaction can be time-consuming and often requires after-hours work. Programs that rely
heavily on private attorneys for advocacy work generally find that community and group work
is not practical.
The impact of regulatory restrictions and the perception that many legitimate activities
associated with group work may not be acceptable has also discouraged programs from
reaching out in an area that already contains natural barriers to effective work.
2. "Being There"
One invaluable source of information regarding client legal needs derives from the accumulated
insight of program personnel who have been involved with community issues over time. Some
of this insight is gained by staff and private attorneys participating with community activities,
whether directly with client groups or not. Understanding the environment in which the
program operates and in which client needs arise provides a basis for identifying unrecognized
legal needs and for developing effective strategic responses. Similarly, over time, programs
and casehandlers accumulate useful insight into the power structure and the community in their
representation of clients.
This collective institutional memory provides a backdrop against which newly emerging client
problems should be examined. For the most part, such information is retained as a part of the
oral tradition of programs, large pieces of which are lost from time to time with turnover of
more experienced personnel. Few programs systematically create and maintain a written and
retrievable record of their collective impressions and knowledge of their community. In part,
this results from the fact that much of the data is subjective and is not easily reduced to a form
that can be codified and, therefore, readily retrieved. Information on such issues as who the
prime decisionmakers are in the community and what motivates them on certain issues,
however, can be invaluable in understanding the needs of the client community and identifying
an effective strategic response. One challenge for the future, therefore, is to develop more
effective ways, including, in particular, new computer technology, to gather and record such
information and to use it in evaluating legal needs and developing strategies to respond.
3. Intake
Information obtained at intake can help identify recurring and systemic problems. The
occurrence rate for recognized legal needs is potentially useful information when used in the
context of data gathered through the other sources listed above. Standing alone, however, such
data can be misleading, as it filters out all unrecognized need. To the extent that knowledge
exists in the community regarding the type of legal problems that a program handles, clients
may simply cease to bring certain problems to the program for service. Mere reliance on intake
data, therefore, runs the risk of artificially reinforcing the historic case limitations of a program
without regard to actual need that may exist in the community.
4. Legal Needs Studies
A legal needs study, a more formal means of gathering information on clients' legal needs, has
the virtue of methodically seeking to reach as broad a spectrum of clients as possible to
determine their legal needs. Formal legal needs assessments tend to be expensive, however,
with difficult implementation issues. Such studies may have difficulty reaching across the
same barriers that tend to isolate clients. Thus, segments of the client population that speak
languages other than English may be difficult to reach, requiring that the needs assessment
instrument be administered in all prevalent languages. Other segments may have a high degree
of mistrust of outsiders and, therefore, may not communicate freely in a way that will provide
useful and complete information. Simple factors, such as a lack of telephones among a large
percentage of the population, may also inhibit success. Certain client groups, such as migrants
and Native Americans, that may be isolated geographically may inhibit a survey's effectiveness.
One major risk that formal legal needs assessments face is the difficulty in identifying
unrecognized legal needs. Inquiries limited to readily perceived legal problems perforce will
fail to identify ones that are unrecognized by clients and others. Questions about the incidence
of broader social problems result in data that is useful only if it is subjected to further analysis
regarding legal needs contained within it.
5. National, Statewide, and Local Evaluation of Trends That Affect Clients
A significant strength of the current delivery system is that it is a national system. Locally
controlled field programs can interact flexibly with the client communities that they serve,
determining the optimal means of operation to meet changing client needs. State and national
components, among other important functions, have the capacity to examine and interpret
trends in the law and in society that may affect low-income persons.
Given the rapid changes occurring in American society, the legal services system needs to
increase its capacity to identify emerging legal issues. Foreseeing new issues that will affect
clients requires an analysis of information regarding national, state, and local economic,
political, and demographic trends. Some of the major substantive issues in the 1990s, for
example, relate to underemployment and the creation of employment opportunities that pay
inadequate wages for supporting a family. Such trends were first identified by nationally based
studies of demographic data regarding persons below the poverty level. /19
Unearthing from such trends the legal needs that may be unrecognized by the individuals who
will be affected will require an increasingly refined understanding of such data. A great deal of
such work is required at a national level. /20 The result of such analyses will be to identify
potential legal issues that are national in scope and that should be a touchstone for any local
needs assessment and planning process.
Relying on such national and regional studies, local programs in turn can examine the extent to
which national trends are reflected in local experience. At the same time, they should identify
local issues that may portend developments of national significance.
It is important, therefore, that programs build into their processes for assessing legal needs the
capacity to analyze the broader problems that clients encounter in order to identify potential
unrecognized legal needs. Local-level program advocates, as well as state-level advocates,
should periodically set aside time to analyze broad problems facing the community.
On a national, state, and local level, the early identification of legal, economic, social, and
political trends that will affect clients will require a much broader base of information and
insight. Consequently, the legal services community needs to form linkages with other groups
and organizations that work with and advocate on behalf of the client community. /21
B. Case Intake and Acceptance
The primary mechanism through which programs limit case intake in order to maintain some
balance between available resources and demand is the case acceptance process. Because of
the function that they were designed to serve, however, case acceptance procedures can also
serve to inhibit responsiveness to the emerging issues that will affect clients in the future.
This happens for several reasons. Case intake systems are largely designed to handle large
numbers of applicants as quickly and efficiently as possible. Frequently, intake personnel are
paralegals or other individuals who are trained specifically to recognize fact patterns that fit
within the program's established case acceptance priorities. Occasionally, they may be fulltime casehandlers who rotate into intake on a periodic basis, though intake does not constitute
their normal casehandling duties.
The primary objective of intake workers, however, is to identify priority matters quickly and to
avoid accepting a case that is not in the program's priorities or that does not belong in the unit
to which it is sent for further processing. As a result, most of the pressures on intake personnel
are to react conservatively to fact patterns and to avoid taking chances with the unfamiliar.
Through a number of ways, some emerging issues may simply be lost in this process. At the
initial intake, the facts as characterized by the client may trigger a rejection on case acceptance
priority grounds. For example, if a client describes a problem occasioned by welfare reform in
terms that appear to identify it as an education /22 or a consumer problem, /23 an intake
worker who is unfamiliar with the intricacies of welfare reform may reject it without further
inquiry into the underlying facts.
Moreover, intake systems and case acceptance procedures often are geared to a program's
specialty structure. Intake workers may identify broad categories into which cases fall, in order
to direct the client to the proper specialty unit, which may itself do a separate intake or
determine whether the case will be accepted. A multifaceted problem such as homelessness,
however, may potentially be directed to one of a variety of units, depending on how it is initially
categorized by the intake worker. Thus, unusual or multifaceted issues that are embedded in
cases may not be recognized by staff who are trained to treat matters as falling into predefined
categories.
Within specialty units, specific case intake decisions, in turn, are often made through a process
in which multiple decisions are made regarding the case. /24 The first decision is simply
whether to take the case. Preliminary strategy planning on how to handle the matter may also
take place. And, finally, the case is assigned to a casehandler. Frequently such decisions are
made within a specialty unit that reflects the program's case acceptance priorities. Often,
decisions will be made regarding a number of cases that come in during a single week or at
shorter intervals. Consequently, the primary incentive is to process cases rapidly and to make
decisions quickly. There are few direct inducements, however, to take complex cases that do
not fit into familiar patterns.
The potential problems associated with the case intake and acceptance procedures of many
programs are related to the problems that may be engendered by narrow specialization. Their
resolution is interrelated and is discussed below. /25
C. Specialization
In the late 1970s and early 1980s, many legal services programs consolidated their resources
into fewer, larger offices. The move to consolidation was inspired, in part, by the opportunity
to reduce the isolation of staff in smaller offices and allow casehandlers to specialize.
Specialization, in turn, has permitted a more efficient handling of recurring cases, has allowed
casehandlers to learn one or two substantive areas thoroughly in a short period of time, and has
enhanced the capacity of advocates to spot issues in important areas of their programs' work.
The effectiveness of consolidation and specialization needs to be reexamined, however, in the
context of the emerging needs of clients. The current specialty structure may at times impede
the identification and resolution of emerging legal problems and the development of a broadbased strategy for responding.
Some matters will not fit neatly within a single specialty, and no one specialist is apt to have the
expertise to identify the full range of issues that may be involved and to fashion an appropriate
remedy. Traditional specialty areas have included housing, public benefits, family law, and,
occasionally, consumer law. A smaller number of programs have specialists in health,
education, employment, and economic development. Homelessness, however, may involve
issues arising in such diverse areas as public benefits, housing, housing development, access to
education and health care, family law, mental health, and civil rights. Similarly, welfare reform
implicates child support enforcement, education, child care, employment issues, and health
care.
Unfamiliar issues that do not coincide with a program's specialty structure may be ignored in
several ways. As discussed above, individual cases that come to the program through the
normal intake process may be lost or miscast at the referral process. In an intake system in
which the intake worker's primary task is to refer the matter to the proper unit, there may be no
single unit to which the case belongs. There is a risk, therefore, of outright rejection or
premature characterization of the issue in narrow terms that relate to the program's specialty
units. Issues may be narrowly or improperly treated because of a unit's lack of expertise,
resulting in a failure to recognize the full range of issues involved. Even when related issues
are recognized, there may simply be an unwillingness to take on the unfamiliar.
Narrow specialization can also lead to overroutinized treatment of cases. The impulse to treat
cases in familiar patterns and to seek routine remedies stems from the legitimate motivation to
maximize the economic utilization of resources. At any time, the reflex represents a potential
problem if it tends to limit the focus of the casehandler to a narrow range of options that are
determined, in part, by prior habit as well as by the circumstances of the case. In the face of
new substantive challenges, this danger can be significant. Leaping too quickly to the routine
in response to a matter with more complex issues embedded in it may delay or avert complete
attention to the full legal problem presented. /26
Another set of legal problems that may be overlooked by a highly specialized program are
those that do not fall within one area of expertise and are also apt not to be brought by a single
client. As some of the newly emerging issues begin to affect a community served by a
specialized program, there may not be any one individual or specialty unit responsible for
identifying and analyzing the problem as it arises. Failure of any part of a program to respond
may result in lost opportunities to address the issue early, with costly results for the program
and the client community. This is particularly true of problems that call for advocacy regarding
the adoption and implementation, at a state and local level, of newly mandated federal
initiatives. /27
The problem encompasses more than just the internal structure of programs. Program
personnel, particularly advocates and intake workers, need to be familiar with the emerging
issues and to understand the interrelationship of issues that traditionally have been treated
separately by legal services programs. This requires that they receive information from state
and national backup centers that explores and explains the complex nature of the new, arising
issues. /28 Because the focus of the national support centers tends to mirror the specialization
at the local program level, however, the information that programs receive may not always alert
them to the full nature of the problem in question.
Using various means, a program may appropriately address this dilemma without wholesale
abandonment of its case acceptance procedures and specialty structure, which usefully serve a
number of other program purposes. All of the following means serve the same principle--to
assure that intake and strategy decisions involve a wider perspective than may be found in any
single specialty unit and that there is cross-fertilization of ideas among program experts and
specialty units.
•
•
Provide regular training of intake workers on the broader range of problems affecting
clients and sharpen their skills at identifying legal issues. /29 This implies a capacity
within the program to stay abreast of emerging trends and an awareness of the interplay
of new legal issues.
Have intake workers regularly participate in case acceptance decisions, at least, on a
rotating basis.
•
•
•
•
•
•
Expand the process for review of intake and case acceptance so that more than one
unit's expertise is involved, possibly through general intake and case acceptance
meetings with all advocacy staff or with representatives of each unit. If a program's
staff is too large for such meetings, members of each specialty unit could rotate sitting
in on the intake deliberations of other units.
Develop new specialty units with expertise from a broader range of previous specialty
areas, and specifically design them to respond to known important new issues. /30
Develop programwide task forces that draw from existing specialties and are focused
on emerging legal issues.
Involve the director of litigation or other senior attorney in case acceptance and strategy
planning sessions in order to have a broader perspective than the specialty unit, by its
nature, is apt to have.
Provide for regular or random review of intake by a senior attorney or the director of
litigation to identify the extent to which the program is staying responsive to new
issues.
Develop the capacity for periodic review of national issues and local developments
unfettered by the specific focus of the specialty units, possibly in a regular forum in
which all program advocates would participate. The explicit purpose of such a forum
would be to identify new issues affecting clients and to evaluate whether the program is
addressing them. Such a periodic "time-out" from the program's ongoing work would
allow it to determine what changes in the program's operation, if any, would be
required in order to address the newly emerging problems. The analysis should also
consider other available resources in the community.
IV. Implications for the Use of Private Attorneys
A. Integration of Private Attorney Involvement
The involvement of private attorneys in the delivery of legal services to the poor in the coming
decade will offer particular challenges and opportunities for the delivery system. The
challenge, for some time, has been to integrate the work of private attorneys more fully into the
mainstream work of programs. The early efforts to establish effective private attorney
involvement often lead both programs and cooperating bar associations to focus primarily on
recruitment and expansion. Less attention was paid to a way of ensuring that the work
undertaken related to priority legal issues affecting program clients.
Even if new and complex issues were not confronting clients, the challenge to the delivery
system would be to develop ways to use the significant resources available through pro bono
lawyers more directly to address the compelling needs of clients. The emergence of new issues
and legal problems, however, makes it more imperative that this resource be used in the most
effective possible manner.
The new issues are going to strain already limited resources. Therefore, the need to ensure that
the work of private attorneys responds to the most compelling needs of clients is even more
crucial. First, the emerging issues will present programs with additional matters that will
compete for resources already stretched precariously thin. /31 Second, many of the problems
involve complex legal and factual issues that would consume a commensurately increased
amount of resources and may involve costly issues of proof. /32
B. Private Attorneys and Emerging Substantive Issues
The need to integrate private attorneys more fully into the work of programs coincides with the
emergence of a number of issues in which the expertise of private attorneys will be particularly
useful and helpful. For example, the need for child care services, employment, and health care
may be met in some communities through economic development. Such work involves many
issues related to the establishment of nonprofit corporations and business planning. Similarly,
employment matters may involve tax issues and other financial concerns of businesses in which
many private attorneys have expertise and program staff attorneys typically do not.
As discussed at length in this paper, many of the emerging issues affecting clients will call for
increased legislative and administrative advocacy. /33 Much of this advocacy will focus on
state and local administrative procedures in which local connections may be very significant.
Private attorneys' connections with key decisionmakers in a community, therefore, may be
invaluable. The involvement of established private attorneys can also be important to lend
appropriate legitimacy to the advocacy, which, for reasons addressed elsewhere in this paper, is
sometimes inappropriately considered to be improper. /34
Finally, as discussed above, many of the matters that programs will be called upon to address
encompass complex issues of fact. The resulting fact-based advocacy may give rise to two
needs for which private attorneys can provide assistance. First, since fact-based advocacy will
call for skills and experience that many legal services advocates have not acquired, private
attorneys may offer invaluable assistance by providing the required expertise. Second, since
the costs of such work can be substantial, the opportunity to cocounsel with large law firms and
to obtain financial and other support may make it possible to pursue advocacy that would
otherwise be too costly.
V. Implications for Advocacy
A. Legislative and Administrative Advocacy
Many of the emerging substantive issues will call for increased advocacy before state and local
legislative bodies. This results directly from the nature of the issues involved. A legacy of the
Reagan years is likely to be the continued transfer of discretion to the state and local level for
the adoption of policies and procedures to implement programs created at a federal level. This
stands in contrast to past practices in which state and local implementation of federal programs
such as welfare and public housing has been governed rather strictly by federal regulations.
This transfer of discretion to state and local governments for programs that will have an
enormous, long-term impact on the lives of low-income persons offers both a significant risk
and an opportunity for clients of legal services programs. It highlights the extreme importance
of legal services advocates carrying out the traditional lawyer's role of representing clients'
interests before legislative and administrative bodies. /35
The danger of legal services clients and their advocates not participating in local
decisionmaking regarding policies that will so significantly affect the poor is all too clear.
Many federal initiatives began in response to state and local governments' failures to respond to
the pressing social needs in their communities. An ingrained indifference and occasional
hostility to the needs of the poor and minority communities still infuses many local political
infrastructures. At the same time, many local decisionmaking bodies are relatively uninformed
about the causes of poverty and the experience of those who are caught in it.
The risk for clients is compounded by the fact that many state and local authorities perceive
themselves to be faced with budget limitations that impel them to seek the least expensive
alternative to accomplish government functions. These pressures are unlikely to diminish in the
foreseeable future. While limiting costs is a legitimate governmental goal, when coupled with
ignorance of or indifference to the needs of a significant portion of the population, it can lead to
irrational policies that compound social ills and increase the long-term costs to society. Unless
legal services advocates represent their clients' interests at the time that such decisions are
made, their clients are apt to become the casualties of such policies.
Increased local control of decisionmaking also offers a significant opportunity for clients. Local
decisionmakers may be more accessible, both to clients and to their advocates. It may be easier
for an advocate to become familiar with how decisions are made and who the key figures are in
the decisionmaking process. Conversely, legal services advocates and their clients may more
easily establish credibility with those decisionmakers.
The responsibilities of the legal services delivery system in the face of such challenges are
significant. Program advocates and their clients may be the only voices directly espousing the
needs and interests of clients, as policies are considered and adopted. Particularly to the extent
that local decisionmakers are hampered in their deliberations by lack of knowledge or
understanding of the potential impact of proposed policies on the client community, legal
services advocates have an essential role to play in educating those decisionmakers.
1. Challenges to the Delivery System
The need to engage in effective local advocacy regarding the adoption and implementation of
policies and procedures will pose a significant challenge for the delivery system, for both
structural and political reasons. Because of the significance to program clients of the issues
that call for legislative and administrative advocacy, it is imperative that the delivery system
meet the challenge posed by the structural and political impediments.
The effectiveness of the response will be measured by the extent to which legal services
responds as a system. Not all local programs will need to engage directly in the legislative and
administrative advocacy that will be necessary to meet the needs of clients in a state or region.
Many operate in a locale where such work is neither convenient nor practical. For some, size
or other inherent limitations preclude engaging in such advocacy.
The local programs in a state, however, need to determine the extent to which such advocacy
will be required, and need to ensure that appropriate resources will be available to respond.
This will call for effective communication among programs regarding state and local adoption
of policies and coordination of the response.
The work of national components of the delivery system also needs to be coordinated with the
overall response of the delivery system. Activities of the national support centers and the local
programs must be integrated, so that needs of clients at a local level are reflected in the work of
the centers and the centers keep local programs aware of national legal trends and
developments that may affect their communities. The work of national components of the
delivery system, such as the National Legal Aid and Defender Association (NLADA) and the
Project Advisory Group (PAG), that are not funded directly by the Legal Services Corporation
should complement the work of other national components, focusing on those activities that
regulatory and congressional restrictions may limit.
2. Structural Challenges
a. Local Programs
Institutionally, undertaking increased legislative and administrative advocacy will be
challenging, because many programs are not organized in a way that supports such advocacy.
The majority of programs are geared more to litigation than to legislative and administrative
advocacy. This emphasis has resulted from several factors. First, legal services programs
have traditionally concentrated on litigation strategies, because such strategies have been
effective in addressing what have been typical problems of legal services clients. Second, for
ideological reasons, legislative and administrative advocacy has been actively discouraged
during the past decade by the Legal Services Corporation.
For those programs that accept the responsibility to pursue the advocacy necessary in their
states to address emerging client needs, some program retooling may be necessary. Legislative
and administrative advocacy requires additional skills and talents to those traditionally
developed in programs that concentrate on litigation. Effective legislative and administrative
advocacy requires established relationships with decisionmakers and an awareness of the
factors that affect their decisionmaking. /36 Sufficiently regular interaction is necessary in
order to respond promptly and effectively when the need arises. Some issues will need to be
addressed quickly, providing little time to find out how decisions are made and who the
decisionmakers are.
To meet this challenge, programs--in the face of static or shrinking resources--need to have the
capacity to intervene in local administrative and legislative processes and to develop the
expertise in such advocacy. The process by which a group of programs within a state assesses
the likely need in its service area and assigns responsibility to one or more programs becomes
critical to the success of the advocacy. Programs need to understand clearly the responsibility
that they all have--not just those engaging in the advocacy. This requires effective ongoing
communication among the programs and a willingness to provide mutual support, appropriate
to the role played by each.
Successful advocacy may also require functional specialization, with selected advocates
developing the necessary skills and connections. To be effective, such individuals would need
to be free from affiliation with just one unit, since many of the arising issues do not fit neatly
into any one area of specialty. /37
Local programs need to remain aware of national demographic, political, and economic trends
and of emerging substantive issues in order to anticipate their impact on client communities
and on the programs' use of their resources. Personnel must be assigned to stay abreast of such
issues. Given the demands on the time of program personnel already, however, the need for
such efforts may be overlooked. There should, therefore, be an explicit delineation of
appropriate expectations in program standards and performance evaluations. Given the broad
nature of many of the emerging problems, senior attorney personnel, such as a director of
litigation, should have explicit responsibility for monitoring national developments.
The executive director of a local program should also be directly involved in the review of such
issues, in order to be able to consider the implications for program staffing and resource
allocation.
b. State Support
An effective state support structure is an essential component of the overall delivery system for
legal services to the poor. Statewide coordination of legal services will be particularly
important in view of the need for increased legislative and administrative advocacy. Legal
services delivery, however, is organized in very different ways among the various states. Some
have single statewide programs with no separate support centers; others have large regional
programs, perhaps with separate state centers; still others have a large number of local
programs, as well as separate state centers. Moreover, such organizations exist within states of
varying size and configuration and of diverse political and economic makeup.
Whatever the structure of service delivery in a state, however, programs have a responsibility
to work together as a statewide delivery system to meet the emerging legal needs of clients.
The manner in which this is carried out will obviously vary from state to state. Statewide
programs, for example, have the authority to develop and implement strategies within the
context of one program. States with a number of independent local programs, on the other
hand, will require close cooperation among all programs to meet the need. /38
c. National Support
An effective response to emerging issues at a state and local level calls for monitoring of
developments at a national level. Program advocates need to be forewarned of emerging issues
in order to inform clients about those issues, and to be alert to local decisionmaking procedures
in which it may be important to participate.
A response from the national support centers is necessary to accomplish this. Many of the
emerging problems that will evolve in the future do not fit into the traditional specialty divisions
into which the national support system (and many local programs) are divided. More crossfertilization and coordination will be required among the support centers to identify broad
problems and to suggest appropriate remedies to respond to the needs of eligible clients.
Specifically, national support centers need to work together and to analyze data that reflect
trends in client communities and portend new legal needs for which eligible clients will require
representation. Such joint analyses may take place, for example, through periodic symposia
involving national support center personnel as well as established experts from field programs.
Such caucuses also should include advocates from other public interest law fields, such as the
civil rights community, women's and children's advocates, and the like. Support centers also
need to hold meetings for advocates from across the nation to discuss new issues and potential
strategies in a structured environment. In like vein, national and regional task forces relevant to
the emerging issues should be revived.
National support centers need to be linked effectively to organizations and entities that are
engaged in research on poverty issues. The insights gained by the academic community and
other research organizations can be extremely useful to advocates in understanding and
forecasting legal issues affecting eligible clients. Basic research designed to deepen
understanding of the root causes of poverty needs to be undertaken, in particular by
organizations that are not impeded by any limitations that may exist under the Legal Services
Corporation Act. /39
Support centers will need to package legal and factual research in ways that are useful to
program advocates. For example, the structure of the educational and training programs
required under the Family Support Act /40 should be influenced by the research that has been
done on these issues. /41 Some of the manuals that have been developed by the support
centers need to be revised to reflect newly emerging issues and developments.
National support centers should continue to be closely connected with advocates working in the
field. To facilitate this connection, each support center should have a network of advocates in
state and local programs with which it communicates regularly. Field staff should be involved
in advocacy that takes place at a national level. Conversely, national support centers need to be
apprised of issues that arise at a local and state level. A working network of advocates serves
as a source of information regarding developments affecting clients and provides a means to
share information and analysis on emerging legal trends. Such a network is also desirable to
make certain that advocates at the local level are current in their knowledge and understanding
of new substantive developments.
3. Political Considerations
Programs will also face a political challenge in providing increased legislative and
administrative advocacy to meet clients' needs. Legislative and administrative representation of
individual clients to protect their interests has been, and continues to be, a lawful (though
highly regulated) activity under the Legal Services Corporation Act and regulations, as well as
under congressional appropriations acts. /42 Unfortunately, however, such advocacy has been
a disfavored activity throughout the history of legal services. The spirited attack of the past
eight years--while remarkable for its virulence--is not isolated in history. It was preceded by
consistent efforts, predating the creation of the Legal Services Corporation, to limit such
advocacy.
We need to recognize the concerns that gave rise to the limitations on legislative advocacy in
order to address them. They must be addressed because legislative and administrative
advocacy is so critical to legal services programs' affirmative discharge of their professional
responsibilities to their clients. Such advocacy is part of the traditional role that attorneys carry
out on behalf of clients. Moreover, as this analysis points out, the emerging legal needs of
clients cannot be adequately met unless they and their advocates have access to legislative and
administrative decisionmaking bodies.
In the context of legal services, however, legislative representation has often incorrectly been
characterized as "improper" because of political factors that arise from a general antipathy
toward lobbying. The resulting limitations have fettered advocacy for legal services clients and
limited clients' access to the professional service that lawyers should be able to offer their
clients.
There are several reasons for which legislative advocacy has been so disfavored. First, there is
an understandable aversion in Congress against any federally funded organization engaging in
"lobbying" activities if it is perceived as seeking to shape public opinion to reflect the
predilections and beliefs of the agency. That opposition is not directly related to the ideological
antagonism to legal services and appeals to legal services' supporters as well as its detractors.
Thus, there are restrictions on the use of any recipient of federal funds using such funds for
publicity or propaganda to influence public opinion.
Second, "lobbying" is an activity that typically engenders antipathy in public opinion. However
unfair the characterization, lobbyists are often not trusted by the public. Restricting "lobbying"
by legal services, therefore, strikes a positive note among legislative constituents.
The common antipathy toward lobbyists, coupled with the concern regarding grassroots
lobbying, leads to a misunderstanding of legislative representation by a legal services advocate
to represent clients' interests. The fundamental difference between an agency engaging in
general grassroots lobbying and an advocate representing a client before a legislative or
administrative body has too often not been clear to either friends or critics of legal services.
In recent years, the aversion to lobbying has, without thoughtful analysis, expanded to
encompass administrative rulemaking. Thus, unfortunate limitations have been placed on
representation in administrative rulemaking procedures. There is a risk that attacks on such
advocacy have had a chilling effect on programs undertaking it. /43 Advocacy in rulemaking
procedures will be particularly important in the coming decades, given the needs created by the
Family Support Act. /44
In fact, legislative and administrative advocacy is a common function carried on by lawyers
serving as legal representatives of their clients' interests. The professional and ethical standards
of the bar not only recognize the importance of the role of the lawyer when representing a
client's interests before a legislative and administrative tribunal, /45 but also encourage lawyers
to participate in the process because they are uniquely qualified to do so. /46
The draconian measures undertaken by the Legal Services Corporation Board of Directors to
eliminate legislative representation and administrative rulemaking during the past eight years
have had one positive result. By their extreme and overreaching nature, they have served to
educate Congress and other national leaders on the importance, to legal services clients, of
legislative and administrative representation by legal services advocates.
Firmly establishing the legitimacy of legislative and administrative advocacy as an essential
ingredient of client representation fully consistent with the highest traditions of the legal
profession /47 will be a challenge for legal services in the next several years. The continued
support and advocacy of the American Bar Association and state and local bar associations
regarding this issue will be essential to the process. Supporters of adequate legal services for
the poor need to develop an effective strategy to accomplish this on the national and local
levels. /48
To avoid lending credence to the charges of critics of legal services, it will be incumbent on
legal services advocates to adhere scrupulously to congressional limitations on legislative and
administrative advocacy, and not to seek to avoid the limitations by ingenious interpretations of
the Legal Services Act and regulations that are not supported by hard analysis. /49
B. Other Forms of Local Broad-Based Advocacy
Emerging legal issues affecting the poor also require other forms of broad-based advocacy.
Many of the issues facing clients involve complex issues encompassing economic, social, and
political as well as legal considerations. To be effective, legal services advocates and their
clients need to participate informally in the development of local policies that may affect clients.
This implies an awareness of decisions that are being made in such diverse areas as housing,
education, law enforcement, urban planning, land development, and health planning.
Legal services advocates also need to understand the operation of the business community.
Many of the problems that affect clients, for example, directly implicate the need for increased
job opportunities and job training. To address such issues effectively over time, it is necessary
to understand what motivates a business to provide employment opportunities for targeted
segments of the client population. To be successful, legal services advocates need to be
conversant in a broader language. For example, they need to be conscious of issues such as the
tax, business, and financial implications of policies relating to employment. /50
Advocates for the poor need to be skilled in the art of compromise and decisionmaking. This
implies the capacity to recognize the many interests that major policy decisions may affect.
Legal services advocates need to be aware of how the policies espoused on behalf of their
clients affect other interests as well. /51
C. Fact-Based Advocacy
Legal services advocates in the next decade will need to be effective in marshalling and
presenting a compelling factual basis for the claims of their clients. This will be equally true
for programs that engage in legislative and administrative advocacy and for those that continue
to focus primarily on traditional litigation strategies. In the early years of legal services
advocacy, much of the work did not involve complicated issues of fact requiring complex
discovery or difficult issues of proof. A great deal of the advocacy during this period involved
legal argument, including constitutional claims, the enforcement of existing statutes, or the
assertion of federal authority over state deviations from federal policy (supremacy clause), with
relatively few seriously contested questions of fact.
In the future, effective advocacy will require a much more compelling presentation of facts.
Since state and local authorities will be given more discretion in their adoption and
implementation of policies to carry out federal programs, the focus of advocacy will shift from
enforcement of federal law to demonstrating the effects of proposed and adopted policies.
At the stage where a state or local authority is considering adoption of a policy, the role of the
legal services advocate will be to demonstrate the policy's effect and to show the positive and
negative effects of various approaches. Often, at this stage, there may be little in the way of
clear law mandating a specific approach by the local authority. What will be essential to
convince decisionmakers to adopt the position espoused by legal services clients and their
advocates is a cogent factual presentation that demonstrates not only the benefit (or detriment)
to the client community but also the advantages or disadvantages to the authority or the
community that it serves.
Litigation also may involve more frequently complicated factual matters, and courts will be less
likely to accept generalities without convincing proof. In matters involving the enforcement of
a state-adopted policy, a legal attack on the policy will be more difficult, to the extent that the
state has wide discretion with respect to the policy and procedures it adopts. In order to be
successful with issues such as housing discrimination, heavy involvement in fact-based
advocacy may be necessary.
Likewise, many individual claims arising under the newly administered welfare programs at the
state level will turn on factual claims. Thus, for example, the denial of benefits for failure to
participate in a job training program may require the legal services advocate to demonstrate
that the job training program is unsuitable.
The requirements of fact-based litigation signal the need for hiring persons with effective trial
capability. This means both hiring experienced advocates and continued training of current
staff in effective trial advocacy. Fact-based advocacy requires skills in areas in which legal
services advocates have not been as active in the past as may be necessary in the future. /52 In
an era of extremely limited funds, as legal services programs have experienced for the past
decade or longer, understandably few programs have devoted significant internal resources to
the investigation of complex factual matters.
Moreover, to the extent that advocacy will require significant investigation and information
gathering, the costs to a program will be increased. Programs, therefore, must consider the
availability of resources for undertaking major advocacy and must seek additional funds and
alternative methods of establishing a factual basis for asserted claims. /53
Development of the capacity for effective fact-based advocacy calls for a systemwide response.
Ideally, of course, each program would have an internal capacity for the investigation and
presentation of strong factual claims on major issues affecting clients. In reality, however, this
will be extremely difficult, given the limited available funds and the fact that, for the next
several years, the probable concern of programs is going to be retrenchment and not expansion
of staff to include new job categories.
Nevertheless, the need will exist for the development of the factual base for advocacy to be
undertaken on behalf of clients in areas related to job creation, child care, job training, indigent
health care, education, and the like. To the extent that there are factual patterns that relate
commonly to these issues in different parts of a state, or throughout the country, cooperative
efforts among programs or the work of state or national backup centers may produce useful
materials for local use. At a minimum, appropriate experts at a state and national level need to
analyze the factual basis necessary to establish or defend a claim, and to suggest the best
means available to obtain the necessary information. They also should develop sample
discovery, FOIA requests, and other investigative suggestions. /54 Increasingly, the system
will have to develop and share knowledge on the effective use of computer technology to
analyze data and draw defensible conclusions.
D. Community Education
Community legal education has long been an important aspect of the legal services delivery
system. Many programs use it to meet the needs of large numbers of clients, particularly in the
face of the severe imbalance between demand for legal services and the resources available for
responding to this demand. In the coming decade, community legal education may be
particularly useful in helping programs respond to the emerging substantive issues confronting
clients. The fact that clients may not recognize or anticipate some of the new issues stands as a
potentially significant barrier to programs' successful response to such matters.
In contrast to community legal education designed to provide general information on a client's
rights and responsibilities or to advise individuals on how to proceed pro se, community
education will need to advise clients of the pendency of specific administrative and legislative
decisionmaking procedures that may affect their rights. This need will arise because many of
the emerging issues will require advocacy well before any individual client experiences a
specific legal problem. In many communities, clients may not be aware of the pending
consideration of state and local plans and procedures to implement national policy initiatives.
/55 Because of the importance--and cost effectiveness--of addressing such issues when state
and local policies are being adopted, programs have a responsibility to educate their client
communities regarding such developments.
Implementation of the Family Support Act (welfare reform) /56 will give rise to a specific need
for community legal education. Specifically, welfare benefit recipients will need assistance at
the time of their assessment for placement under the terms of the Act. If clients wait until after
they have negotiated the terms of their placement, it may be too late for advice and
representation to be effective. Potentially affected members of the client community will
therefore need to be informed of their rights and of the circumstances in which they should seek
advice before they seek benefits. /57
Unfortunately, educating clients about issues that may affect them and of which they may be
unaware has been discouraged by the attack on the legal services delivery system during the
past eight years. Identifying issues of which clients may not be aware and educating the
community on the implications of those issues have been criticized by some as substituting
lawyers' priorities for those of the client--or, worse, as "social engineering." In a perverse twist
of language, such forethought has been dismissed as "paternalistic." /58
Such education efforts, however, arise from a legitimate and necessary role that all lawyers
play for their clients. One task of a lawyer is to anticipate legal issues that may adversely affect
clients' interests, and to advise them of the potential impact. /59 In appropriate circumstances,
such as when the lawyer seeks no pecuniary gain, lawyers have a general responsibility to keep
laypersons informed of their legal rights. /60 In the context of legal services for the poor, the
American Bar Association has found the education of the client community to help potentially
eligible clients recognize legal problems to be particularly appropriate. /61
footnotes
1. For a thorough analysis of some substantive issues that will affect clients in the next decade,
see the accompanying article by Alan W. Houseman, Poverty Law Developments and Options
for the 1990s. The following analysis is based on the basic conclusions of those papers.
2. See, e.g., D. Besharov, Legal Services for the Poor: Time for Reform (American Enterprise
Institute 1990), in which the inherent difficulties related to the setting of priorities have been
used as the basis for a proposal espousing competitive bidding.
3. The establishment of the Legal Services Corporation by Congress in 1974 was followed by a
period during which Congress appropriated substantial increases in funding for legal services,
in order to provide a minimal level of service in every county in the United States and its
territories. The resulting period of geographic expansion extended from 1976 until 1981.
4. The lack of sufficient funds with which programs have had to contend is itself a direct cause
of many of the problems for which critics reproach the current system. Unfortunately,
resolution of the problems will be hampered as well by the continued lack of funds.
5. The analysis and criticism that flow from observations of the weaknesses of the current
system often serve as a smoke screen for ideologically based attacks on the basic structure and
continued existence of legal services for the poor. Consequently, there is an understandable
reluctance on the part of legal services professionals to give credence even to well-intentioned
proposals for reform. Legal services professionals become more reluctant to analyze publicly
the shortcomings of the system, for fear of having the analysis form the basis for another
wholesale assault on legal services. Nevertheless, if legal services is to continue to grow and
evolve, forthright analysis of the system must be undertaken, whatever the risks.
6. For a thorough analysis of the problems, see Houseman, supra note 1.
7. See id. for a full discussion of the issue of homelessness and welfare reform.
8. See Houseman, A Short Review of Past Poverty Law Advocacy, 23 Clearinghouse Rev.
1514 (Apr. 1990).
9. The challenge to the local delivery system is discussed in greater detail in part III, infra.
10. The opportunities and challenges for private attorney involvement are discussed in part IV,
infra.
11. The implications of these changes are discussed in greater detail in part V, infra.
12. Some support centers see part of their responsibility to be to keep programs aware of
emerging legal issues and to press them not to become wedded to their traditional responses.
13. It has also been a regulatory requirement under 45 C.F.R. Sec. 1620, which is itself
grounded in the Legal Services Corporation Act, 42 U.S.C. Sec. 2996f(a)(2)(C)).
14. The targeting of most compelling legal needs of clients is one of the fundamental elements
of an effective legal services delivery system at the local level. See J. Tull, Delivery System
Working Papers (1988) (unpublished manuscript prepared for the Futures Process and
available from the National Legal Aid & Defender Ass'n and the Project Advisory Group).
15. For a discussion of ways to increase program capacity to identify the compelling needs of
clients, see part III.A.1-5, infra.
16. See Houseman, Community Group Action: Legal Services, Poor People and Community
Groups, 19 Clearinghouse Rev. 392 (Summer 1985); Wexler, Practicing Law for Poor People,
79 Yale L.J. 1049 (1970).
17. A number of techniques were developed in the 1960s to identify and work with a
community's power structure. See e.g., R. Powers, Identifying the Community Power
Structure (Iowa State Univ. 1965); J. Williams, Community Organization as a Process,
(Southwest Regional VISTA Training Center, n.d.). These techniques suggest a systematic
and disciplined process for locating individuals who are accepted in their communities as key
leaders.
18. While staff members should be expected to develop the skills necessary for effective
interaction with groups, it remains, nonetheless, true that some staff will have more aptitude
than others for working effectively with groups.
19. See e.g., Houseman, supra note 1.
20. See A.W. Houseman & Sherman, Trends Among the Poor (June 1989) (Working paper for
the Futures Process) and accompanying demographic charts (Clearinghouse No. 45,480).
21. The severe limitations on resources also suggests the importance of working together with
such organizations on common issues.
22. Under provisions of the Family Support Act, Pub. L. No. 100-485, 102 Stat. 2343 (1988)
(welfare reform), welfare agencies are required to make educational services available to
recipients. Problems related to the access to or the quality of the education provided may
therefore be directly related to the continuation of welfare benefits.
23. A recent problem encountered by welfare recipients, is the incurring of debt for a student
loan at the behest of a proprietary trade school. The schools push the recipient to obtain the
loan in order to attend school to satisfy the requirements of the Family Support Act. Some
such schools then pocket the money and disappear, or provide a useless educational
experience, leaving the client with a significant debt that was incurred to no benefit, and that
may affect his or her capacity or willingness to undertake other education or training programs.
24. Much of the following discussion is posited on the group case acceptance process that has
been adopted by a large number of programs. This has proven to be a salutary means for
making intelligent decisions regarding acceptance of new clients and cases. The observations
on potential limitations of the case intake and acceptance processes in responding to new or
out-of-the ordinary case matters is not meant to suggest, for that reason, that overall group case
acceptance is not an effective or appropriate means to deal with this difficult area of program
operation. Rather, it is to state that the process may have limitations responding to new legal
issues and those limitations should be addressed.
Although group case acceptance is the norm among programs, it should be noted that many do
not use it. To the extent that case acceptance decisions are made by an individual or an intake
worker and a supervisor, however, the tendency to be conservative regarding new or unusual
issues remains, and may even be exacerbated.
25. See discussion at part III.C, infra.
26. The Legal Services Corporation's focus on case numbers during the past eight years and
the proclivity to define successful delivery models on such a narrow basis reinforce the
tendency to interpret case matters as simply as possible and to treat them in an overly routine
fashion.
27. See the discussion at part V, infra.
28. The implications of the emerging issues for the support centers are discussed at part
V.A.1.c, infra.
29. The need for intake workers to have a broader perspective from which to evaluate case
matters presented at intake raises another troubling issue. Largely because of the severe
limitations on available funds, which in turn limit the size of professional and other staff, and in
the face of the extreme time demands to address client intake, many programs use nonattorney
staff (and often nonparalegal staff) to do initial intake. Given the extent to which emerging
legal trends require a broad perspective on policy developments affecting clients, the basic
intake structures of many programs may be inadequate to the task. On the other hand, to tie up
additional casehandler time in intake duties is often impractical because of the need to
concentrate such personnel's efforts on client representation.
30. The creation of new specialty units does not, in the long run, address the underlying issue
of how to create and maintain institutional flexibility to new issues, those we recognize today,
and those that have yet to develop. See the discussion at part III.
31. See the discussion at parts III.A. and III.B, supra.
32. See part V.C, infra.
33. See part V.A, infra.
34. See the discussion at part V.A.3, infra.
35. Id.
36. See Standards for Providers of Civil Legal Servs. to the Poor Standard 5.5 and 5.6
commentary (1986).
37. See also part III.C for a discussion of the relationship between the emerging substantive
issues and specialization.
38. For a full discussion of the role of state support in the delivery of legal services, see E.
Grubb Black, The Role of State Support in Delivering High Quality, Cost-Effective Legal
Services to Low Income Clients (NLADA 1983).
39. See Legal Services Corporation Act, 42 U.S.C. Sec. 2996e(a)(3)(A), which prohibits
"broad general legal or policy research unrelated to the representation of eligible clients" being
undertaken by grant or contract.
40. Family Support Act, supra note 22.
41. See also the discussion on fact-based advocacy at part V.C, infra.
42. Legal Services Corporation Act, 42 U.S.C. Sec. 2996f(a)(5); 45 C.F.R. Sec. 1612; Dep'ts
of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of
1990, Pub. Law 101-162, Sec. 608, 103 Stat. 988, 1032 (1989).
43. In fact, under the restrictive regulation adopted by the Corporation, administrative
representation is less rigidly controlled than legislative representation. See 45 C.F.R. Sec.
1612.
44. Family Support Act, supra note 22.
45. Under pertinent ethical provisions, lawyers representing clients before legislative and
administrative tribunals have a duty to disclose the fact of the representation. More
importantly, they are ethically bound to the same standard of conduct with regard to the
tribunal and any adversary interests, as if they were engaged in litigation before a court of law.
Model Rules of Professional Conduct Rule 3.9 (1983); see also Model Code of Professional
Responsibility EC 7-15, EC 7-16, and EC 8-4 (1978). This high standard applies even though
a nonlawyer engaged in the same activity would not be held to as high a standard. "However,
legislative and administrative agencies have a right to expect lawyers to deal with them as they
deal with courts." (Model Rules of Professional Conduct Rule 3.9 commentary (1983)).
46. Model Code of Professional Responsibility EC 8-1 (1983).
47. Model Rules of Professional Conduct Rule 3.9 (1983); see also Model Code of
Professional Responsibility EC 7-15, EC 7-16, EC 8-1, EC 8-2, & EC 8-4 (1983).
In addition to the arguments based on the traditions of lawyers as set forth in the appropriate
codes governing professional responsibility, there are a number of arguments based on the cost
effectiveness of such representation. Obviously, a timely and effective intervention as a rule or
statute is being adopted can save countless hours later litigating the same rule in separate
individual cases. The cost savings not only benefits the legal services program, but may save
the state and local government significant amounts of money as well--money that would have
to be spent for courts to hear the matters and for the state's attorneys to defend the lawsuits.
There are also indirect costs that result from the adoption of policies to address intractable
social needs, when such policies are adopted without benefit of a full understanding of the
effects on all citizens, including the poor.
48. Three other aspects of the attempted restriction on legislative and administrative advocacy
should be noted. First, some opposition is motivated by the desire to prevent the interests of
the poor from being effectively represented before legislative and administrative institutions.
Pure political motivation, therefore, will continue to fuel attacks on this type of advocacy,
which is mandated by the needs of clients. The fact that such attacks will be forthcoming is not
a reason to avoid such advocacy. It is a reason to make a forceful case for the legitimacy and
necessity of legislative and administrative advocacy on behalf of eligible clients.
Second, in the early years of legal services, the sense of the legitimacy of legislative and
administrative representation sometimes led to an indifference toward the restrictions on
legislative and administrative advocacy, which in turn lent credence to the criticism of legal
services.
Third, ironically, in recent years, critics have suggested that the Legal Services Corporation
itself has committed violations of congressional restrictions on lobbying Congress, at the same
time that it was seeking to restrict, or eliminate altogether, legislative and administrative
advocacy by legal services programs.
49. It will also be important for programs to have accounting systems that are capable of
clearly demonstrating the use of non-LSC funds for legislative and administrative advocacy and
other restricted activities when they would be prohibited by LSC regulations. See 45 C.F.R.
Sec. 1630.3.
50. Note that this is an area in which private attorneys may be particularly helpful because of
their expertise and connections in this area. See part IV.B, supra.
51. This also suggests another important reason for which legal services advocates need to
develop better ties with advocates involved with civil rights, environmental issues, and the like.
Such connections can help to develop a broader base from which to understand the implications
of various policies and to advocate on behalf of legal services clients.
52. Many legal services advocates began their careers in legal services and have not had to
learn all of the skills necessary to present a fact-based case effectively. Law schools, generally,
do not concentrate on teaching areas such as investigation, discovery strategy, and the effective
presentation of facts. Consequently, few advocates bring all of the necessary skills to their
legal services career.
53. Programs might, for example, seek the assistance of major law firms in the service area,
specifically to assist with the costs and the legal work necessary to establish a complex factual
claim.
54. As programs engage in advocacy that relates to matters such as the creation of jobs, there
will be an increased need for personnel who have an understanding of the operations of
business and economic markets. Similarly, in order to get pertinent records in usable fashion,
there will be a need for people who know what to ask for, and how.
55. This issue is also significant in the context of the identification of legal needs, particularly
as it affects priority setting. See part III.A, supra.
56. Family Support Act, supra note 22.
57. This also has implications for how intake and case acceptance procedures operate within
programs. See the discussion at part III.B, supra.
58. D. Besharov, supra note 2.
59. Model Rules of Professional Conduct Rule 2.1 & commentary (1983).
60. "The giving of advice that one should take legal action could well be in fulfillment of the
duty of the legal profession to assist laypersons in recognizing legal problems." Model Code of
Professional Responsibility EC 2-3 (1978); see also EC 2-5.
61. The appropriateness of such communication by a legal services program has been explicitly
acknowledged by the ABA Comm. on Ethics & Professional Responsibility, Formal Op. 334
(Aug. 10, 1974). See also NAACP v. Button, 371 U.S. 415 (1963); In re Primus, 436 U.S.
412 (1978) (Clearinghouse No. 24,549).