EQUAL JUSTICE UNDER LAW

The History of Need for Legal Aid

“Equal Justice Under Law,” is a fundamental concept we often take for granted. For our legal system to be fair, everyone should have equal access to assert their rights. This notion is reiterated throughout history–from Pericles’ funeral oration at the dawn of western civilization to modern articles on the American form of due process and democracy. “Equal Justice Under Law” is so fundamental, it is engraved on the front of the U.S. Supreme Court Building in Washington D.C.

What does it really mean to you?

If you cannot afford a lawyer, the saying goes, “one will be appointed to you at public expense.” But it is necessary to recognize that the court will appoint an attorney for you only in certain situations–most often where you are charged with a crime. Many Americans, when encountering a major crisis requiring them to assert what they see as their fundamental rights, are shocked to find out that the attorneys in the phone book want a lot of money to help out. Many civil (non-criminal) legal problems involve very basic issues of personal and family safety, housing, and access to governmental services. Women and children experience more civil legal needs than others.(cite?) Victims of domestic violence are typically the least able to access the justice system to protect their rights, or the rights of their children. According to an American Bar Association study, approximately 80 percent of the civil legal needs of poor Americans are not addressed.

Why not “Do it yourself?”

You have the right to represent yourself “Pro Se.” Some people can pull this off. But if you wander into court with your legal problem, you may quickly learn how difficult it is to file the required pleadings to simply ask for relief. You may discover that complex rules of court procedure can permanently affect your case and your rights. There are not a lot of people around the courthouse that can simply stop what they are doing and offer help. You will be told, “I am not a lawyer,” or “you need to speak with an attorney.” On any single weekday, there are hundreds of cases being addressed; many of which waited months for the judge’s time. You may try to do it yourself; only to waste the court’s time and ruin your chances for relief. You may find a legal aid brochure, call a hotline number, and see if you are eligible for legal aid.

Lawyers are not the bad guys here. They are running businesses with a lot of costs and risks. Most attorneys have to work with their clients’ changing financial situations, sometimes without even covering their own business and overhead expenses. But before you insert your favorite lawyer joke, let’s take a step back in the history of legal aid to the present, and find examples of lawyers coming together to create real changes for equal justice.

The Prototype Legal Aid Society

Go back some 130 years ago to the post-Civil War era when thousands of poor immigrants from Germany moved to New York City; only to encounter resentment and hostility from other residents. This led to the basic need of legal services to sort out disputes as to housing, jobs, and property rights. The problem was that these immigrants did not have the funds, language, or knowledge to access the justice system. Edward Salmon, a Prussian born lawyer and former governor of Wisconsin, with the financial support from other lawyers, merchants and businessmen funded a German Legal Aid Society. The program is often cited as the first legal aid program in the U.S. It met with instant success which only demonstrated the need of expansion throughout our country.

Then in 1890, Arthur Von Briesen took over the program. From a poor background himself, Von Briesen had worked for $1 a week. He eventually put himself through law school and went on to a successful career practicing law. Based upon his background experiences, he insisted that there be no barriers of nationality so that the guarantees of democracy could be made available to all. His reasoning was that when immigrants are treated justly and are protected, they become good citizens with respect for this country. Reincorporating under the name “The Legal Aid Society,” a broader, more inclusive program grew rapidly so that Mr. Von Briesen could boast,

“No one will dare trample the rights of the poor and helpless under foot, as long as the appearance of the Society’s attorney in court demands respect and careful consideration of the rights of its clients.” 

The program become financially independent, even as it took on thousands upon thousands of cases a year.

Legal Aid in the Twentieth Century

By the early twentieth century, most major cities had some kind of legal aid program set up by lawyers and funded by public donations. In 1919, Reginald Heber Smith’s book “Justice and the Poor,” was published. It challenged all lawyers to consider it a professional obligation to see that access to justice was available to all, without regard to the ability to pay fees. Without equal access to the law, Smith argued,

“the system not only robs the poor of their only protection, but it places in the hands of their oppressors the most powerful and ruthless weapon ever invented.”

 The argument had a significant impact and resulted in the American Bar Association’s creation of a Special Committee on Legal Aid Work that promoted the ideal that every bar association create such a committee. Most of these programs were locally funded, relying upon the donated time of lawyers, or otherwise run by law schools or other social agencies and municipalities. For all of their good intentions, due to the variety and financial limitations, these early legal aid programs could not offer a comprehensive solution to the much larger issue of providing equal access to justice for everyone.

It was not until 1964, when the U.S. government finally supported “Equal Justice Under Law” by providing federal funding for civil legal assistance to low-income people. As part of the 1960’s-era war on poverty, the Office of Economic Opportunity (OEO) was established. For the first time, based on a new design of comprehensive legal service guidelines, federal funds would be available to finance certain services for the poor in all areas of civil law and promote reforms in law practice and administration.  Following these OEO guidelines, hundreds of legal service programs obtained federal grants from the OEO. Major changes in the legal circumstances of low-income people throughout the country were now being observed. Political controversy soon followed with tension to limit public funds and the activities of legal service programs. This spurred another new concept to protect legal aid from politics by independently incorporating a “legal service corporation” which would be separate from the OEO. It would receive funds from Congress and distribute them to various independent local legal service programs. After much debate and compromise, the Legal Services Corporation Act was finally enacted on July 25, 1974.   With a minimum access plan, the Legal Services Corporation soon established a mission to increase funding levels while financing new programs in previously new areas of the country.

By 1981, the Legal Services Corporation was providing funding to 325 separate grantees, covering every county in the U.S. In addition to basic field programs covering general legal assistance, a system of separate programs addressed special legal needs of Native Americans and migrant farm workers with a comprehensive system of state and national support and training centers. Not all communities welcomed these changes. A philosophy of limiting role of government with increased scrutiny over government social programs often prevailed in budgetary battles involving money for legal aid throughout the 1980’s and 1990s. Since 1981, funding for the Legal Services Corporation has been hard fought, often reduced and even threated for elimination on occasion, while new restrictions and guidelines were placed on individual grantee programs. The Legal Services Corporation survived many of these challenges and continues to makes grants to legal aid programs across the country; but it is by no means the comprehensive program once envisioned. Instead, it falls primarily on individual states to collaborate with various groups in an effort to finance access to justice.

Legal Aid in Washington State

The Legal Services Corporation continues to provide federal grants to legal aid programs in Washington State. Charitable contributions often coordinated through the Campaign for Equal Justice, which distributes funds raised through the Legal Foundation of Washington’s standard grant-making process.

Like many states, Washington State uses monies from Interest on Lawyers Trust Accounts (IOLTA) to fund civil legal aid. Since 1984, if you paid your attorney a retainer to secure future representation, the attorney placed the funds into an IOLTA at various banks. The interest collected on those funds does not go back to you or the attorney, but instead are administered by the Legal Foundation of Washington, which was created by the Washington Supreme Court for this sole purpose. This system was challenged in a lawsuit and went all the way up to the U.S. Supreme Court, which concluded it was constitutional.

In addition to IOLTA funds, separate funding from Washington State government is administered through the Office of Civil Legal Aid based upon RCW 2.53.005, which provides,

“The provision of civil legal aid services to indigent persons is an important component of the state’s responsibility to provide for the proper and effective administration of civil and criminal justice.”

The Office of Civil Legal Aid does not offer direct legal assistance but instead contracts with the Northwest Justice Project, a nonprofit that operates a statewide toll-free legal advice, education and referral system called CLEAR (18883877111) in addition to operating 17 legal aid offices and providing a self-help resource center on the internet called WashingtonLawHelp.org.

Equal Justice Under Law Revisited

The need for improved access to “Equal Justice Under Law” has not been realized even now in the twenty-first century. According to an American Bar Association study, approximately 80 percent of the civil legal needs of poor Americans are not addressed. That said, tens of thousands of private attorneys have stepped up to serve their local legal assistance programs over the past century. The American Bar Association encourages attorneys to render at least 50 hours of pro bono legal services per year, and contribute financially to organizations that provide legal services to indigent persons. The Washington State Bar Association encourages a minimum of 30 hours per year, and recognizes attorneys that render over 50 hours per year. Even if given by every attorney in the state, these hours of legal services would not be sufficient to meet the outstanding needs of people who cannot afford help. We need the entire community to recognize that everyone benefits from the promise of equal justice under law and to help us achieve the promise of our system.

History contributed by Mick Frey