Commentary : The Poor--and Their Champions--Are Real Target in Legal Overhaul

After years of unsuccessful attempts to eliminate funding for the Legal Services Corp., the Reagan Administration, in its last year in office, proposed that the corporation fund civil legal services for the poor on a competitive bid basis. While such a notion may be superficially attractive, it suggests a radical change in the way legal services have been provided to the poor in this country.

In the past, such services have been provided through Legal Aid programs, nonprofit corporations managed as a public service by state and local bar associations. The Reagan proposal, which will take shape only after President Bush appoints a new board of directors to the Legal Services Corp., moves legal services for the poor in a commercial direction, relying more on the private bar and free market considerations.

Throughout the Reagan years, the corporation ran pilot programs to determine how competitive considerations and the participation of the private bar would affect the delivery of legal services to the poor. From 1984 through 1988, the Legal Aid Society of Orange County and numerous attorneys in Orange County participated in such a program that may well have been the corporation’s most extensive experimental effort.

The corporation’s Orange County experiment compared the current Legal Aid system to the delivery of such services by an attorney or law firm under direct contract with the corporation and the issuance of vouchers, which clients could redeem for services through more than 50 attorneys participating in the voucher program.

The program was subsequently evaluated by James Meeker and John Dombrink of the UC Irvine department of social ecology. Their recent report does not support moving legal services away from the current Legal Aid-centered system. It concluded that such a change would be a “grave mistake” and specifically stated: “Major changes in the delivery methods, given our limited knowledge, could result in disruptions in legal services to the poor, and the creation of new problems with no evidence to suggest that access to justice for the poor would be enhanced.”

The report raised serious concerns. All attorneys under direct contract with the Legal Services Corp. found communication with the corporation extremely difficult and would refuse to again participate in such an experiment. In frustration, one contracting attorney sued the corporation and thereafter negotiated a $15,000 settlement.

The report questioned whether the corporation was capable of administering such direct contracts effectively.

The voucher component of the experiment was clearly the most costly experimental method of delivering services despite the relatively low fees paid to voucher attorneys. Its most troubling concern, however, was the perception of the voucher attorneys. Given their low fees, these attorneys viewed their work as pro bono. Such a perception, if widely shared by the bar, could change the nature of pro bono work from one of donated services to one of reduced-fee services. Following this rationale, the widespread implementation of voucher programs would result in significantly fewer legal services to the poor at an increase in cost to the government.

Although not justified by the research and outside their scope of authority, the Reagan holdovers at the corporation have moved full speed ahead with their competitive bid plans. In requesting congressional action to restrain the corporation, Sen. Warren B. Rudman (R-N.H.) referred to the group’s action as “a last gasp effort to wreck the program.”

Why is the corporation so determined in its efforts to impose a competitive bid system? The group’s real concern is with case selection, not efficiency. Under the current system, local programs determine their service priorities and use their limited advocacy dollars as they believe best meets the needs of their client communities. Staff attorneys of Legal Aid programs have made their enemies. For example: They have sued slumlords on behalf of their tenants, the Social Security Administration on behalf of widows, and white-collar criminals on behalf of their victims. Usually, Legal Aid attorneys win their cases.

When they win, a slumlord may be forced to repair his property, a widow may remain eligible for Social Security benefits, or a manufacturer of medical equipment for the disabled may be forced to discontinue its fraudulent business practices. Such lawsuits benefit the poor at the expense of business and the government.

While a typical caseload for a Legal Aid office consists mostly of individual matters, such as Social Security appeals and dissolutions, it also includes “impact cases,” such as those cited above. In general, these matters affect large groups of people and are the most cost-effective cases undertaken by Legal Aid.

A competitive bid system that works by contracting for blocks of cases such as bankruptcies, dissolutions, and Social Security appeals, leaves no room for impact work. Under such a system, a powerful legal weapon that protects the poor would be eliminated.

In proposing a competitive bid system, the Legal Services Corp. proposes to eliminate or severely restrict impact work. In other words, the corporation proposes to eliminate local discretion in cases selection and effective legal representation of the poor.

If there is a research question here, it is not which system of legal services is most cost-efficient. It is: Will there be any serious resistance to the evisceration of legal services to the poor?