April 2003

If You're So Smart, Why Aren't You Running Legal Services? A Challenge to Its Critics

by Lindsay Thompson, Bar News Editor

"Once the rockets are up, who cares where they come down?
That's not my department," says Wernher von Braun.
— Tom Lehrer, That Was the Year That Was (1965)

The debate over legal services to the poor, paid for by the public, never ends.

In fat times and lean, its opponents scheme and fume and struggle to cut legal-services funding, to hobble its lawyers with restrictions, to limit the kinds of cases they can take, to kill it off entirely.

That is, of course, their right. But it doesn't necessarily make them right.

"The poor" is a malleable term. We can define it to include and exclude. We have "deserving poor" in some people's calculations, just as we once had "innocent victims" of AIDS. The people we define out are those of whom we disapprove for whatever reason. In fact, all kinds of people can turn up in the ranks of the poor: the formerly married now raising families without the support of a spouse; people laid off from formerly well-paying jobs; people whose disabilities make it hard or impossible to hold jobs at all; immigrants doing jobs the majority population disdains; people who worked hard all their lives but find their retirement and savings insufficient to cover the cost of living in places like Seattle; people with catastrophic health problems and no insurance.

Because being "poor" has such disparate origins, it's easy to pick and choose who is a good poor person, or the other sort, who is more or less getting what they deserve, even as we grudgingly admit we have to do something about them just the same. I am surprised by how often we make judgments — thoughtless, ill-considered ones — about the poor as a basis for our views of policies on how to help them or whether to do so.

When I was a boy growing up in North Carolina, for example, it was commonplace for well-off white people to joke about the day each month you didn't want to be in line at the post office because that was when all the welfare checks came in the mail. You heard the "welfare queen" stories, and about people on food stamps in line at the grocery buying all kinds of "luxury" items with other people's hard-earned money.

This sort of anecdotal, mindless criticism feeds into a worldview that views the poor as inherently undeserving and dishonest. The trouble is it leads to arguments we are spending too much, or the wrong way, or that we should employ armies of officials to make the poor report and account and come to government offices to satisfy our sense that someone, somewhere, out there might be chiseling out a bit more than they are due.

So even as we require more — and more complicated — interactions with the law and government of poor people than the rest of the population, we give them fewer legal resources to help them navigate the mazes we create. Give a set of pattern dissolution forms to a person with a junior-high education and see what you get. Better yet, try filling out a set yourself. 

The Lord comes forward to argue his case,
Standing up to judge his people.
The Lord opens the indictment
Against the elders and officers of his people.
It is you who have ravaged the vineyard;
In your houses are the spoils taken from the poor.
Is it nothing to you that you crush my people
And grind the faces of the poor?
— Isaiah 3:13-15

Some critics, seeking a high road, attack legal-services lawyers as the corruptors of an otherwise noble effort to serve the poor. Bar News has run scores of such letters over the years, lawyers attacking their colleagues for providing the sort of zealous, creative lawyering to poor people everyone else expects more or less as a right. As luck would have it, we have one in this month's Letters, in which legal-services lawyers are blamed for litigating "their own ideology, not their clients'," bringing cases that "tend to dilute the democratic character of government," and questioning whether legal-services lawyers "counsel their clients on the possible negative impact of receiving government largesse."

The writer has, of course, every right to argue such point in this magazine. And I have a right to say, "Bull."

To prevent these radicals from upsetting Life As We Know It, Congress — driven by critics of legal services — has mandated that legal-services lawyers cannot use federal funds to do anything in immigration law; cannot bring class-action suits; cannot seek welfare reform (an odd one that, given how many politicians of both parties have been up on their hind legs about changing welfare as we know it; it seems like they'd want help changing it for the better — but I digress). Legal-services lawyers cannot do anything about predatory lending, either. There are a variety of other such restrictions, and legislators, state and federal, never cease toiling to add to the prohibitions.

Given so many restrictions and outright bans on legal action, not to mention how few legal-services lawyers there are — in Washington and the nation — it almost beggars the imagination to figure out what radical ideas are left to go and abuse the legal system with.

Legal-services critics are clever people, but the radical-agenda thing seems to have stumped them. If all there is to solving this problem is having more conservative legal-aid lawyers pursuing a more correct agenda for the poor, it shouldn't be that hard to set up a fellowship plan or something to encourage cadres of conservative lawyers to apply for work as legal-services attorneys. Conservatives have newspapers and magazines and TV networks and radio shows and even a law school or two; fixing the problem they've bemoaned for so long should be light lifting indeed — unless the radical-lawyers argument is just a stalking horse for the real issue. 

There have been many great men that have flattered the people who never loved them.
— Shakespeare, Coriolanus (1608)           

In December 2002 the Supreme Court of Washington found itself in an unusual sport: appearing as a party to a lawsuit before the U.S. Supreme Court.

The Washington Legal Foundation (from the other Washington) sued the Legal Foundation of Washington (from here) over its collection and distribution of interest on lawyer and real estate closing-officer trust accounts to fund legal services for the poor in Washington. According to its Web site, the WLF has battled funding legal services to the poor for over a decade.

In some cases, the WLF argues applying IOLTA funds to legal services violates the Fifth Amendment takings clause, even though Harvard law professor Charles Fried, who argued the WLF's case to the Supreme Court, conceded that the same money deposited in individual accounts would have earned no net interest at all. According to one press account, Mr. Fried told the court: "It is a taking even if the just compensation is zero."

In other cases, the WLF has argued IOLTA violates the First Amendment by compelling people to support causes they don't want to support. A WLF fundraising letter quoted in The New York Times said the WLF's goal is "to deal a death blow to the single most important source of income for radical legal groups across the country.… It's an abomination that IOLTA can take money that is rightly the property of Americans like you and me and use that money to support programs we oppose, that stand in direct opposition to everything we believe in."

Liberty and justice for all, exit stage right.

I went to the WLF Web site and spent a long time reading. Their lawyer, Mr. Fried, told the Supreme Court the only thing for IOLTA to do is shut down. That led me to wonder — "…and replace it with what?" The WLF has really smart and important people like former Attorney General Richard Thornburgh on its board. If they think the system is so bad as to dun their members for a decade's worth of litigation to try and kill it, where's their solution?

The answer seems pretty clear. A more acceptable successor to IOLTA and legal services in its present form is: "nothing."

How much money are we talking about, anyway? The proposed 2003-05 state budget is over $22 billion. Federal funds for legal services in Washington come to about $5 million a year. State funding for 2002 was $4.8 million. IOLTA produces $6.2 million. LAW Fund (direct contributions by lawyers) contributes another $150,000 or so per year. The money involved is so tiny in the scope of the state budget, you wonder why there is such a fuss over it with such a big budget hole to patch. Yet for years, critics have devoted much of their time and energy not to coming up with other funding sources. They just seem to want to eliminate the program entirely. Increasingly the money argument looks like another stalking horse for the real issue.

Anyone who has ever struggled with poverty knows how expensive it is to be poor.
— James Baldwin, Nobody Knows My Name (1961)

Thus we reach the basic issue. If IOLTA is so bad, if legal-services lawyers are so radical (presumably, according to our letter writer this issue, in contrast to their conservative, right-thinking poor clients), what should it be replaced with? Why is so much time and energy devoted to efforts to choke off funding sources and reduce the kinds of cases legal-services lawyers can handle?

First, an aside, as I am sure a number are already reaching for pen, phone or keyboard to shoot the messenger, denouncing me as a radical, a socialist, a tax-and-spend liberal.

 Anyone who tells you I'm not a conservative doesn't know me. I've been a registered Republican since I was old enough to vote.

That said, being a conservative doesn't — in most cases — mean you've checked your brains at the door. John McKay is as thoughtful and committed a Republican as I know, but when legal-services funding in Washington faced attack some years ago, he didn't hesitate to take a lead in assembling a coalition of law and community groups to broaden the base of support for renewed funding.

So effective were John's efforts that he was recruited to the presidency of the federal Legal Services Corporation, where he served with distinction for four years. Now U.S attorney for western Washington, John continues to support legal services. He makes me, and should make us all, proud to call ourselves lawyers.

I mention this because the debate about legal services all too often turns into a set-piece exchange of ideological bromides reduced to even less substantial soundbites. "If you think this, you must be that."

The advantage to such an approach is that you don't have to talk, or think, much about the real, underlying issue of what to do about a legal system that is failing to meet the needs of the poor. Surrogate arguments — takings, free speech, abominations and radical lawyers — these fuel endless sidebar debates while the problem goes unresolved. If anything, it gets worse as we fiddle. Washington's economy is hurting. Our state unemployment rate is among the nation's highest; in Ferry County it's over 15 percent. A lot of our neighbors need legal help. In March The Wenatchee World reported: "There will soon be only five legal services attorneys based in Wenatchee to serve a vast area of North Central Washington. There are an estimated 40,000 poverty-level residents in Chelan and Douglas counties alone." Carping about liberal ideologues may be fun, but it doesn't do anything to fix that kind of problem.

But there is one way in this country in which all men are created equal — there is one institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States, or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, but in this country our courts are the great levelers, and in our country all men are created equal.
— Harper Lee, To Kill a Mockingbird (1960) 

Who are our heroes as lawyers? The ones who take on the unpopular cause or client, who go the distance for principle regardless of personal cost. The WSBA honors them with an award for courage.

I've often heard it said every lawyer would like to be Atticus Finch, and not just because Gregory Peck looked so distinguished in that white suit. We admire him for being a small-town white lawyer willing to put his reputation and privilege at hazard to defend a poor African-American accused of awful crimes.

Yet the lawyers who do that sort of thing in real life — not the book or the movie — are all too few. As a profession we seem to be content to be the least we can be, snarling and complaining about yet another exhortation to do more pro bono or another boring article like this one from another Seattle lawyer obviously oblivious to the realities of practice in other parts of Washington. It's easy to call bad business decisions leading to write-offs pro bono, or worthwhile but undemanding civic work.

I don't understand such views. We get special privileges as lawyers. We can engage the power of the state to sue people, to force them to go places and disclose information as we want. But because most of us operate in a market-driven private sector, increasing numbers of people who aren't poor, not to mention all those who are, can't afford us. If we can't do the work, who can? Who will? Should we farm it out to paralegals? Should we look the other way as marginally qualified nonlawyers pick up the slack? To the extent that last idea has been floated around the Bar, members have pretty consistently complained it would take work away from them. But what about all the people who can't afford them in the first place?

 As Chief Justice Alexander said in his address to the Legislature in January, "It seems to me in America, where we rejoice in the fact that we are a nation devoted to the rule of law, we should not ration access to justice." I guess that makes him another radical lefty.

Private initiative, local control, increased charity — these are all hallmarks of conservatism. But I don't see a lot of legal services' critics doing much but criticize.

When I listen to the attacks on legal-services programs, and listen for the critics' solutions — for the alternative that will suit their principles better — I can only reach the conclusion that there are a lot of lawyers who just don't believe the poor are entitled to any more help than they can scratch up from a local volunteer attorney.

I have written this essay, as one of my college professors says good advocacy should, to provoke and irritate. I want to take a hammer to the box this debate has been stuck in for so long. So, to the critics of legal services in our association, a challenge:

Come up with a solution.

You can approach it either of two ways: 1) Write Bar News — by letter or article — and explain why you believe ignoring the legal needs of the poor is consistent with your oath of attorney: if the current system is so bad, here's an alternative that meets all the conservative objections; or 2) surprise us; come up with your own approach.

I'm not a betting man, but if I were I'd lay a wager here that what we'll get is a lot of shoot-the-messenger letters and little else.

Want to prove me wrong?   

Lindsay Thompson practices law in Seattle. His views, here and everywhere, are his own.