As we celebrate that we have an Access to Justice Initiative at DOJ, we should remember that almost 50 years ago the access vision was articulated by two US Attorneys General – and that it was a comprehensive vision remarkably similar to the one we are pursing today.
As a profession we have conveniently – perhaps lazily – abdicated responsibility for dealing with major social problems to other professions – sociologists, educators, community organizers, social workers, psychologists.
Rarely if ever do the best lawyers and the best law firms work with the problems that beset the most deprived segments of our society. With some outstanding exceptions, that work is done – if it is done at all – by the members of the bar who have least prestige, who are likely to be poorly trained, and who are likely themselves to be engaged in a struggle for economic survival. . . .
But we as a profession have backed away from that larger [poor peoples’] helplessness. We have secured the acquittal of an indigent person – but only to abandon him to eviction notices, wage attachments, repossessions of goods and termination of welfare benefits.
To the poor man, “legal” has become a synonym for technicalities and obstruction, not for what is to be respected. . . .
First we have to make law less complex and more workable. . . . Second we have to begin asserting rights which the poor have always had in theory. . . . Third, we need to practice preventive law on behalf of the poor. . . . Fourth, we need to develop new kinds of legal rights in situations that are not now perceived as involving legal issues.
And, on November 12, 1964 (just after the landslide election), Nickolas Katzenbach, by then Acting Attorney General, spoke at the Conference on Extension of Legal services, as follows, after describing typical legal problems of the poor that we would recognize today:
There must be new techniques, new services and new forms of inter-professional cooperation to match our new interest. . . . There are signs too that a new breed for lawyers is emerging, dedicated to using law as an instrument of orderly and constructive social change. . . . Experimental internship programs like those run by Georgetown Law School are beginning to infuse academic training with experience drawn from the reality of life, rather than from the disembodied “facts” of appellate decisions. . . .
One of the threshold problems in this new era is simply to make rights known. . . . Second, even if rights are known, they can protect and provide little if they are entangled in a maze of technicality, detail, and subsections. Faced with such complexity, even the informed poor, are given the choice of walking through life with a lawyer at their side, or surrendering to the “can’t fight city call” philosophy. Third, the protection of the rights of the poor depends upon advocacy . . . . And fourth, we must generate an understanding that law alone is no answer. If we thought that courts were the place to resolve every dispute, we should be devoting our attention not to providing legal services to the poor, but to immediately finding thousands of judges for our courts. . . .
It does not take a lawyer to right every wrong. . . . As an example, let me recall the example of a woman on the West Coast with seven children, supported by welfare. A fire destroyed the roof of their house. The woman was too poor to move or repair the damage. The response of the welfare agency was to cut off her welfare payments. She was living, they said, in unsuitable housing. It does not take a lawyer to respond to this situation, and it did not. A young woman who heard about this case took it upon herself to become an advocate – to go to the welfare authorities and indignantly ask what was the legal authority for the suspension of welfare. The check was issued immediately. . . . We need more people like the woman we just described. We need what is in effect a new profession – a profession for advocates for the poor, made up of people from all professions, committed to helping those who are in trouble. That job is too big — and I would add too important – to be left only to lawyers.
It is all there – simplification, roles for non-lawyers, law for social change, pro bono.
Without the leadership expressed in those speeches the legal services movement might never have gotten going. And it is wonderful that the same commitment is expressed by the Attorney General and indeed the Vice President.
And its surely now therefore overdue for us to get more such leadership day-to-day – let’s please have DOJ get a new head for the Access Initiative.