1964: Congress passes the Economic Opportunity Act
In 1964, Congress passed the Economic Opportunity Act, the beginning of President Johnson’s War on Poverty (Economic Opportunity Act of 1964, Pub. L. No. 88-452, 78 Stat. 508). The Act established the Office of Economic Opportunity (OEO), which administered the Administration’s anti-poverty programs. For the first time, Congress made federal money available for legal services for the poor.
In order to establish a federal financing niche as part of the War on Poverty, several critical sources of support needed to emerge and coalesce: a commitment from the OEO leadership to include legal services in the services OEO would fund; support for legal services from the organized bar at the national level; encouragement for legal services programs at the local level; and implicit Presidential and Congressional support.
In late 1964 and early 1965, those elements of crucial support began to converge. Jean and Edgar Cahn convinced Sargent Shriver, the first director of OEO, to include legal services in the package of activities that could be funded by the agency, since legal services was not mentioned in the original Act. In 1966, civil legal services was added to the Economic Opportunity Act Amendments of 1966 and was made a special emphasis program in the Economic Opportunity Act Amendments of 1967.
Nevertheless, the Economic Opportunity Act was premised on the idea that community action agencies (CAAs), the local planning bodies, would decide how to address poverty problems in the individual communities. Thus, a CAA could choose not to include legal services in its overall community anti-poverty strategy. And, in practice, few CAAs opted to provide legal services, in part, because legal services programs often took positions on behalf of clients that were inconsistent with CAA positions on local issues.
ABA: legal services program should be free from lay control
Therefore, in adopting the Cahns’ recommendation, Sargent Shriver also agreed to earmark funds for legal services, irrespective of local CAA plans. This earmarking was, to a certain degree, a condition of ABA support. The organized bar took the position that the legal services program should be free from lay control locally, regionally, and nationally. This meant that a CAA’s lay leadership could not control the local legal services program, and non-lawyer bureaucrats within OEO could not control legal services at the regional and national level.
Support from the ABA was critical to the success of the federal legal services program, and it was achieved with much less difficulty than most thought was possible. Under the progressive leadership of ABA President (and later Supreme Court Associate Justice) Lewis Powell, F. William McCalpin (then Chairman of the ABA Standing Committee on Lawyer Referral and later to become Chairman of the Board of Directors of the Legal Services Corporation and one of its longest serving members), and John Cummiskey (Chair of the Standing Committee on Legal Aid), the ABA House of Delegates in 1965 passed a resolution endorsing the OEO legal services program. Although the resolution was adopted without a dissenting vote, the ABA conditioned its support on the organized bar having a policy role in formulating and overseeing the legal services program and the understanding that traditional legal ethics were to be considered as an integral part of the program’s operations.
A key to ensuring the influence of the organized bar was the agreement by Shriver to create a National Advisory Committee, which included leaders of the bar, along with client representatives and others knowledgeable about civil legal assistance. The National Advisory Committee included a number of people who were to play critical roles in the future of the federal legal services program, including John Robb, a private attorney in Albuquerque, New Mexico; Bill McCalpin; Gary Bellow, an attorney at California Rural Legal Assistance and later a professor at Harvard Law School; Jerry Shestack, future President of the ABA; and Jean Cahn.
OEO’s E. Clinton Bamberger and Earl Johnson write Legal Services Guidelines
Having secured the endorsement of the ABA, OEO faced the critical and much more difficult task of generating the local programs that would actually deliver the services to low-income clients. While the designs for the individual programs would be developed locally and set out in funding proposals submitted by entities that were organized in local service areas, OEO had the responsibility to provide potential grantees with guidance regarding the kinds of programs that it would fund and to decide whether the proposals should be modeled after traditional legal aid societies or the foundation-funded experiments. The overall design for the program was fleshed out by E. Clinton Bamberger, the first director of OEO Legal Services and his deputy (and later the second director) Earl Johnson. Bamberger came to OEO from private practice with the strong endorsement of the ABA leadership but with little experience in legal aid for the poor. Johnson had been the deputy director of the Washington, D.C. foundation-funded legal services program but had never worked in a traditional legal aid office.
In developing the overall design for the OEO legal services program, Bamberger and Johnson worked with the National Advisory Committee. This group produced the OEO Legal Services Guidelines, which were supplemented by the OEO staff’s How to Apply for a Legal Services Program. The Guidelines took the middle ground on most of the controversial design issues. However, consistent with the statutory requirement that the poor be afforded “maximum feasible participation” in the operation of OEO programs, the Guidelines required representation of poor people on the boards of local legal services programs and encouraged the formation of client advisory councils. This provision turned out to be perhaps the most controversial section of the Guidelines and required constant oversight by OEO to ensure its implementation. The Guidelines did not set national financial eligibility standards but did permit poor people’s organizations to be eligible for representation. The Guidelines prohibited legal services programs from taking fee-generating cases but required local programs to provide service in all areas of the law except criminal defense and to advocate for reforms in statutes, regulations, and administrative practices. They identified preventive law and client education activities as essential components of local programs. The Guidelines required program services to be accessible to the poor, primarily through offices in their neighborhoods with convenient hours.
OEO funds nonprofit staff attorneys and develops legal services infrastructure
Unlike the legal aid systems that existed in other countries, which generally used private attorneys who were paid on a fee-for-service basis, OEO’s plan for the legal services program in the United States utilized staff attorneys working for private, nonprofit entities. 2 OEO’s grantees were to be full-service legal assistance providers, each serving a specific geographic area, with the obligation to ensure access to the legal system for all clients and client groups. The only specific national earmarking of funds was for services to Native Americans and migrant farmworkers. Programs serving those groups were administered by separate divisions within OEO and had separate delivery systems. The presumption was that legal services providers would be refunded each year unless they substantially failed to provide acceptable service or to abide by the requirements of the OEO Act.
In addition to local service providers, OEO also developed a unique legal services infrastructure. OEO funded a system of national and state support centers, training programs, and a national clearinghouse for research and information. This system would provide the legal services community with leadership and support on substantive poverty law issues and undertake litigation and representation before state and federal legislative and administrative bodies on issues of national and statewide importance.
Most of the initial proposals submitted to OEO for legal services funding came from areas with existing legal aid societies and progressive local bar associations. These proposals covered many of the urban areas of the Northeast, Midwest, and the West Coast, but few proposals came from the South and Southwest. It would take many years and much turmoil and change before a federally funded legal services program provided poor people throughout the country with access to the legal system.