Private attorney involvement

1976 and 1980: LSC conducts the Delivery System Study

The LSC-funded legal services program has always been a primarily staff attorney system. Beginning in the early 1980s, the ABA and LSC made a significant effort to involve private attorneys in the delivery of civil legal services. The organized bar was generally supportive of LSC. But certain segments of the legal profession remained unfamiliar with legal services practice, felt threatened by legal services advocacy, and were sometimes hostile to LSC’s mission. Many of these lawyers had urged Congress when it was considering the passage of the LSC Act to require LSC to provide funding for private attorneys through judicare programs and other mechanisms that would compensate private attorneys for providing legal assistance to eligible clients.

In response to those urgings, Congress included in the original LSC Act a provision that required LSC to conduct a study of alternatives to the staff attorney system to determine whether private attorneys could provide high-quality, economical, and effective legal services to eligible low-income clients.

The Delivery System Study, which LSC conducted between 1976 and 1980, found that none of the alternative delivery models tested performed better than the staff attorney model. The study also found that independent judicare programs that included staffed components, contracts with law firms, and organized pro bono programs met all of the feasibility and performance criteria to be judged viable for the delivery of publicly funded legal assistance to the poor. LSC initially responded to the study by proposing a policy to encourage, but not require, private attorney involvement (PAI), particularly through probono programs. However, the ABA, which was then leading an unprecedented effort to prevent the Reagan Administration from eliminating LSC and funding legal services through social services block grants, adopted a resolution at its 1980 annual meeting urging Congress to amend the LSC Act “to mandate the opportunity for substantial involvement of private lawyers in providing legal services to the poor.” In a 1981 LSC reauthorization bill, the House of Representatives incorporated the ABA position, but the legislation was never taken up by the Senate.

1981: LSC requires LSC programs to reserve funds for private attorney involvement

Before Congress could act, the LSC staff and Board responded with a 1981 instruction directing its grantees to use a substantial amount of their funds to provide opportunities for the involvement of private attorneys in the delivery of legal assistance to eligible clients. LSC later clarified this instruction to mandate programs to use an amount equivalent to 10 percent of their LSC funds for PAI activities. In 1984, LSC adopted a formal regulation that raised the required PAI allocation to an amount equal to 12.5 percent of a program’s LSC grant. Most PAI activities went to increase pro bono efforts, although many programs used judicare, contracts, or other compensated arrangements as components of their PAI efforts.

Private attorneys began co-counseling with legal services attorneys on large cases and accepting individual client referrals from legal services programs. By exposing private attorneys first-hand to the realities of legal services practice and by creating partnerships between private attorneys and legal services advocates, hostility to LSC and its programs diminished substantially.

Private lawyers across the country have, along with the ABA and state and local bar associations, become staunch allies of LSC and its local legal services programs. Today, approximately 150,000 private attorneys participate in pro bono programs across the United States.