The Return of Unequal Justice?

By Anastasia Toufexis

Hard times and the White House squeeze poverty lawyers

In a series of landmark cases that began with Gideon vs. Wainwright (1963), the Supreme Court ruled that any criminal facing a possible jail sentence was entitled to have an attorney. At the same time, Lyndon Johnson's Great Society Administration began to provide millions of dollars to set up local legal services programs to handle such civil court problems of the poor as evictions, consumer complaints and fights with bureaucracies. Over the next decade and a half, the increasing commitment of Government to provide lawyers for the poor led some to note with acerbic exaggeration that only the very rich could afford legal representation that was as good.

No one would want to make that claim today. Clinton Lyons, the outgoing acting president of the federally funded Legal Services Corporation, ruefully concludes: "Perhaps we went too far in the '70s. Now it seems that we're going to the other extreme and just saying, 'To hell with it.' "

Ever since he assumed office, President Reagan has been trying to abolish the Legal Services Corporation, which provides 85% of the money that supports local legal aid offices. Congress has so far managed to save the LSC, but did allow a 25% cut in its current budget, reducing it to $241 million. Reagan, who believes the LSC is misused by ultraliberal lawyers, has undercut its effectiveness by appointing an interim eleven-member board of directors, most of whom are basically opposed to what the corporation does. Last week the board signaled its intent to withhold funds from local groups that it deemed too "activist," and next year it is likely to attempt to block legal services lawyers from filing class-action suits. Joseph Rauh, longtime civil rights lawyer, calls Reagan's appointments "the most disgusting fox-in-the-chicken-coop maneuver I've ever seen."

Fighting back with its own maneuver last week, a House subcommittee disclosed that Indianapolis Lawyer Donald Bogard, the new president of the LSC, has a contract that provides such perks as paid membership in a private club and a guarantee of a full year's salary ($57,500) if he is fired. The committee also revealed that the Reagan board appointees have charged $244,097 in consulting fees and expenses this year, more than double the bill of any previous board. The White House has asked the Office of Management and Budget to check whether the consulting fees represent "extravagance" or "an increase in the work load."

The financial arrangements of the board will hardly cheer the poor or the shrinking number of underpaid, overburdened lawyers who represent them. The Georgia branch of the LSC has lost 100 of its 300 staff members. Offices in some towns have been closed; others are served only by circuit-riding lawyers. Community Legal Services of Philadelphia has decided that in order to stay afloat, it must jettison eviction cases, small-claims actions, child support and custody cases, contested divorces and many spouse-abuse complaints. The office still represents many clients appealing disqualifications from the Social Security disability program and wins back benefits for two-thirds of them.

In criminal cases, state and local governments have been picking up the tab for defense lawyers, but the money is drying up. Boston last year simply ran out of funds to pay court-appointed counsel. So did Cole County, Mo. In St. Louis in 1983, 22 attorneys are expected to handle 12,000 cases on a budget of $695,000. The city's prosecutor, by contrast, has 45 attorneys and $2.4 million. In New York City, Legal Aid Society lawyers, who handle 70% of all criminal cases in the city, are on strike, in part because they believe superiors fired one attorney for refusing to add cases to his heavy client list. Says Gary Sloman, one of the striking Legal Aid lawyers: "We're being spread thinner and thinner."

In some financially strapped states and counties, the old public defender programs have been replaced outright by so-called contract systems, under which low-bidding private lawyers sign on to defend indigents. The result: more plea bargaining, fewer pretrial motions and less investigative work. In rural Alabama, poor defendants routinely get no lawyer at all in misdemeanor cases. Confesses one judge in Tuskegee, Ala., who is among those who do not appoint counsel: "I'm afraid I'm in violation of the law."

First-class poverty law programs still exist--in Portland, Ore., in Minneapolis, in Palm Beach County, Fla.--but they all enjoy sturdy funding from local government. Many of the more embattled programs are trying new techniques to hold the line. The Atlanta Legal Aid Society has new 45-min. instructional videotapes for its clients. Explains Director Steven Gottlieb: "We show them how to handle dispossession, how to negotiate with landlords, how to do things for themselves in court if they have to." Leaders of the Florida bar are trying to make it mandatory for members to give 25 hours of service a year or $500 in donations to help support representation of the poor.

With the endorsement of large law firms and bar associations, volunteer projects are already operating nationwide to fill in for reduced full-time poverty law staffs. In Boston, 10% of the city's 7,500 lawyers have pledged to take up to five cases a year on a pro bono basis. But even participants note that such efforts do not replace legal services programs.

No one expects the White House attitude, or that of the most committed poverty lawyers, to change soon. Compromise seems impossible. One side will not accept the view that the Federal Government should actively promote the equality of all before the law. The other side cannot concede the need for retrenchment in the face of finite resources. The poor, caring little for the larger debate, may have to get along with less legal support than was once available, but they have the right to know what the new reality is, whether the lawyer who is helping them today will be there tomorrow. --ByAnastasia Toufexis. Reported by Janice C. Simpson/New York and Evan Thomas/Washington

With reporting by Janice C. Simpson/New York, Evan Thomas/Washington

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