1 Being the target of Johnson's criticism raises the possibility that this review is written out of personal pique. There is not much more I can do than ask the reader to accept my statement that this is not the case. The real reason for this review is the desire to present information and thoughts on the issues concerning legal services to the poor that in my view are closer to reality than Johnson's.Google Scholar

2 Common sense, for example, might lead one to question the operational utility of the “juridical right/welfare right” dichotomy, the basic orgainizing principle of Gordley's contribution. It may be academically or historically interesting to engage in making such distinctions, but in terms of the actual problems, performance, and even the philosophies (on the part of those involved) of legal aid to the poor in the modern world, it is at best inconsequential. See pp. 222 and 249 infra for Johnson's treatment of this dichotomy.Google Scholar

3 My main focus will be on the first 40 or so pages of the Johnson piece, because that is where most of the specific and factual material is presented. There is less room and need for meaningful reaction to the later, more abstract portions.Google Scholar

4 That this concern is by no means unfounded can be seen in a recent review of Johnson's book by Junius Allison published in the A.B.A. Journal. Mr. Allison confesses his belief that Johnson's “costs analysis and comparison of the staff attorney arrangement with compensated private counsel plans provide new data and cogent arguments for the neighborhood law office mechanism for delivering legal services.” 62 A.B.A.J. 850, 852 (1976). See also a recent piece by Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681 (1976). That article reflects very much the same view that Johnson has relative to the development and merits of legal services programs. Many unsubstantiated Johnson assertions are unquestioningly cited and much of the same secondhand data and theory is religiously reiterated. The article's first footnote is to Toward Equal Justice, and thereafter citations to it and to Johnson's other book, Justice and Reform: The Formulative Years of the OEO Legal Services Program (New York: Russell Sage Foundation, 1974), appear no less than 42 times. Mr. George, the author of the article, is the Legal Assistant to the Chairman of the Board of Directors of the new and “depoliticized” (61 Cornell L. Rev. 734) Legal Services Corporation.Google Scholar

5 The other major sections dividing the Johnson treatment are “The Scope of Assistance,”“The Decision-Making Process Within Legal Aid,” and “The Prospect of Future Themes.”Google Scholar

6 “Economic considerations” are subheaded “Disparity in hourly cost,”“Comparative expertise,”“The availability of efficient management techniques,”“Capacity to perform ‘high-benefit' functions,” and “Factors influencing the comparative cost effectiveness of legal aid delivery systems.” Conceptually, this is an unsatisfactory way of setting out the discussion; it reveals both the confusion and the selectivity of the thinking. Why focus on “hourly cost”? What is the relevance of “expertise” to economics? Which way does it cut “economically”? The more expert, the cheaper the service, or vice-versa? Doesn't discussion of “efficient management techniques” presume the answer to the economic queries? And how far is the efficiency emphasis carried–to where efficient service means inadequate service? Can Johnson's “high-benefit functions” really be shown to be beneficial in an economic sense or must they be evaluated on some other level? What is left out, and why, under the previous headings that appears or reappears under the strangely general “Factors influencing comparative cost effectiveness”? Reading the material provides few intelligible answers to these questions. Also, the organization leads to considerable repetition and disconcerting shifts from the abstract and general to the specific (if secondhand) and back again, making the argument difficult to follow as well as to review but doing little to help convince.Google Scholar

7 The studies cited with greatest frequency are Leonard H. Goodman & Jacques Feuillan, Alternative Approaches to the Provision of Legal Services for the Rural Poor: Judicare and the Decentralized Staff Program (Washington, D.C.: Bureau of Social Science Research, Inc., 1972); and Howard L. Greenberger & George F. Cole, Final Report: Connecticut State Welfare Department Legal Services Demonstration (1115), Project No. 11-P-57067/1-03, Meriden, Connecticut (New York: Institute of Judicial Administration, 1972). The Goodman-Feuillan study compared Wisconsin Judicare with Upper Michigan, Maine, and Colorado Rural staff programs. The experiment–an internal comparison-studied by Greenberger-Cole was in small–town (Meriden) Connecticut.Google Scholar

8 This figure does not even include $62,500 worth of consultant, miscellaneous, and in-kind services that appear as part of the Upper Michigan program budget. Nor does it include more remote prorated national costs of administration, research backup, and the like (very significant expenditures)-which would probably be heavier against staff programs than against Judicare.Google Scholar

9 E.g., Greenberger & Cole, supra note 7, at VIII-8 and citations in n.3, use a 70 percent of 2,124 = 1,487 hour average work-year formula.Google Scholar

10 E.g., funding comparison among the following four programs is appropriate to the extent that Johnson (by way of Goodman & Feuillan, supra note 7) relies on it for so many other comparisons:Google Scholar

11 One might add parenthetically that the prospect of further lowering staff attorney salaries–the only way in which staff programs can effect savings relative to Judicare–is not feasible. Ultimately one reaches the point where staff programs will no longer be able to compete against the private bar, no matter what the philosophical dedication, the youthfulness, or the social motivation of the potential recruits. The staff programs will simply not be able to attract the bodies, let alone keep them for any length of time. Already this is a problem of considerable practical dimension, and has been since the federal staff program effort began. Failure to keep Judicare fees reasonably competitive will by the same token also have its ultimate negative consequences for Judicare programs. On balance, however, it has always seemed to me that a system that seeks to recruit good quality lawyers for the purpose of doing 5-10 percent of their work at marginal reimbursement rates (i.e., Judicare) is a more tenable proposition than one that seeks to recruit full-time lawyers at marginal salaries.Google Scholar

12 The Auerbach report, on which Johnson relies heavily for other ideas, describes staff office facilities as running “the gamut from plush, carpeted suites to stark storefronts” (Johnson, Toward Equal Justice, at 500). To get a notion of the variety in private law offices, Johnson would do well to visit some lawyers in northern Wisconsin, or, for that matter, in Chicago, New York, Los Angeles, etc., who are not in the skyscraper office suites.Google Scholar

13 See specifically Samuel J. Brakel, The Trouble with Judicare Evaluations, 58 A.B.A.J. 704 (1972). That critique, along with additional questions, is reiterated in the main report of the study, Brakel, Judicare: Public Funds, Private Lawyers, and Poor People (Chicago: American Bar Foundation, 1974).Google Scholar

14 Johnson cites my final report, Judicare: Public Funds (supra note 13) early on (his n.14) as authority for a point about the effect of low Judicare fees on lawyer participation in the program. Later (nn.66, 67, & 69) Johnson uses the spin-off article, Brakel, Free Legal Services for the Poor-Staffed Office versus Judicare: The Client's Evaluation, 1973 Wis. L. Rev. 532, to question the findings presented there and those of the study in general. The Wisconsin Law Review article, with a few changes and additions, appears as ch. 7 of the final report.Google Scholar

15 Greenberger & Cole, supra note 7.Google Scholar

16 Id., tables VIII-3 & VIII-7 at pp. VIII-4 & VIII-9, respectively.Google Scholar

17 Id. at 11-16 and various tables in ch. II.Google Scholar

18 See Brakel, Judicare: Public Funds, supra note 13, at 120-22. Included there is an overall budget comparison between the Judicare and staff components of the Meriden program ($82,748 and $137,023, respectively and significantly) that makes the claims about the comparative cost advantages of the staff component very hard to believe.Google Scholar

19 Goodman & Feuillan, supra note 7.Google Scholar

20 See note 13 supra. It must not be thought that Goodman & Feuillan never got an opportunity to respond to the critique. The contrary is true. Instead, however, they chose the unpublished memoranda route. Several of these-taking the form of critiques of my work–have appeared and have been circulated to officials and individuals in the field. The critiques are mostly methodological–generally beside the point in view of the nonquantitative nature of much of my work–making arguments along the lines of the possible margin of error in surveying small and nonrandom samples and other elementary dogma about the “scientific method.”Google Scholar

21 In addition, for staffed offices Goodman & Feuillan counted roughly two hours of nonprofessional (secretarial?) time spent per case on divorces. No such time was counted for Judicare. The same problems, though with somewhat less force, emerge from their bankruptcy comparisons. See Goodman & Feuillan, supra note 7, at 130-44.Google Scholar

22 1 Joseph F. Preloznik, Response to the Kettelle Summary 7-8 (Madison, Wis.: Wisconsin Judicare, 1971). Preloznik was director of Wisconsin Judicare.Google Scholar

23 Note, Voluntary Separation as Grounds for Divorce in Wisconsin, 1972 Wis. L. Rev. 1215.Google Scholar

24 See Brakel, Judicare: Public Funds, supra note 13, at 4548.Google Scholar

25 Of course all this simplistic speculation about people who are or are not motivated by money is not economic analysis in the first place, nor a tenable dichotomy in psychology or any other discipline. Nor is it common sense.Google Scholar

26 Brakel, Judicare: Public Funds, supra note 13, at 82-83 n.11.Google Scholar

27 I am not criticizing the Upper Michigan program for this but just pointing out the errors in the Johnson analysis. One of the unfortunate by-products of my own work in this field has been that it has resulted in the Upper Michigan program–an adequately run and worthwhile program-being branded as inferior by the defenders of the staff concept so as to offset the impact of the Wisconsin Judicare/Upper Michigan comparison. (See Johnson at 168 n.67.) Prior to this the Upper Michigan program had generally been identified as a good one, “a highly efficient operation,” according to no lesser authorities than Goodman & Feuillan themselves (supra note 7, at 51), who are cited by Johnson, miraculously enough, for the proposition that it is a “below-average program.”Google Scholar

28 The lack of unified planning and policy and other operational fragmentation has long been noted as one of the problems of staffed office programs–nationally as well as locally, among urban as well as rural programs. See p. 244 infra regarding evaluations of staff programs in Lower Michigan (including Detroit). “Disturbing lack of communications” is a typical assessment. Objective facts such as the high turnover rate among staff attorneys of course contribute to and demonstrate the same.Google Scholar

29 Brakel, Judicare: Public Funds, supra note 13, at 78-79.Google Scholar

30 Werner Z. Hirsch, Joel G. Hirsch, & Stephen Margolis, Regression Analysis of the Effects of Habitability Laws upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Calif. L. Rev. 1098 (1975).CrossRefGoogle Scholar

31 Id. at 1139.Google Scholar

32 See Johnson at 178 & nn.90, 91, & 92.Google Scholar

33 One can still find cases like Hawk v. Fenner, 396 F. Supp. 1 (D.S.D. 1975), litigating essentially the same questions that were presumably disposed of in Shapiro.Google Scholar

34 See his nn.45 & 88. By n.88 and corresponding text the “apparently”—i.e., the doubt about the assertion—found in n.45 has disappeared. Johnson's further contention that it is the backup center concept which, under OEO, has been primarily responsible for the major law reform activities also raises questions. What does this say about the relationship of “reform” to client needs? What is the backup concept's relation to the staff attorney as compared to the Judicare model? Have the costs of backup activities been properly accounted for in any of Johnson's computations?Google Scholar

35 I don't want to join the debate in Johnson's fashion, by countering, for example, that private lawyer efforts when properly researched and recognized have been equal to, or have far surpassed, the OEO lawyer efforts. Instead, I would simply call attention to a book like Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Alfred A. Knopf, 1976), just for the cast of characters and the range of contributions (including countless hours of freely donated or marginally paid time) involved in a major law reform effort. Among many other points, a reading of the book reveals the shortsightedness of what has been in effect the exclusion of the private bar—in particular, the minority practitioners—from anything more than a marginal role in the OEO legal services effort.Google Scholar

36 Greenberger & Cole, supra note 7, at VI-16.Google Scholar

37 All this is problematic enough when the subject is legal service in the U.S. When the author evaluates foreign experiences and talks disparagingly of the “fail [ure) “of the German and British bars to engage in “high-benefit” cases (pp. 157-58) or makes reference to “debatable allocational decisions” (p. 162) by the British Parliament and Law Society, it is worse. The judgments then become not only unsupported but also presumptuous and paternalistic to the extent that they are made about cultures and systems of which the evaluator knows little, and to the degree that the practices he finds so debatable or deficient are dictated in large part by the clients of these systems.Google Scholar

38 I deliberately stayed away from calculating percentages so as not to oversell the quantitative picture, and I emphasized that by explicit caveats throughout the book, especially at the outset of the presentation, as Johnson belatedly recognizes on p. 169 at the end of his n.67.Google Scholar

39 See Brakel, Judicare: Public Funds, supra note 13, at 102-10. Johnson tries to impeach the results to that question by calling it a “rather loaded, hypothetical question” (p. 168 n.66). He fails to note that the possibility of bias in the question is extensively treated in the report itself (Brakel, supra, at 102 n.8). He also does not recognize that the wording of the question as natural and proper from the point of view of the clients is supported by Greenberger & Cole, supra note 7 (e.g., at VI-23, referring to the same fact I mention—that clients tend to view private attorneys as “real” lawyers and staff attorneys as “government” lawyers).Google Scholar

40 At the same time, Johnson tries to make a great deal of the “highly subjective process which casts substantial doubt over the comparability of the reactions” (p. 168 n.67) with reference to the way my Judicare respondents were selected. In fact, clients were taken from lawyer and intake worker lists, from knocking on doors and other quite objective and random ways that, while perhaps not “scientific,” were certainly not subjective. He even feels compelled to cite unpublished memoranda by “knowedgeable social scientists” (see note 20 supra) about scientific sampling, even though my study extensively deals with its own sampling problems, acknowledging them–indeed, emphasizing them–to the point of avoiding involvement in the close comparisons of percentages that Johnson seems to favor.Google Scholar

41 Greenberger & Cole, supra note 7, at 11-6, VI-11.Google Scholar

42 Brakel, Judicare: Public Funds, supra note 13, at 58.Google Scholar

43 Greenberger & Cole, supra note 7, at II-6.Google Scholar

44 Id. at III-3.Google Scholar

45 Id. at II-10. Some other details reported in Greenberger-Cole, but omitted by Johnson, are: (a) fully 25 percent of the clients “choosing” the staff attorney component did so out of lack of any preference, whereas only 4.2 percent of the Judicare clients had such (lack of) motivation; (b) fully 70.3 percent of the Judicare clients picked Judicare because they knew the lawyer they wanted, against 9.6 percent for the staff clients choosing the staff component. Id. at II-19, table 11-11.Google Scholar

46 Id. at II-16.Google Scholar

47 Id. at V-17.Google Scholar

48 Id. at VII-5. Perhaps the reference to LSO here is only a slip. But the point is made solidly enough.Google Scholar

49 There is a report from an urban study that indicates very much the same thing about client preferences. A Philadelphia Bar Association survey in two lower-middle-class neighborhoods–one white-ethnic, the other predominantly black-resulted in the following:Google Scholar

The residents don't want “welfare-type” legal services because they carry a stigma of being an inferior product. (Many residents said they want law offices that are well furnished.) They don't want more neighborhood lawyers if all the lawyers are going to do is take money out of the neighborhood. They want lawyers to live there and commit themselves to community service within that neighborhood. Neighborhood people are very suspicious of outsiders and will be less inclined to confide in them. The residents don't want impersonal legal services; for example, they were disinclined toward a proposal that would allow them to talk about their legal problems over the telephone or in a mobile unit even though it would eliminate the inconvenience of a trip to center city.Google Scholar

In short, lower-middle-class persons, just as the wealthy, want quality legal services not only in reality but also in appearance.Google Scholar

Philip R. Goldsmith, Philadelphia Bar Surveys Delivery of Legal Services, 2 Alternatives: Legal Services & Pub., Feb. 1975, at 6. I find these results plausible, but I know nothing about the way the study was done and hence cannot vouch for their objective validity.Google Scholar

50 That this is true in urban as well as in the rural areas referred to in the text is at least suggested by preliminary findings from the ABA/ABF Survey of Legal Needs. As reported in 3 Alternatives: Legal Services & Pub., Special Issue, Jan. 1976, the source of referral to or information about lawyers is overwhelmingly personal, with 30.0 percent mentioning friends, 12.8 percent relatives, 3.9 percent another previously consulted lawyer or legal resource, 4.4 percent a personal observation or acquaintance situation (see id. at 10 and table on source of referral or information). The ABA study is a national study of a sample representative of the population at large. As such, it is a heavily urban sample and includes poor people at least in the percentage that they are found in the general population. I would be surprised to sec an analysis of just the urban poor respondents radically alter the picture to where “impersonal” sources outstrip the personal ones, or even come close to doing so. Among several impressionistic grounds I have for this assumption is my contact with urban (poor) prisoners in Illinois penitentiaries, who are anything but contactless or lacking in personal referral sources. Of course, prisoners, because of their contacts with the law, are quite likely to be more knowledgeable than other urban poor.Google Scholar

51 Brake', Judicare: Public Funds, supra note 13, at 110-12. It is difficult to believe that the clients are entitled to do better than this high win-settlement rate.Google Scholar

52 The fact that Johnson still holds on to these theories suggests some reasons that might, in a general way, account for the problems in his work. Johnson is an insider from the poverty war era. As such it is perhaps unfair to expect him to be able to assess the experience with either objectivity or a sense of overview. The involvement is too close to be abandoned; at the same time, it is too distant to be relevant still. Those are the detriments among the advantages of firsthand experience. Moreover, Johnson's experience is that of a top administrator, quite different in content and orientation from that of the practitioners in the field. But it is precisely the experience of the practitioners working for the clients and that of the clients themselves–not the view from the administration in Washington–that is most germane to the issues and most in need of being examined and communicated. Johnson did not, indeed could not, give us that.Google Scholar

53 Though I see no need to push the point here, I am personally persuaded that Judicare should be the primary feature of the effort to provide legal services to the poor, with the staff concept as a backup to plug the gaps and do the job in exceptional circumstances. In terms of future research, this means that the focus should be on the details of implementing this reversal in roles between the private and public legal sectors, rather than on an attempt to answer the ultimate question of which system is “better.” That, it seems to me, is not really a question answerable by research to begin with, but a matter of “logic” (the logic that the massive task of providing legal service to the poor must involve the primary resource-the private bar) or philosophy and inferences from more limited findings that research can produce.Google Scholar