1. Samuel Jan Brakel, Styles of Delivery of Legal Services to the Poor: A Review Article, 1977 A.B.F. Res. J. 219 (1977), reviewing Mauro Cappelletti, James Gordley, & Earl Johnson, Jr., Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (Dobbs Ferry, N.Y.: Oceana Publications, 1975).Google Scholar

2. Earl Johnson, Jr., Justice and Reform: The Formative Years of the OEO Legal Services Program (New York: Russell Sage Foundation, 1974); revised edition: Justice and Reform: The Formative Years of the American Legal Services Program (Rutgers: Transaction Books, 1977).Google Scholar

3. Id. at 239-41.Google Scholar

4. Toward Equal Justice 172; at a later point in this same book I suggested that this seemed a logical future direction for legal services delivery in many countries.Google Scholar

After almost a decade of debate between adherents of the two primary delivery systems, compensated private counsel and salaried staff attorneys, 1972 introduced the synthesis. Sweden and the Province of Quebec, Canada. have instituted programs that offer clients the choice between representation by staff attorneys or private lawyers.Google Scholar

Id. at 233.Google Scholar

5. Johnson, supra note 2, at 241:Google Scholar

Whatever the additional cost involved in incorporating private counsel into the delivery system, it makes sense politically. It is very probable that the added appropriations that the proponents of Judicare could generate through their political strength would exceed the increased expenses of delivering some part of the legal assistance by this method. Accordingly, from the perspective of poor people, it appears likely they can expect more legal help if there is some participation of private attorneys even though the taxpayer ends up paying more than he would under a pure staff attorney system.Google Scholar

6. Toward Equal Justice at 235-36:Google Scholar

[T]he Canadian and Swedish systems both embody a new theme that transcends the right to a lawyer. That new theme is the right of choice. And not merely a choice among private practitioners,. but a true option–to select the salaried lawyer when his expertise and commitment seem better suited to the task or to choose a private lawyer when his background and independence instill more confidence in the outcome.Google Scholar

See also id. at 169-72.Google Scholar

7. Earl Johnson, Jr., Discussion of Ten Years of Legal Services, in R. H. Haveman, ed., A Decade of Federal Antipoverty Programs: Achievements, Failures, and Lessons 315, 322-23 (New York: Academic Press, 1977).Google Scholar

8. The Legal Services Corporation budget for fiscal year 1978 will be less than $1.00 per capita. By fiscal year 1977, Sweden already was spending approximately $2.35 per capita on civil legal aid ($3.53 per capita overall) and Quebec was spending over $1.80 per capita on civil legal aid ($3.60 per capita overall), and appropriations were escalating rapidly in recent years.Google Scholar

Earl Johnson, Jr., et al., A Comparative Analysis of the Statistical Dimensions of the Justice Systems of Seven Industrial Democracies 10-21 to 10-25 (unpublished report to Law Enforcement Assistance Administration, Apr. 15, 1977).Google Scholar

9. See pp. 952-53 infra.Google Scholar

10. This is somewhat analogous to the choice I am offered as an employee of the University of Southern California between competing health service plans. I can sign up for a Blue Cross plan in which service is provided by virtually any fee-for-service doctor or hospital of my choice, but with rather high deductibles, only partial payments, and several exclusions. Or I can opt at a slightly lower monthly cost for the Kaiser Foundation plan, thereby confining my choice to the hospitals owned by the foundation and the doctors employed on a salaried basis by the foundation, but with comprehensive coverage and virtually no deductibles or exclusions. If costs and coverage were identical I would choose the Blue Cross plan, because of its complete freedom of choice of doctor and hospital, something I would prefer if it did not cost me anything. However, asked to elect between the opportunity to pick my doctor and hospital but with less service and the chance to obtain more service but with a reduced scope of choice, I and millions of other Californians have opted for the latter–the Kaiser Foundation plan. Others, obviously, value freedom of choice enough to pay a premium for it.Google Scholar

There is a most significant difference, of course, between the client-option legal services delivery system suggested in Toward Equal Justice and the health plan option described in the paragraph above. Under a client-option mixed system the client would be free to choose between delivery providers in each specific case rather than being bound to use one or the other for all the problems confronted during the contract period (which might extend for a year or longer). Thus, under a client-option mixed system, a client could choose to take one legal problem to a salaried lawyer one week and another legal problem to a fee-for-service lawyer the next.Google Scholar

11. Under the Quebec Province, Canada, program, for instance, the legal services commission which administers the government plan is authorized to insist clients use one delivery system for all cases in a certain category, if necessary to reduce costs. This means that if salaried lawyers were found to be handling consumer cases at one-fourth or one-fifth the cost of fee-for-service lawyers, the commission could eliminate the client's option to choose fee-for-service lawyers for that type of case. Yet the option would remain open for all other categories. Toward Equal Justice at 615-16.Google Scholar

12. If the United States were merely to endow its civil legal services program as generously as Sweden already does, the current $205 million budget would have to become almost $500 million. Estimates of what would be required to meet the full need for government-subsidized legal assistance in this country range near $900 million.Google Scholar

13. Brakel, supra note 1, at, 252.Google Scholar

14. Toward Equal Justice at 206-8.Google Scholar

15. Id. at 208-17.Google Scholar

16. Id. at 220-33.Google Scholar

17. Id. at 233-36.Google Scholar

18. Id. at 236-39.Google Scholar

19. Id. at 239-41.Google Scholar

20. Id. at 181-201, 208-13, 218-28.Google Scholar

21. Brakel, supra note 1, at 250.Google Scholar

22. Toward Equal Justice at 188:Google Scholar

Without addressing the propriety of the government financing of “test cases” or the desirability of “calculated irrationality,” equal justice for the individual client would seem to dictate that he be able to take his relatively minor cases to the appellate court, at least in some circumstances.Google Scholar

23. Id. at 188-89.Google Scholar

24. Id. at 136-37; Brakel, supra note 1, at 222.Google Scholar

25. Briefly summarized, a “juridical right” allocation system creates a legally enforceable right to receive free legal services assuming certain eligibility criteria are met and irrespective of the resources that the legislature may have provided or failed to provide. Under a “welfare right” system, the legislature creates a fixed resource and asks it to provide as much service (and possibly as much social benefit) as that number of lawyers (or fund of money) can supply to the client population.Google Scholar

26. England, for example, has both obvious and subtle criteria that an applicant's case must satisfy which tend to make coverage much less universal than the legally enforceable nature of the right might lead one to expect. For instance, with a few narrow exceptions, legal aid is not available before administrative tribunals, although lawyers are permitted in these forums for those litigants able to afford the fees. These administrative tribunals dispose of more civil disputes than do the courts in England, including many categories very relevant to the poor and in which representation might be available in the United States, such as welfare, old-age assistance, landlord-tenant and public housing, etc. My criticism of this exclusion argued that many of the disputes handled by the administrative tribunals were of more consequence to poor people than those presently processed through the courts, and, moreover, that lawyers often were needed before the tribunals. Toward Equal Justice at 197-201.Google Scholar

But there is a more pervasive limitation implicit in the English formula. Not only must an applicant be financially eligible, and not only must his case have legal merit, but what is at stake must be of sufficient value that a rational litigant of modest means confronted with the same problem could be expected to invest out of his own personal funds the sum necessary to employ a lawyer to prosecute or defend the particular case. Application of this latter criterion means that many cases involving significant amounts will not be eligible for legal aid, especially when the committee of lawyers screening applications can forecast the likelihood of a rather costly investigation or trial. Toward Equal Justice criticizes this latter limitation in the English eligibility formula on grounds it fails to take account of all the values that may be at stake in a particular case since it focuses solely on the potential gain or loss for the individual legal aid applicant. Thus, service is denied in cases involving issues which affect thousands of persons who are similarly situated and which could easily justify the expenditure of the legal aid resources necessary to litigate the matter. Toward Equal Justice at 183-80.Google Scholar

I did not suggest either that a fee-for-service delivery system or that the “juridical right” resource allocation approach necessarily had to incorporate such limiting criteria. (In fact, as indicated, the whole discussion has nothing to do with alternative delivery systems but with deciding in which circumstances an applicant is to receive assistance.) Moreover, I discussed several modifications that could be applied rather easily by any jurisdiction using a “juridical right” resource allocation system desiring to eliminate the problems surfaced in the essay. In no way is it implied that the only cure is adoption of a staff attorney delivery system or a “welfare right” allocation system.Google Scholar

27. See Slade v. Valley Nat'l Bank, cert. denied, 409 U.S. 1013 (1972), and Hackett v. Hunt, 36 Cal. App. 3d 134, 111 Cal. Rptr. 456, cert. denied, 419 U.S. 854 (1974), appellate cases raising the issue of a constitutional right to counsel in civil cases, in which I served as attorney for the losing appellants.Google Scholar

28. Toward Equal Justice at 218-19, 221-28.Google Scholar

29. Brakel, supra note 1, at 223-37.Google Scholar

30. Id. at 226. Nearly all the chapter dealing with “comparative cost of service” in the reviewer's own study is devoted to establishing these total program budget and budget per eligible client figures. Samuel J. Brakel, Judicare: Public Funds, Private Lawyers, and Poor People 115-22 (Chicago: American Bar Foundation, 1974). A similar line of reasoning was used by the reviewer in an article attacking the Goodman-Feuillan study, The Trouble with Judicare Evaluations, 58 A.B.A.J. 704 (1972). Thus, staff programs were equated with Judicare in cost even though they handled many more cases with comparable or lesser budgets.Google Scholar

Another problem with the reviewer's cost discussion in his study is the artificially low estimate of hours devoted by staff lawyers to representation of clients. In all his calculations, he assumes only 1,225 annual “chargeable” or “effective” man-hours per staff attorney. Meanwhile, bar surveys reveal the median even for private lawyers is 1,500 to 1,800 hours a year. See, e.g., Massachusetts Bar Association, Economic Survey, 1970, at 17 (1972).Google Scholar

It seems reasonable to anticipate that staff attorneys would experience a still higher ratio of “effective” or “chargeable” hours since they do not find it necessary to spend time in “business-getting” and the other activities unrelated to serving clients that are inherent in private practice.Google Scholar

31. The development of local legal services agencies is discussed in chapter 4 of Justice and Reform, supra note 3. Local budget levels were determined by several factors, including the total resources available at the national level, the willingness of local community groups-community action agencies, bar associations, etc.–to seek an ample federal grant for legal services, local appreciation of the dimension of need for legal services among poor people, previous history with legal aid in the community, the quality of applications from competing communities, etc. The interplay of all these factors meant that many communities have no legal services for the poor, none have enough to approach meeting total need, and there are tremendous disparities from region to region, state to state, and community to community.Google Scholar

32. Brake', supra note 1, at 224-25.Google Scholar

33. A 1974 survey of law firms reported the median hourly fees charged by private lawyer already had reached the $50 range. At that time the regional medians were as follows:Google Scholar

15 Law Off. Econ. & Management 293 (1974).Google Scholar

34. As of 1977, the Legal Services Corporation calculates the average cost of salaried attorneys (including secretarial salaries, rent, equipment, and other support) as $35,000 per year.Google Scholar

Dividing this by 1,500 hours per year–the average billable hours reported by private attorneys in a comprehensive Massachusetts survey–we arrive at an hourly average of slightly over $23. See Massachusetts Bar Association, supra note 30, at 17. Obviously, there will be regional differences in the cost of salaried legal services lawyers as there are in average fees charged by private attorneys. The average hourly cost of salaried lawyers may be as low as $20 in some areas and approach $30 in others. Thus, the ratios between private fees and the hourly cost of salaried lawyers may vary significantly among different areas of the country.Google Scholar

35. There are several possible explanations for these differentials in hourly cost. The reviewer quotes one consideration discussed in Toward Equal Justice–the “costs of doing business” with middle-class and upper-class clients which add an increment to the hourly charge imposed by private lawyers–and describes this as a “caricature” only accurate for a part of the legal profession. He further argues that, in any event, the private lawyer need not take into account any of these “‘costs of doing business’” with private clients in deciding the fees for which he is willing to provide representation under a government-financed plan. Brake!, supra note 1, at 227.Google Scholar

The review conveniently omitted any reference to the accompanying footnote that responded to both of his comments. This footnote acknowledged there are lawyers for whomGoogle Scholar

'costs of doing business' with non-poor clients obviously will be of less importance in determining the minimum fee schedule which might prove economically feasible. His office expenses and client-generating expenses will tend to be substantially lower than more successful attorneys. More significantly, he is apt to suffer from large blocks of unused time, that is, time which is not billed to existing clients nor attracting new clients. Hence the hours devoted to government-subsidized clients by marginal practitioners do not displace fee-paying clients and need not contribute proportionately to fixed expenses such as rent, client-generating costs, etc.Google Scholar

Toward Equal Justice at 142, n.12.Google Scholar

36. Toward Equal Justice at 164:Google Scholar

To minimize the hourly cost disparity, the government might negotiate a sophisticated but lower fee schedule with the entire bar, possibly coupling this with a requirement that leading members of the profession also serve. A truly sophisticated government schedule probably should take account of the wide variance of experience and expertise found among private attorneys, offering a higher hourly fee to the more qualified members of the bar. In that same vein, such a fee schedule probably should recognize that different cases and different legal tasks require different degrees of expertise. Thus, the more qualified counsel might be entitled to higher fees than others in the bar, but only for the performance of more difficult assignments, such as appellate litigation, class actions, complex trials and the like.Google Scholar

See also id. at 153-54, 161-62, 165-66.Google Scholar

37. Brakel, supra note 1, at 233.Google Scholar

38. Id. at 234.Google Scholar

39. Id. at 229-31.Google Scholar

40. Toward Equal Justice at 153-54, 164-65.Google Scholar

41. Id. at 147:Google Scholar

[P]rivate attorneys who take only a handful of these cases as part of a government plan will never acquire much familiarity with the relevant law and practice. In contrast, a staff attorney who sees nothing but low-income clients and their special spectrum of problems soon has much of the important knowledge at his fingertips. Thus, he presumably will require less research, and less time generally, to handle the same problems and achieve the same result.Google Scholar

In a subsequent paragraph, I stressed that this advantage of expertise will be confined to cases and issues which are common among the poor and not common among other population groups. Id. at 147-48.Google Scholar

42. Id. at 151-52:Google Scholar

The staff program enjoys an apparent theoretical advantage to the extent the legal problems of the poor fit into recurring patterns which are not usual to the rest of the private attorney's caseload. The legal aid firm, for example, can afford to prepare forms, train paraprofessionals and devise other shortcuts for the several hundred welfare cases in which it provides representation each year. A private lawyer who takes on one or two or even a half dozen such cases as his normal share of the year's government-financed caseload is not in this position. However, as we move into the more rural areas and consider types of cases which are relatively familiar in the private attorney's regular caseload, it becomes more and more difficult for staff offices to practice these economies of scale. Consequently, under such circumstances, this part of the staff attorney's theoretical economic advantage should nearly disappear.Google Scholar

43. Id. at 153-54, 164-65:Google Scholar

This is not to suggest that private law firms could not reorganize themselves to be nearly as efficient as an office staffed with salaried attorneys. However, it probably would require that smaller firms abandon the general practice of law–the pretension that they are able to effectively handle any legal problem the client brings across the threshold. These lawyers would have to specialize in a certain field of the law. They would have to be willing to utilize paraprofessionals in whatever tasks did not necessitate the lawyer's unique knowledge and skills. And they would have to apply many other cost-cutting measures to their practice. Moreover, if the government budget is to benefit from these steps, at least some of the private firms would have to specialize in certain fields unique to the poor, such as welfare, thus virtually removing them from the representation of clients who pay their own fees.Google Scholar

To enhance productivity, legislation might be structured to encourage the creation of private firms that specialize in the representation of low-income clients at below “market” fees, especially in the more common categories of legal problems. Incentives could be offered for firms utilizing paraprofessionals, systems and other progressive management techniques. [1] t is difficult to conceive of reforms which would over-come the salaried lawyer's advantages of expertise, economies of scale, and management efficiencies without transforming a part of the private profession into specialists who concentrate on legal representation of the poor.Google Scholar

44. See, e.g., Samuel J. Brakel, Free Legal Services for the Poor–Staffed Office vs. Judicare: The Client's Evaluation, 1973 Wis. L. Rev. 532, 534.Google Scholar

45. In a typical statement, he asserted his study established:Google Scholar

[A]ny further consideration of legal services to the poor and especially the rural poor must begin with the recognition that the rural poor themselves prefer the Judicare approach.Google Scholar

Id. at 553.Google Scholar

46. See, e.g., Brakel, supra note 1, at 224 n.39, 245 n.40.Google Scholar

47. Id. at 245.Google Scholar

48. This view is implied in the review article, but the most direct statement is found in the reviewer's own report. “The best, or rather the most relevant, determinant of quality, in our view, is the client's evaluation of service received.” Brakel, supra note 30, at 89.Google Scholar

49. One of the conclusions drawn from the ABF Survey of Legal Needs is that clients place value on the feeling that they have a personal relationship with the lawyer serving them. Thus, it has been suggested that institutionalized legal services–whether government financed or prepaid insurance plans-should organize their services to contribute to this feeling as well as to the delivery of effective legal help.Google Scholar

Yet, the experience of other businesses and professions–banking and real estate, for example–shows that the advantage of personal service to consumers can be retained or even enhanced despite growth and elaboration of organization.Google Scholar

American Bar Association, Discussion Draft Report of the Special Committee to Survey Legal Needs 30 (June 10, 1977).Google Scholar

50. Brakel, supra note 1, at 245-47. In these pages the reviewer attempted to explain away the Greenberger-Cole finding that when offered an actual choice, rather than merely responding to a hypothetical question, a group of clients chose to take almost three-quarters of their legal problems to staff attorneys and only the smaller share to fee-for-service attorneys. One is tempted to undertake a point-by-point rebuttal. But in the present context, that wasteful exercise is unnecessary. Even if most of his points were conceded (and no countervailing influences uncovered), we still could anticipate the client population would elect staff lawyers in a healthy percentage of cases. Whether or not it were a majority of the total problems seems irrelevant.Google Scholar

What is most interesting about the Greenberger-Cole study is the pattern of use. Somehow, despite all the factors cited by the reviewer, most of which should have influenced client choices uniformly across the various categories of cases; the clients proved very discriminating. Some of these clients used salaried lawyers for one type of case and fee-for-service lawyers when they faced another kind of problem. They took the majority of their domestic problems to fee-for-service lawyers, but the overwhelming percentage of their consumer cases (80 percent), landlord-tenant (84 percent), and welfare problems (91 percent) to salaried lawyers.Google Scholar

Interestingly, in a much larger “natural” experiment–the Quebec Province, client-option mixed system–a similar pattern has emerged. The hundreds of thousands of clients of this program have chosen to take 77.6 percent of their problems to staff lawyers and 22.4 percent to private practitioners. André Saint-Cyr, Legal Aid Services in Canada (1976), First Inter-national Colloquium on Legal Aid and Legal Services, London, Oct. 24-28, 1976, at 37 (Palo Alto, Cal.: ICLES, 1977). Earlier statistics from the same program indicated clients were taking one-third of their domestic relations problems to fee-for-service lawyers but over 85 percent of their other civil problems to salaried lawyers. Toward Equal Justice at 617.Google Scholar

51. See pp. 945 et seq. supra.Google Scholar

52. Brakel, supra note 1, at 23742.Google Scholar

53. See Geoffrey C. Hazard, Jr., Social Justice Through Civil Justice, 36 U. Chi. L. Rev. 699 (1969), and his Law Reforming in the Anti-Poverty Effort, 37 U. Chi. L. Rev. 242 (1970).CrossRefGoogle Scholar

54. Justice and Reform at 193-234, 248-71.Google Scholar

55. A significant portion of the discussion of the socioeconomic impact of legal services activities contained in Justice and Reform is reprinted in Lawrence Friedman & Stewart Macaulay, Law and the Behavioral Sciences 521 (New York: Bobbs-Merrill, 1977).Google Scholar

56. Interested readers can consult the sections of Justice and Reform cited in note 54 supra and draw their own conclusions.Google Scholar

Suffice it to say for purposes of this response that it is both feasible and important to make reasonable estimates of the probable socioeconomic impact of legal services actions. Of course, the estimates will be more problematic or approximate in some instances than others. Some-times, because of a chain of circumstances, the actual benefits for poor people may be less than anticipated, and on other occasions much greater. But it is unrealistic to ignore the benefit side of the equation as the reviewer apparently would have us do and treat all cases as if the stakes were identical.Google Scholar

Corporations, trade associations, and the like certainly appreciate the significance of major appellate cases and legislative actions, as evidenced by their willingness to invest thousands of hours of lawyer time to win these cases. They do not make similar investments when only an individual transaction involving a few hundred or even a few thousand dollars is at issue. To do otherwise and ignore the benefit side of the equation for poor people would lead to some anomalous and possibly disastrous policy decisions.Google Scholar

Cost comparisons, for example, can be very misleading if all cases are considered of equal import. Imagine two programs of equal size and efficiency, one of which handled 1,000 cases each affecting a single individual client for an average benefit of $1,000, while the other handled only 500 such cases and two test cases involving $10,000,000 estimated gains for 20,000 similarly situated nonclient beneficiaries. Unless one introduces the similarly situated nonclient beneficiaries and the estimated benefits into the calculations, one would be led to conclude the first program was almost twice as efficient as the second. It would have represented 1,000 clients for the same amount of money as the second program used to represent 502 clients. Yet if one ranks them on the basis of cost per beneficiary or cost per benefit rather than cost per client, the advantage shifts dramatically to the second program, which helped 20,502 poor people, while the first was only helping 1,000 and yielded gains of $10,500,000 for the poor while the first produced $1,000,000.Google Scholar

I submit that the latter standard is the more realistic, accurate, and valid for cost comparison purposes. Nor should we revert to the cost-per-client criterion merely because we cannot be absolutely precise about the estimates of stakes, benefits, and beneficiaries. As observed earlier, institutional litigants and law firms regularly make their own cost appraisals on the basis of equally imprecise estimates of what they have at stake or have won. Unless those evaluating or managing legal services for the poor are willing to include these factors in their calculations, effective legal services lawyers will be penalized and the low income population will suffer.Google Scholar

Estimating the benefits at stake also is relevant to another important policy area–resource allocation. If all cases are deemed equal, it is difficult to justify the investment of say 500 lawyer man-hours in a single case especially since that probably means a hundred other cases will have to be turned away. Yet, that decision becomes not only defensible but eminently rational if the investment is in a class action, appellate case, or legislative reform involving thousands of similarly situated nonclients and hundreds of thousands or millions of dollars (or the equivalent in nonmonetary social, psychological, or political gains). Admittedly, there are very good reasons, some of them explored in Justice and Reform, for not committing all legal services resources to these high-benefit actions. But there are equally sound reasons for allocating a very significant percentage of legal services man-hours on the basis of reasonable estimates of the probable gains for low-income people who are similarly situated nonclients.Google Scholar

57. See Legal Services Corporation Act of 1974, 42 U.S.C. secs. 2996 et seq. (Supp. V 1975).Google Scholar

In this law, “legal assistance” is defined to include any legal services “consistent with the purposes and provisions” of the legal services corporation statutes. Sec. 2996a(5). “Class actions” fall within the definition if they are approved by the local agency director. Sec. 2996e(d)(5). “Legislative and administrative advocacy” are expressly authorized legal services if conducted on behalf of an eligible individual or group or upon request of a government agency or legislator. Sec. 2996f(a)(5). “Appellate advocacy” is included as a legal service within the meaning of the act so long as the appeal is nonfrivolous and is not wasteful of resources. Sec. 2996f(a)(7). Moreover, legislative history indicates that “litigation in the broad interests (or collective interests) of the poor” also is encompassed within the definition of legal assistance to be provided the poor under the act. Sec. 2996f(b)(3) prohibits grants and contracts to firms that spend 50 percent or more of their resources “litigating in the broad interests of a majority of the public.” The conference report states that the conference committee struck a provision from the House bill which would have extended that prohibition to litigation “in the collective interests of the poor, or both.” Joint Explanatory Statement of the Committee of Conference, excerpted in Toward Equal Justice 476, 484.Google Scholar

58. 42 U.S.C. sec. 2996f(a)(3).Google Scholar

59. Id. at sec. 2996f(g).Google Scholar

60. Brakel, supra note 1, at 253.Google Scholar

61. Id. at 240-41.Google Scholar

62. Toward Equal Justice at 159-60:Google Scholar

There is some reason to hope that a compensated private counsel system might engage in “high-benefit” functions, if it were linked with the same sort of support institutions as serve the neighborhood law offices in the United States. Admittedly, there are problems of motivation and communication to be overcome, but in most communities surely at least some private attorneys would be willing to participate in such actions.Google Scholar

63. “[A] doption of the staff attorney approach is no guarantee that ‘high-benefit' cases will be pursued. Salaried lawyer offices existed for decades in the United States without producing such results.”Id. at 158.Google Scholar

64. Id. at 156-59.Google Scholar

65. Id. at 156-57, 160 n.49, 50.Google Scholar

66. Two questions should illustrate these difficulties. With an open-ended and largely unsupervised resource such as a fee-for-service legal services program, how does one decide which cases are to be appealed and how much time is to be expended on such appeals? There probably are relatively few cases in which the preparation and filing of an appellate brief by the losing party would be deemed clearly frivolous on legal grounds even though the appeal is ultimately unsuccessful. Thus fee-for-service lawyers could justify filing appeals (and receiving payments from the government) in a very high percentage of the cases they lost at the trial stage. The potential drain on legal services resources over issues of minor consequence is immense.Google Scholar

Another question confronting a pure fee-for-service program is how to provide for the prelitigation planning and legal research so essential to economical and effective “high-benefit” actions. To ignore the need for these functions is to reduce the effectiveness of appellate advocacy, class actions, and the like. To authorize private lawyers to devote as much time as they desire to prelitigation planning and legal research is to threaten another uncontrolled drain on legal services resources.Google Scholar

Imaginative criteria and tight controls might mitigate these and related problems. But such measures probably would be very unpopular with lawyers. Yet in their absence it seems unlikely we could have an economical and effective delivery of “high-benefit” legal services under a fee-for-service program.Google Scholar

67. See 42 U.S.C. 2996f(a)(7) requiring local programs to insure the efficient utilization of resources in the handling of appellate cases. A half dozen private lawyers in the same community might easily appeal a half dozen different cases, each raising the identical issue, without being aware of each other's actions. That probably would constitute an inefficient utilization of resources in the meaning of the act because of the duplication of effort and cost involved.Google Scholar

At the other extreme, private lawyers might fail to appeal important issues simply because they were unaware of their significance. Unless they specialized in the legal problems of the poor, they might not handle enough cases to spot a pattern of conduct which merits a test case.Google Scholar

68. Spiro Agnew, What's Wrong with the Legal Service Program, 58 A.B.A.J. 930 (1972).Google Scholar

69. Justice and Reform at 278-83.Google Scholar

70. William R. Klaus, Legal Services Program: Reply to Vice President Agnew, 58 A.B.A.J. 1178 (1972); Jerome B. Falk & Stuart R. Pollak, What's Wrong with Attacks on the Legal Services Program, 58 A.B.A.J. 1287 (1972). See also Note, The Poor and the Political Process: Equal Access to Lobbying, 6 Harv. J. on Legis. 369 (1969); Lawrence A. Sullivan, Law Reform and the Legal Services Crisis, 59 Calif. L. Rev. 1, 25 (1971).Google Scholar

71. Toward Equal Justice at 240-41:Google Scholar

[B] y almost any standard, the decisions made by legislatures and executive agencies are as influential in the lives of common citizens as any court's adjudication. And, as in the courts, these decisions will not be sound–or equitable–unless all perspectives are represented in the decision-making process.Google Scholar

See also Note, supra note 70.Google Scholar

72. Toward Equal Justice at 201-6, 239-41. A discussion in Justice and Reform is particularly relevant to this distinction.Google Scholar

The genius of the Legal Services Program has been its ability to raise issues of value to clients irrespective of the preferences of government officials or others in society. Like other members of the legal profession, its attorneys can seek to persuade judges, legislators and similar decision makers about the mertis of proposals that may or may not please the majority of citizens. Notice that this does not mean they unilaterally can make changes that benefit the poor at the expense of the affluent. Poverty lawyers–whether part of a specialized unit or a neighborhood office–merely advocate; they do not decide. To allow government, a bar association, or any other body to screen or discourage antipoverty cases or proposals before they are asserted is much more insulting than telling low-income persons those petitions will be denied. As a practical matter, it is not only disagreeing with what the poor have to say, it is denying them the right to say it–at least in any useful way in any meaningful forum. [T] hat would be a false distribution of society's rights and resources, and in a very real sense an unfair one. For it depends on the poor being silent, or at least unheard, in the places the distributional decisions are being made. Reasonable men may differ about what is an equitable distribution of the national income: should the poor have five percent or fifteen; the rich twenty-five percent or forty? But it is difficult to contend any allocation is fair if it is predicated on denying equal justice to a sizable segment of the population.Google Scholar

Johnson, supra note 2, at 283-84.Google Scholar

73. One of these ad hominem comments cannot be allowed to pass unchallenged. The reviewer argued that my discussion of present national policy should be disregarded because my only experience in the field has been as a national administrator of the legal services program in the 1960s, an “involvement. too close to be abandoned;. (and] too distant to be relevant still.” Brakel, supra note 1, at 252-53 n.52.Google Scholar

To correct the record, my contact with legal services for the poor has by no means been limited to administrative duties at the national level. Before joining the staff of the OEO Legal Services Program, I spent over a year working in one of the first neighborhood law office programs in the country, which served the poor people of Washington, D.C. Since leaving the directorship of the OEO Legal Services Program in 1968, I have been president of the board of one local legal services agency, vice-president and chairman of the executive committee of another, a member of the executive committee of a third, and a board member of a fourth. I also have been chairman or member of a half dozen committees–bar association and otherwise–on legal services to the poor and participated in on-site evaluations of several legal services agencies. Meanwhile, for three years in the early seventies, I ran the clinical program at the University of Southern California that provided direct legal services in both criminal and civil cases to hundreds of poor people. I also have devoted several hundred hours personally representing poor people over the past few years.Google Scholar

Conceivably, one might suggest that I have been too intimately involved at too many levels with legal services for the poor. But the reviewer's objections that my perspective is too remote in time or function does not appear to rest on factual grounds. (One might also question the reviewer's major premise that people who have been involved at a national policy-making level should not be taken seriously with regard to future issues in that field.)Google Scholar

74. In the final footnote of the review article, the reviewer asserted that research cannot answer the question of which delivery system is preferable. Instead, he advised that logic dictates “that the massive task of providing legal services to the poor must involve the primary resource–the private bar.”Google Scholar

The reviewer's logic appears somewhat suspect when one examines how governments have chosen to meet the “massive need” for criminal rather than civil representation of the poor. State after state, county after county, city after city have chosen to employ public defenders on a salaried basis instead of paying private lawyers on a fee-for-service basis to provide this representation. Nor is the reviewer's logic consistent with the behavior of corporations and business enterprises which commonly hire salaried house counsel to meet their “massive legal needs.” It also should be noted that governments at every level employ salaried lawyers to prosecute their criminal cases, to represent them in civil matters, and to provide them with legal advice, needs which currently absorb appropriations several times larger than the Legal Services Corporation budget. Only in rather special situations do these private and governmental entities engage private attorneys to supplement their salaried lawyer force.Google Scholar

Research eventually may document sound reasons for integrating fee-for-service lawyers rather extensively into the provision of legal services to the poor in civil cases. But that policy decision does not appear to flow from the reviewer's brand of logic.Google Scholar

1. Styles of Delivery of Legal Services to the Poor: A Review Article, 1977 A.B.F. Res. J. 219-53.CrossRefGoogle Scholar

2. Hereinafter cited as Toward Equal Justice.Google Scholar

3. See, e.g., Abstract, Brakel, supra note 1, at 219, 220.Google Scholar

4. Id. at 221.Google Scholar

5. Id. at 219, 220, 252-53.Google Scholar

6. Id. at 220.Google Scholar

7. Id.Google Scholar

8. Id.Google Scholar

9. See text at notes 14-17 infra; Mauro Cappelletti, Legal Aid in Europe: A Turmoil, 60 A.B.A.J. 206, 208 (1974).Google Scholar

10. Brakel, supra note 1, at 220.Google Scholar

11. Id. at 219.Google Scholar

12. Id. at 221.Google Scholar

13. See Professor Zweigert's review in 41 Rabels Zeitschrift für ausläandisches und internationales Privatrecht 171, 172 (1977).Google Scholar

14. Foreword, Toward Equal Justice, at xi.Google Scholar

15. Brakel, supra note 1, at 221 n.2. Legal aid cannot be affirmed and implemented as a “juridical right” (rather than merely a privilege) of those meeting the statutory requirements, unless the existing private bar is utilized; on the other hand, the well-proven inadequacies of the Judicare model can be remedied only through the addition of specialized, welfare-oriented, salaried staff attorneys.Google Scholar

16. Id. at 253. Although Brakel here displays an apparently open mind to the combination of both models, the remainder of the review indicates that, on the contrary, his actual position is strongly and unilaterally in favor of a Judicare model.Google Scholar

17. Toward Equal Justice at 131-32.Google Scholar