A Seamless Approach to Service Delivery in Legal Aid: Fulfilling a Promise or Maintaining a Myth?

2. A Literature Review (cont'd)

2. A Literature Review (cont'd)

2.3 Unkept Promises

Although the Cahns and a few others very soon expressed doubts about the potential of the new community/neighbourhood based legal aid offices to dispense (civil) legal aid in a way that had transformative potential. Given the strict limits imposed on "political" work by neighbourhood law offices in the Nixon era, this pessimism was warranted. When the cuts to legal aid began with Reagan in the 1980s, the die was cast.[37] However, the most consistent and widespread criticisms don't emerge until the 1980s. In addition to the severe systemic limitations they suffered under the idealism of the 1960s and 1970s, fueled by the hubris of a generation who "won" the civil rights battle and "stopped" a war in Vietnam, was replaced with materialism on the one hand and a sort of weary pragmatism on the other. What had become clear was that laws, lawyers and legal clinics had neither ended poverty, nor even significantly diminished it. At best, some individual clients had been assisted in significant ways, and a new breed of judges, who had been students and lawyers at the height of the "just society" were about to start sitting.[38] However, interest in reform had not disappeared, it was merely reshaping itself.

In 1982, Richard (Dick) Gathercole, in Legal Services and the Poor,[39] argues that the positions of the poor have not been improved by legal aid programs because the leaders of the legal aid movement in Canada, as elsewhere, did not and perhaps could not, fully understand the problems of the poor.

Contrary to their expectations, the fundamental problems of the poor are not susceptible to traditional legal solutions. They are not the traditional middle class legal problems that lawyers are familiar with. Most legal aid programs, even if not so designed originally, have tended to develop according to the interests and priorities of lawyers providing the services rather than those of their clients. Lawyers cannot accept the fact that the problems of the poor can only be solved through a fundamental restructuring of traditional institutions, not by suing someone in a court of law.[40]

However, the problem was not merely one of poor understanding. "[G]overnments have consistently underfunded legal services, partly because the poor are not a powerful political constituency, but also because government departments and agencies are prime targets of legal aid lawyers."[41]

Gathercole provides a brief history of the development emphasizing the differences, benefits and problems with the two major models of legal service delivery to the poor - judicare and legal services. Proponents of the two models have debated their respective merits, with the traditional bar and most politicians supporting the development of Judicare, which gave the law society and government professional administrative control and limited law reform and lobbying activities by legal aid lawyers. The legal service lawyers criticized Judicare for its failures to deal with the "real" problems of the poor. Gathercole maintains that, "…it became apparent that neither approach had all the answers and both had important strengths and weaknesses. As a result, most jurisdictions have developed mixed civil legal aid systems, albeit with the emphasis on one of the two models".[42]

In Section III, Gathercole elaborates on the inadequacies of legal aid. He cites the minimal level of funding by governments generally, citing the decision of the Saskatchewan government in June 1978 to require the Legal Service Offices (community legal clinics with salaried lawyers) to cease their practice of referring criminal cases to private lawyers and concentrate on civil legal aid cases (such as housing and welfare). The government, motivated primarily through financial concerns but also through a desire to "clip the wings" of Legal Service Offices, decided that staff lawyers should do the criminal work themselves due to the higher cost of having private lawyers do the criminal cases. This effectively meant that lawyers at the Legal Service Offices would spend all their time on criminal matters and would have to neglect what they viewed as more important civil cases.

However, even with adequate funding, Gathercole argues that there are inherent weaknesses in the existing legal aid programs which result in inadequate access to legal services for the poor. He identifies the approach that Wexler and Fox warned against decades earlier - that of emphasizing individual case service. The "case by case" operation is, in effect, a "band aid approach" rather than a preventative attack on legal problems, and cannot be transformative, almost by definition. This problem is inherent in Judicare models, while in the legal services offices, Gathercole argues, they have been forced to emphasize and stress individual cases by funding agencies. The evaluation of a legal services office is often based on its caseload and case victories as volumes are easier to measure than more amorphous factors such as acceptance in the community, long term interests of clients, and law reform.

Gathercole lists the other well known inadequacies of Judicare: the assumption that all that the poor need is formal access to justice which ignores the real legal and social problems; the fact that most law offices are physically and psychologically inaccessible to the poor; the lack of trust in lawyers; the private bar's lack of expertise in the legal problems of the poor; and the drawbacks inherent in the method of payment which limits coverage (legal aid is not going to be awarded to recover what is considered a small amount in unpaid welfare benefits, for example).

The reforms he proposes are not presented as transformative, just necessary to ensure decent service through: staffing legal clinics and multi-purpose advice and assistance clinics, with full-time salaried lawyers; utilizing non-lawyers to provide many of the services presently considered to fall with the exclusive domain of lawyers; subsidizing the private bar to provide certain basic services; educating people working in traditional service agencies to recognize and deal with routine legal problems. He concludes that until it is accepted that fundamental changes are required in the restructuring of the provision of legal services to the poor, legal assistance to the poor will remain inadequate. "[G]reater emphasis has to be placed on long term law reform and political organizing… legislatures rather than the courts should be the focus of these efforts."[43]

Laureen Snider in Legal Aid, Reform and the Welfare State[44]is even more critical. She argues that legal aid has failed as a "reform", defined as "a change leading to an improvement in the life style or life chances of the disadvantaged versus the advantaged".[45]She notes that the bottom 30 per cent of society do not use the legal system to alleviate their problems but rather see it primarily in defensive terms - a system that has offered them few advantages and one to be avoided. Yet many proponents for social reform have argued and continue to that poor people need lawyers more than other groups in society because their lack of options and political power force them to endure many illegal and correctable inequities (unpaid wages, faulty consumer goods, fraudulent landlord-tenant contracts and mistreatment by landlords as examples). "The initiative to supply legal aid to the poor was premised, then, on the belief that it could provide substantive as well as formal justice."[46]

Snider remarks, "This liberal notional became a motherhood issue, and the arguments in the literature developed over how this could be achieved and how expensive it would be, not over whether it was desirable...Legal aid was fought for and evaluated by its success or failure in promoting both of these types of justice". [47]

She then develops a trenchant critique of the new legal aid programs.[48] The established legal profession was thought to be one cause, as these lawyers were "…uninterested in serving the poor, ignorant of their problems and unsympathetic to their point of view"[49]. Hence efforts were made to change the attitudes of the new generation of lawyers by offering courses in poverty law and an opening up of community legal clinics that provided a broad range of services, including lobbying for law reform to educating the community about their rights. Snider asserts that these projects were unsuccessful (clinics were overcrowded, little law reform work was actually done, community control was often lost, and morale was low). Also by the mid to late 70s, the cost of the judicare models had skyrocketed, resulting in more stringent eligibility requirements and a declining number of lawyers willing to take subsidized clients. Austerity measures and "law and order" policies were pushed by those with capital power and influence and the substantive justice aims of the provision of legal services were buried.

Snider next offers an alternate theoretical perspective, where she argues that several theoretical assumptions that were originally behind the legal aid schemes were erroneous, not adequately debated and actually worked against providing access to the legal system and justice for the poor. These assumptions in point form are:

  • that the political structure (elected and appointed officials at all levels of government) are responsive to pressure applied by activists, scholars, and lawyers who could then reveal and document the problems for the poor to ensure that resources are equally allocated in a just fashion.
  • law in its present form preserves and extends the rights and privileges of the advantaged at the expense of the disadvantaged because of accidental, historical reasons rather than deep-seated structural ones.

She attributes the fact that legal aid programs have not altered the basic position of the poor to these false premises: "The pluralist model based on consensus theory cannot explain these failures and can only call for more money (when the reality is less money), more political pressure and yet more studies. Clearly, the problems are more deeply rooted, more structurally based, than has been recognized."[50]

Keeping in mind that legal aid was initiated to provide both substantive and formal justice, Snider lists and describes the major failures of legal aid. In the area of criminal law, legal aid has failed to materially alter the position of the defendant. It has not produced substantive justice in the criminal system for the poor. Legal aid has not altered the conviction rate, the class composition of the defendants or increased the bargaining power of the defendant.

Snider maintains that legal reformers were attempting to change the rules of the state to the advantage of the underclass, yet the upper, ruling class(es) had a vested interest in keeping the poor under control "…in the most efficient way possible" so as not to disturb the economic order. Snider views that the state's goal in controlling two types of underclass populations: the "social junk", those who are outside the productive process, such as welfare mothers, prostitutes, alcoholics and the "social dynamite", those who may threaten the system but are potentially useful (often non-disabled males), differs accordingly when substantive justice in the criminal sphere is sought (where the "social dynamite" is controlled) from the way in which legal aid reform was organized in the civil legal aid sphere where those redundant to the social process (the "social junk") are dealt with.[51]

She astutely notes: "At the first level, in all advanced welfare states, there is bound to be a vast untapped market in areas such as the illegalities of state bureaucracies. Most employers prove to be totally unfamiliar with the enabling legislation under which they work; there has been no need since they were used to dealing with people too cowed and powerless to challenge the standard working procedures. Being invisible to outsiders, these procedures have often become considerably more repressive/coercive than the legislation - framed in public forums with legitimacy needs paramount - allows".[52] Snider argues that at this level, gaining individual victories for poor people pitted against civil servants, government officials or boards of education resulted in legal victories, and more difficulty for the bureaucracy but few gains in the actual lives and lifestyles of the poor. Furthermore, this individual gain does not change the structure of the system itself, nor underlying attitudes towards the poor and powerless groups and allows the government to claim that the underclass is now being treated in a fair manner, while cutting back on legal service funding, or reversing practices that were previously found to be illegal. While Snider acknowledges that there were some limited victories, change that would truly affect the lives of the poor were doomed to failure because this involved challenges to the very structural system of our society (our regime of private property rights for example).

Snider's critique is in some ways too broad and too instrumental (although she struggled to avoid simple Marxist instrumentality), but she accurately identified two fundamental and ongoing issues. First, a well funded and 'staffed' criminal legal aid system, in Ontario for example (the best funded) has not changed the criminal justice system in ways that either reduce crime or reduce the targeting of poor and marginal youth. Indeed, initiatives such as the movement for restorative justice, which arose outside of the traditional criminal justice system have the most potential in that regard. Second, the transformative potential claimed for civil legal aid in the 1960s and 1970s has not been realized either, as clinics struggle with huge case loads and in the main are able to pay mere lip service to the ideal of law reform and community development. Even the law school based programs suffered. The groundbreaking clinic at Dalhousie was defunded in the early 1990s and others failed (only Parkdale survived essentially intact).

These issues are also addressed by Mary Jane Mossman at about the same time in Legal Services and Community Development: Competing or Compatible Activities. She frames the question in order to explore why community legal clinics in Ontario have directed a greater amount of time, energy and resources to the "legal and paralegal services"[53] part of their section 148(2) mandate under the Regulations of the Legal Aid Act, compared to the "promoting the community's welfare" component of their mandate.[54]She gives two reasons:

  1. Misunderstanding on the part of lawyers and others about legal services and community development, and a tendency to think that they are totally separate; and,
  2. Difficulties inherent in the community clinic context in fulfilling the legal service mandate of community development.

She then outlines three reasons why the legal service mandate of community development has been difficult to fulfill, namely the failure of clinics to appreciate their historical roots and a perception of their own role in access to justice for the poor in Ontario, the failure to recognize and take into account the legal and political context in which the community clinic model of legal aid services exists, and the structural and human resource challenges faced by the community legal clinic. These issues are complex and responses to them need to be better incorporated into an overarching strategy, so that the clinic lawyers and Community Legal Workers work for the integrated mandate of providing both individual case assistance and community work. Mossman also argues that clinic Boards of Directors should be strengthened in order for them to both be able and be seen as accountable for clinic activities including community development. As community development becomes more successful [and more noticeable] the Board must also be capable of withstanding potential criticism from a variety of sources: the Law Society, the provincial government and segments of their own geographical community. She concludes that community legal clinics can fulfill their mandate of providing legal services while devoting a more balanced amount of time to "promoting the legal welfare of the community" (as is their defined mandate under the Legal Aid Act Regulations). But to do so, it is crucial that they understand the context surrounding such efforts so that their initiatives in promoting community development are truly effective.

In the same period, in a US context, Rand Rosenblatt wrote a case study of the strategy to "legalize" welfare benefits that continues to have considerable value to the current project of revitalizing legal aid.[55]He begins by noting (as others have) that the lawyers and law students who entered the profession in the 1960s (and indeed the 1970s) were both radical and optimistic (they believed that law could and should alter unequal power relations - that it could be transformative). He then uses critical legal theory to examine the legalization strategy and its weaknesses, particularly in the ways that it changed the relationship of recipients to the welfare bureaucracy, and failed to address fundamental issues about work and the isolation of the poorest from other social classes. He then sets out the reasoning and the context for a strategy to transform welfare into a right bounded by the rule of law and both substantive and formal equality. His analysis of the history of approaches to welfare (as charity) and a jurisprudence that drew sharp distinctions between the small "public" or "political" sphere, which was subject to rule of law (and concepts like equality), and the large "private" or "social" sphere which sustained "natural" distinctions based on gender, class and race and thus was "free" from judicial regulation is both instructive and prophetic.[56] It is clear why then (and now once again) a strategy to cloak welfare with legalized safeguards was an attractive strategy.

However, Rosenblatt, while recognizing the short-term benefits of a legalization strategy, offers a powerful critique of its limitations, setting out four substantial ways by which legalization operates to undermine the interests of welfare recipients. First, because welfare is unpopular, welfare rights case victories generate (and in the contemporary context, serve) a political backlash against both recipients and "overly generous" benefits.[57] Second, reforms associated with legalization, such as restrictions on caseworker discretion, have "routinized" and undermined caseworker-client relationships in ways that make alliances between them (arguably essential to substantive reform) increasingly unlikely.[58] Rosenblatt's third point is particularly powerful. He points out that achieving the forms of procedural due process is a hollow victory as most adverse decisions are never appealed and even when they are appealed, they have little or no impact on the day to day practices of welfare bureaucracies. [59] Finally, he returns to one of his starting premises, that no legal victory can address the failure to implement a full employment policy or change the decision to ensure that welfare is harsh enough to serve as an incentive to low-wage work.[60]

Rosenblatt's important case study provides an important counter-point to another avenue of criticism and response that emerged around this time, and that is a movement toward 'specialty' legal aid offices and services. In Ontario, for example, race and culture specific clinics opened as well as offices devoted to subject areas. Diana Pearce's 1985 article Welfare is not for Women: Toward a Model of Advocacy to Meet the Needs of Women in Poverty,[61] exemplifies an analytical approach that (finally) recognizes that "the poor" are not a monolith and that "poverty law" as a generality cannot possibly be effective in response to the very specific issues facing women, youth, and cultural minorities. She argues that, "the trend toward the "feminization of poverty"[62] has profoundly altered the needs, legal and otherwise, of today's poor, as well as the nature of advocacy required to meet these needs".

She organizes her study into three topics:

  1. The nature of and trend toward the feminization of poverty;
  2. A contrast of the nature of women's poverty with the nature of U.S. anti-poverty programs, with emphasis on the ways in which the fundamental assumptions behind welfare are "at best inappropriate and at worst institutionalize women's poverty";[63] and,
  3. An outline of the advocacy needs of women in poverty with suggestions for a model of how to meet those needs.

Her first point, that women's poverty is fundamentally different from that experienced by men and that women are subject to programs designed for poor men, is a key insight that has significance for all legal aid programs. "Poor women find that these programs are not only inadequate and inappropriate, but also lock them into a life of poverty."[64]

Pearce describes the distinction in welfare programmes between the needs of the "deserving poor" and the "undeserving poor".[65]Women and minorities are found disproportionately in the second grouping. Concerning these programmes, which are based on the "Male Pauper" model, she contends that:

"[t]his model operates on a simple set of principles: most of the poor are poor because they do not work, and most of the poor are able-bodied and could work, therefore, the solution to poverty according to the male Pauper model is to "put 'em to work". Unlike unemployment compensation [an example of the primary sector of welfare entitlement for the "deserving poor"', there is little concern for the quality of the job, even its monetary return, or for matching worker skills to jobs with appropriate requirements. Rather, any job will do. When applied to women…the result is less than positive. First… having a job is, ipso facto, a less certain route out of poverty for women than for men. Second, income from earnings only partially alleviates her poverty. A woman's responsibility for children and/or other dependents results in economic and emotional burdens requiring additional income and fringe benefits for child care and health insurance and flexible or part-time work arrangements that are not available with most jobs."[66]

She continues; "[t]he dual welfare system in not only inherently discriminatory against women, but also operates to reinforce her disadvantaged status in the [67] labour market".

Section V sets out the case on the role that legal services have played in helping, or more usually, failing to help, to combat women's poverty. The example of the multi-faceted problems poor women face in relation to their housing illustrates that traditional legal representation (i.e., contesting an eviction notice) is a very limited tool for tackling the many aspects of women's poverty, such as isolation, responsibility for child care, and reduced opportunities for well paid work.

In section VI, she outlines the kind of advocacy model that should be developed to deal with women's poverty. The approach would draw on the lessons of the civil rights movement, and the fight for anti-discrimination policies and programs, because such movements understood that these problems are systemic, institutionalized and pervasive. "Like the civil rights aspect of the War on Poverty, a war on women's poverty must have as its underlying premise that gender discrimination is at the core of women's poverty."[68]

She lays down some basic principles, drawn from the material reality of women's lives. Lawyers working with poor women must understand how the structure of various government programs is not only ill-suited to alleviate women's poverty but are actually discriminatory against women (example of workfare/job training programs without adequate day care). Advocates must develop a comprehensive understanding of the dynamics of women's poverty, and Pearce warns that "[i]t cannot be assumed that advocates for women will adequately represent the needs of poor women, nor that advocates for the poor will adequately represent the needs for poor women".[69]In order to develop an agenda with this underlying premise in mind and at the same time empower the poor to organize around women's issues, this movement must develop specific and achievable goals and attempt to achieve these goals by collective, usually political action.

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