Fighting for Justice

History of civil legal aid the subject of Roth Lecture

by Darren Schenck
photos by Maria Iacobo

Most people take it for granted that local legal aid organizations will provide assistance to members of the community who otherwise could not afford legal services.

But as Justice Earl Johnson, Jr. (Ret.) recently told an audience at USC’s Town & Gown, the history of civil legal aid in America is one of pitched political battles fought in the most hallowed halls of U.S. government.

Justice Earl Johnson, Jr. (Ret.) delivers the Roth Lecture.

Johnson’s talk, “Fighting for Justice—130 Years of Civil Legal Aid in the United States,” outlined some of the milestones in the evolution of legal aid in this country for the annual 2013 Justice Lester W. Roth Lecture.

Johnson has a long and intimate acquaintance with his subject. As a member of USC Gould’s faculty in the 1960s and 70s, he and others created the USC Clinical Semester program, which won the Justin Dart Award for Academic Innovation in 1971.

“I think it’s fair to say that without the effort of Justice Johnson and his colleagues, the clinical education movement would look nothing like it does today,” Dean Robert K. Rasmussen said during his introduction of Johnson.

After more than 10 years at USC, Johnson was called to the bench, serving as a justice of the Court of Appeal, Second Appellate District from 1982 to 2007.

But before his time either on the bench or at the university, Johnson worked at the forefront of the civil legal aid movement, serving as the second director of the U.S. Office of Economic Opportunity’s Legal Services program, which was created as part of President Lyndon B. Johnson’s War on Poverty.

Since retiring from the bench, Johnson has spent the past six years completing his three-volume history, To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States, which will be published on November 30.

Johnson began his discussion on the evolution of civil legal aid with the establishment of the German Legal Aid Society in New York in 1876. Johnson traced the group’s founding to the failed German revolutions of 1848.

“Almost 10,000 of those revolutionaries gave up on their home country and emigrated to what they saw as the beacon of democracy in the world: the United States of America,” Johnson said. “They were soon known as the 48ers. Unlike most German immigrants before them, they came from the educated classes and were devoted to social and political reform.”

Seeing their compatriots mistreated by employers, landlords and merchants, some of the 48ers decided they needed a lawyer who could fight on their behalf, according to Johnson. In 1876, the German Legal Aid Society opened its doors, and for its first 15 years served only German-speaking people before dropping “German” from its name.

By 1903, Johnson said, the society’s efforts included appellate litigation and legislative advocacy aimed at changing the law to make it fairer for the poor.

Five years later, the society lost the significant financial support of a major contributor who had been sued by the society.

Both of these themes – the focus on litigation and legislative advocacy, and the struggle to find financial support – would recur throughout the history of civil legal aid, Johnson said.

Fast-forward to 1965, when the combined budgets of all civil legal aid programs in the country totaled a paltry $5.4 million, all from private donations. It was the time of President Lyndon B. Johnson’s War on Poverty and the newly created Office of Economic Opportunity, led by Sargent Shriver. Shriver had read the manuscript of Edgar and Jean Cahn’s Yale Law Journal article, “The War on Poverty: A Civilian Perspective,” and was convinced that neighborhood law offices should play a role in promoting economic opportunity and fairness.

Dean Robert K. Rasmussen with Justice Johnson

With the support of the American Bar Association, Shriver opened the OEO’s Legal Services program, which endured controversy and repeated attempts to defund the program.

In 1966 – “33 years old and five years out of law school” – Johnson became the director of OEO’s legal services program.

“As the months went by, it became clear we had to find a focus for the legal services program or it would just dissipate,” Johnson said. “Once we asked the question – ‘What do lawyers do that can have the most impact on poverty?’ – the answer seemed obvious: lawyers shape the structure of the law, or at least can do so.

“We knew… that the law in America was slanted very much against the poor. So we decided that leveling the legal playing field would be the number-one priority for the OEO legal services program.”

Under Johnson’s guidance, OEO built an infrastructure to support front-line lawyers, a national training program and a number of back-up centers, mostly at law schools. One of these back-up centers, conceived by Prof. Martin Levine, was the Western Center on Law Poverty, established at USC in 1967.

In 1967, OEO began competing with major law firms for outstanding young lawyers and recent law graduates, Johnson said.

“During the late 1960s and early 1970s, the OEO legal services program had a critical mass of what might be called ‘Wall Street lawyers for the poor,’” Johnson said. “From 1967 to 1974, they argued 110 cases in SCOTUS and won over 60 percent of those cases.”

In 1974, 10 days before he resigned from office, President Richard Nixon signed legislation creating the Legal Services Corporation (LSC), which would operate as an independent, nonprofit organization.

Despite many successes, the legal services program and LSC faced challenges from politicians who sought to cut its funding, among them President Ronald Reagan, who beginning in 1981 attempted to end LSC’s funding. More recently, the 1994 “Contract with America” Congress aimed to put the Legal Services Corporation on a three-year “glide path to oblivion,” according to Johnson.

LSC survived attempts to dismantle it, and by the year 2000, “appropriations were passing with voice votes,” Johnson said.

“At the end, we have to concede that we as the legal profession somehow must make the case and enlist the allies required to raise ‘equal justice for all’ to the status it deserves for the general public and the nation’s politicians.”