For the moment, the focus of the Legal Services planners was on local bar associations. But about this time Lowell Beck, the assistant director of the ABA’s Washington office, read a Washington Post article about Edgar Cahn. Beck arranged for Cahn—now installed as a speechwriter and “idea man” at the OEO—to have lunch with him and other ABA staff members. At lunch, Cahn shared his vision of a national network of neighborhood law offices in poor areas. Beck said he thought it possible the ABA would endorse the idea.
When Cahn reported this information at an OEO executive staff meeting in late October of 1964, Shriver recognized that the endorsement of a national organization like the ABA would provide a public relations bonanza for the Legal Services program, and he assigned Cahn to arrange a meeting between President Johnson and the leaders of the ABA. Meanwhile, at an ABA conference in mid-November, Edgar Cahn gave a presentation on the OEO’s plans for a national Legal Services program. During the question-and-answer session following his remarks, Cahn was attacked by legal aid lawyers, who demanded to know why OEO didn’t plan to make use of existing legal aid societies. It was an insult, they said, that OEO would plan a Legal Services program without so much as consulting any of the network of 246 legal aid societies nationwide. Speaking up to defend Cahn, two Community Action advocates angered the legal aid lawyers further by explaining that the reason the OEO was trying to start something new was “because of hostile attitudes and rigidities in established services.” Without meaning to, Cahn and company had earned the opposition of the legal aid community. In December NLADA’s executive committee passed a resolution declaring its opposition to an OEO Legal Services program. An OEO Legal Services program, NLADA argued, would end up competing with existing legal aid societies, possibly causing their funding to dry up.
NLADA’s opposition to a Legal Services program made winning the support of the ABA all the more important, but Shriver made that task harder with a speech he gave in Chicago on November 17. He announced the launch of a national network of “supermarkets of social service” for the urban poor. Neighborhood centers administered by local CAAs, Shriver explained, would provide a host of services, including “homework aides, recreation aides, health aides, and legal advocates for the poor.” These services, Shriver continued, need not be provided by professionals.
When the text of Shriver’s speech was printed in newspapers across the country the next day, the reaction by lawyers was immediate and hostile. As Edgar Cahn put it, “the idea of putting lawyers in shopping carts really turned [them] off.” Also, the prospect of the practice of law by nonlawyers constituted a direct threat to the very existence of the profession. If nonlawyers could practice law for the poor, and for less money, then the middle class would start demanding cheap, nonlawyer legal assistance, too. ABA president Lewis Powell (later a Supreme Court justice) was deluged with angry letters demanding that he take a stand against the travesty Shriver was proposing.
But Powell recognized that the OEO’s program offered probably the best opportunity the ABA would have to become more productively involved in legal aid. Moreover, the OEO was likely to move forward with its plans whether or not the ABA supported it. On January 12 the Cahns met with leading lawyers at the ABA’s Chicago headquarters and, over the course of a heated eight-hour session of negotiations, hammered out an agreement whereby the ABA would constitute a large part of a permanent advisory committee that would help the OEO establish its Legal Services policies. Over the next week, Lewis Powell and his associates lobbied the ABA membership, and on February 7, 1965, the ABA’s House of Delegates voted unanimously to support the OEO. Shriver immediately sent a telegram to Powell to express his gratitude.
But just as relations between the OEO and the ABA seemed to have gotten on track, internal disputes within the OEO threatened to derail the Legal Services program. Jean Cahn was insisting that the OEO create a wholly separate office for legal services, outside of the Community Action umbrella. Otherwise, she said, OEO lawyers would end up serving the interests of the CAAs, rather than the poor directly.
The directors of Community Action staunchly resisted Cahn’s plea for an independent lawyer corps. CAAs were supposed to be umbrella organizations; as many services as possible—education, health care, job training, and legal assistance—were to be coordinated under Community Action’s auspices. It made no sense to create an entirely separate bureaucracy for legal services.
Shriver had his own reasons for wanting to keep the Legal Services program contained within Community Action’s administrative structure. For one thing, he wasn’t sure he had the authority to create a legal services program outside of Title II of the Economic Opportunity Act; all the leeway Congress had given him lay within the Community Action section of the bill. More important, with mayors mounting their attacks on CAAs, Shriver needed the additional National Emphasis program to supplement Head Start. A National Emphasis legal services program would give Shriver something concrete he could show to Congress and to the mayors—something that wasn’t simply aimed at organizing the poor against City Hall, as local politicians believed CAAs were. Of course, this meant that when he made the case publicly for a National Emphasis legal services program, he had to gloss over its radical, anti-establishment potential: Clearly, it would be best not to mention that the planners of the program imagined OEO lawyers suing City Hall, or even suing the OEO itself. Several years later, Lewis Powell said that “if ABA members had visualized the extent to which OEO funded legal services would be used to challenge government at state and local and federal levels, there would have been a far more vigorous opposition” to ABA endorsement of the Legal Services for the Poor program.
When Community Action’s directors (with Shriver’s backing) declined to grant the Legal Services program a separate administrative existence, Jean Cahn dug in her heels. In March, she told Shriver that if the Legal Services program couldn’t exist outside of Community Action, then at the very least she (as opposed to Community Action administrators) had to be vested with the final decision-making authority regarding Legal Services grants. If she wasn’t given that authority by April 1, she said, she would resign from the OEO in protest. When April 1 came and went and Shriver did not grant Cahn the independent authority she wanted, she carried out her threat and quit.
Shriver had gambled that, despite Jean Cahn’s instrumental role in bringing the ABA into partnership with the OEO, the ABA’s leadership would not be fazed by her resignation, especially as she had expressed such skepticism toward that organization all along. He was right: According to Earl Johnson, ABA lawyers “did not perceive Mrs. Cahn as the director of the Legal Services program but rather as Mr. Shriver’s personal assistant whom he was free to retain or discharge.” (At one point after she had quit, Jean Cahn attacked Shriver publicly at an ABA meeting; Shriver, somewhat mischievously, assigned Edgar Cahn to write the official OEO response. Newspapers reported the event as “Cahn Attacks Cahn as ‘Bureaucrat.’ ” “There should have been a divorce,” Jean recalled several decades later. “There’s no question that we should never have stayed married after that.” They did stay married, however, and went on to set up Antioch Law School, in Washington, DC, together, where they served as co-deans for a number of years.)
For several months, the Legal Services program was in disarray, trying to move forward without a permanent director, moving from crisis to crisis as a series of temporary appointees occupied the top job. After the first successor to Jean Cahn, William Downs, lasted less than a month, Shriver transferred control of Legal Services to Bruce Terris, who was a lawyer in the OEO’s general counsel’s office. Community Action director Ted Berry objected to Terris’s leadership, claiming that running the program out of the general counsel’s office represented a major conflict of interest. Although Berry’s real fear was that Community Action was losing control of Legal Services, his allegation of a conflict of interest had merit: after all, how could Legal Services be expected to properly represent its clients (
the poor)—bringing suits, if the clients chose, against the OEO—if the program were housed in the department (the general counsel’s office) assigned to defend the OEO against such suits? Shriver agreed and placed the Legal Services program’s grant-making authority under Berry’s jurisdiction.
Without a permanent director in place, the Legal Services program drifted aimlessly through the early summer of 1965. Part of the problem was that Berry and Shriver had different ideas about what kind of director they wanted. Berry wanted a middle manager who would defer to him. Shriver wanted someone with charisma, someone who could lend luster—and credibility with the legal profession—to the program. Berry proposed several directors; Shriver (with the concurrence of the ABA) rejected them all as being of insufficient standing in the profession.
The summer dragged on. Head Start was a smashing success, CAAs were up and running all over the country, and thousands of young people were enrolled at Job Corps centers—yet the Legal Services program still had barely any law offices in the field. For Shriver, the situation had become a personal embarrassment. Several months earlier he had agreed to give the keynote address at the ABA’s upcoming annual convention in Miami on August 11; his plan had been to use the occasion to sing the Legal Services program’s praises, recount its early accomplishments, and celebrate the OEO-ABA partnership. Instead, he was reduced to apologizing for the lack of progress. Although Community Action now had “a health services unit, an education unit, a labor market unit, and others,” he said, “we have been delinquent in establishing a legal services unit. And we have paid a heavy price. A price in misconceptions, in lack of continuity, and of consistency, and of close cooperation with the Bar.”
Sensitized to the concerns of the profession by its angry reaction to his “supermarket of social services” speech the previous November, Shriver took the opportunity to assuage some of their worries about the OEO and to signal a spirit of cooperation. “We are not trying to take paying customers away from the private practitioner … by taking revenue-producing cases.” Nor, he said, are we “trying to replace lawyers with social workers or laymen!”
Several weeks later, the ABA sent Shriver a list of recommended candidates to direct Legal Services: Ken Pye, who was an associate dean at Georgetown Law School and a founder of the Washington-area legal aid program; Jerry Shestack, a partner at a white-shoe Philadelphia law firm, who had done a lot of desegregation litigation in the South; and Clinton Bamberger, a young, Baltimore-based lawyer who had recently been named the chair of the Maryland State Bar Committee on Legal Services. After both Pye and Shestack declined to consider the job, Shriver was desperate; he couldn’t afford to have Bamberger decline as well, especially because Bamberger had the kind of flair Shriver was looking for. As one ABA board member described him, Bamberger “was establishment. He was a nut. He looked like a Scandinavian Boy Scout.… And he was young, and apparently, restless.” So Shriver invited Bamberger to OEO headquarters on September 6, determined not to let him leave until he had accepted the director’s position. Bamberger says he never actually agreed to take the job—yet somehow, at the end of the day, Shriver was publicly announcing that Bamberger would be Legal Services director.
What followed, Earl Johnson has written, was “the excitement of participating in possibly the greatest adventure in the history of the legal profession.” (Johnson himself was part of that excitement: Bamberger hired him away from his position as deputy director of the Neighborhood Legal Services Project to become Bamberger’s chief deputy at OEO. When Bamberger left in April 1966 to run for attorney general of Maryland, Johnson became the director.) Over the next several months, Shriver, Bamberger, and the small Legal Services staff embarked on a national “sales campaign” to persuade local bar associations and existing legal aid societies to apply for federal grants through the OEO and become a part of the Legal Services program. In a tour de force performance at the NLADA conference in Arizona in November, Bamberger managed to bring the previously hostile legal aid community around to supporting the OEO’s new program.
In the eighteen months beginning in January 1966, Legal Services opened neighborhood law offices in 250 cities and towns across the country. In April 1966 alone, the OEO disbursed $6 million in grants to thirty-four Community Action agencies for neighborhood law offices; that was more money than was being spent by all the existing legal aid societies in the country. Over the following year, 300 more neighborhood law offices opened, and the Legal Services program budget for 1967 was $40 million.
THE QUEST FOR EQUAL JUSTICE
Now that neighborhood law offices were finally opening all over the country, how could they most effectively contribute to reducing poverty? The basic question for Legal Services remained: Was the proper role for a poverty program to provide services to the poor or to reform the institutions that trapped people in their indigence?
More or less by default, the Legal Services program began by providing services (helping the poor with their legal problems) and then made a calculated strategic adjustment to concentrate on legal reform (trying “test cases” and engaging in legal advocacy to actually change laws and institutions). In the summer of 1966, when the OEO’s Office of Inspection made its first reports on neighborhood law offices, it found a standard pattern. Within a few months of opening, Legal Services “offices and attorneys were swamped by more needy clients than they could properly represent.” As Earl Johnson recalled, “The entire Legal Services program was drifting steadily toward complete preoccupation with the ‘processing’ of caseloads.”
Shriver, who always wanted his programs to have “maximum impact,” soon recognized that without increasing the funding for Legal Services a hundredfold, there was no hope of addressing the individual legal problems of the poor in any kind of comprehensive way. Thus he quickly signed on to the growing consensus among Earl Johnson and his team that the Legal Services program’s top priority should henceforth be legal reform. “Equal justice cannot be accomplished by solving the problems of the poor on a case-by-case basis,” Shriver declared. “There are too many problems, too few attorneys, and too many cases in which there is no solution given the present structure of the law.” Legal Services would try to help the poor by challenging the repressive policies of the police, the court system, or the welfare bureaucracy—and on March 17, 1967, law reform was made the first priority of the program.
From that point forward, the Legal Services program focused on test cases and appeals that would help establish new interpretations of existing laws or that would render unconstitutional those laws that violated citizens’ rights. During the nine years of the official existence of Legal Services as a federal program, between 1965 and 1974, 119 Legal Services–sponsored cases were argued before the Supreme Court. Legal Services also engaged in advocacy against consumer fraud and slumlord exploitation and embarked on litigation and negotiation with government bureaucracies.
Mickey Kantor, an early Legal Services lawyer who later served as US trade representative and secretary of commerce under President Bill Clinton, recalled that Legal Services
caused a lot of trouble because clients were pursuing their legal rights using lawyers who at the end of the chain were paid for by the federal government. Members of Congress were very upset about that, because local officials and state officials were being sued, Legal Services lawyers were winning, and it was upsetting the Establishment apple cart in many communities. I think one of Sarge’s signature moments was when a member of Congress wrote to him, complaining bitterly about this and raising the question of whether federal funds should be paying for lawsuits against not only state and local governments but also federal government agencies. Well, Sarge wrote back and said, “My proudest moment will be when Legal Services lawyers sue me.” And he didn’t have to wait long before this happened.
During the 1960s, the elements of the War on Poverty that attracted the most political attention were the Job Corps and Community Action; today, Head Start is widely
seen as the most successful legacy of the War on Poverty. Yet a case can be made that Legal Services for the Poor had the most far-reaching effects on American society. In 1969 the OEO general counsel Don Baker said that “legal aid is maybe the most important thing that we are doing. Legal aid will have more impact on … our social, economic, and political structures than anything else that OEO and perhaps even the federal government has done on the domestic scene in our lifetime.”
In its first six months of existence, the Legal Services program handled 93,000 clients and won nearly 75 percent of its cases. According to one legal historian, “The LSP … did seem to increase feelings of political efficacy among the poor. Armed with a tool of government—lawyers—the poor began to believe that they could fight city hall. The lawyers’ translation of the poor’s problems into legal issues engendered beliefs in ‘rights’ rather than pleas for charity.”
Legal Services also changed how American society thought about legal aid. Legal Services “changed whole bodies of law,” Edgar Cahn would recall thirty years later. “It changed the legal profession. It changed the code of professional responsibility. It changed legal education. And it changed legal scholarship.” At the 1967 NLADA convention, following the OEO’s example, the legal aid societies for the first time adopted appellate advocacy as a formal part of their mandate. They also passed resolutions endorsing the reform of the welfare system through test litigation and suits against federal, state, and local governmental agencies. For better or for worse, this represented a radical change in the profession’s approach to poor law.
Legal Services also changed how ambitious young lawyers thought about their profession. “Before the OEO program,” Earl Johnson wrote, “it was almost unheard of for a high-ranking graduate of a major law school to accept employment with a legal aid society.” But by the late 1960s, according to Mickey Kantor, “the top people in each law school class—Georgetown, Yale, Harvard—did not want to go clerk, did not want to go to Wall Street. They wanted to go into Legal Services, or into civil rights law. We wanted desperately to get into Legal Services.” Legal Services, Kantor says, “inspired a whole generation of young lawyers to engage in public service.”
Sarge: The Life and Times of Sargent Shriver Page 56