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

2. A Literature Review

2. A Literature Review

2.1 The Beginning: United States

The War on Poverty: A Civilian Perspective by Edgar and Jean Cahn[18]is widely recognized as providing the seminal thesis in the development of models for delivering civil legal aid to low income people. Inspired by President Johnson's avowed War on Poverty, it was a major contributing factor in the establishment of the Neighbourhood Legal Services Program under the Office of Economic Opportunity which funded most of the neighbourhood clinics in the United States.

The authors begin with a critique of the approach inherent in a "war" on poverty by describing the rationale behind a comprehensive social services program in New Haven, Connecticut, administered by a private, non-profit organization called Community Progress Incorporated (CPI). This program involved the rendering of services, goods, and service programs by professionals to individuals in poor communities, through a local community office based in the low income neighbourhoods where the clientele lived. Each neighbourhood office was intended to supply legal services, health services, social workers, housing inspectors, homemaking advisors, etc. assisted by a community worker who is known and respected in the neighbourhood to serve [19] as a "bridge between residents and service agencies".

A fundamental criticism to this approach was that CPI retained a "service orientation" and thus did not alter the basic relationship between the community agency and the client (that of donor-donee). This professional service orientation approach does not promote the building of self-respect and dignity by community members, develop potential leadership or encourage community protest. Hence, the Cahns argued, it neglects to provide for or instil the "civilian perspective" and actually is subversive of that perspective, particularly by fostering dependency. The administrators of the community offices do what is "good for the client" and have the authority to determine eligibility for assistance and termination of the assistance. Limitations of and problems with such a community-wide social service organization are described by comparing the organization to a monopoly on all the opportunity and assistance available to the urban poor.

They argued that a "war on poverty" must be imbued with a 'civilian' perspective:

The ultimate test, then, of whether the war on poverty had incorporated the 'civilian perspective' is whether or not the citizenry has been given the effective power to criticize, to dissent and where need be, to compel responsiveness.[20]

The Cahns posited two fundamental reasons why social service agencies must foster dissent within the communities themselves:

  1. poor people must perceive that they have effective censorial power over all initiatives that are intended to affect the fundamental conditions of their life, and
  2. protest and criticism from the community will offer wisdom and corrective insights, when previously "token approval, acquiescence and resignation have been eagerly equated with meaningful [21] citizen participation".

In Section II the concept of the civilian perspective is teased out and described in detail. Section III then demonstrates the vision that was so influential to the ways that the neighbourhood law firm could foster the civilian perspective in a community and provide meaningful representation and education.

The Cahn's neighbourhood law firm is university affiliated and includes a staff of lawyers, research assistants, community organizers and investigators who would represent individuals as well as community interests. Four different styles of legal advocacy and legal analysis which may prove useful in implementing the civilian perspective are described:

  1. Traditional legal assistance in establishing or asserting clearly defined rights;
  2. Legal analysis and representation directed toward reform where the law is vague or destructively complex;
  3. Legal representation where the law appears contrary to the interest of the slum community; and,
  4. Legal representation in contexts which appear to be non-legal and where no judicially cognizable right can be asserted.[22]

Several problems faced by the neighbourhood law office are outlined - taking on test cases for their "symbolic character", selecting cases in favour of certain clients and hence choosing who will be the community's leaders, the difficult line for the neighbourhood attorney between representing and leading, obeying and teaching. Furthermore, the neighbourhood firm can only come close to fulfilling its ideal conception if it has both the liberty and the resources necessary to proceed. The Bar's approval and cooperation as well as independence from the government which funds the operation of the firm are both necessary and difficult to maintain.

Finally, the Cahns describe the manpower, skills and perspective needed for many of the tasks of the neighbourhood law office, which could be supplied through a connection with law schools and students. Case work assistance as well as the development of research projects and seminars would be a part of the law student's contribution to the office. In addition to benefiting the office, the clinical training element would create a group of young lawyers knowledgeable in poverty law issues. Both the university and the neighbourhood office could join in providing opportunities for the recruitment and training of leaders indigenous to the target community.

This was an enormously influential piece of writing, and in a later section, dealing with the "Parkdale Model" it will be seen as very enduring, in one setting at least. However, two years later, the Cahns are disillusioned. In What Price Justice: The Civilian Perspective Revisited[23] they conclude that neighbourhood legal services can have limited effectiveness in combatting injustice and helping the poor; fundamental changes in the conception and the administration of justice are first required. In this piece they ultimately argue that to effectively serve the needs of the poor, the Neighbourhood Law Office must be supplemented by some form of decentralized and community controlled Neighbourhood Court System. However, their cogent and vivid description of the pattern of overwhelming case loads, loss of community involvement or non-legal strategies, and inadequate resources is prescient and will also be reflected, decades later, in a Canadian context.

The reasons for their concern are somewhat sustained in a comprehensive look at the Neighbourhood Law Office concept, and in its implementation, done in 1967 by the Harvard Law Review: "Neighborhood Law [24]Offices: The New Wave in Legal Services for the Poor". This wide ranging article sets out the historical development and failings of legal aid in the United States, and the development of the "neighborhood law office". The authors elaborate on the benefits of the neighbourhood concept (also termed the "New Wave" of legal services). A decentralized location is easier and less costly for clients to reach, longer hours accommodate clients who cannot afford to lose a day's pay, and psychological barriers are broken down when a law office is placed directly in the community that it serves. The model contemplates what is described as a "service function", that is, the type of legal case work that will be done and a "non-service function", that is, law reform, community action, community education. From the inception of these offices, the problem of balancing between the "service" and "non-service" functions, such as a high volume of cases and limited resources, was understood and the student authors include ways that some neighborhood programs have attempted to solve them. A similar analysis touches on client participation as crucial to the provision of meaningful legal services to the poor and provides some ways in which some neighborhood programs have attempted to meet the participation requirement. The balance of the piece covers the institutional, ethical, and financial conflicts that were already being layered over the Cahn's groundbreaking concept in a careful but not particularly critical way.

That is not true of one of the other "foundation" articles, Stephen Wexler's oft quoted piece Practicing Law for Poor People.[25]Wexler, a staff attorney with the National Welfare Rights Organization when he wrote the article, put practical clothes on the framework erected by the Cahns, and did so from a critical perspective. His first proposition is that lawyers for poor people must understand the relationship of poor people and the law, and of poor people and a rich society, before 'practicing' on them; that is, poor people are not just rich people without money, and poverty lawyers must understand that.[26] His second key proposition is probably the most important - and the most difficult to put into practice. Wexler was one of the first to insist that a poverty practice had to put political organizing before case work, and therefore had to have a way to limit the cases accepted in a more principled fashion than "first come - first served".[27]His third was that "the lawyer does not do anything for his clients that they cannot do or be taught to do for themselves" and he sets out four mechanisms to achieve that goal: informing clients and communities of their rights; writing manuals and other materials; training lay advocates; and educating groups for confrontation.[28] Each of these have been and continue to be important today in clinics like Parkdale Community Legal Services.[29] Indeed, the Cahn-Wexler vision flourished in Canada, although not without difficulty and now more frequently in the breach than in the observance.

2.2 The Beginning: Canada

The history of legal aid in Canada is similar to that in the United States, although it was regularized beyond charity status later, and developed some unique delivery models. However the first step was to ensure representation to accused in serious criminal and civil matters. John Honsberger sets out this history in the context of Ontario[30] describing the structure and operation of the new (1967) "judicare" plan in detail: the administration and direction of the plan by the Law Society, the rules for determining what services legal aid certificates will be granted, determination of financial eligibility by a welfare officer, client control over choosing their own lawyer, the Law Society's role, and how many lawyers were registered as accepting legal aid certificates (approximately the lawyers in Ontario, were either the civil or criminal legal aid panels, or both).

He evaluates the success of the Plan at just under two years of operation and identifies problems cited which will endure into the present: whether the poor person's right to choose their own lawyer is a meaningful and appropriate one, the problems associated with predicted rising costs of the Plan, and the tension between the Law Society and the government in determining how the Plan will evolve.

The final section, Legal Aid and the Chronic Poor, details how the need for legal services of the "chronic poor" is not being satisfied. The failure of Legal Aid Plans to help the chronic poor is attributed to a large extent on poor individuals' reluctance to see the law as a helpful force in their lives and a pessimistic "what's the use" attitude. The author concludes, "To encourage those who continue to be exploited to assert their legal rights, it may be necessary to take legal aid to the poor and not to expect the poor to ask for it. A local legal centre staffed by Duty Counsel could, for example, be taken, at no great expense, to the poorest and most depressed areas".[31]

That is, of course, what happened under the impetus of law students inspired by the American experiments and the goals of the "Just Society". In a brief, but prescient article in the 1973 Canadian Bar Review, Larry Taman and Fred Zemans predict "The Future of Legal Services in Canada".[32] They set out the evolution of legal services to the poor and working class in Canada and then set the stage for the emergence of a community legal clinic. They describe how the Ontario programme was at first hailed as the Canadian model, and other provinces were encouraged to follow it. However, as the other provinces began to make more substantial financial commitment to and recognize the need for legal services, the Ontario format and approach failed to dominate. A debate took place in which some, particularly in Quebec, propounded the superiority of a neighbourhood law office system: full-time salaried lawyers and a strong community base, modelled on the American neighbourhood law office model funded by the American Office for Economic Opportunity.

Other provinces systems and experimentations are then described. Nova Scotia - full-time, salaried lawyers work out of offices in the community, Manitoba had a plan which replicated Ontario's but which contained one large experimental neighbourhood law office in Winnipeg's north end and Manitoba rejected that the Law Society should be an administrator of the plan. The most ambitious departure from the model developed in Ontario was in Quebec. A large group of specially trained "laymen" along with lawyers were to serve the unmet legal needs in the province. The Regional Boards which administered the local legal service offices were to have not less than 1/3 and as much as 2/3 community representation. The authors submitted that beyond the radical departure in the amount of community representation in the administration of the legal services program, the most surprising development was the failure of the Quebec legal profession to gain control of the central coordination and policy-making body. As the authors note, "Quebec thus became the first province to operationalize with some vigour the view that more than legal expertise is needed to administer and develop a programme which, while law-oriented, is also a programme of social service and social change"[33].

They predict for the future that more community-centred legal service offices will be the basis of an expanded programme in which more and more lawyers are publicly employed in an effort to service legal needs. The general direction will move away from the fee-for-service model of the current Legal Aid system and towards the integration of this with the community-controlled clinics with staff attorneys and commitment to change. From trends at the time of this article, the authors conclude that "…it is likely that many such centres will offer an integration of legal, health and social services"[34]and predict that the ultimate control over legal aid service programmes will not remain with the law societies.

That trend, of course, had already begun, with Taman, in 1971, the first chair of the Community and Legal Aid Services Programme (CLASP)[35]at Osgoode Hall Law School (the volunteer student services clinic that operates today), and Zemans, the first director of Parkdale Community Legal Services. In less than ten years, Parkdale had secured permanent funding from the Ontario Legal Aid Plan and developed an approach to community development that included and expanded on most of the elements urged by Wexler and the Cahns.[36]