The poor need lawyers

Commonweal, Oct 6, 1995 by Edward McGlynn Gaffney, Jr.

An occupational hazard of being a law school dean is that I have to put up with a lot of lawyer jokes. The latest one I heard asks how many lawyers it takes to change a light bulb. Answer: How many lawyers can you afford? Lawyer jokes aside, is any of us so cynical that we are willing to cast aside our society's aspiration to "equal justice under law" (to use the words over the front door of the Supreme Court)? To put flesh on the question, if a landlord who has abused the law is going to evict a poor person improperly, should not that poor person have a champion to protect his or her rights? In short, who of us really wants legal services to be cut off for poor people?

Not long ago there was a renaissance of interest in what historians refer to as "republican virtue." The term refers to the commitment to the commonweal, manifested by our extraordinary leaders in the formative years of the republic. A generous critic of the present 104th Congress might concede that its intentions with respect to the republic are honorable, but the public virtue of the reigning Republicans is coming clearer as its members exercise the power of the purse, putting our money where their mouth is. Last July, for example, Congress held hearings on whether to continue public funding for the Legal Services Corporation, the federal agency that provides attorneys for poor people in civil cases. Congressman Henry Hyde (R-Ill.), who chairs the House Judiciary Committee, pledged to support a bill to dissolve the agency and end funding in two years. On the day after the House voted to cut LSC funding by nearly .35 percent, Hyde suggested that economics, not politics, drove the decision. "In an ideal world," Hyde said, "Legal Services could, and should, continue getting federal funds. But, unfortunately, we are confronted with a mind-boggling task of cutting spending to move toward a balanced budget." Or, in the words of Don Corleone, "Nothing personal, just business."

The Senate should not accept this portion of the contract on America. And if the Congress agrees to kill LSC, the president should veto the legislation. For the business of cutting federal funds to LSC is a matter of public justice. When we negate the public commitment of the past thirty years to provide access to the justice system for the poor, it goes to the core of our self-understanding as a community.

The principles that were urged in favor of government funding for lawyers for poor people back in the 1960s need rearticulation and clarification, lest they be cast aside with the dismissive words of Speaker Newt Gingrich (R-Ga.): "You just don't get it." No matter how the debate over funding for the National Endowment for the Arts turns out, the terms of the debate over funding for LSC are different. One cannot avoid public or societal responsibility for the fair operation of the court system, which has always been considered a central function of the government. Since no one is seriously proposing the privatization of the judiciary, it follows that access to the machinery of justice should be available to all, not just to those who are wealthy enough to buy it. The rich and powerful have enough advantages as it is, without giving them monopoly control over the justice system.

In fairness to the leadership in this Congress, though, they have a point in looking to the states and to the private sector to do a lot of the things we used to think the federal government should do. Anyone familiar with the principle of subsidiarity should not insist that the highest level of government alone be responsible for providing some sort of level playing field in the justice system. But the federal government has never borne that responsibility exclusively. For decades, lawyers have given generously of their time to provide free legal services, and all lawyers should renew their own commitment to republican virtue on this score. The license that lawyers receive to practice law entails a high moral obligation to provide the full benefit of services to those who cannot afford to pay a fee. Several law schools (including Tulane, Penn, Valparaiso, and Loyola of Los Angeles) now require their students to engage in pro bono advocacy as part of their formation as lawyers. All of these schools, moreover, offer financial assistance to their alumni and alumnae who are willing to spend some period of their life assisting poor people.

These actions and other programs of the organized bar are all desirable and appropriate. But private-sector voluntarism does not absolve the larger political community of our social obligation to the poor. To use a technical term from tort law, we all have a duty of care. Neither members of the legal profession nor members of Congress should abandon the poor.

Edward McGlynn Gaffney, Jr., is the dean of the Valparaiso University School of Law.