The OEO era began in 1964 when Congress passed the Economic Opportunity Act, the beginning of President Johnson’s War on Poverty. For the first time, Congress made federal money available for legal services for the poor.
OEO’s legal services program achieved much success but also encountered significant opposition. This made clear the need for a new legal services structure, separate from the Executive branch and protected from vagaries of the political process.
While many people played important roles, the three critical, formative players for the OEO Office of Legal Services were Bamberger, Johnson and Cahn.
Related oral histories
Following is a list of oral histories relating to the OEO era:
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Bamberger, Clinton — Interview by Christopher Brown, 2002 Jun 04 OEO/LSC
Bellow, Gary — Interview by Zona Hostetler, 1999 Mar 17 LA/OEO
Bennett, H. Michael — Interview by Alan Houseman, 2004 May 27LSCC/OEO
Cahn, Edgar — Interview by Alan Houseman, 2002 Jul 03 OEO/LA
Edson, Charles — Interview by Robert Rhudy (?), 2002 Jun 07 OEO
Johnson, Earl, Jr.– Interview by Alan Houseman, 2002 Nov 02 OEO
Lenzner, Terry — Interview by Alan Houseman, 2002 Sep 04 OEO
McCalpin, Bill — Interview by Linda Perle, 2002 Aug 09 OEO/LSC
Reynoso, Cruz — Interview by Alan Houseman, 2002 Aug 12 OEO
Wald, Patricia — Interview by Linda Perle, 2015 Apr 22 OEO
Westwood, Howard — Interview by Clinton Bamberger, 1992 Oct 06 OEO
The Early Development
1964: Congress passes the Economic Opportunity Act
In 1964, Congress passed the Economic Opportunity Act, the beginning of President Johnson’s War on Poverty (Economic Opportunity Act of 1964, Pub. L. No. 88-452, 78 Stat. 508). The Act established the Office of Economic Opportunity (OEO), which administered the Administration’s anti-poverty programs. For the first time, Congress made federal money available for legal services for the poor.
In order to establish a federal financing niche as part of the War on Poverty, several critical sources of support needed to emerge and coalesce: a commitment from the OEO leadership to include legal services in the services OEO would fund; support for legal services from the organized bar at the national level; encouragement for legal services programs at the local level; and implicit Presidential and Congressional support.
In late 1964 and early 1965, those elements of crucial support began to converge. Jean and Edgar Cahn convinced Sargent Shriver, the first director of OEO, to include legal services in the package of activities that could be funded by the agency, since legal services was not mentioned in the original Act. In 1966, civil legal services was added to the Economic Opportunity Act Amendments of 1966 and was made a special emphasis program in the Economic Opportunity Act Amendments of 1967.
Nevertheless, the Economic Opportunity Act was premised on the idea that community action agencies (CAAs), the local planning bodies, would decide how to address poverty problems in the individual communities. Thus, a CAA could choose not to include legal services in its overall community anti-poverty strategy. And, in practice, few CAAs opted to provide legal services, in part, because legal services programs often took positions on behalf of clients that were inconsistent with CAA positions on local issues.
ABA: legal services program should be free from lay control
Therefore, in adopting the Cahns’ recommendation, Sargent Shriver also agreed to earmark funds for legal services, irrespective of local CAA plans. This earmarking was, to a certain degree, a condition of ABA support. The organized bar took the position that the legal services program should be free from lay control locally, regionally, and nationally. This meant that a CAA’s lay leadership could not control the local legal services program, and non-lawyer bureaucrats within OEO could not control legal services at the regional and national level.
Support from the ABA was critical to the success of the federal legal services program, and it was achieved with much less difficulty than most thought was possible. Under the progressive leadership of ABA President (and later Supreme Court Associate Justice) Lewis Powell, F. William McCalpin (then Chairman of the ABA Standing Committee on Lawyer Referral and later to become Chairman of the Board of Directors of the Legal Services Corporation and one of its longest serving members), and John Cummiskey (Chair of the Standing Committee on Legal Aid), the ABA House of Delegates in 1965 passed a resolution endorsing the OEO legal services program. Although the resolution was adopted without a dissenting vote, the ABA conditioned its support on the organized bar having a policy role in formulating and overseeing the legal services program and the understanding that traditional legal ethics were to be considered as an integral part of the program’s operations.
A key to ensuring the influence of the organized bar was the agreement by Shriver to create a National Advisory Committee, which included leaders of the bar, along with client representatives and others knowledgeable about civil legal assistance. The National Advisory Committee included a number of people who were to play critical roles in the future of the federal legal services program, including John Robb, a private attorney in Albuquerque, New Mexico; Bill McCalpin; Gary Bellow, an attorney at California Rural Legal Assistance and later a professor at Harvard Law School; Jerry Shestack, future President of the ABA; and Jean Cahn.
OEO’s E. Clinton Bamberger and Earl Johnson write Legal Services Guidelines
Having secured the endorsement of the ABA, OEO faced the critical and much more difficult task of generating the local programs that would actually deliver the services to low-income clients. While the designs for the individual programs would be developed locally and set out in funding proposals submitted by entities that were organized in local service areas, OEO had the responsibility to provide potential grantees with guidance regarding the kinds of programs that it would fund and to decide whether the proposals should be modeled after traditional legal aid societies or the foundation-funded experiments. The overall design for the program was fleshed out by E. Clinton Bamberger, the first director of OEO Legal Services and his deputy (and later the second director) Earl Johnson. Bamberger came to OEO from private practice with the strong endorsement of the ABA leadership but with little experience in legal aid for the poor. Johnson had been the deputy director of the Washington, D.C. foundation-funded legal services program but had never worked in a traditional legal aid office.
In developing the overall design for the OEO legal services program, Bamberger and Johnson worked with the National Advisory Committee. This group produced the OEO Legal Services Guidelines, which were supplemented by the OEO staff’s How to Apply for a Legal Services Program. The Guidelines took the middle ground on most of the controversial design issues. However, consistent with the statutory requirement that the poor be afforded “maximum feasible participation” in the operation of OEO programs, the Guidelines required representation of poor people on the boards of local legal services programs and encouraged the formation of client advisory councils. This provision turned out to be perhaps the most controversial section of the Guidelines and required constant oversight by OEO to ensure its implementation. The Guidelines did not set national financial eligibility standards but did permit poor people’s organizations to be eligible for representation. The Guidelines prohibited legal services programs from taking fee-generating cases but required local programs to provide service in all areas of the law except criminal defense and to advocate for reforms in statutes, regulations, and administrative practices. They identified preventive law and client education activities as essential components of local programs. The Guidelines required program services to be accessible to the poor, primarily through offices in their neighborhoods with convenient hours.
OEO funds nonprofit staff attorneys and develops legal services infrastructure
Unlike the legal aid systems that existed in other countries, which generally used private attorneys who were paid on a fee-for-service basis, OEO’s plan for the legal services program in the United States utilized staff attorneys working for private, nonprofit entities. 2 OEO’s grantees were to be full-service legal assistance providers, each serving a specific geographic area, with the obligation to ensure access to the legal system for all clients and client groups. The only specific national earmarking of funds was for services to Native Americans and migrant farmworkers. Programs serving those groups were administered by separate divisions within OEO and had separate delivery systems. The presumption was that legal services providers would be refunded each year unless they substantially failed to provide acceptable service or to abide by the requirements of the OEO Act.
In addition to local service providers, OEO also developed a unique legal services infrastructure. OEO funded a system of national and state support centers, training programs, and a national clearinghouse for research and information. This system would provide the legal services community with leadership and support on substantive poverty law issues and undertake litigation and representation before state and federal legislative and administrative bodies on issues of national and statewide importance.
Most of the initial proposals submitted to OEO for legal services funding came from areas with existing legal aid societies and progressive local bar associations. These proposals covered many of the urban areas of the Northeast, Midwest, and the West Coast, but few proposals came from the South and Southwest. It would take many years and much turmoil and change before a federally funded legal services program provided poor people throughout the country with access to the legal system.
Early Major Accomplishments
As its designers had intended, the legal services program soon had a significant impact on the laws that affected the rights of low-income Americans. Legal services attorneys won major cases in state and federal appellate courts and in the U.S. Supreme Court that recognized the constitutional rights of the poor and interpreted and enforced statutes in ways that protected their interests. Programs engaged in advocacy before legislative bodies that gave the poor a voice in forums where no one had previously spoken on their behalf, let alone listened to their side of the issues. Legal services advocates appeared before administrative agencies to ensure effective implementation of state and federal laws and to stimulate development and adoption of regulations and policies that had a favorable impact on the poor. Equally important, programs represented individual poor clients before lower courts and administrative bodies and helped them enforce their legal rights and take advantage of opportunities to improve their employment status, public benefits and other income supports, education, housing, health, and general living conditions.
Legal services attorneys win landmark decisions
Legal services attorneys won landmark decisions, such as Shapiro v. Thompson, 394 U.S. 638 (1969), which ensured that welfare recipients were not arbitrarily denied benefits, and Goldberg v. Kelley, 397 U.S. 254 (1970), which led to a transformation in the use of the concept of due process. These seminal cases were hardly the only cases brought to the Supreme Court by legal services attorneys. A study by Professor Susan Lawrence reviewed the 119 Supreme Court cases between 1966 and 1974 that were brought by legal services attorneys. Legal services attorneys secured victory in 62 percent of those cases, second only to the record of the Solicitor General of the United States. 3
Creative advocacy by legal services lawyers expanded common law theories that revolutionized the law protecting poor tenants and consumers, including innovative concepts, such as retaliatory eviction and implied warranty of habitability. Legal services attorneys also worked to enforce rights that existed in theory but were honored only in the breach and to ensure that federal law enacted to benefit the poor was actually enforced on behalf of their intended beneficiaries. Cases like King v. Smith, 392 U.S. 309 (1968), radically changed poverty law by providing remedies in federal and state courts against those who administered the federal welfare program Aid for Families with Dependent Children (AFDC), the Food Stamp Program, public housing, and other public benefit programs.
Legal services lawyers active behind-the-scenes on legislation and regulations
Legal services lawyers also played critical behind-the-scenes roles in enacting or modifying federal, state, and local legislation. Legal services advocates significantly influenced the enactment of the Food Stamp Program, the Supplemental Food Program for Women, Infants and Children (WIC), and Supplemental Security Income (SSI), and they were instrumental in making changes to key federal housing legislation, Medicaid, consumer legislation, and nursing home protections.
Legal services advocates were also on the forefront of regulatory developments on AFDC; SSI; Medicaid; Early Periodic Screening, Diagnosis and Treatment (EPSDT); food programs; Hill-Burton Act’s uncompensated health care and community services requirements; regulations to implement the provisions of Truth in Lending legislation; federal housing; energy assistance and weatherization programs; Individuals with Disabilities Education Act; legislation protecting migrant farmworkers from actions by growers and farm labor contractors; Fair Debt Collection Practices Act; and numerous others.
Legal services lawyers fundamentally change treatment of the poor
Perhaps most important, through sustained and effective advocacy, legal services lawyers were able to fundamentally change the way that public and private entities dealt with the poor. Legal services representation helped alter the court system by simplifying court procedures and rules so that they could be understood by, and made more accessible to, low-income people with limited education. Legal services was also on the forefront of community legal education and self-help initiatives. As a result of legal services representation, welfare and public housing bureaucracies, social service agencies, schools, and hospitals began to act in accordance with established rules and to treat poor people more equitably and in a manner more sensitive to their needs.
Legal services programs were on the forefront of the efforts to assist women who were victims of domestic violence and to ensure that police and prosecutors took their complaints seriously and treated them as victims of criminal acts by their abusers rather than simply as parties to domestic squabbles.
Growth and Development
By 1968, 260 OEO programs were operating in every state except North Dakota, where the governor had vetoed the grants. The legal services budget grew slowly but steadily from the initial $25 million in 1966 to $71.5 million in 1972.
In 1967, OEO legal services’ second director, Earl Johnson, made a second fundamental policy decision that would also have long-term implications for the civil legal assistance program.
The local OEO-funded legal services programs were facing impossible demands from clients for services with inadequate resources to meet the need. In response to this growing problem, Johnson decided to require that programs set local priorities for the allocation of resources but established “law reform” for the poor as the chief goal of OEO legal services. He made clear that OEO would give priority in funding to proposals that focused on law reform.
In addition, Johnson wanted to create a cadre of legal services leaders who would then use peer pressure to encourage programs to provide high-quality legal services. In order to achieve this goal, OEO funded the Reginald Heber Smith Fellowship program to attract “the best and the brightest” young law graduates and young lawyers into OEO legal services. This program provided a summer of intensive training in various law reform issues, and then placed the “Reggies” in legal services programs throughout the country for one- or two-year tours of duty. Many of the Reggies became leaders in their local legal services communities, as well as on the national level. Others went on to become respected lawyers in private practice and academia, as well as important political leaders and well-known public figures.
A large investment was also made in “back-up centers”—national legal advocacy centers, initially housed in law schools, that were organized around specific substantive areas (e.g., welfare or housing) or a particular group within the eligible client population (e.g., Native Americans or elderly). These centers co-counseled with, and provided substantive support for, local programs that were engaged in key test case litigation and representation before legislative and administrative bodies on behalf of eligible clients and groups, as well as engaging directly in advocacy in significant cases with national impact.
The back-up centers also provided research, analysis, and training to local legal services programs that were working on cases within the centers’ areas of expertise. These centers engaged in specialized representation and developed knowledge and expertise that were essential to the emergence of new areas of poverty law. They also provided leadership on key substantive issues and worked closely with the national poor people’s movements that had evolved during the early years of the legal services program (e.g., the National Welfare Rights Movement and the National Tenants Organization). The work of the back-up centers was memorialized in numerous national publications, including the Clearinghouse Review and The Poverty Law Reporter, which featured articles on poverty law developments and national training and technical assistance programs.
1968: OEO creates Project Advisory Group (PAG)
In 1968, OEO also created the Project Advisory Group (PAG) an association of the federally funded legal services programs. PAG was created to ensure that legal services project directors would have input into OEO decisions. Through its democratically elected leaders, PAG helped create policies and positions for the legal services community and represented the interests of its member programs before Congress, OEO, and its successors for more than 30 years until it merged with NLADA in 1999.
1970: 5 elements of the legal services program
Thus, by 1970, the basic structure of the legal services program was in place. It was differentiated from traditional legal aid by five principal elements:
1) Responsibility to all poor people as a “client community” — The first element was the notion of responsibility to all poor people as a “client community.” Local legal services programs attempted to serve, as a whole, the community of poor people who resided in their geographic service area, not simply the individual clients who happened to be indigent and who sought assistance with their particular problems.
2) Emphasis on the right of clients to control decisions about the priorities — The second element was the emphasis on the right of clients to control decisions about the priorities that programs would pursue to address their problems. The legal services program was a tool for poor people to use rather than simply an agency to provide services to those poor people who sought help.
3) Commitment to redress historic inadequacies in the enforcement of legal rights of poor people — The third element was a commitment to redress historic inadequacies in the enforcement of legal rights of poor people caused by lack of access to those institutions that were intended to protect those rights. Thus, “law reform” was a principal goal for the legal services program during the early years.
4) Responsiveness to legal need rather than to demand — The fourth element was responsiveness to legal need rather than to demand. Through community education, outreach efforts, and physical presence in the community, legal services programs were able to help clients identify critical needs, set priorities for the use of limited resources, and fashion appropriate legal responses, rather than simply respond to the demands of those individuals who happened to walk into the office.
5) Full range of service and advocacy tools to the low-income community — The fifth and final element was that legal services programs were designed to provide a full range of service and advocacy tools to the low-income community. Thus, poor people were to have at their disposal as full a range of services and advocacy tools as affluent clients who hired private attorneys.
Initial Opposition to Legal Services
Opposition from the legal profession
Although OEO was able to generate proposals for federal funding from organizations eager to provide legal assistance, the legal services program also generated substantial opposition within the legal profession, mainly from local bar associations that represented private attorneys practicing in the areas that would be served by the new programs. Their concerns fell into three categories:
- Competition for clients, particularly with personal injury lawyers represented by the American Trial Lawyers’ Association, from publicly supported legal services programs;
- The impact that representation of the poor might have on their clients, primarily local businesses and governments that might be the subject of lawsuits by legal services programs; and
- The perceived threat of the expansion of public financial support for, and governmental regulation of, the legal profession, which had been characterized by its independence and self-regulation.
OEO’s Bamberger refuses to fund judicare programs as the primary model for legal services
One common response that arose out of local opposition to legal services programs was an effort to seek OEO funding for judicare—a delivery system in which attorneys in private practice are paid on a fee-for-service basis for handling cases for eligible clients, similar to the way doctors are paid for handling Medicare patients. However, OEO refused to fund judicare programs as the primary model for legal services delivery, agreeing to fund only a few programs, primarily in rural areas.
Bamberger felt that a nationwide judicare system would be prohibitively expensive and would not provide the aggressive advocacy required to adequately represent the low-income community. This fundamental policy decision has shaped the civil legal aid program to this day.
Opposition from community action agencies (CAAs)
Another source of initial opposition to the legal services program came from the CAAs that were funded under the Community Action Program (CAP), the largest unit of OEO. Some CAAs were hostile to any funding for civil legal assistance and argued that the money that went to legal services could be better used by the CAAs for other purposes in the community. Other CAAs wanted to control the legal services program and did not want legal services to sue local governments (some of which housed the CAAs). In addition, there was significant bureaucratic in-fighting within OEO over which program would decide which legal services programs to recommend for funding—the CAP program and its regional directors or the Office of Legal Services in Washington. It took direct intervention from Sargent Shriver, after pressure from the ABA and the National Advisory Council, to overcome these internal turf battles and struggles over priorities and authority for legal services funding.
Opposition from local political leaders
In addition, local political figures (such as Mayor Daley of Chicago) often attempted to interfere with legal services proposals. Many of the OEO-funded programs were controversial because they had sued both government agencies and powerful private business interests. For the first time, social welfare agencies, public housing authorities, hospitals and mental health facilities, public utilities, large private landlords, banks, merchants, school districts, police departments, prisons and jails, and numerous other public and private institutions were subject to challenge by lawyers advocating on behalf of low-income people.
OEO legal services program overcomes concerns
In spite of the initial external controversy, bureaucratic in-fighting, and general skepticism by the establishment, within nine months of taking office, Clint Bamberger and his staff had completed the Herculean task of funding 130 OEO legal services programs. Many local lawyers, progressive bar leaders, community activists, and traditional legal aid societies sought and received federal funds to establish legal services programs. In the end, despite their initial misgivings, the OEO legal services program obtained the support of many local and state bar associations, CAAs, and local politicians. By the end of 1966, federal funding grew to $25 million for these local programs and national infrastructure programs established to provide litigation support, training, and technical assistance.
Political Efforts to Curtail OEO Legal Services
California Governor Reagan vetoes CRLA grant
In December 1970, Governor Reagan announced his decision to veto the $1.8 million grant to CRLA. The California veto was not the first time that a Governor had vetoed a grant to a legal services program. Governors in Florida, Connecticut, Arizona, and Missouri had all vetoed refunding applications from legal services programs, and the governor in North Carolina had vetoed a grant to a statewide legal services program sponsored by the state bar association. Governors in North Dakota and Mississippi had prevented programs from being established because they threatened to veto the programs. The CRLA fight, however, dwarfed these other disputes.
When Governor Reagan announced his veto, he cited “gross and deliberate violations” of OEO regulations. In January 1971, the director of the California Office of Economic Opportunity, Lewis K. Uhler, released a 283-page report, which was to serve as a justification for Reagan’s earlier veto of the annual grant to CRLA.
The Uhler report itemized some 150 charges of alleged misconduct by CRLA, including disruption of prisons, disruption of schools, organizing labor unions, criminal representation, and representation of ineligible, over-income clients.
OEO’s blue ribbon commission reports CRLA doing its job; Reagan withdraws veto
In response to this report, OEO appointed a blue ribbon commission composed of three retired State Supreme Court justices from states other than California to examine and determine the validity of the charges in the Uhler report. Despite Uhler’s refusal to present evidence to the commission and his demands that testimony be given in executive session, the commission conducted public hearings on all of Uhler’s charges and heard evidence from 165 witnesses from across California. Much of the anti-CRLA testimony came from the California Farm Bureau, an organization of agricultural employers, which was frequently at odds with CRLA and the farmworkers it represented.
The commission’s work culminated in a 400-page report that found the Uhler report’s charges to be totally unfounded and concluded that “CRLA has been discharging its duty to provide legal assistance to the poor…in a highly competent, efficient and exemplary manner.” The commission recommended that CRLA be refunded. After the report was issued, OEO Director Frank Carlucci and Governor Reagan engaged in intense negotiations, and Reagan ultimately agreed to withdraw the veto. In exchange, OEO agreed to award the state $2.5 million to start a demonstration judicare program and to place some restrictions on CRLA, even though the commission’s report had cleared CRLA of all charges. In the end, however, the judicare program was never implemented because of disputes over the evaluation criteria.
Reynoso, Cruz — Interview by Alan Houseman, 2002 Aug 12 OEO
1967: U.S. Sen. George Murphy (R-CA) tries to bar legal services actions against government agencies
In 1967, at the request of Governor Reagan, Senator George Murphy, a Republican from California, attempted to amend the Economic Opportunity Act to prohibit legal services lawyers from bringing actions against federal, state, or local government agencies. The amendment failed in the Senate by a vote of 36 to 52.
1969: Sen. Murphy tries to give governors veto over OEO funding programs in their states
In 1969, again at Governor Reagan’s request, Senator Murphy tried a new strategy. He proposed an amendment that would give governors an absolute veto over funding for OEO programs in their respective states. At the time Senator Murphy proposed his amendment, governors had the power to veto programs in their states, but those vetoes could be overridden by the OEO director.
The Murphy amendment was widely viewed as an attempt to give Governor Reagan the power to veto the grant to California Rural Legal Assistance (CRLA), which was a particularly aggressive legal services program that had gained attention for its successful efforts to stop certain draconian welfare and Medicaid policies in California and for its advocacy on behalf of farmworkers against agricultural employers. The second Murphy amendment was passed by the Senate, but it did not make it through the House.
While OEO and CRLA won that battle, the war was just beginning.
1969: OEO creates Office of Legal Services (OLS) headed by Terry Lenzner
In 1969, during the very early days of the Nixon Administration, the legal services program was elevated within OEO with the creation of the Office of Legal Services (OLS), headed by an associate director of OEO who reported directly to the OEO director. Terry Lenzner, a young Harvard Law School graduate who had worked at the Justice Department, became the new director of OLS. He hired as his deputy Frank Jones, a former Reggie who had worked in legal services programs and who later became the executive director of NLADA.
November 20, 1970: OEO Director Donald Rumsfeld fires Terry Lenzner and Frank Jones
As had been true during its earlier history, infighting within OEO was again rampant, particularly over the issue of including legal services within a reorganized regional structure. OEO Director Donald Rumsfeld decided to shift grant-making authority and supervision of the legal services program to “generalist” OEO regional directors. The ABA, the National Advisory Committee, and other legal services supporters opposed this move, arguing that legal services would be run by non-lawyer political appointees who would curb the independence of the program. The plan was never implemented, but in the course of the dispute, Rumsfeld fired Lenzner and Jones, both of whom had supported independence for the legal services program and had opposed regionalization. In addition, the National Advisory Committee was disbanded.
The firings were far more significant than a mere fight over internal bureaucratic issues. They symbolized the growing disparity in views between the Nixon Administration and legal services supporters over the role and functions of the legal services program.
The Reign of Howard Phillips
1973: President Nixon proposes dismantling OEO, appoints legal services critic Howard Phillips
In January 1973, President Nixon proposed dismantling OEO and appointed Howard Phillips as the acting director of OEO to head the effort. Even though the Administration was about to propose legislation that would eventually transition the legal services program out of the federal government and into a private, nonprofit corporation, Phillips, a vocal critic of the War on Poverty in general and legal services in particular, was determined to destroy the legal services program. He declared, “I think legal services is rotten and it will be destroyed.”
Phillips put legal services programs on month-to-month funding, eliminated law reform as a program goal, and moved to defund the migrant legal services programs and back-up centers. The federal courts eventually stepped in and ruled that because he had not been confirmed by the Senate, Phillips lacked the authority to take such action as acting director.
Phillips’ efforts to decimate legal services were ultimately thwarted by the courts. But his assault proved that legal services would survive only in a new structure, separate from the Executive branch and protected from vagaries of the political process.