Section 139(A-)(5) of the New York Social Welfare Law states: "...notwithstanding any inconsistent provision of this Section an applicant in immediate need of public assistance or care for himself, or for any person dependent upon him, shall be granted such assistance or care on a temporary emergency basis...”
For years, while that, law has been on the books, the New York City Department of Welfare has maintained that this language did riot entitle a needy person to temporary emergency welfare assistance pending final determination of the applicant’s eligibility for regular public assistance.
But last June, the New York State Department of Social Welfare reversed a decision by the New York City Department of Welfare in a case involving the mother of six children living in a basement junk room without electric light, toilet or cooking facilities. Temporary emergency relief, it was ordered, should be paid immediately, whenever and wherever warranted. Despite that ruling, today, little has changed.
Temporary emergency relief is not being given in case after case reported to us by neighborhood workers all over Harlem, the south Bronx, Bedford Stuyvesant and other parts of New York City.
Why does this happen?
Because the poor don’t know their legal right to get this emergency relief—
Because local officials are too overworked, or uninterested, or uninformed—
Because there are no lawyers, or lawyers’ assistants to help these destitute and pitiful Americans.
And thus the hallowed “rule of law” operates, in these case for the benefit of no one:
—not for lawyers
—not for society
—not for the victims of injustice
This condition; serves only to feed the cynicism of the poor — to prove to the poor that the law is no friend of theirs. It breeds despair in getting justice through law. And it does more than deepen apathy and alienation. In other countries, the law’s delay or inadequacy breeds communism. Here, it provides the sustenance, the ideology, and the gospel — chapter and verse — for groups like the Black Muslims, or the “Organization for Black Power” which feed on hatred, bitterness and defiance.
There is no telling how many such instances occur. Person, after person, after relating such stories added:
“And the frightening thing is how frequent, how common place, how easily duplicated such instances are.”
Ordinary, commonplace, routine — except to the people who live them.
In the southeast Bronx, a neighborhood service center run by Lincoln Hospital and the Albert Einstein College of Medicine opened up just for emergency cases in the mental health field. In its first month of operations, it received over 500 emergency cases requiring emergency relief. How many of those could have been taken care of or prevented altogether by this provision of the law cannot be ascertained. Officials are not in the habit of keeping records of the number of times they have omitted to act in accordance with the law.
As the 1963 Moreland Commission Report on public welfare in New York points out:
In one county, 35.7 percent of those interviewed claimed they were not told why assistance was cut off, and the case records failed to indicate that the former recipient had been given a reason.
But why did it take federal money to start such a center like — the one in south Bronx in order to get justice for the poor? And not just in New York. You could have opened a center like this in Denver, in Chicago, in Detroit — in virtually every community in this country — and every one of them would have been flooded. This should have been done locally but at least now that it has been done we have an accurate picture of the true face of poor America.
This is one of the battlefronts where lawyers are needed. Here, at this convention, we don’t need to worry too much about justice for General Electric. There isn’t a city in America where GE can’t get a law firm to take its case. Since my family owns some GE stock, I’m glad they’re getting justice. But justice for General Electric is not justice for America.
A study of Detroit, commissioned by the Mayor, and conducted by Greenleigh Associates, (a private management consultant) reveals that only 1.3 percent of the poverty households had any contact with the Legal Aid agency. The report also stated:
“The present structure and organization of the courts, probation, law enforcement, legal aid and related public welfare programs, is a mass of diffused operations so confusing that it would be difficult for anyone to know where to turn for what service.”
Fortunately, there is a growing awareness across this country that the poor have, in fact, been deprived of their just rights under the law — and that effective, aggressive, competent legal services have not really been available. And with this awareness there is a new appreciation of the contribution legal services can make — not simply to get poor people out of a jam — but to get them out of poverty once and for all.
All of you in your own practice have seen clients better able to set their affairs in order, to pull themselves together, to make a fresh start because of the help you provided at a time of crisis. It may have been a divorce case where the psychological strain was wreaking havoc on their business, their financial affairs, their friendships and their careers. It may have been a tax case — where a simple inquiry from the Internal Revenue Service – struck terror into the heart of a client panicking him much as the poor are paralyzed with fear at a summons — or any legal document. It may have been a bankruptcy case — where overwhelming financial burdens threatened to destroy a client’s sense of self-reliance and dignity.
The same goes for the poor — except more so:
— because they are more helpless
— because they face more crises
— because they are more at the mercy of others
— because they are more likely to be victimized
— because they are least well-equipped with the resources and the staying power to secure fair, decent treatment.
And they are less likely to be able to work their way out of any given problem because that problem is so inextricably combined with a dozen others – each overwhelming, each seemingly impossible to cope with.
The poor perceive of themselves as helpless. And that belief is likely to be confirmed by the actions of others! Take for instance:
— The married teenage girl expelled from high school a month before graduation, because of pregnancy
— or the couple which signs a chattel mortgage agreement to pay $400 plus an additional hundred dollars’ interest for a TV set worth at most one hundred ninety dollars
— or the father of six children arrested for a misdemeanor and in danger of losing his job because he cannot raise bail
— or the welfare client faced with an inexplicable reduction or termination of welfare payments but who is afraid, unwilling, or unable to find out why
— or the juvenile, faced with commitment to a training school on recommendation by the court social worker because nobody had intervened and drawn together the boy’s school counselor and various social agencies to work out a rehabilitation plan that would enable the boy to be placed on probation.
In all these cases — and you could find a thousand more like them — the advice, guidance and intervention of a lawyer could, and did, avert catastrophe. And the boy in the last of those real life cases who would otherwise have been sent to a training school was heard to remark as he left the court “This is the first time I ever felt that anybody cared.”
All of the examples just mentioned are not fictional. In these cases, lawyers did step in and did prove that the law is not the enemy. They are drawn from the files of the neighborhood Legal Service program in Washington, D.C., a program approved by the judicial conference, with the president of the District Bar sitting on the board.
Yet, despite such programs approved in the District, in St. Louis, Oakland, Detroit, and other cities — programs where the Bar has played a significant (and often leading) role, misconceptions have arisen about the activities and intentions of the Office of Economic Opportunity in the field of legal services for the poor.
Some of these misconceptions result from bad communication.
Some are the natural growing pains of a new and unprecedented, cooperative relationship between the organized bar and the federal government. And some — it must be acknowledged — are simply our own fault. We have a health services unit, an education unit, a labor market unit, and others. 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.
These misconceptions need to be stated bluntly and refuted bluntly.
Let me start with a list of what we are not trying to do.
We are not trying to impose a uniform federal blueprint for the rendition of legal services to the poor. The programs we wish to finance should be designed locally, by local people to respond to local needs. And this insistence on local initiative has already yielded a variety of approaches:
— neighborhood law firms
— legal advice clinics legal education by lawyers for high school teachers and guidance counselors
— expanded lawyer referral services
— decentralized legal aid agencies
And we can expect even greater variety in the course of time:
— assignment of volunteer, lawyers to Indian reservations, migrant camps, and, rural communities
— development by lawyers of pamphlets, booklets, even film strips explaining legal rights in simplified language
— special training programs for lawyers in newly developing fields of law affecting the poor
— courses for high school students in the Bill of Rights and other areas of law which are of greatest concern and relevance.
And you’d be surprised at the enthusiastic response:
— from families in poverty who positively thirst for some knowledge of the law. I don’t mean civics courses. I mean law and legal reasoning.
— from the boy whose family has just been taken off welfare
— from the girl who bought some defective clothing
—from the young adult who is seeking his first job and wants to know about minimum wages, workmen’s compensation and fair employment practices
— from a juvenile - you might say was on the police black list, who was detained incommunicado for half a day or more.
For all these, the law is relevant! — and they must learn to use it.
None of these are “cure-alls.”
There is no single answer to the legal problems of the poor. And there will be no attempt by the federal government to impose any single approach by governmental fiat.
Second, we are not trying to take paying/customers away from the private practitioner either by establishing new standards of indigency or by taking revenue-producing cases. And that is why we have made provision for grievance procedures, referral procedures, and for a “right of first refusal” running to a chosen representative of the local bar.
Third, we are not trying to subvert the canons of ethics, dealing with solicitation, barratry, or use of lay intermediaries. After the Brotherhood case, we are more than content to leave these questions to the Supreme Court.
Fourth, we are not trying to replace lawyers with social workers or laymen! But rights should be honored by all citizens even without the intervention of a lawyer. It should not require a lawyer to get welfare emergency aid.
Fifth, we are not trying to turn legal aid into a political patronage system. The poor need and deserve the same quality of service that the profession owes to all its clients.
Sixth, we are not trying to use federal money to destroy the independence of the Bar. We believe in, and we support, that tradition of independence, we have so many lawyers amongst the top staff of the Office of Economic Opportunity that I hesitate to reveal their number. The educators, doctors, social workers would rise up in indignation. But I can tell you that three out of five of the positions requiring presidential appointment are filled by lawyers! You have plenty of allies on this issue! But let us not delude ourselves, that a legal system which has trouble in producing a lawyer to defend a civil rights worker, white or Negro, — such a Bar is independent in name only. In many cases it is in danger of trading its independence for conformity and dependency — ethical, financial, and professional dependency!
Seventh, we are not trying to socialize the provision of legal services for the poor. But social justice is not socialism. Nor are we trying to reduce or kill off private and charitable sources of funds by providing government support for the extension of legal services for the poor. This was the fear expressed in the early days of the Peace Corps by the YMCA, by CARE, by Church Missions and they found, that far from decreasing their base of private support, the work of Peace Corps Volunteers spotlighted the importance of what they had been doing for years, and brought them more volunteers, and more money than ever before.
There is no indication that voluntary financial support for legal aid will diminish as a result of the availability of federal funds. In fact, the evidence is to the contrary. Greater public support follows greater public awareness. Your own experience in administering programs financed in part by Ford Foundation demonstrates that.
In fact, in Congress, among businessmen, and among other professional groups, your own reputation has never been better, your reputation for public service and vision never higher as a direct consequence of last February’s historic resolution committing the organized Bar to cooperative participation in the War against Poverty! The very day your House of Delegates passed that resolution, the New York Times ran a front page story on the creation by the AMA of a special unit to fight medicare. Well, I have heard it estimated that the AMA spent as much as 900 million dollars on that fight - and now they appear to feel that they need to spend at least that much again to change their reputation and to overcome the unfortunate impression - even tragic - impression they created of a self-interested, guild-like monopoly.
Eight, we are not trying to dictate to local legal aid and public defender agencies the precise composition of the Board of Directors. Our statute requires maximum feasible participation of the poor in all aspects of anti-poverty programs. We intend to carry out the mandate of Congress on this! But to do so, does not require the imposition of inflexible and arbitrary quotas. We have already financed legal service programs approaching this requirement in a variety of ways. We believe in flexibility. But flexibility cannot become a euphemism for evasion of our statutory duty.
Ninth, and last, we do not intend to by-pass the organized Bar or to exclude legal aid and public defender agencies from our deliberations. Other professions have already registered envy at the extent to which the legal profession has been singled out for special treatment by us.
The Steering Committee meetings we have held, the grants we have made, the guidelines for the composition of community action program boards all testify to our faith in the Bar.
We will shortly establish a National Advisory Committee on Law and Poverty to the Community Action Program. A committee which will play a key policy making role. We have extended 21 invitations. Amongst those who have accepted membership on that committee are Lewis Powell, Orison Marden, Edward Kuhn, Theodore Voorhees, John Cummiskey and William McCalpin.
That group can be just a paper group — a sop thrown out to quiet the Bar. But that is not our intention. We mean business. We want — we need — this group, to assume a leadership role in determining how we ought to proceed cooperatively, what procedures and internal organization we need and what kinds of guidelines we ought to establish. The Bar — and I should add we also have representation from the National Bar Association — has a heavy representation (some would charge over-heavy representation) on this committee. But we believe in you — and you have more than justified that faith last February! If any one has slacked off or defaulted, it has been us. So I say to you today, it will be your job as well as ours — the job of your representatives and leaders to see to it that that committee is no paper organization but a powerful and vital force.
But beyond resolutions and advisory committees — beyond even OEO-sponsored projects, something more fundamental must begin to happen. There must be a total confrontation by all of us, a facing up to the inequities, the injustices, the sufferings to which “one fifth” of our nation is constantly exposed.
This is not easy.
We live in an age where more and more the lives of the poor, young and old, are shaped and sometimes misshaped by the exercise of official discretion.
We live in an age where delegations of authority have cumulatively nullified the accountability of officials in a democracy.
We live in an age where disclosure, access to facts, knowledge of ways in which decisions are made is, in and of itself, a source of power!
We live, too, in an age where racial conflict and social upheaval have set in motion powerful and explosive forces.
And now, in the War against Poverty, we find all of these trends, all of these conflicts, and all of these injustices together.
These are not problems which a few professionals can deal with.
They are not conflicts which will be automatically resolved by the extension of legal services.
But it has been the distinctive achievement of the legal profession to devise forums — where such differences can be, aired
— where a full hearing is given to all sides
— where differences do not erupt into violence
— and where the process is itself one which people can trust.
So long as the channels of peaceable change remain open, so long as there are ways of expressing and redressing grievances — and the poor have many grievances — so long as today’s loser is not barred from tomorrow’s contest, then we can begin to build that kind of world where, in President Johnson’s terms “The meaning of men’s lives equals the marvels of men’s works.”
The extension of legal services to the poor is only a means to a more universal end — one we both share — the establishment of the rule of law! But the rule of law is not the same as the rule of lawyers! It is that ordered quest for dignity, for justice, and for opportunity which is the central concern of society today.
Money cannot buy this.
More staff and more legal aid agencies cannot buy this. Even new approaches — decentralization, coordination, and representation of the poor — will not automatically achieve these. In fact, each can be perverted into devices to temporize, to delay, to reject people artfully, and to discourage those whose hopes and expectations we have aroused.
This group knows the difference between duties which can be delegated and duties which cannot. Well there are certain duties that none of us can delegate. They inhere in citizenship. They inhere in humanity — duties of compassion, of personal acts of humanity, personal gestures of understanding and empathy, and assistance.
If we try to delegate these duties to just a few paid professionals such as the overworked, underpaid, terribly conscientious legal aid and public defender officials, we will not escape ultimate liability, ultimate responsibility as a profession and as human beings for seeing that justice is a reality. Money alone cannot stave off that day when we, all of us will be asked to account for our conduct at the great Bar of Justice.
And that is why, the time has come when the legal profession and indeed, the entire nation must discharge its duties personally — must encounter injustice, face to face and at first hand — in the slums, and ghettos, in the great loneliness of rural isolation, in the hidden misery of mountain hollows.
Before there can be justice, there must be empathy. Before there can be justice, there must be a quickened sense of injustice. Our goal is not bigger and better federal programs or more federal dollars — more bureaucracy — public or private. Our end is justice: our end is opportunity. And we will reach it only through a coalition of conscience which unites us all. And this is the ultimate job of the War on Poverty — not simply to extend legal services,
— but to instill in all of us the perspective of the aggrieved, the needy, the destitute
— and to bring into being a nation-wide coalition of conscience
— and to exhort you, the organized Bar, to approach the legal problems of the poor — not simply as lawyers, but as human beings personally aroused by each instance of injustice.
There is an old Latin expression that epitomizes justice as the poor know it:
De Minimis non curat lex.
For the poor are De Minimis
Their sufferings are De Minimis
And the law - as the poor know it - the law cares not. The principle of De Minimis non curat lex must give way to a different principle enunciated two thousand years ago:
Inasmuch as ye have done it unto one of the least of these ... ye have done it unto me.
There will be no De Minimis principle in the War against Poverty.
That is the pledge of my Office to each of you — to the poor and to all Americans.
