Address to the Cincinnati Bar Association

Cincinnati, OH | April 27, 1967

Nothing is more likely to stimulate rioting in the streets than the belief that the courts and the law and the police are unfair; nothing is more likely to kill the desire to riot than the belief that the legal system is fair and just. The more confidence people have in the legal system, the less compulsion they feel to destroy the world around them.

Cincinnati has now had nine months to observe the operations of its Legal Services program. I don't know what Cincinnati thinks of Cincinnati's program. But I think it's wonderful. And I think Ralph Crisci is an excellent director. I am particularly enthusiastic about the radio program Ralph conducts on station WCIN and the weekly column called "The ABC's of Law" that appears in the Cincinnati Herald. These imaginative approaches to community legal education are not only exciting as techniques, they are so successful, they're being imitated: Columns in Billings, Montana and Waterloo, Iowa — TV show in Puerto Rico.  The Cincinnati program is showing the nation how to reach the poor and how to make effective use of, the news media. It is also advising and representing the poor in a forceful and aggressive manner.

We in Washington are delighted, therefore, with Cincinnati and we have learned a great deal from what you are doing.

But there is a more important question that must be asked. That question is, what do you, the lawyers of Cincinnati, think of your program and what have you learned from it? I would like to stick my neck out and see if I can make some guesses about the answers to those questions.

First, I suspect that you have learned that an active and vigorous Legal Services program does not create an economic threat to the Bar. Legal Services programs represent people who, in the past, have not been represented at all. Helping those people does not diminish the amount of business previously given to private attorneys. Indeed, you have probably seen that the success and vigor of the Legal Services program has increased the amount of legal business available to private practitioners. Many clients who come to legal aid bring with them fee-generating-cases that are referred to the Bar Association, and thus create more business.

Many other poor persons who use the Legal Services program are fighting landlords, merchants, and loan companies, who, in turn, end up needing legal services themselves. Good Legal Services programs are good for the Bar well as good for the poor.

Second, I venture the guess that you can already see significant changes in the attitudes of lawyers, judges, social workers, government officials and others right here in Cincinnati.

Welfare workers may have the right to arbitrarily cut people off from welfare; merchants may accomplish repossessions in accordance with their own interests rather than the terms of the relevant statutes; and even court procedures, customarily handled by a judge, a lawyer, and a poor man appearing pro se, may occur in the same old way. But when these procedures and activities are suddenly attacked — successfully — the shape of the legal system itself begins to change. And your own attitudes change slowly but perceptibly.

Third, you may have seen — and I know I am talking now about something pretty subtle — an awakened respect for the law on the part of the poor. Nothing is more likely to stimulate rioting in the streets than the belief that the courts and the law and the police are unfair; nothing is more likely to kill the desire to riot than the belief that the legal system is fair and just. The more confidence people have in the legal system, the less compulsion they feel to destroy the world around them.

Respect for the law, significant changes in the legal system, and the economic dividends for the Bar are three of the by-products of a successful legal services program. If I am not mistaken, you in Cincinnati have already seen those by-products here in your own city. Because of the support and encouragement you have given to the Legal Aid Society, you have a right to feel pleased with yourselves.

The fact that you have an excellent and exciting program, however, should not end your efforts to seek out new solutions for the problems of the poor. For your progress in Cincinnati is not typical of the entire country. And, as a result, it is not an exaggeration to say that the rule of law faces a crisis in this country. And I don't mean crime in the streets — or delinquency or illegitimacy or dope addiction — I don't even mean riots. I mean justice itself — workable justice. Real justice.

The reason is simple.

We have been forced in this country — forced increasingly against our will — by sheer necessity to equate the rule of law with the rule of lawyers. And that won't work. It won't work because there aren't enough lawyers to go around. And it won't work because it shouldn't work. It shouldn't work because it is wrong, just plain wrong if it requires the protection of a lawyer to get what is yours by right — legally yours. But for the poor, it does take a lawyer — and that's the reason for the Legal Services program.

The crisis to which I refer goes back before the poverty program. It started when the Supreme Court said that before you can execute a man — or put him away in a penitentiary and brand him criminal for the rest of his life, he has to receive due process. And due process — given the technicality complexity of the law — means a lawyer. It is estimated now that the cost of that fundamental principle — fulfilling the mandates of due process in criminal cases alone — will mean the expenditure of over 200 million dollars and involve an increase of over 40 times the number of full-time public defenders. But to this crisis in the law comes the additional problem of poverty.

We say to the poor: You deserve justice under our constitution and our laws just like any other citizen. You shouldn't have to become a criminal in order to get a lawyer. It is no crime — no statutory crime, at least, to be poor. But yet, poor people are subject to having income, their food and shelter taken away by a simple administrative decision by welfare officials. And that comes pretty close to a criminal sentence in severity.

Poor people can have their property taken away their refrigerators, and beds and chairs and the pictures off the wall a collection company repossesses them — and yet those "possessions" frequently represent years of time-payments and every scrap of security gone down the drain.

For reasons like these the law has long been looked upon as the enemy of the poor. It barges into their houses, takes their possessions, sends their kids to reform schools, cuts off their welfare checks, expels them from public or private housing. Any injury the poor suffer is backed in some way or other by the law — by legal authority. And those who hurt the poor usually use a lawyer to do the dirty work for them.

Take for instance the small claims court in Washington, D.C. That course is used, in effect, as a collection agency where default judgments against the poor are rendered at the rate of about three or four hundred a morning - I didn't say a day. I said a morning. And by one judge. Now that's a day's work. Judge Murphy, writing in the D.C. Bar Journal, cites any number of practices. This is just one. He writes:

"The most distressing suits are cases involving suits on Maryland small loans where, in addition to insurance, carrying charges, etc., the interest rate is 3% per month — compounded monthly. This results in amounts after a few years that are astronomical. Frequently, the party defaulted because the merchandise was faulty. The party contacted the store, which ignored the complaint because the note was sold to the collection agency. The collection agency ignored the complaint alleging it was only a collection agency. So, the party stopped paying. In some cases it appeared the collection agency deliberately delayed years in filing the suit. It appeared to the court that the poor risk was sued quickly; the good risk only after years of delay. After all, where else can you invest money at that rate of return? Any defense such as poor merchandise carries little weight after three years. In the meantime, the interest has grown, well over 100%."

Lawyers can help here. In fact, it is difficult to see how the poor are going to get any kind of relief without lawyers. And it is frightful to think what will happen if lawyers do not help.

As Judge Murphy notes:

"Any defense attorney or police officer can relate cases of assaults, larcenies, robberies or similar crimes, that grew out of a man's frustrations from bad housing he could not get repaired, mounting debts and garnishments, or his desperate need for money to get the needs of his family brought about by his inability to cope with the slum lord, finance company, and credit merchant."

And this is what the Legal Services program of OEO — a program to bring justice to the poor — has tried to do.

So the crisis in the law — a crisis that started with the right to counsel in criminal cases has not expand a into the civil area. The dimensions of that problem are hard to assess. The American Bar Foundation recently estimated that a total of 14 to 20 million legal problems per year are generated by the poor. If we were to handle all those cases, it would cost us — figuring on an average of $30 to $50 per case, — between $400 and $600 million dollars.

But let's be quite clear on one thing. The crisis confronting the rule of law today is not money, at least it's not money alone — even though we have nowhere near enough money. The problem is not manpower — legal manpower. Though we don't have enough to service the total needs of the poor, let alone the other 4/5 of society.

The shortage of money and of manpower are only symptoms of the breakdown of the rule of law — the underlying crisis.

The real nature of the crisis emerges from two recent developments — one a court decision handed down last week in New York — the other, a newspaper account I came across just the other day.

The decision was a major one. It extended the right of counsel to students who are being expelled from public schools. In short, the judge, Judge Constance Baker Motley, decided that a school expulsion can mean a life sentence to ignorance, illiteracy, unemployment and even crime. So due process, the court held, requires that the student be afforded an advocate, a counsellor at law to participate in those proceedings.

That decision adds to the manpower problem; it adds to the money problem. But it highlights a far more important aspect of the crisis facing the rule of law. The crisis lies in the nature of the injuries for which this society must now provide remedy. Today those injuries are too subtle, too small to be worth dealing with. They are de minimis. They are impossible to get hold of. And yet they are far more crippling, far more subversive of everything we know as justice and fair play than the single isolated, spectacular instance of injustice that is so familiar, — a murder, a robbery, an auto theft.

That brings me to the second development I wanted to mention. The newspaper story. The story read as follows:

"It was no big thing.”

"Sammy Smith just got busted again. Sammy is 13 and he hates cops who keep picking him up, even if they aren't able to make a case. That particular night, he happened to be in a High's ice cream store when police arrived after getting a call that some teenagers had robbed or were about to rob the store.

"The boy had been through this sort of thing often enough that it didn't particularly bother him. In fact, he didn't even stop drinking the bottle of grape soda he had with him. Once in the patrol wagon, Sammy...set the soda bottle down on the floor between his feet. The cop who was to ride with him to the station got in, took a long drag on his cigarette and with elaborate nonchalance, dropped the butt into Sammy's half-full soda bottle..."

End of newspaper story.

Would you be surprised if Sammy hit the policeman — or cursed him – for dropping that cigarette butt into the pop bottle?

Sammy did hit him.

Would you be surprised that it was learned Sammy had nothing to do with any attempt to rob the ice cream store — but that he was charged with assaulting the policeman after the pop bottle and cigarette butt episode?

Tell me — are we going to provide lawyers for all the Sammy's every time a policeman calls him "boy" or douses a cigarette butt in a kid's soda bottle? That would be nonsense. But, if we don't protect Sammy by giving him legal help, don't we have to start looking for new ways — better ways of dealing with problems like these — injustices, grievances, injuries, slights, insults, humiliations — The answer is implied in the question. We have no choice. We have to start looking — the legal profession has to be in the forefront in devising new ways of dealing with this crisis now confronting the rule of law.

Recourse to the courts, to the lawyers is important. It is one of the most precious traditions of our nation — of civilization itself.

We use the law and lawyers. essentially as a way of redressing the balance of power — of exerting leverage — the leverage of the law — of the courts -of statutes — of the constitution. Court solutions, lawyer-made-remedies, are imposed solutions and imposed remedies.

But I submit to you that the nature of the grievances in our society – the ones that most alienate the poor — the ones that subvert the foundations of justice are not always amenable to that kind of solution — and even if they can be solved by a law suit — that isn't the best way to solve them.

Listen to the following list of grievances, disputes and complaints and ask yourselves about each one: Is a court — a law suit — the right to counsel, the only way or the best way to handle each of these problems?

  • A parents group objects to a school board decision on wearing coats and ties to school
  • A neighborhood club's dispute over who shall represent the neighborhood, for instance, on the Community Action Program board
  • A number of householder's objections to paying deposits on gas and electric service which are never returned to them despite a good payment record.
  • Allegations that the assignments to track systems in the local school are being made without adequate safeguards, tests, or possibility for later reassignment.
  • That the local school is failing to offer academic courses or essential vocational courses.
  • That principals are not submitting budget requests for necessary hot lunches, recreation equipment or educational materials.
  • That the sanitation department is derelict in its trash collection or discriminatorily picayune in its insistence on the separation of trash and food garbage
  • That potential disorders in taverns or at teenage dances are being dealt with oppressively and: with no advance consultation
  • That welfare clients are kept in the dark with respect to the items included in their welfare allowance or with respect to reduction or termination of their allowance
  • That police are failing to provide adequate protection
  • That license revocation combined with punitive fines is being meted out unfairly by policemen
  • That local hospitals are treating indigent patients in a discriminatory or humiliating way. 

For these kinds of disputes, these kinds of grievances we need to find solutions without litigation — through processes of mediation, negotiation, arbitration.

And so we are inviting and asking and appealing to groups all over the country, communities, bar groups, law schools and others to help us begin to devise new institutions which will enable us to come to grips with this crisis in respect for the law, the courts, the police, and for lawyers.

One community is trying to work through a proposal for a public complaint officer with investigative powers. This official would receive complaints of all sorts, investigate them and make reports. This is modeled after a Scandinavian institution called the Ombudsman which has been successfully operating for centuries now and which is being copied all over the world — in Canada, in Israel, in England.

Other communities are working to develop systems where disputes could be handled locally by turning them over for arbitration. Thus disputes between merchants and consumers, landlords and tenants and possibly between citizens and public officials could be turned over for arbitration to a panel or arbitrators jointly agreed to by all elements of the community.

Other communities are at work exploring the possibility of using mediation boards and mediators to settle differences. Mediation lacks the leverage both of the investigative power of the ombudsman and the ability to makes a binding decision usually held by an arbitrator.

Nonetheless, the desire to appeal to reason, the natural instinct to satisfy a third and neutral party of one's fairness, the opportunity to reach an agreement where neither party has to lose face, the untangling of issues which are irrelevant but which make a situation too hot to handle — All these and others are the tools of mediation.

You all know the lines from "Trial by Jury" where the learned judge says - "The law is the true embodiment of everything that is excellent. And I, of course, embody the law."

In the 18th or 19th century, that statement may have been adequate, but the present crisis in the law requires that we look for new solutions – solutions which enable the poor in effect to renegotiate the terms of the social contract under which they live. That understanding has to be mutual. The consent has to be, for the most part, voluntary — not imposed by force or court fiat.

And the usual questions of lawyers: — What was at fault? — Who did what in the past? — often get in the way of working out the terms of a working agreement with which both parties must live — with which our entire society must live.

The rule of law itself — the ultimate safeguard of our organized society — will only be safe when it has found a way for Sammy and that policeman to resolve their problem about that cigarette butt in the pop bottle without making a court case out of Sammy. Because until we are prepared to respect each other as human beings — as all of us made in the image of God, of all of us treating each other as we would want ourselves to be treated — the rule of law is in jeopardy. Enthroning the legal profession — your profession and mine — as its Savior will be doing too little too late. Especially if you're Sammy, and you're thirsty.