Editor's Note

Both articles in this month's issue are taken from

the working papers of the Futures Planning Process

jointly sponsored by the National Legal Aid and

Defender Association and the Project Advisory

Group, in conjunction with the Center for Law and

Social Policy.

Papers from the Futures Process have been pub-

lished in two previous issues of the Clearinghouse
Review. Alan Houseman's article "A Short Review of
Past Poverty Law Advocacy" appeared in the April
1990 issue, and "Future Challenges: A Planning
Document for Legal Services" appeared in the
November 1988 issue.

This issue contains two more articles in the series,

Alan Houseman's "Poverty Law Developments and

Options for the 1990s" and John Tull's "Implications

of Emerging Substantive Issues for the Delivery Sys-

tem for Legal Services for the Poor."

XI.

Legal services programs face fundamental resource allocation and priority decisions as they enter the 1990s. While such decisions are not unique to the 1990s, new federal, state, and local developments suggest that there will be significant differences in the nature of the legal problems that some eligible clients will have and in the type of practice that will be required to represent these clients effectively.2 This article will explore some developments in family law, public benefits, and housing to illustrate these changes and the options they pose for local priority setting. The delivery implications of these changes are discussed in John Tull's companion article, "Implications of Emerging Substantive Issues for the Delivery System for Legal Services for the Poor."

1. Under section 1007(a)(2)(C) of the Legal Services Corporation Act and 45 C.F.R. 1620, programs are required to set priorities in the allocation of resources. Under the statutory scheme, the Corporation does not set national priorities. Program boards, after consultation with clients and others, decide what cases they will generally accept, the mix of staff and private attorneys that will be involved in representation, and the types of advocacy that will be made available.

2. Legal services will continue to provide advice, brief assistance, and representation before local courts and administrative agencies on a wide range of housing, family law, public benefits, and consumer cases. Indeed, most of the cases and resources of programs will continue to be devoted to relatively routine but critically important matters on behalf of individual clients. Similarly, Native American and migrant programs, as well as programs with special units for the elderly and persons with disabilities, will continue to provide representation on the specialized issues facing those client populations.

3. The legal problems of the 1990s will, of course, include problems identical to or similar to those of the 1980s. New legal problems do not emerge overnight and completely displace those of the past, nor does legal services practice radically change directions in response to some perceived new crisis. Over the years, the broad categories of legal services work and the type of advocacy provided has remained very constant.

4. In Part I of this article, A Short Review of Past Poverty Law Advocacy, 23 Clearinghouse Rev. 1514 (Apr. 1990), I discussed some general trends that began to develop in the 1980s. These included the shift to greater state discretion and increased reliance on state courts; increased barriers to federal court litigation; greater need for state and local policy advocacy; increased fact-based litigation; decreased federal regulation of, involvement in, and funding for domestic social programs; and increased reliance on private individuals and institutions to deliver basic services, build affordable housing, supplement education, and train the unskilled for jobs. These trends continue in some important areas of practice and will, of course, affect program decisions about priorities and allocation of program resources.

5. For example, health advocacy may change because a larger number of clients will be without the ability to pay for health care costs, will not have access to hospital care (because of the demise of public hospitals and the expiration of the free care obligations of private hospitals under the Hill-Burton Act), and will face more intense collection efforts. Without the Hill-Burton free care protections, legal services advocates will rely upon standard collection defense and will represent clients before state and local legislative and administrative bodies in order to obtain relief and ensure the availability of hospital coverage for the indigent. And the problem of AIDS generally, among urban dwellers and the institutionalized, will require increased attention from legal services advocates.

Veterans' advocacy will change because of the removal of the statutory bar to review of some VA claims, the creation of a Veterans Appeal Court, removal of restrictions on the use of paralegals, and removal of the limits on attorney fees. See Stichman, The Veterans' Judicial Review Act of 1988: Congress Introduces Courts and Attorneys to Veterans' Benefits Proceedings, 23 CLEARINGHOUSE REV. 506 (Aug./Sept. 1989).

I. The Context of Advocacy in the 1990s

Before examining family law, public benefits, and housing, it is useful to put legal services practice during the 1990s into an economic perspective. If this country moves toward a high-skill, high-wage economy, antipoverty advocacy will be directed toward guaranteeing that the poor have access to improved education and employment training programs and that antidiscrimination laws are enforced so that the poor actually obtain the jobs created. In addition, advocacy will focus on access to affordable housing, high-quality child care, and health services. Such an economy will make it possible to develop the full human capacities of the poor and to begin to address the many unmet social needs of the low-income community.

On the other hand, if the economy generates low-skill, low-wage jobs, poverty advocacy will be much more focused on homelessness and the social and economic problems of the poor who are attempting to survive within a depressed and low-opportunity system. For example, if there are too few jobs for all high school graduates and if the jobs that exist demand too few skills or pay too little salary to support a family, it will be very difficult to improve education for the poor, to create effective incentives for schools to improve, and to involve parents and students in learning. Thus, the Family Support Act JOBS program (discussed at length in the following pages), which focuses primarily on education and job training to help AFDC recipients escape poverty, may in the end only substitute one form of poverty (dependence on welfare benefits) for another (employment at low-wage jobs without benefits).

Similarly, child support will be a more effective means of assuring income to families headed by a single parent in a high-wage economy than in a low-wage economy. Child abuse and parental rights termination will increase in a low-wage economy, but decrease in a high-wage, high-employment economy.

Moreover, the state of the economy will directly affect decisions by federal and state governments on public benefits, taxes, housing supply, and child welfare, to name but a few. In

6. For example, the elderly law article will discuss the recent enactment of the Nursing Home Reform Amendments, which will require intense monitoring and enforcement to assure quality of care, reduce denial of access, and prevent discrimination, and which will likely lead to a significant change in program practices with regard to representation of nursing home residents. This article will also discuss the impact on SSI and social security recipients of increasing access barriers to the social security system because of recent decisions to reduce social security offices and limit direct contact with SSA personnel. These barriers will increase the need for legal services representation and require both litigation and other forms of advocacy to alleviate the problems they create. 7. Race discrimination, albeit in more subtle forms than in past decades, continues to underlie many social polices of this country. Sex discrimination continues to pervade the social and economic system. Efforts to eradicate both legal and structural race and sex discrimination will continue as an essential strategy to address the legal problems of the poor.

In either case, legal services programs can have some impact on these decisions. In so doing, legal services advocates have a responsibility to work with clients to develop new rights that will enhance "opportunities for the poor.' The development of such rights can arise out of very traditional advocacy based on civil rights laws and the equal protection clause of the fourteenth amendment, as well as from advocacy around federal and state statutes on the educationally disadvantaged, childrenat-risk, vocational education, the Job Training Partnership Act, the Employment Service, child support, welfare-to-work, etc. To be effective, the assertion of these rights must be accompanied by efforts to develop new remedies. Legal services advocates should seek out remedies that prevent future problems from occurring, that help the poor achieve their full

8. The United States has never developed a comprehensive and integrated set of poverty programs addressing all persons in economic need. As the data in Paper on Poverty Trends and Access to Legal Services (June 1989) (Clearinghouse No. 45,480) indicates, cash benefits and income transfer programs have not been effective in ending the poverty of poor children and families. States continue to pay very low benefits for AFDC and general assistance, far below the poverty line even when food stamps and other cash assistance is included. Unemployment insurance benefits have gone down, and the time of coverage has been substantially shortened. Critical services for families and children in need of assistance are fragmented, inadequate, and provided not to prevent problems from arising but only to respond to the results of a crisis tearing apart the family.

Millions of Americans living at or near the poverty line or employed in low-wage jobs lack access to critical health care services. The education system has failed to assist large numbers of poor and minority children, and the reduction in federal education funds has had a severe impact on those schools that serve minorities and the poor and are most in need of additional financial resources. Affordable child care is not available for those wishing to work. Job training programs have been inadequate to help persons needing skill improvements to earn wages sufficient to support a family. While new jobs have been generated, they do not meet the demand and are increasingly in the service sector, which provides fewer benefits, pays lower wages, and yet demands higher skills from its employees. Transition assistance has not been adequate for persons forced to find new jobs. And minimum-wage jobs do not pay enough to support a family. See Children's Defense Fund, A VISION FOR AMERICA'S FUTURE (1989); GREENSTEIN, IMPACT OF GOVERNMENT BENEFIT PROGRAM DECLINES ADDS TO NUMBER OF POOR FAMILIES (1988) (available from the Center on Budget & Policy Priorities, Washington, D.C.); Roberts & Powers, Patching the Crack in the Floor: Strategies for Expanding the Minimum Wage, 22 CLEARINGHOUSE REV. 909 (May 1988).

9. Section 1001(3) of the Legal Services Corporation Act urges legal services programs to “assist in improving opportunities for low-income persons."