rushcliffe report 1945

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The Rushcliffe Report

Alex Elson

The University of Chicago Law Review, Vol. 13, No. 2. (Feb., 1946), pp. 131-144.

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THE UNIVERSITY OF CHICAGO LAW REVIEW VOLUME 13 FEBRUARY 1946 NUMBER 2

THE RUSHCLIFFE REPORT

T IS p ar t of the A merican creed th a t every person, regardless of eco-nomic s tat us , religious belief, race, o r color, is equ al before th e lawand equally entitled to the protection of the law. Lawyers ta ke g rea t

pride in this belief. Th ey engage in beautiful rhe toric ex pounding t h e vir-tues of ou r way of living, speak feelingly of th e long st rugg le which pre-ceded our present achievem ent, an d almost invariably bring in some refer-ence to the Magna Charta, the Constitution, and particularly the dueprocess clause. But in t he comp licated stru ctu re we call law it goes with-out saying th a t equal protection of the law mus t assume an equal oppor-tu nit y to receive the advice an d guidance of th e expert in the law, thelawyer, and an equal opp ortu nity to enter the halls of justice w itho utdang er of eviction for wan t of cash to pay co urt co sts, out-of-pocke t ex-penses, and living expenses while th e judicial process unfolds. T h a t we fallshort of ou r cherished beliefs will he generally conceded b y mos t of th e b ar .Tru e, to some extent s purred on by lay critics, the bar ha s take n stock ofthe situation almost every year in the last quarte r of a cen tury a nd h asmade strides here and there in meeting the problem. But despite thisawareness of th e problem an d the progress mad e, the g ap between ou rideal and reality has grown wider as our society has become more ur-banized, more mechanized, a nd more com plicated. Our blindness t o th erealities of the situation ca nno t rationally be reconciled with e stab lishe dinventories of t he situation. E ach year sta tis tic s are published on the ex-ten t of legal aid work in the U nited States.' These re po rts ar e generallyignored although they show year after year that more than ~o o ,o o o ,o o oAm ericans do not have access to an y form of organized legal aid.*M em ber of th e I ll ino is Bar .

I See an nu al repo rts of Le gal .4id Co mm ittee, .American Ba r Association, appe aring inAmerican Bar Associatioli Reports, and Annual Proceedings, National Association of LegalAid Organizations.


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132 T H E U N I V E R S I T Y OF CHICAGO L!\IV REVIEWWe have in t he m ain borrowed our concept of due process from E ng -

land. The E nglish an d American ideal of equ ality before th e law is basical-ly similar. Both countries have independently tried similar methods tomeet the problem.' It looks now as if Eng land is again leading th e way.During the w ar interes t in legal aid except for members of the arm edforces lagged in the United States. In England, while buzz bombs werewreaking terrific havoc, while the civilian was silently suffering extremedeprivation of physical wan ts, a comm ittee of ou tstanding members of the~ n ~ l i s har a i d leaders in social reform sat down t o examine realisticallyand without flinching the gap between the bar's preachments and itspractices.3 After numerous meetings and considerable investigation, theRushcliffe Committee made its report in May, 1945,to th e Lord HighChancellor and to the Parliament.4

For t he mo st pa rt , legal assistance in E ngland has been given by privateorganizations or gratuito usly b y members of th e legal profession or byminor officials of th e courts or by tra de unions. Th e only extensive typeof legal assistance financed by th e sta te has been paym ent of assignedcounsel in criminal cases an d provision for legal aid for members of thearmed forces. W ith reference to existing methods of giving legal aid, thecomm ittee concludes :. . . . it would be impossible to expect any extension of gratu itou s professionalservices, particularly as there appears to be a consensus of opinion t h at the grea t in-crease in legislation an d the growing complexity of mode rn life have created a situa -tion in which increasing num bers of peo ple must h ave recourse to professional legalassistance. . . . . I t follows tha t a service which was a t best somewhat patchy hasbecome totally inadeq uate an d th at th is condition will become worse. If all mem-bers of the com mun ity ar e to secure the legal assistance they req uire, barristers a ndsolicitors canno t be expected in futu re to provide t h at a ssistance to a considerable sec-tion as a v olun tary service.

'These m ethods hav e included private legal aid societies, volu ntary defenders, assignmentof cou nsel, in fo rma paup eris provisions, legal assistance officers for th e mem bers of the armedforces, gra tuito us ad vice by m emb ers of th e legal profession on an unorganized basis, informa-tion centers, reformed procedural rules, small claims and other specialized courts, and thedeve lopm ent of special ad mi nis trati ve agencies to dea l wit h specific problems.3 This committee, led by Lord Rushcliffe, was appointed on M ay 25,1944, to enquire wh atfacilities a t present exist in E nglan d an d f ales for giving legal advice an d assistance to PoorPersons, and to make such recommendations as appear to be desirable for the purpose of

securing th at Poor Pe rsons in need of legal advice ma y hav e such facilities a t their disposal, andfor modifying and improving, so far as seems expedient, the existing system ahereby legalaid is available to Poor Persons in th e cond uct of li t igation in which they are concerned,nh eth er in civil or criminal courts."4 Rep ort of th e Com mittee on Legal Aid and L egal Advice in England a nd Wales (ChID

6641, H.&l.S.O.; copies available by writing to Yorkhouse, Kingsway, London, W . C. 2).A detailed analysis of th e Rep ort ap pears in 95 Law Journal 192 and 199 (1945).


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133HE RUSHCLIFFE REPORTT he principal recomm endations of th e com mittee for legal aid, which i t

defines as assistance in conducting or defending proceedings in court in-cluding cou rt fees, witnesses, an d other expenses, are summ arized as fol-lows: ( I ) Legal aid should be available in all cour ts an d in such man ne r a swill enable persons in need to have access to the professional help theyrequire.5 (2 ) Th is provision should not be limited to those who are normal-ly classed as poor b u t sho uld include a wider income group . (3) Those whocan no t afford to pa y a ny th in g for legal aid sho uld receive thi s free of cost.6Th ere should be a scale of contribu tions for those who can pa y so me thingtoward costs. (4) T he cost of the scheme should be borne by th e s ta te ,but the scheme should not be administered ei ther as a department ofsta te or by local autho rities. ( 5 ) T h e legal profession sh o u ld b e responsi-ble for th e admin istration of th e scheme, except th a t pa rt of i t dealt withunder the Poor Prisoners' Defence Act (Poor Prisoners' Defence Act pro-vides for the assignment of solicitor an d counsel by th e co urt an d com-pensation for such solicitor and counsel). (6 ) Barristers and solicitorsshould receive adeq uate remuneration for the ir services. (7) T h e L a w So -ciety should be requested to frame a scheme on the lines outlined in thedetailed recornmeidations provid ing for th e estab lishm ent of Lega l AidCentres in app ropriate towns and ci ties throughout th e country.7 (8) T h eLa w Society should be answerable to llie Lord Chancellor for th e ad m in-istration of th e scheme, an d a central Advisory Co m mittee should be ap-pointed to advise him on m at te rs of general policy. ( 9 ) Th e t e rm "poorperson" should be d isca rded and the t e rm "assi st ed pe rson" a d ~ p t e d . ~Th e comm ittee's recomm endation with reference t o legal advice , which-i t defines as advice on legal mat ters, drafting of simple doc um ents, an dnegotiations apart from litigation, but not including conveyancing orprob ate m att er s or the drafting of wills, is state d as follows:

The committee would have legal aid extend to all types of cases including civil cases.Legal aid would include full court fees as well as counsel fees.Generally, the committee regards anyone with an income of three pounds a week or lessfor a single person or four pounds a week or less for a person with dependents as eligible forfree assistance.

'T he administrative plan outlined by the committee contenplates a division of thecountry into areas. An area committee would be appointed for each area and would be giventhe obligation to assure adequate service both as to advice and litigation. Local legal aid com-mittees would be established by the area committees. Both area committees and local com-mittees would have paid secretaries. Members of local committees would receive no remunera-tion except expenses. Area committee members would receive compensation. Local commit-tees would grant legal aid certificates. Appeal from a refusal to grant a certificate would lieto the area committee. A person granted a certificate would choose a solicitor and, wherenecessary, a barrister from a panel.

Rushcliffe Committee Report op. cit . supra, note 4, a t 23.


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134 THE U N I V E R S I T Y O F C H I C A G O L A W R E V I E WAll appli can ts for legal advice should be given legal advice on p ay me nt of a fee

of 2s. 6d . sub jec t to t he following:( I ) this fee may be remitted in suitable cases;(2) where it is apparent th at the applicant is able to pay t he costs of getting the

advic e in the or din ar y wa!., legal advi ce may be refuse d.I n cases of emerge ncy, a person needing legal advice should be able to a pply to the

Secretary of a Local Co mm ittee who might either de al with th e ma tte r himself orif he thinks it a proper case, refer it to a solicitor upo n t he advice panel. T he personseeking advice should th en a tten d th at solicitor, who would advise him a nd would b epaid a fee of 7s. 6d. from th e funds of the Area Comm ittee.

Ea ch Area Committee a t i ts Headquarters should have a n office open during al lreasonable hou rs for the purpose of giving advice. In ad ditio n, in each cen tre of popu -lation in its Area, where a whole time office can b e justified, the A rea Com mit teeshould set u p a bra nch office for legal advice.

IVhole time paid solicitors would be employed in these offices for this purpose. Incentres of lesser population, the Area Committee would organize advice sessions onregular days and would arrange (through Local Committees\ for a solicitor to sitthere during the advertised hours a nd such solicitor wou ld be pai d a fee of so muc h persession.

T he comm ittee recommends t h a t the entire cost of t he plan for givinglegal aid and legal advice should be borne by the government and esti-ma tes th at th e cost of th e adm inistra tion of th e scheme will be slightlyunder &2001000 per annum. The plan proposed by the committee con-templates that the Law Society will submit an estimate to the LordChancellor's Dep art m en t of t he am oun t required throu gho ut th e whole ofEngland and Wales. Th e Lord Chancellor will then make a pay me nt in alump sum t o the Law Society, and th e Law Society will allocate th atmoney to various area comm ittees according to their need s.9

What is most provocative about the report and what stands out as achallenge to th is country are the four changes fun dam ental if th e ideal ofequality before the law is to be made a reality.

I . Legal aid is not a char ity stemming ou t of priv ate philanthropy bu tis a right which the sta te has a d ut y to foster and protect. I n this respectthe report would even change terminology and discard such terms as( ( poor person" an d "pau per."

2. There is an obligation to establish a nationwide system for givinglegal advice and f or provlding legal representation in all cou rts, th e cost t obe borne by the state.3. The relationship of attorney and client should be maintained eventhough there is state assistance with all the protection surrounding the

9 This summary does not do justice to the report, which contains a most thorough and de-tailed analysis and elaboration of each of the recommendations. Made at a time when thecountry was still at war it is a remarkable document.


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135HE RUSHCLIFFE REPORTrelationship and th e professional obligations th at go with i t . Th is is as-sured through adm inistration of t he plan b y th e organized ba r.

4. Th e obligation t o provide assistance is no t limited to th e lowest in-come group bu t includes persons who would n ot ordinarily under ex istingme ans tes ts be eligible for assistan ce.

Th e Rushcliffe Re po rt compels an ex am ination of existing facilities inth is cou ntry for giving legal assistance. Ho w f a r do we fall sho rt of t h emark, and would recommendations such as those contained in the reporthave validity in this country? There are approx imately 109organizationsin th is cou ntry consisting of legal aid s ~ ci et ie s, ar association com mit-tees, public bureau s, de pa rtm en ts of social agencies, a n d law school clinicswhich serve a little more th an 36,000,000 of th e pop ulation . Tw enty -fivecities of over 100,000 pop ulation hav e no organized legal aid service. Ev enwhere there are organized legal aid burea us there is serious do ub t of th eextent to which th ey serve the population. I t is generally ad m itte d th a tthe oldest and largest legal aid society in this country is the New YorkLegal .4id Society. Xew York, in add ition, h as oth er organizations givinglegal assistance. Recen tly a very comprehensive s urv ey was mad e of legalaid work in New york City.'" -4fter this surv ey was completed a nd in hisconclusion of th e report, Louis Fab rica nt, A ttorn ey in Chief of t h e Ne wl'ork Legal Aid Society, wrote:

Ce rtain f acts are too clearly defined to be seriously ch allenged.T he first is the co ns tan t recurrence of a tremend ous num ber of cases in w hich peo-

ple feel una ble to manag e a solu tion of legal problem s affecting them selve s,the ir families, or th e livelihood or libe rty of some of them . T his is the field in practiceof legal aid , in technique of the B ar, an d in essence a majo r tho ugh ha rdly recognizedproblem of political philosophy.

Organized an d unorgan ized legal aid is meeting only a fraction-even thou gh a con-siderable fraction-of the problem. The forces operating to att ain equal justice ar e no tadequa te a t any poin t .

I n addition to legal aid in civil cases in this co untry there are pla ns forassignmen t of counsel in criminal cases in practically eve ry s ta te in th ecountry and for voluntary and public defenders in cr iminal cases. Thevolu ntary a nd public defenders, existing for the m ost pa rt in cities whichhav e legal aid bureau s giving assistance in civil cases, serve a po pu latio n ofa little more th an 17,000,000. So far a s the assignment system goes, theassistance i t provides is incomplete a nd for the most p ar t in ade qua te. I nonly a handful of sta tes is assignmen t of counsel m an da tor y. T h a t com-pensation which is provided is with a few notable exceptions insufficient

l o "Legal Aid in New York City," (1944)~nder the direction of Col. Edmund RuffinBeckwith of Kew York .


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136 THE UNIVERSITY O F CHICAGO LAW REVIEWto assure com pete nt counsel, an d in almo st half of th e st at es no provisionfor compensation is made at all. Only a few states provide for cash dis-bursem ents in preparatio n for tria l. Even where th e s ta te law makes pro-vision for assigned counsel if req ueste d, counsel will be assigned only incertain court s and it is unusual t o find a st at e law providing the accusedwith an a ttor ney to represent him from the beginning to the very end ofthe proceedings. I n a gr eat ma jority of st at es provision is ma de for coun-sel only in the regular criminal trial courts. In nearly all the statescounsel is assigned a t or just before th e tria l despite the clea r desirabilityof ea rly assigntnent of counsel so th a t the re can be adeq uate p repa ratio n.I n m any sta tes the lawyers selected are either young a nd inexperienced,or lawyers who make i t their business to hang around th e co urts expresslyto receive appointm ents. I t is th e exceptional case where able counsel isappointed.

The war has brought into operation the largest legal aid organizationwe have ever ha d in this country-the legal assistance ofices provided byboth branches of th e arm ed services. Du ring th e war these offices ha veprovided assistance to more th an ~o ,oo o,o oo en and women in the armedforces an d handled, in 1943, app roxima tely 2,000,000 cases. Th e magni-tud e of this achievement becomes clear when we con tras t it with t he tota lrecorded numb er of ca ses handled by all legal aid agencies thro ugh out th ecou ntry from thei r inception up to 1933-approximately 3,213,170. Un-fortunately , this is a wartim e organization an d will probably not continuefor long.

While we do no t have a comp lete pictu re of th e ext ent of legal aid serv-ice in this country, such sta tist ics aswe do have, a nd t o which reference al-ready has been made, clearly indicate t h a t the grea t m ajor ity of th e popu-lation in the c oun try does not ha ve available t o it organized legal assist-ance.

It is possible to conjecture as to the reasons why we have not madegreater progress in providing legal assistance in thi s cou ntry an d for thesituation in which we now find ourselves.

I n the first place, the need for providing legal assistance on a sy stem atic,planned basis has not been generally recognized in th is co un try a s a func-tion of government on either a national or sta te basis." I t ha s been recog-nized on a local basis by a s m all num ber of gov ern me ntal agencies whichoperate legal aid bureaus or have public defenders.""Th e only exceptions exist in th e S tate of Washington, where by sta te law c oun ty bureausmay recognize th e need for legal assistance an d m ake appropriat ion for th at purpose, and inCon necticut where the public defender plan is statewid e."Ha r t ford and New Hav en, Connect icut ; Kansas Ci ty , h l issouri ; Da yton , Ohio; and Dal-las, Texa s, have municipal bureaus. Th e Sta te of C onne cticut; Columbus, Ohio; City of Los


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1-37HE RUSHCLIFFE REPORTThe very nature of the federal-state relationship tends toward frag-

mentary consideration of the problem of legal assistance. The need forassistance in the state courts and for legal advice outside the courts is not afunction which up to this time has been considered as possibly a federalfunction. Hence, no governmental agency in this country has given con-sideration to the problem of legal assistance from a national viewpoint.The only agencies which have consistently and regularly given attentionto the legal aid problem from the national viewpoint have been privateorganizations. These are voluntary organizations and while they have hadoutstanding individuals giving generously of their time their work hasnot been effective to date.'3

Secondly, neither the bar nor the community has been willing to as-sume complete responsibility for the problem of providing legal assist-ance.'4

In the third place, the attitude of the bar itself has contributed to theAngeles and County of Los Angeles, California; Oakland, California; Omaha, xebraska; Provi-dence, Rhode Island; St . Louis, Illissouri; and San Francisco, California, have public defenders.

' 3 Aside from the National Association of Legal Aid Organizations, which represents thespecialists in legal aid work, the bar is active nationally through the Legal Aid Committee ofthe American Bar Association and through the National Lawyers Guild. The American BarAssociation committee works closely with the National Association of Legal Aid Organiza-tions, but can only act as directed by the governing body and has been handicapped by lack ofcooperation on the part of tha t body. For example, when the Legal Aid Committee of theAmerican Bar Association recommended and urged the Association to make provision for abudget which would enable the employment of one full-time person to promote legal aid workthroughout the country, this modest request was denied. 65 A.B.A. Rep. 190 (1940). Referringto the action of the delegates tabling the recommendation for a paid assistant, the committeestated in their 1940 report: "The committee is convinced that this recommendation shouldhave been approved. As is pointed out in the interim report, the work of this committeebegins where the work of most of the other committees ends and involves an amount of timeand effort, brain work, and roadwork which the individual members of the committee cannotpossibly give to it. Severtheless, the committee does not press the point a t this t ime becauseit appreciates that before adequate funds can be made available for this work there must be adistinct change in the financial policy of the Association. Instead of diffusing funds amongmultifarious activities, many of whom do not improve the administration of justice or thepublic reputation of the Bar, we believe the Association should confine its expenditures to afew select activities of proved importance and value. We further believe th at legal aid workshould be one of them." Ibid., at 191. The request for funds has been again eloquently reportedin the committee's 1945 report . Advance Program, 68th Annual Meeting, American BarAssociation, Cincinnati, Ohio, December 17-20, 1945, p . 21.

1 4 This point was well articulated by Harrison Tweed, when he said: "There is a sort of afeeling as I see it both on the par t of the comn~unity nd on the part of the Bar that legal aidis in the hands of some third party and tha t legal aid organizations and legal aid workers con-stitute a separate entity of their own, but they are doing all right, so why should anyoneworry about thematt er? The community says the legal aid organizations are operating as wellas they ever did and why isn't that well enough? The Bar says you have got all your legal or-ganizations. They are wonderful things. You are able fellows doing a lot for humanity andyou deserve a lot of thanks. Why should busy lawyers bother about you? So legal aid seems tofall between two stools." Report of the Standing Committee on Legal Aid Work, 69 A.B.A.Rep. 259,260 (1944).


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138 TI-IE UNIVERSIT'T ' O F CI- IICAGO LL4\V R E Y I E Wfailure to provide adequate legal assistance. I n pa rt this is due t o the cir-cumstance t h a t with increased urbanization of population m any city. .lawyers have lost touch w ith the masses of peop le. B u t in some comm uni-ties, including those in predom inantly rural are as, the bars, no t fu lly con-ve rsan t with the policy of legal aid bure aus, ha ve been hostile or indiffer-ent to their establishment. Fearful that legal aid bureaus may make in-roads into their practice, lawyers have preferred to permit the injusticewhich follows the iailure t o provide s yste m atic plann ing of legal assist-ance. Th is sometimes is justified on th e grou nd t h a t th e generosity of theindividual practitione r is sufficient to ta ke care of the priblem.'s

Even more imp ortant is the circumstance t ha t man y lawyers have be-come involved with t he problems of their payin g clients a n d tend to th inkless an d less of the b roader p rob lem s or responsib ilities of the profession.The re is no reason to believe th at the indictm ent of the profession mad e byAlbert hi. Kales as long ago as 1909 is not equally valid today. . I t th attime he said:

Th ere is grave reason to believe t ha t the s l o~ v rogress ma de in law reform an d thereform in judicial org anization a nd procedure in the large centers of pop ulation whereit is most needed is due to the fact that the solicitors and client care-takers representand almost wholly colnpose the profession. . . . . T h e m o r e im p o r t a n t a n d a b l e t h elawye r the more he is in touch with the most im port ant business interests of theco mm uni t)~ nd the more clear i t is tha t he cann ot propose or advocate any reform ofan extensive character which will not he univelcome to some particular client 's inter-es ts. These are th e men who s ta nd as leaders of the B ar . T heir c l ien ts ar e not in teres tedin reform.16

Today one can still say without real challenge that there is only asmall han dful of com peten t. hon est lawyers who are willing an d rea dy tomake voluntarily a fight for civil liberties and personal righ ts a nd for ade-qu at e protection of all person s irrespec tive of th eir economic status , race,or religion.

A furth er reason for th e slow progress is th at the difficulties att en da ntupon providing the legal assistance for the pop ulation of the c ou ntr y byprivate means are staggering. T o get the funds which have been made

' 5 In this connection, it has been said: "I t is fair ly obvious to anyone ~ h oill take the tim eto think the ma tter through, and it has been demonstrated again and again by studen ts of thesubje ct, th at individ ual practicing law yers, no m at te r how \?ell disposed and generous of th eirtime, cann ot adequately take care of all the poor and all the legal troubles particularly in thelarger cities. Nevertheless, there a re still lawyers th at believe this loy alty to t he profession de-mands that the contrary be assumed. . . . . I t is all too plain th at th at is due either to ignoranceor self-interest. Th e lawyers who ta ke this position either do not know the facts or else theyfear t ha t in some manne r tha t has never been e lucidated, organized legal aid will take payingbusiness away from practicing lawyers." 65 .4 .B.A.Rep. 189 (1940).

l6 Kales, .4 Com parative Study of the English and the Cook County Judicial E stablish-ments, 4 111.L. Rev. 303, 319-20 (19og).


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139HE RUSHCLIFFE REPORTavailable to date h as been a heart-breaking task, a nd ye t those fu nds areadm ittedly inadequate. ''

I t is ob viou s t h a t ~ h i l a n th ro p ys grossly inadeq uate to meet t he need.Yet resistance to reliance upon the governmental agencies is very strongan d it is assumed th a t if there is governm ental a ssistance on a wide-spreadbasis we will have socialized law.18

UTem ay ask, in the light of wh at ha s happened despite a q ua rte r of acen tury of emph asis upon priv ate supp ort of legal aid work, w heth er th ebest answer is through private sources such as th e com mu nity chest, or theuniversity. Is there any necessary conflict arising from the circumstanceth a t legal aid work is financed by public fund s if th e ad m inistra tion of th eprogram remains in the han ds of th e bar ?

Finally, despite our protestations to the contrary, in general the in-dividual who seeks free legal assistance is regarded as seeking charitableassistance.19

' 7 How d isma l the situa tion is can best be pu t in tcrms of th e 1940 Re po rt of t h e Legal AidCom mittee of the . imerican B ar Association: "Financial su pp ort which the Carnegie fun dsgave to t he cause for a num ber of y ears and which was rewarded w ith such splendid resul tsha s been withdrawn even to the extent of perm itting Justice and the Poor to go ou t of pr in t .S o other found at ion except the Russel l Sage Foundat ion has given to nat ional legal aid in a n yconsiderable am ou nt. Only in one year-19~38-has th e American B ar Association app rop ria tedm ore th a n S ~ , o o oo th e work of this comrnit tee which, at a m inimum, requires f ive times th atam ou nt to do th e work which m ust somehow be done." 65 .I .B.X. R ep . 187, 189 (1940).l8 In discussing the problem as to wh ether socialized law is a possibility, John S. B ra d-lvay says : "If the legal profession is serious abo ut its opposition to socialized law, it sho uld b ealert. If i t sits stil l , we may expect that sooner or later voices will be raised calling publicat ten t ion to a s i tuat ion described as ' intolerable, ' a nd the ba r ma y f ind i tself maneu vered in toth e position of a reactionary g roup obs tructing mu ch needed reform. Th e laym an will see, orwil l think he sees, the need for a change in our legal system an d m ay become im patie nt w iththose appa rent ly s tanding in his Kay. Organized legal aid work, as described here, is a n ac-cepte d professional activ ity; more effective tha n th e present volunteer sys tem ; less expensive

tha n a socialized prog ram . If o rganized legal aid service is set up in every co un ty in th e Un itedStates, a very potent argument in favor of socialized law will have been anticipated and thequest ion whether t he average poor man is obtaining his legal r ights can be an swered by stat is-t ics . At t he sa me t ime th e bar will have m ade m any good friends. I t s own ideal ism wil l haveha d a chanc e to demon strate itself in dignified mann er. T h e adm inistratio n of justice will beimpro ved." Bra dw ay, \\ 'ill "Socialized" Law Be Ne xt? , 29 Jou r. Xm er. Jud . Soc. 13, 17 (1945 ).Br ad na y does not define wh at he mean s by socialized law. I t is not clear whether the f inanc-ing of legal aid work, assuming its adm inistration ~v ou ld e in th e han ds of th e bar, proposedin t he Rushciiffe report, would in his el-es bring ab ou t socialization of t he law a n d t h e legalprofession. Brad way fur ther say s: "Th e coming of th e legal aid organization raised t h e que s-t ion-wherewas the money coming from to suppor t the enterpr ise? I t was clear a lways th a tthe policies should be made and enforced by the bar , b ut if the money to sup port th e work w assupplied by some other g roup , th e policies of th a t o ther group sooner or l a ter would hav e tobe taken in to cons idera tion. T he bes t an sxe r has been th e Co mm uni ty Ches t an d U nivers ity ,neither of which have objectives which might conflict with the best interests of the bar. Insome ci ties the work has been f inanced from th e public t reasury." Ibid.

'9 Th is concept is perhaps unwit t ingly expressed in th e 1940 Rep ort of t he Leg al Aid Co m-mit te e of the American Ba r Associat ion wh ere i t is s tate d: "Legal a id is th e great organicchar i ty of th e bar an d i t s growth i s l argely a t t r ibuta ble to the work and t he money whichlawyers hav e contr ibuted." 65 A.B.A. Rep. 187, 191 (1940).


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140 T H E U S IV E R SI T Y OF CHICAGO L.i\V REVIEWThe second most important challenge by the Rushcliffe Committee is

presented b y t he provision for legal advice to those whose income is aboveeligibility stand ard s of legal aid bure aus . Th e comm ittee calls atte ntio n tothe fact th at ma ny individuals with low incomes are as much in need oflegal assistance a s are those classified a s poor. H owever, since th ey are notdepend ent upon the com m uni tj- for financial aid an d therefore not classi-fiable a s poor th ey do not receive legal assistanc e. T h e C omm ittee recom-mends gi lin g legal advice to th is group withou t specific income lim itati on,leaving it to th e local area committee to p rotect against abuse.

In this co un try a similar area of need ha s been recognized. I t is generallyagreed within the legal profession that in principle, in one way or an-oth er, this need should be me t. Th e acknowledged need tak es in assistancegoing beyond the legal advice recommended by th e Rushclifie Com mittee.'The problems involved have received considerable articulation in the pas tdecade,'"but to da te little progress ha s been made in their solution. T h elegal profession h as sanctioned reference plans whereby ba r associationsulill on request sup ply th e n am e of a lawyer w ho will give legal advice ona stipulated low cost basis. B ut o d y a handfu l of cities hav e such a planavailable," an d so little publicity h as been given t h a t th e public is general-ly unaware of i t s ex i~ te nc e. '~n Philadelphia a neighborhood law officeplan to provide low cost servlce by a gro up of lauryers outside the prin -cipal business a rea h as been in effect since 1939.'~hu s far there has beenno atte rnpt to establish a centrally located low cost law office.'^

'"For a collected bibliography on the sub ject , see 1940 Report of Committee on LegalService Bureau s , 6 j . l .B. . l . Rep. 261-62 (1940); s?e also reports of th e Legal .lid Com mittee,66.l.B..\. Rep. 321 (1941); 67A.B.A . Rep. 291 (1942).Thi s service is available in Los Angeles, C hicago, St . Louis, Cleveland, Cin cinnati. For

att itu de s of local bar associations, see 1941 Rep ort of C om mit tee on Legal Service Bureaus,66 .I.B..I. Rep. 329-30 (1941). I n Chicago, Cleveland, and Cincinnati , the plan h as been ex-tend ed to preparation of income tax returns.l2 Bar associations in Cle veland an d Cincin nati for several years an d in C hicago last yearextended th e plan to prep aration of income tax retu rns on a loiv cost basis and in th at connec-tion for th e past two years engaged in active publ icity. T he Los Angeles Bar .Issociation hasalso been active in publicizing the plan. The Committee on Professional Ethics and Griev-ances of th e American Bar Association has approv ed publicity th roug h newspaper advertising,news columns, an d similar meth ods. N e\~e rtht. less. he conclusion of the L egal Service Com-mit tee of t he Am erican Ba r i\ssociation in its 1941 Report , 66 h .B .X . Re p . 323 ( ~ g j r ) ,h a t ,"we ha ve scarcely touc hed th e surf ace of th e problem of ac quain ting th e low income groupwit h th e existence of facilities to afford the m legal service on a fee basis with in their m eans, "

s til l s tand s as true.'3 For description of p lan, see lett er from R ober t D. Xbrahams, chairman, XeighborhoodLaw Office Committee, Philadelphia Lawyers Guild, to Chairman of Special Committee onLegal Clinics, 65 A.B.A. Rep. 455 (1940); Abrahams, The Xeighborhood Law Ofice Ex-periment, 9 Univ. Chi. L. Rev. 406 (1942).24 Proposals for a Legal Service Bur eau for th e Metropolitan Area of Chicago I N a t . L .Guild Q. 149 (1938); Plan for the E stablishm ent of a Legal Service Bureau for Meeting the


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141HE RUSHCLIFFE REPORT

Th e slow rate of grow th raises the qu estion w hether t he organized legalprofession und erstan ds th e need a n d desires to see th a t need met.'S Sincethe legal profession has never wholeheartedly and generally supportedlegal aid work, it would be surprising if th e response were different t oplans fo r providing low co st legal service to th e lower-middle incomegroup. Just as in th e legal aid movem ent, there is a wide ga p between in-tellectual appreciation of th e necessity fo r meeting t he need, which th eleader s of th e legal profession possess, an d t he act ua l effort which is neces-sary to meet th e need.

We are faced today w ith a n even more acu te problem th an was presentduring the ferm entation of th e thirties. Th e underlying factors have no tchanged.

I . Despite th e effective work of bar com mittees on unauthorized prac -tice of th e law, lay agencies are op era ting successfully and on a wide scalein certain fields basically requiring th e skill of an atto rn ey , such as ta xproblems, title examination, traffic violations, collections, and the prepa-rati on of tru sts , wills, leases, an d other legal doc um ents.

2 . Less th an two per cen t of people in th e group having a n an nu al in-come under $2 , j00 consult lawyers. Th is group includes the bulk of th epopulation. T here is a latent an d untap ped dem and a nd need for low costservice .26Xeeds o f the Low Income Groups ( 19 j9) , submit ted by th e C ommit tee on Lega l Serv iceBureaus of th e National Lawy ers Guild, Chicago Ch apter (privately published); Low CostService Plans P roposed, 2 0 Chi. Bar Rec. 233 (1939). Th e A.B.A. Special Com mittee on LowCost Legal Service Bureaus has re jected this plan, apparently through misunders tanding.T he assum ption is mad e by the Com mittee th at th e low cost legal service office would be oper-a t ed a t th e expense of th e pub l ic a nd be conduc ted much l ike a f ree lega l a id bureau . T he Com-mit tee seems confused by t he nam e "Legal Service Bureau," 67 A.B.A . Rep . 291 (1941). Th eplan for a legal service bureau does not contemplate public financing. On the contrary i tcontemplates a centralized oflice providing low cost legal service with a volume of worksuffic ient to provide a dequ ate compensation to the lawyers who serve on th e s taff . Th e chiefdiEerence between t he neighborhood law of ice plan w hich is approved by the r\.B.r\. C o m m i t -tee , in conjunctionwith other types of legal service , an d th e legal service bureau plan is t h at th elat ter w ould be located in the downtown area an d would have a staff sufficiently large to m akepossible specialized handling of legal problem s.

Z s Th is problem is recognized an d given expression in th e mid-winter r eport (r gq j) of t h eLegal Aid Com mittee of t he American Ba r Association. Th e comm ittee s ta tes : "At the bo ttomlies the query a he th er t he bar, acting thro ugh this i \ssociation, is prepared, f irs t , to cas t offi t s tradit ional t im idity an d self-consciousness, then to inform th e public of th e imp orta nceof consulting lawyers in business and personal affairs instea d of ta king cha nces or th e adviceof notaries, realtors , accountants and insurance agents , and , f inally , to see to i t t ha t m en a ndwomen all the way up and down the income scale can easily and confidently and for fa ircompensation obtain th e legal help they need. If t he answer is in th e affirmative, th e firs ts te p should be to mak e an honest a nd inte ll igent an d properly financed effort to es tablish legalaid throughout t he country." Advance Program, American Ba r Association Meeting, Cincin-nat i, Decem ber 17-20, 1945, p. 23.

26 Rep ort of Co mm ittee on Legal Services, 66 A.B.A. Rep., 321 (1941).


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142 T H E U N I V E R S I T Y OF CHICAGO LAW REVIEW3. T he majo rity of lawyers still practice on a n individua l basis and are

not organized to give low cost service. Instead they compete for the lawbusiness of th e less th an ten pe r cen t of th e pop ulat ion in a position t o pa yfor their ~erv ic es .~ 7

4. While the economic condition of th e b ar durin g the w ar has im-proved, in p a rt because of t he w ithd raw al of younger lawyers into th earme d services, th e prospect for the fu ture is bleak a nd a m at te r for seri-ous c o n ~ e r n . '~ ith th e general decline of litigation and law business,lawyers as a whole and particularly returning ve teran law yers have moretime ava ilable to ren der legal service t o the low income group an d a needfor the additional income which would come from this source.I n broad te rm s an d from a long-time viewpoint t he significance of theRushcliffe report is th a t th e ba r of En glan d a t this time is willing to con-sider the need for legal assistance as a funda men tal problem requiring im -mediate national consideration. Up to the present time our achievementsin the field of legal aid hav e been subs tant ial b ut have provided a solutionto only a small fraction of the problem. We have made only a timid st a rtin providing legal service to th e lower-middle income group. The questionwhich faces this coun try a nd th e legal profession in partic ula r is whetherlooking ahead we can rightfully afford to improvise a s we have in th e pa stand to devise makeshift provision for the great need which exists. We areen ter ing a period of reconversion involving rapid tr ansit ion of econom icforces, mov emen t of a large pa rt of th e population from w ar pla nt s backto normal employment a nd the adjustm ent of numerous and vital factorsin our social life an d economic struc ture . It is a p:riod in which we m ayexpect th e grow th of m an y problems having legal implica tions affecting alarge p ar t of our populatio n. The Rushcliffe report presents th e challenge:Shall we go on as we have in th e p as t or shall we, a s ha s been recomm endedfor England, grapple realistically w ith th e problem in an a tt e m pt t o solvei t on a comprehensive a nd am bitious basis? I t is, of course, true th at th eproblem in this country is vastly more complicated than in England.Aside from the circumstance that o u r population is more th an three-foldth a t of Engla nd, we are faced with the intricacies of federal and sta terelationship. Bu t w hat is the solution? I t is clear from our pa st experiencest h a t we can not rely on private contrib utions or the efforts of the legal pro-fession itself to meet the situation a nd t ha t s ta te an d local governments areslow to respond to the need. We need t o approach the p o b l e m nationally.There are a t least two alterna tives if we look for federal assistance.

'7 Ibid.a 8 See reports of th e Com mittee on Econom ic Co ndition of th e Ba r, American Bar Associa-tion, 63-69 A.B.A. Reps. (1938-44).


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THE RUSHC1,IFFE REPORT I43T h e first is a system of federal grants-in-aid. O ur histo ry ha s shown t h a t

the g reatest inadequacies of the federal-state relationship have shown upin our att em pt s to deal with the underprivileged. For this reason, am on gothers, a system of grants-in-aid ha s developed to encourage sta te a ctio n,particularly in states th a t are financially impoverished. We have a his-tory of federal grants-in-aid for education, for ma ter nit y benefits, fo r pu b-lic housing, for relief, for old-age assistance, and for assistance to de-pendents, blind persons, and physically and mentally handicapped chil-dren. =\ m odest federal app rop riation , som ething less th an the cost of asmall ba ttlesh ip, for aid to the s tat es in developing legal assistance wouldbe a great step forward. If gra nts made out of such an appr opr iation weretied to a requirement th at the state s similarly stimulate local comm uni-ties, a com prehensive syste m of legal aid to th e poor an d lega l repre-sentation to those with low incomes would develop, and equality beforethe law would become something more than a mouth-filling phrase.

The second alternative would follow the plan outlined by the Rush-cliffe Com mittee for E ngland. Bills pending before Congress29 prop ose acomprehensive plan of health insuranc e an d protection. T he plan c onte m -plates an administration and financing pot unlike that suggested by theRushcliffe C omm ittee for handling legal assistance except t h a t the Rus h-cliffe C om mittee does not call for periodic payroll dedu ctions. T he R us h-cliffe Committee did not consitler tha t its proposal would bring ab ou t so-cialization of the profession. I ts requiremen t th at t he plan be adm iniste redby the profession is intended as a saieguard against this possibility.

T he chief barrier to adeq uate consideration of thi s alter na tiv e is theconfused think ing usually engendered by t h e bogy of la bels such as "so-cialistic." \Ye ar e a governm ent of law relying upon th e legal pro cess in-stea d of anarch y an d the basic assu mp tion is th at e very indib5dual in oursociety mu st resort to t he lcgai process to seek relief fro m w rong o r ag-gression and likewise may he proceeded against ii he himself has over-step ped . I t is difficult to conceivt. oi any undertaking on the par t of gov-ernment which is more properly a governmental funct ion than that ofmaking certain th at all p?rsons have equality of trea tm en t in the legalprocess which they m ust th us accept a s mem bers of the com m unity. Ashas been so well said by Reginald Heher Smith:

?'here can be an hon est difference of opinion as to w hether the st at e o!i7es a n affirm a-tive duty to its citizens to keep the m i n good heal th. There can be n o argume nt againstthe proposition tha t the st at e is bound to see tha t its citizens receive justice. T h a t, an d

'9 h'agner-RIu rray-Din gell Bill, S. 1050, 79th Cong., 1st Sess., introduced in the Sen ateRIay 24, 1945, by Se nato rs LVagner an d M ur ra y; introduced in the House of R epr esen tativ esby Represen ta t ive Dingell, H . R . 2393, 79th Cong., 1st Sess. (194 j).


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144 T H E U S I V E R S I T Y O F CHICAGO LALV R E V I E I Tdefense against foreign aggression, are t he tw o prim ary reasons whq governmentexists. T he st ate insists tha t i ts people use the court s and gives them no alternative.If a ma n defrauds you of $ r o o you can not break into his house an d steal i t back. Youmus t bring an act ion in the courts . If the sta te, having so ordained, then tolerates asituation where i)zf a c t a large group of its citizens can no t avail themselves of courtprocedure because it is costly an d they are poor, trouble is bound to ensue.jOThe problem facing this country today is so serious that this alternativedeserves most careful consideration.I n any ev ent, what is clcarly indicatcd now a s the initial step is tha t acommittee of leading American lawyers and leaders in the field of legalaid work an d legal reform should be appointed to make the same kind ofintensiv e an d ima ginativ e stu dy of t he adequacy of legal represe ntation inthis country as that made in England. To give the committee status i tshould be ap pointed b y the .L\ttorney Gen eral or by th e Supreme Cou rt ofthe U nited S tates. Th e comm ittee should be authorized a nd encouraged tomake recommendations.

We can , of course, mu ddle along for ano th er twenty-five yea rs or moreas we have in t he p ast ; th a t i s, we can do so if th e public is willing to lielow an d make no outcry. B ut we can no longer do so with our eyes shu t.If th e legal profession rem ains indifferent t o t he prob lem, it will be becauseit chooses to rem ain indifferent. Injus tice and depriv ation will be th e toll,and o ur practices will continu e to fall far sho rt of our preach ments. Ofcourse, th e initiat ive for reform m ay be tak en o ut of the ha nds of th e legalprofession b y lay grou ps, as is beginning to be the case in th e field oi m edi-cine. In ei the r even t t he result will be a contin uing dim inution of th e pres-tige of the ba r, of th e co urts , an d oi th e en tire judicial sy stem.

3 O Economics of th e Legal Profession 119-20 (X.B.X., 1938).

rushcliffe report 1945

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