On the Record: Charn on Thinking Critically About the Provision of Legal Services

Photo courtesy of Jeanne Charn

ON THE RECORD: How has the world of legal services changed during your career?

JEANNE CHARN: My introduction to legal services was in the mid 1960s when the federal legal services program was just getting started. One of the earliest grants was to Harvard Law School for a neighborhood clinic and it was vaguely about what can students contribute to legal services and I was a 1L. And I volunteered.

OTR: What about the substance of the work? Did HLAB have a different approach?

JC: There were differences. [HLAB had] a service orientation. There’s a huge amount to be said for that. The goals of the Office of Economic Opportunity program were community mobilization, community involvement, social change, and work that would alleviate poverty. That was how you assessed what you did. So, we weren’t on campus, we were down in what was called Area Four, down on Broadway, in a little three decker house. We wanted to be near the neighborhood organizing groups and there was a lot of community mobilization. I got involved with organized tenant groups in Somerville, here [in Cambridge] we represented community health centers, we were representing a head start program, rent control was coming to Massachusetts, we wrote an amicus brief in support of the rent control law. So, it was a very different orientation. [What I] loved [was] the community based, bottom up stuff. So, that was the goal of legal services in the 60s. It was led. One of the things I always do in my classes is to always put in a quote from the first president of OEO legal services, Clint Bamberger, that says “We’re not about just helping people. We’re about relieving the conditions of poverty.” This is something he said to the conference of Bar Presidents and it was accepted that you would say that and that’s what things would be about.

OTR: How did you get your first job out of law school?

JC: I wanted to do policy work in government and was very interested in foreign affairs and was offered a job in the legal advisor’s office at the State Department. Partly because I would have been working for Henry Kissinger, and by then I was against the Vietnam War, but I loved what I was doing and I had a ton of clients. I had like 30-40 clients all through law school, so the office hired me just to keep the work going. There were also jobs and money for legal services. The economic base was different.

OTR: Was that primarily because of the new influx of federal money?

JC: Yeah. Two things. Gideon came down in 1963, so you had to put money into defender work, so those jobs were growing. And OEO legal services. There were about 400 full-time lawyers in the country before OEO came along. By ‘71 or ‘72 there were 4,000 jobs. We were graduating about 25,000 law students a year in the [entire] country, so with 4,000 new jobs in public service it wasn’t hard to get a job. They were out there. And my job paid $10-11,000 a year but downtown firms were paying $23,000 or 24,000. Those were 1970s dollars so the gap had not grown to what it was. In all of those respects the world was different. Now, the social context was completely different also. We were mainly running budget surpluses, there was money, and there was tremendous upheaval and violence. Political assassinations, neighborhoods being burned. Law looks really good when that is the choice.

OTR: For young people specifically?

JC: For young people and to the country as a whole. Remember Barry Goldwater runs, there is a conservative movement in the US, he runs against Johnson in 64, and he loses in a landslide. And given the extremes of upheaval that were going on in the country, channeling dissent and upset into legal claims and means seemed plausible as opposed to burning down your neighborhood.

OTR: I see. But it was a given that something had to change.

JC: Something had to change. And its not an accident that [we’re talking about] the last big period of social legislation that really changed the social floor in the US. So the experience of being in it then was that we were going to turn a big corner. I remember getting advice from my mentors at the time about what I was going to do when I was 40 because I thought this stuff would largely be taken care of, and legal work would be routine [by then]. I couldn’t see around corners any better than anybody else and what happened was the conservative movement turned out to be durable and stronger than any of us imagined. We thought things were over with Goldwater. Economic conditions changed. It was a miserable economy, the 60s reform fervor fades and we begin to focus on crime. And there’s tremendous pushback on this little legal services program.

OTR: Primarily from conservatives?

JC: Yeah. For political reasons. “These young lawyers are not supposed to be out there changing the world. They’re not loyal to their clients. They’re running their own agendas.” And there’s something true to some of those critiques, and I saw some of it.

OTR: So the line of that critique was legal aid should be politically neutral, and these people are doing it in a way that is biased?
JC: Yes. Exactly. But there was a kind of hubris. It was part of the times, it was part of the front end of the baby boomers being mobilized around a lot of issues, being young, thinking you could fix everything, so it was a mixed picture. And the pushback came around: the game of law is to get it right. Not to use law strategically or instrumentally to leverage much bigger issues, though of course it is used that way all the time by powerful interests and we saw ourselves as balancing that out.

OTR: Did the Reagan era bring with it a change in consciousness that caused more students to feel good about going to work at big corporate firms?

JC: I don’t think it’s that different. But I do think that you’re right in some respects. One of the things that happened is that the 80s into the 90s are an era of unprecedented growth of large firms. There were many more jobs there. And jobs in public service [during this period] are stagnating. Salaries are stagnating. The gaps are growing and those aren’t matters of personal choice, because the whole incentive structure is also changing. Elite law schools haven’t gotten bigger. But there was huge growth down the status hierarchy. We opened up seats. We had, at the peak, 40,000 law students. When I graduated in 1970 there were 20,000 law students. And we added 20,000 to that.

OTR: And those new students are absorbed primarily through the expansion of the private sector and the big firms?

JC: Yeah. As the firms need more [people] they upgrade the status of many schools down the hierarchy because even if they hire the entire class from the top four or five schools they won’t have enough. The law school debate goes in too simplistic a frame a lot of the time. It’s about the values of the individual law student. And the story is that either the market or something in school corrupts. No, the context is changing all the time. In the big firms there has always been a cadre of professionals that were progressive, totally supportive of access [to justice], and saw that it was important to have friends in positions of authority and power. The firms have been big supporters from their own pockets.

OTR: Have these changes in the market had an effect on the students?

JC: Student culture changes. But I sort of like the student culture of today. There had been a left that hung on for a long time and became, I thought, around here, kind of surly and grim in the 80s and 90s. I now see much more wonkish, policy-oriented, thoughtful progressives. They maybe aren’t as left, although I like the Unbound kids too. I think there’s a new left, that can think in economic model terms and make constructive critiques and comments of some of the dogma of centrist and right-wing economics.

OTR: What is the new relationship between a young progressive lawyer and this new political consciousness? What can we do as lawyers?

JC: [The question is also] what can we do as law schools? One of the things we can do is to much more actively engage and be much more connected to the practicing bar. The legal profession is undergoing big changes. There are non-traditional competitors out there in all sectors of the bar. Legal process outsourcing at the top, but the small nonprofit, [which is] vital, may be much less efficient than it should be. It isn’t under pressure. So some of these managerial tools that can make some lefties cringe, I think there’s a way of reconfiguring to [use in the legal services sector]. It’s a new kind of instrumentalism. Do we care by what means people get help if they get help and it works for them? We need a much more sophisticated understanding of the legal system. We need to think about process-engineering legal services. In contrast to that we have a civil Gideon movement, which is “get a lawyer for everybody.” That takes emphasis away from looking at the whole legal system and asking how we can change the processing side as well as.

OTR: But you’re laying out something that doesn’t sound all that dissimilar, on the surface, from a standard neoliberal retooling of an existing government service. That seems like something that is usually a cover for the wrong kind of politics.

JC: Or [a cover for] cutting back on funding. Or doing the least you have to do. It could be that. I do understand that. We can’t, as a matter of debate, make things better. That risk is there. But there’s a risk on the “lawyers for everybody” side. One, its unrealistic, and two, what kind of world is that? I’m not sure I see it as a utopia. What’s wrong with thinking about self-empowered citizens who have access to more knowledge and following what they want to do? Another way of looking at it is to [admit] that critiques from the center and the right had some good points. We didn’t have it all right. I’m at root a pragmatist. There are left pragmatists. I want data. A real pragmatist doesn’t wed themselves to an institution or to a mode of doing things.