Finding the Smoking Gun: Deleting Women from the History of Legal Aid
While I was at the Schlesinger library, I made forays into the archives at Harvard Law School. Although these archives were only a short walking distance from one another, the stories that the two told could not have been more different—one was about women, the other about male lawÂyers.
The Harvard archive contained the correspondence between Reginal Heber Smith and his editor when Smith was writing Justice and the Poor. The book, published in 1919, told the early history of legal aid while also creating a blueprint for its future. Virtually every law student and scholar interested in legal aid at some point reads it and it is still widely admired.[949] Reginald Heber Smith was young when he wrote it. He had graduated from Harvard Law School in 1914 and quickly become the head attorney at the Boston Legal Aid Society. As I was to learn, one of his first acts was to fire the woman social worker employed there and replace her with a male attorney.[950] As I turned the pages of the leather-bound volumes of letters (of course, the leather announcing its importance, its gentility, the money possessed by the archive itself), I was transfixed. Part of its arguÂment was that legal aid needed to be widely available across the country and that the bar should be responsible for creating and running such offices. Moreover, he argued, legal aid societies needed to be dramatically independent and unconnected with charitable organisations. To be conÂnected to a charity was to sacrifice the independence of the bar.[951]These documents clearly indicated that Smith was aware of women’s legal aid organisations, and he had in fact interviewed some of their leadÂers. Earlier drafts of his book had included a discussion of them.[952] Continuing through the letters between Smith and his editor, I found the proverbial smoking gun.
His editor wrote to Smith: “If I am right in thinking that women have had nothing to do with this [Legal Aid] moveÂment, you might consider the desirability of deleting them.”[953] And Smith, indeed, deleted them. Thus, I now had very specific evidence that the hisÂtory of women lay lawyers and female social workers in legal aid had been intentionally suppressed—literally written out of the story. Accordingly, Justice and the Poor firmly situated legal aid in the masculine realm of law. Legal aid was to resemble ordinary law offices and had to be separated from charitable organisations. Charity functioned in a feminised realm of lay lawyers and female social workers. Charity bred dependence and was discretionary.[954]Following the publication of Justice and the Poor, the elite bar estabÂlished the National Association of Legal Aid Organizations (NALAO) designed to promote the establishment of legal aid offices by the bar. Much of the purpose of the organisation was to convince the elite male legal bar to take responsibility for creating legal aid societies, funding them, and hiring male lawyers. Masculinity was crucial to this enterprise. The question of who would provide legal aid directly implicated issues involving authority, power, expertise, and professionalism.[955] Many of NALAO’s papers were located in the archive of Duke University where its executive director and Smith’s accolade, John Bradway, taught law. These, by far, were the most difficult archives that I had encountered. They were sprawling and poorly indexed due to its vast size and probably a general lack of interest in Bradway, who was never viewed as Smith’s equal. Bradway had essentially saved every piece of paper that came across his desk and at his death, my sense is, they were simply packed up and sent to the archive. Moreover, the story of women in legal aid kept disappearing as it were primarily men in charge of this new organisation.
Yet, amidst the correspondence and conference reports of legal aid societies run by male lawyers who spoke at its many conferences, there was a counter current—a small NALAO committee on the role of social workers in legal aid and the debates surrounding their presence. Indeed, social work itself was becomÂing a profession at this time and schools of social work were beginning to offer courses in law. Like Minnie Low, they were claiming their own authority over legal aid.[956]Amongst Bradway’s papers was a sort of diary in which he set forth his musings on legal aid.[957] In such papers, Bradway was clear that legal aid organisations needed to stand alone and be unattached to any other organisation. Any such attachment or even the presence of women staff made legal aid look too much like charity. Charity was only for those who were dependents—such as women and children. Such associations, he and others argued, would scare away men from legal aid, the very clients whom it was most important to attract. The independent male client of legal aid was to reflect the very independence of the bar itself. Legal aid, he argued, should be a constitutional right; charity was mere “pity translated into action.”[958] In order to understand Bradway’s and Smith’s thoughts, one had to utilise concepts of gender and masculinity. Maleness was central to both legal aid lawyers’ view of themselves and the clients that they hoped to attract. Maleness stood for independence, authority, and professionalisation.
Yet, as Bradway visited legal aid organisations across the country, he was shocked by the vast difference between Smith’s and his own theory of legal aid and the on-the-ground reality of legal aid. Everywhere there were women lay lawyers and social workers providing legal aid.[959] Whereas elite attorneys espoused their belief in legal aid and the necessity of the bar to create and control legal aid, they simply had no real mechanism to do so. Legal aid, like bar associations themselves, was intensely local. Legal aid required personnel and steady funds that needed to be raised. In contrast, charitable institutions run by social workers often had better funding and personnel to create and maintain legal aid organisations.