Legal Aid and the Legal Profession
The history of legal aid is inextricably, and on multiple levels, linked with the history of the legal profession.[51] How the legal profession has grown in different countries and regions can, in part, also explain why legal aid took a particular form.
We can see how in the High Middle Ages, the rise of the legal aid doctrine in canon law coincides with the birth of the legal profession.[52] In other words, when the legal profession began to emerge in Europe in the twelfth and thirteenth centuries, the question of legal aid also became more important: should lawyers have an obligation to help those who could otherwise not afford legal counsel? This discussion was not limited to canon law and canon lawyers. As lawyers became more common in secular courts, they too became involved in this discussion. In fact, the idea of lawyers having a moral obligation to help the poor for free has, in some countries, persisted well into the twentieth century. Bruno Debaenst describes in his chapter, how in Belgium, under the pro Deo (literally: for God) system, lawyers in training were obliged to provide free legal assistance to indigent people—and this only began to change during the twentieth century. The religious and charitable origins of the legal aid system are obvious in Belgium, which was predominately Catholic well into the second half of the twentieth century. Likewise, in Chile, freshly graduated young lawyers had to complete a mandatory internship in the legal aid service, and so-called lawyers on rotation had to defend the poor for free, as Marianne Gonzalez Le Saux discusses in her chapter.Voluntary pro bono work has, of course, been provided by many lawÂyers and law firms, which combines the idea of lawyers’ social responsibilÂity with the benefits charitable work brings to individual lawyers as well as their law firms.[53] In the U.S.
by the late nineteenth century, legal elites had a profound desire to demonstrate to themselves and others that practicing law was about more than making money and that lawyers and law were not entirely entrenched in market forces. Providing free legal assistance or at least raising funds and making charitable contributions to legal aid sociÂeties fulfilled such personal and performative needs. It assuaged the collecÂtive conscience of elite lawyers who otherwise often worked for large corporations. Yet in the absence of state funding, legal aid societies seldom had enough funding to truly provide wide-spread legal assistance. Leaders of legal aid by the mid-1920s came to the realisation that although lawyers supported the idea of legal aid actually funding legal aid organisations was a different story.The linkage between legal aid and the growing legal profession went well beyond the sense of an ethical obligation but also raised crucial issues about power. In some countries, legal aid was a way for the state to exerÂcise control over the legal profession or for the legal profession to impose hierarchies within itself. In his chapter, William Pomeranz shows how in Russia, ever since the late-nineteenth century, legal aid was a fulcrum in various tensions between the state and the bar. As he asks, how much access to legal aid is an autocratic state willing to accept and to promote? Marianne Gonzalez Le Saux, in turn, shows how the twentieth-century Chilean Bar used legal aid as a way to control young lawyers, fund itself, and build hierarchies within the legal profession. In the U.S., elite legal aid leaders argued that legal aid was necessary to prevent “shyster” lawyers (often immigrants) from preying on the poor. Indeed, in some cases, one can question, whether legal aid has been more helpful to the people who provide it than to its alleged beneficiaries, as Richard Abel has suggested.[54]
Less elite legal professionals have had varying attitudes towards legal aid.
Those who saw legal aid as a direct economic threat to their own prac- tice—usually small firm lawyers or solo practitioners—have often shown hostility towards legal aid, as a study from the U.S. showed.[55] This became particularly acute during the Great Depression of 1929 and at times of other financial crises. In many countries, lawyers have also favoured the model where the state pays for private lawyers to provide legal aid, instead of state-funded legal aid offices.[56]In several countries, legal aid is also related to the interface between professional lawyers and so-called lay lawyers, who practised law, but had no formal education.[57] For example, in Germany, Russia, and Finland the dubious practices of supposedly unscrupulous lay lawyers were used as a reason for promoting legal aid by professional lawyers.[58] One can also look beyond Europe and see that a similar situation played itself out in early twentieth-century Chile too.[59] One aspect was the unwanted competition from these lay lawyers, and another one was genuine concern for the qualÂity of legal assistance that indigent people received. This was the case in Finland, for example, where newspapers voiced concerns that poor people were especially prone to be taken advantage of by dishonest lay lawyers, as they could not afford the services of professional lawyers.[60] The tension between lay lawyers and professional lawyers, which was then reflected in the question of who should provide legal aid, became heightened as the legal profession grew and became more organised. Yet we are left with a resounding question of whether and to what extent such non-elite practiÂtioners actually bilked their clients or provided shoddy legal work or whether this was an attempt by the bar to rid itself of such lawyers.
Laymen, or to be more precise lay women, were also directly involved in providing legal aid. As Felice Batlan shows in her chapter, in the U.S., lay women played crucial roles in creating legal aid offices and providing legal advice.
Likewise, in Germany and England, middle-class lay women— as well as women who had a legal education but could at the time not yet practise law—provided legal assistance to working class and poor women through organisations that catered to their needs.[61] Moreover, social workers, predominately women, also played an important role in providÂing legal aid. In England, for example, late-nineteenth-century social workers offered guidance on legal problems faced by their clients. Frank Tillyard, a barrister who initiated Poor Man’s Lawyer services in the 1890s, also began publishing books for social workers regarding the law. By 1916, the booklet Legal Hintsfor Social Workers had been published in four ediÂtions. It informed social workers about courts, mediation, and dispute resolution, among other things.[62] A similar book was published in the U.S. in 1929.[63]3 Sometimes social workers also acted as mediators between lawyers and legal aid clients. This was true, for example, for the U.S. and Chile. However, the relationship between social workers (often female) and (male) lawyers surrounding the question of legal aid was often tense.[64] Did legal aid belong in the male sphere of law or the female sphere of social work? Could social workers or female lay workers provide compeÂtent advice or, as some lawyers claimed, were they mere meddlers in the law? As discussed in Batlan’s chapter, such questions also went to the actual nature of advice and services provided. Social workers tended to privilege a type of holistic advice while lawyers offered narrower and techÂnical services. More broadly, the presence of both lay women and social workers requires us to interrogate the very question of what practicing law even meant and the narratives upon which historians choose to focus.In fact, throughout the chapters presented, we see that cases involving legal aid seldom went to court or even involved courts.
Instead, the objecÂtive was often to avoid litigation and find amicable settlement between the parties. In Finland and Sweden, special dispute settlement boards (Fi. sovintolautakunta, Sw. forlikningsnamnd) were set up at the same time poor’s advocates were hired, in the hope that a majority of cases could be settled outside of court. Marianne Vasara-Aaltonen points out in her chapÂter that statistics from Finland show that a vast majority of cases never went to court. In turn, Hiroki Kawamura notes in his chapter how the legal aid system in Germany was and is divided into legal aid for litigation and legal advice outside of court proceedings, and how there were numerÂous providers for the latter kind of legal aid. Thus, in many countries, a big part of legal aid work was about giving legal advice, which also explains why in some countries, it could be performed by lay men or women.Finally, there is the important question of the role that law students play in providing legal aid. In late-nineteenth-century Denmark, for examÂple, we find a “Student Association for Securing Legal Aid for the Poor” (Studentersamfundets Retshjndp for Ubemidlede) where law students at Copenhagen University together with practicing lawyers provided legal aid to the poor. This association inspired lawyers working at legal aid societies in the U.S.[65] In the 1890s, Norwegian law students were providÂing legal aid.[66] By 1903, students at Harvard Law School had created the Harvard Legal Aid Bureau to provide legal assistance to the poor. Thus, there is a long history of students engaged in legal aid. More recently, a number of Chinese law schools established clinics to provide free legal aid modelled on U.S. law schools. Although these societies were voluntary, some countries such as Chile and Belgium required students to provide legal aid, leading to, at times, significant resentment.[67] Moreover, in the U.S. the rise of law school clinics may have functioned as one way to replace experienced female social workers who worked in legal aid with male law students.
Yet, in the 1960s and 1970s, as radical student movements grew across the world, law students embraced the idea of access to justice. Again, the question of students providing legal aid became topical. Student-run legal aid clinics began to emerge across the world: from Australia to South Africa and from Mexico to India.[68] In Britain, the Student Advisory Centre, founded in 1968, provided advice to students on a variety of issues, including legal questions. In the Netherlands, law students in Tilburg set up a legal aid clinic in 1969.[69] Bruno Debaenst shows in his chapter how in 1972, progressive law students in Belgium founded a legal aid clinic (Wetswinkel) giving free legal advice to those in need. In Norway, in 1971, law students and young lawyers founded the “Law Bus” (Juss- Buss), originally a mobile legal aid clinic providing legal aid to those in need, and gathering information about the necessity for legal aid. The Juss-Buss, which still functions today, provides a wide array of legal assisÂtance, except for legal representation in court.[70] In Finland, the Helsinki law students’ association Pyknln has provided legal aid to students at the University of Helsinki since 1982. It originally planned to provide legal aid to indigent people in general, as was the case elsewhere, but in the end, the clientele was restricted to students.[71] At present, the law students’ associations at other Finnish universities also provide legal aid to students.
These examples show how providing legal aid can be part of the transition from a law student to a young professional lawyer. Moreover, it perhaps reflects the idealism of law students regarding the possibility of legal aid creating fundamental justice.[72] Yet even as we herald the law school clinic, in the end, we must also ask whether, in some places and some historical moments, students, who provided free labour, were essentially experiÂmenting on the poor.