Practicing Law for Poor People

Author(s): Stephen Wexler

Source: The Yale Law Journal , Apr., 1970, Vol. 79, No. 5 (Apr., 1970), pp. 1049-1067
Published by: The Yale Law Journal Company, Inc.

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 Practicing Law for Poor People

Stephen Wexlert
A growing number of young lawyers express an eagerness to work
for poor people. They are interested in "poverty law" because they
have a moral concern which speaks against poverty and in favor of
legal representation for everyone; because they have a selfish interest
in their own life style; and, in many cases, because a stint working for
the poor will help them become teachers or avoid the draft. For most
of them, working for poor people means making somewhat less money
than could be made elsewhere, but that sacrifice is a fair trade for the
sense of doing what they view as morally right, and for the lack of
pressure that poverty law affords when compared with Wall Street
practice.
While most of these young lawyers understand that there will be a
different tone and style in a poverty practice, they expect their role as
a lawyer to be much the same as that of a traditional practitioner. They
intend to-and by and large they do-practice law in the traditional
model, except with poor people as clients.' Unfortunately, the tradi-
tional model of legal practice for private clients is not what poor people
need; in many ways, it is exactly what they do not need.
Poor people are not just like rich people without money. Poor people
do not have legal problems like those of the private plaintiffs and de-
fendants in law school casebooks. People who are not poor are like
casebook people. In so far as the law is concerned, they lead har-
monious and settled private lives; except for their business involve-
ments, their lives usually do not demand the skills of a lawyer. Occa-
sionally, one of them gets hit by a car, or decides to buy a house, or lets
his dog bite someone. The settled and harmonious pattern of life is
then either broken or there is a threat that without care it may be
broken. This is the law school model of a personal legal problem; law
schools train lawyers to take care of such problems and to understand
the role of a lawyer in those terms.
Poor people get hit by cars too; they get evicted; they have their
furniture repossessed; they can't pay their utility bills. But they do
not have personal legal problems in the law school way. Nothing that

t Staff Attorney, National Welfare Rights Organization. A.B. 1964, Columbia Uni-
versity; LL.B. 1967, LL.M. 1968, New York University.
1. Jones, Wall Street Goes into the Ghetto, SIGNATURE, Feb. 1970, at 46.

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The Yale Law Journal Vol. 79: 1049, 1970

happens to them breaks up or threatens to break up a settled and

harmonious life. Poor people do not lead settled lives into which the law
seldom intrudes; they are constantly involved with the law in its most
intrusive forms. For instance, poor people must go to government offi-
cials for many of the things which not-poor people get privately. Life
would be very difficult for the not-poor person if he had to fill out an
income tax return once or twice a week. Poverty creates an abrasive
interface with society; poor people are always bumping into sharp legal
things. The law school model of personal legal problems, of solving
them and returning the client to the smooth and orderly world in
television advertisements, doesn't apply to poor people.
Additions to the law school curriculum like "Law and the Poor"
serve a useful function by making it crystal clear that the remainder of
the curriculum deals with law and the rich; they do little, however, to
change the law schools' treatment of legal problems, or their perception
of the proper roles and concerns of a lawyer. Law schools have rarely
asked questions about how the law came to be as it is. They have never
concerned themselves or their students with what led a client to become
involved with the law, or with what happened to him after he won or
lost in court.
A striking example of this omission is the total failure of most law
schools, law students, and lawyers to ask what happens to a criminal
once he is convicted. Until very recently, lawyers have regarded con-
viction (and the final appeal) as marking the end of a defendant's in-
volvement with the "law." For the criminal offender, however, con-
viction is more a beginning than an end. To the great detriment of
both prisoners and society, lawyers (and therefore courts) have not seen
the penal system as part of the legal system. This blindness has cost
prisoners fundamental rights, and has led to a recidivist rate which
virtually guarantees the society and the convict that once a man is con-
victed of a crime, he will never again be a free or useful person.
Similarly, and with similar consequences, lawyers have not seen that
what causes a client to become involved in a civil action, or what hap-
pens to him after it is over, are lawyers' concerns. No law school course,
including "Law and the Poor," concerns itself with what happened to
Mrs. Smith after the Supreme Court decided that Georgia could not
withhold her welfare payments because she was having sexual inter-
course with a man who was not her husband.2 Few lawyers ask them-
selves whether Mrs. James has a decent place to live since a three-judge

2. King v. Smith, 392 U.S. 309 (1968).

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Practicing Law for Poor People

Federal court held that it was a violation of the Fourth Amendment

for New York State to cut off her welfare grant when she refused to
let a caseworker into her home without a warrantY The traditional
practitioner is usually safe in forgetting about his client after the case
is over and the bill is paid; but Mrs. Smith, Mrs. James, other welfare
recipients, poor people who need but cannot get welfare, underpaid
laborers, old or disabled people on fixed incomes, and other poor
people will still be bumped and chafed and jostled by the law after the
lawyers have completed their last appeal, shaken hands with those who
opposed their clients, and snapped their brief cases closed.
The lawyer for poor people must understand the relationship of poor
people and the law before he can decide what his practice must be like.
In addition, he must face some facts about himself and his colleagues.
If he is truthful, he will admit that he is unlikely to be practicing full-
time poverty law for very long. The practice of poverty law is largely
financed by the government, which either does not expect or is unwill-
ing to pay lawyers to make a career of working for poor people. Conse-
quently, there are a great many $9,000 jobs in poverty law, but very few
$25,000 ones. The vast majority of young lawyers, though willing and
eager to accept less money than they could make elsewhere at the
beginning of their practice, will not accept the same amount at the
middle or end of their careers. Experience in poverty law brings skills
and opportunities to use them, but for the moment at least, there is
very little chance for advancement.
Several other factors also serve to shorten the time one can expect a
lawyer to remian in poverty practice. It is usually the government
which pays a poverty lawyer; it is also often the government that a
poverty lawyer will oppose in his client's interests. Thus, the more
effective a poor people's lawyer, the more problems he poses for those
who pay him. Even the few poverty lawyers who do decide to make a
career of poor people's law face the threat that the decision is not
entirely in their hands; the better they are at their jobs, the more likely
it becomes that the government will eliminate their jobs.4
In addition to the problems of salary and job security, the frustra-
tions of poverty law make it an unlikely career for many lawyers. The

3. James v. Goldberg, 303 F. Supp. 935 (S.D.N.Y. 1969).

4. See N.Y. Times, Jan. 17, 1970, at 21, col. 4, quoting criticism of legal services pro-
grams by Assistant Attorney General William Ruckelshaus; Wieck, Justice for All on the
Defensive, NEw REPUBLIC, Feb. 21, 1970, at 12, quoting a memorandum from the chair-
man of the A.B.A. Standing Committee on Legal Aid and Indigent Defendants describ-
ing political pressures on legal services programs.

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The Yale Law Journal Vol. 79: 1049, 1970

kind of practice which I will outline below is not intellectually stimulat-

ing. Much of it is dull and routine; the rest is exciting but requires little
in the way of "brains." Challenging intellectual work can be done in
appellate poverty law, but appellate practice has only a limited number
of openings, and is both irrelevant and beyond the practical reach of
the lawyer who develops the kind of practice which is most responsive
to the needs of poor people. Though a poor people's lawyer can often
win easy battles against case workers, desk sergeants, and credit man-
agers, his struggles with other lawyers will not be so pleasant. The law
is so badly slanted against poor people that they can win only if their
lawyer is better than most lawyers can reasonably expect themselves to
be. By delaying, by refusing to stipulate, by a hundred other techniques
that take extensive secretarial and xerographic facilities, lawyers for the
other side can frustrate the poverty lawyer and tax his limited office
budget to the breaking point. Still more disturbing, judges often scoff
at poverty lawyers, calling their arguments "garbage" and "nonsense."
Problems with other professionals are not the most serious ones;
poverty lawyers find that poor people are not always delighted with
their lawyers. A great many of the difficulties in poverty law can be
tolerated if the lawyer can make it with his clients; but there are im-
portant problems of style, differences in income and education, frustra-
tions and anger about failures, and a host of social, cultural and psycho-
logical differences that tend to divide rather than unite poor people
and their lawyers. The lawyer who wants to help and wants to be ac-
cepted, and cannot help and is not accepted, will be frustrated, and
very often he will leave.
For all of these reasons, the fact is that lawyers do not stay long in
poverty practice. The lawyer who wants to build a practice that will
serve the needs of poor people must be aware of this fact.
A lawyer who wants to work for poor people should also learn some
facts about our society. Knowledge of these facts is not, strictly speak-
ing, necessary to determine how a poverty law practice should be
shaped; the legal needs of poor people and the scarcity of lawyers avail-
able to them pretty nearly determine the form of a poverty law practice
A realistic look at our society, however, can help the lawyer understand
what he is doing, why he is doing it, and where it must lead.
Poor people are not poor by chance; they are not poor through lack
of personal merit; they are not poor because it is inevitable that some-
one be poor. Poor people are poor because some people who are not
poor believe that it is a good thing to have some poor people around.
Of course, many of the people who are not poor don't believe this, but

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Practicing Law for Poor People

most of them have been led to believe that poor people are poor be-
cause they are bad, that poverty for some doesn't affect everyone, that
anyway poverty cannot be stopped, and that, even if it could, it would
cost too much to do it.
Poverty will not be stopped by people who are not poor. If poverty
is stopped, it will be stopped by poor people. And poor people can stop
poverty only if they work at it together. The lawyer who wants to serve
poor people must put his skills to the task of helping poor people
organize themselves. This is not the traditional use of a lawyer's skills;
in many ways it violates some of the basic tenets of the profession.
Nevertheless, a realistic analysis of the structure of poverty, and a fair
assessment of the legal needs of the poor and the legal talent available
to meet them, lead a lawyer to this role.
If all the lawyers in the country worked full time, they could not deal
with even the articulated legal problems of the poor. And even if some-
how lawyers could deal with those articulated problems, they would
not change very much the tangle of unarticulated legal troubles in
which poor people live. In fact, only a very few lawyers will concern
themselves with poor people, and those who do so will probably be at
it for only a while. In this setting the object of practicing poverty law
must be to organize poor people, rather than to solve their legal prob-
lems. The proper job for a poor people's lawyer is helping poor people
to organize themselves to change things so that either no one is poor
or (less radically) so that poverty does not entail misery.
Two major touchstones of traditional legal practice-the solving of
legal problems and the one-to-one relationship between attorney and
client-are either not relevant to poor people or harmful to them.
Traditional practice hurts poor people by isolating them from each
other, and fails to meet their need for a lawyer by completely mis-
understanding that need. Poor people have few individual legal prob-
lems in the traditional sense; their problems are the product of poverty,
and are common to all poor people. The lawyer for poor individuals
is likely, whether he wins cases or not, to leave his clients precisely
where he found them, except that they will have developed a depen-
dency on his skills to smooth out the roughest spots in their lives.
The lawyer will eventually go or be taken away; he does not have to
stay, and the government which gave him can take him back just as it
does welfare. He can be another hook on which poor people depend,
or he can help the poor build something which rests upon themselves-
something which cannot be taken away and which will not leave until
all of them can leave. Specifically, the lawyer must seek to strengthen

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The Yale Law Journal Vol. 79: 1049, 1970

existing organizations of poor people, and to help poor people start or-
ganizations where none exist. There are several techniques for doing
this, but all of them run counter to very deeply rooted notions in law
school training, professionalism and middle-class humanism. I shall
say something about the techniques which have already been used by
lawyers to help organize poor people; but the techniques are not
nearly so important as the mentality of the lawyer who uses them. The
techniques will prove unsuccessful if applied by a lawyer who mis-
understands his role; and the lawyer who knows what he is about will
find the techniques to do his job.
The starkest picture of the "proper" mentality for a poor people's
lawyer is painted in a story told by a very successful welfare rights
organizer:

I once found a recipient who worked hard at organizing, and was

particularly good in the initial stages of getting to talk to new
people. I picked her up at her apartment one morning to go out
knocking on doors. While I was there, I saw her child, and I
noticed that he seemed to be retarded. Because the boy was too
young for school and the family never saw a doctor, the mother
had never found out that something was seriously wrong with her
son. I didn't tell her. If I had, she would have stopped working
at welfare organizing to rush around looking for help for her son.
I had some personal problems about doing that, but I'm an orga-
nizer, not a social worker.

I have heard this story related several times; each time, the people who
have not heard it before gasp, fidget in their seats, and shrink away
from the organizer. It is natural for them to be repelled, for this story
embodies the very hardest line about organizing. Not everyone can
handle the "personal problems" which arise from a primary commit-
ment to organizing. The very things which make a lawyer want to work
for poor people make it difficult to help them in the most effective way.
Few can accept the organizer's model fully; but the more one is able to
accept it, the more he can give poor people the wherewithal to change
a world that hurts them.
If organizing is the object of a poverty practice, what are the methods
for achieving that object? One method by which an existing organiza-
tion can be strengthened is for a lawyer to refuse to handle matters for
individuals not in the organization. A lawyer is a valuable piece of
property in a poor community; an organization that can command his
skills for its members, and deny them to non-members, has a powerful
means of building its membership.

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Practicing Law for Poor People

Turning people away is difficult: The values which made a lawyer

want to help poor people will make it hard to turn away a person with
a problem; the professional ethic is full of talk about representing all
who need representation; moreover, the government, which often pays
the lawyer, has guidelines designed to ensure that all who come get
served. The latter points are weakened when one realizes that there are
too many poor people seeking or in need of aid to help them all. A
seemingly neutral policy of "first-come, first-served" cuts against the
least informed, the least mobile, and the most oppressed. Some sieve is
inevitably applied to the work a poverty lawyer does; that sieve can be
one he chooses consciously in order to serve a particular end, or it can
be one he chooses without thinking, and with no aim at all. On the
other hand, the personal problems involved in turning away people
who need help are severe; even if the lawyer remembers that someone
must be turned away-or left unsought-these problems will persist.
He must cope as best he can, finding a blend that fits what he is as a
person. He accepts some unorganized clients and sacrifices something
as an organizer; he rejects some and sacrifices something as a person.
Selection of clients is only the first step; the cornerstone of a practice
is the kind of service a lawyer provides for his clients. The hallmark of
an effective poor people's practice is that the lawyer does not do any-
thing for his clients that they can do or be taught to do for themselves.
The standards of success for a poor people's lawyer are how well he can
recognize all the things his clients can do with a little of his help, and
how well he can teach them to do more.
There are several reasons for building a practice with these goals.
First, there aren't enough lawyers to serve poor people, so poor people
must be helped and taught to serve themselves. Second, it is better for
poor people to acquire new skills than new dependencies. Third, poor
people can often do what lawyers cannot or will not do. Finally, the law
ought to be demystified for all laymen, but especially for the poor. More
important than the specific techniques is the lawyer's belief that his
clients are able to do a great many "legal" things for themselves. Most
people who are not poor believe that poor people are unable to take care
of themselves, let alone do work traditionally reserved for professionals.
In addition to this general belief in the incompetence of poor people,
lawyers are taught to believe, and have a three-year investment in
believing, that what they have learned in law school was hard to learn,
and that they are somehow special for having learned it. It is difficult
for a lawyer to commit himself to believing that poor people can learn

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 The Yale Law Journal Vol. 79: 1049, 1970

the law and be effective advocates; but until he believes that, a lawyer
will create dependency instead of strength for his clients, and add to
rather than reduce their plight.
Four ways in which a lawyer can help his clients use his knowledge
are (1) informing individuals and groups of their rights, (2) writing
manuals and other materials, (3) training lay advocates, and (4) educat-
ing groups for confrontation. None is particularly glamorous, but all
are extremely important.
(1) The computation of welfare budgets provides an excellent ex-
ample of the value of talking about legal rights. Two computations
determine the amount of money a welfare family receives-determina-
tion of need and determination of available income and resources. The
rules for making these computations are frequently misapplied by case-
workers.5 Knowledge of them can provide a big advantage for welfare
recipients.
For all practical purposes, the rules are now completely unintelligible
to welfare recipients. A lawyer can change that; he can talk about the
rules in a way which gives welfare recipients some understanding of
their rights and of some of the ways the rules are misapplied.
In Mississippi, for instance, the welfare standard of need was recom-
puted persuant to requirements in the Social Security Act which man-
dated a cost-of-living increase on July 1, 1969.6 The benefits of the
recomputation were given to recipients on staggered dates over a six-
month period. Though some recipients lost six months of benefits be-
cause of this process, no retroactive payments were made and none are
contemplated. However, any recipient who knew of the changes did
not have to wait for his periodic recertification; he was able to demand
that his check be figured on the basis of the updated standard imme-
diately. An alert lawyer can be extremely valuable in this situation.
The group for which the lawyer works can prove the value of belong-
ing to the group: "Join up and we'll get you your new welfare raise
now, rather than in three months."
If instead of working with the group to inform people of their rights,
the lawyer were to bring suit and lose, he would have wasted much
time. If he won the suit he would have gained a few very important
dollars for some of the poorest people in the country, but at the end of
the suit almost no poor person who got the extra money would know

5. U.S. DEP'T OF HEALTH, EDUCATION AND WELFARE & N.Y. STATE DEP'T OF SOCIAL
SERVICES, THE ADMINISTRATION OF AID TO FAMILIES WITH DEPENDENT CHILDREN 178-186
(1969).
6. 42 U.S.C.A. ? 602(a)(23) (1969).

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Practicing Law for Poor People

how he got it, that it had been denied him illegally,7 that there was a
way to challenge and beat the Mississippi welfare department, or that
there will be cases in the future where he will lose what he could
have won by organizing.
(2) Producing materials, however brief and poorly printed, which
make the law accessible to poor people is a vital task, at times more
important than speaking to groups in that larger numbers can be
reached. Having a summary and explanation of the laws which affect
their lives means a great deal to poor people. It means that they have
a weapon with which to fight back, and knowing that they have the
weapon builds the security to engage in the fight. Many poor people
do not even know that they have legal rights; very few know the sub-
stance of even their most fundamental rights.
(3) The value and method of lay advocacy training is obvious; it
follows directly from the notion of making the law accessible to poor
people. In the Mississippi case, the lawyer could teach some members
of the Mississippi welfare rights groups to teach other members and
prospective members about the new rule. Not only would the informa-
tion reach more people this way, but welfare recipients would have
learned another way to help themselves.
If properly trained, welfare recipients can help other recipients com-
pute their own budgets, figure their own available income and re-
sources, succeed at eligibility interviews, win fair hearings, negotiate
with merchants for credit, lobby for legislative and administrative
changes in welfare, appear before hospital boards, and so on. Most often
poor people can help each other better than lawyers can; they have
easier access to other poor people, know the problems intimately, and
can act in ways which lawyers fear to act. Moreover, the problems they
work on for other recipients are still their own problems; their impa-
tience with "the man's game" is personal and their anger does not have
any of the untrue ring often present in the anger of a professional
advocate.
The two biggest problems in lay advocacy training are, first, that
lawyers have not begun to know all the ways, or even the most impor-
tant ways, in which an advocate can help poor people; and second, that
poor people and their lawyers are still not aware of all the things which
poor people can do that only lawyers have traditionally done. It is only
recently that lawyers for poor people have appeared before the policy
or budget staffs of government benefit programs; training poor people

7. Cf. Brooks v. Yeatman, Civil No. 5559 (M.D. Tenn., Jan. 26, 1970).

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 The Yale Law Journal Vol. 79: 1049, 1970

to appear for themselves in these technical forums where the real deci-
sions are made is difficult but must be done. Every new way which
lawyers find to help poor people must be turned into a way for poor
people to help themselves.
Mrs. Beulah Sanders, First Vice-President of the National Welfare
Rights Organization, recently turned a self-assured HEW hearing ex-
aminer into a stammering fool by showing that she could out-talk and
out-think him. She referred to decisions by the D.C. Circuit Court of
Appeals and persuasively argued their applicability to her situation.
The next day the Circuit Court affirmed her position at the request of
her lawyers.8 Unfortunately, neither Mrs. Sanders nor her lawyers
thought to have Mrs. Sanders herself argue before the Circuit Court,
though she might have been added as a party and allowed to proceed
pro se. No one considered the possibility that a welfare recipient should
argue before a Circuit Court of Appeals, though everyone recognized
the propriety of her arguing before the HEW hearing examiner. Ap-
parently, the Circuit Court of Appeals is still too much the sphere of
"lawyers' work."
(4) Finally, a lawyer can prepare poor people for confrontations with
the private individuals and government officials against whom the poor
people have grievances. This work is probably the most exciting be-
cause almost inevitably the lawyer will get to participate in the demon-
stration. The value of confrontations should be made clear. Points and
concessions can often be won in ways that avoid confrontations, ways
that may be easier and more successful than confrontation. But win-
ning points and concessions, the object of the traditional practice, is
very different from building organization, the object of the poor
people's practice. If the lawyer negotiates the, settlement of a dispute,
the people will see, if anything, only that one lawyer can beat another.
If the people confront those who oppose them and win, they see that
they can beat those whom they will inevitably oppose again. That
lesson is more valuable than anything the lawyer can win, or any ease in
his style of victory.9
In order to go into a confrontation two things are necessary: a real-
istic assessment of the chances for, legal grounds for, and possible

8. NWRO v. Finch, No. 23890 (D.C. Cir., Jan. 21, 1970), expanding the coverage of
NWRO v. Finch, No. 23787 (D.C. Cir., Jan. 2, 1970).
9. Of course, it is harmful for poor people to do battle and lose. Losing only confirms
their worst expectations and makes future battles less likely. For this reason, professional
organizers never acknowledge a defeat: every action results in a "victory." A lawyer can
help in minimizing the risk of defeat, can reduce the damage of a defeat, and can pre-
pare people for the possibilities and consequences of a defeat.

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Practicing Law for Poor People

results of achieving victory, and a thorough understanding of what can

happen once the action begins. If people know that there is little legal
support for the demand they will make in a confrontation, they will
go at the confrontation differently than if their legal case is secure.
They will know how much power they have to bring to bear to win,
and they will have a better idea of the seriousness of likely repercus-
sions. From such knowledge, they can plan the confrontation to meet
their needs and their resources. They know how many to bring and
how far to go. People must be told when the police will arrive, and
what they will do. Especially in welfare actions where almost all the
participants are mothers with children, the chances, circumstances and
consequences of arrest must be made clear.
These techniques are some of the possible ways in which a lawyer
can help poor people to use his knowledge and skills. While these
techniques are important, the most important thing for a poor people's
lawyer is to avoid playing the "lawyer's game." From all that one hears
in law school, one comes to believe that a lawyer is doing his job and
being a good person if he is honest and works as hard as he can for the
interests of his client. This technical "morality" is a fraud; it is a way to
avoid, rather than to address, the real moral questions which a lawyer
ought to face. It is morality within a game.
The chief theoretical justification for the game is the adversary
notion of law: each side has an advocate, each advocate is competent
and fully devoted to the interests of his client, and from this structure
justice will emerge. Among the not-poor, the adversary system might
lead to justice; the most usual criticism of lawyers from not-poor
people concerns their dishonesty and failure to be fully committed and
fully competent advocates.10 But if justice can be obtained for the not-
poor through an adversary system of law, it is because they are involved
with the law on a case-by-case basis. But a case-by-case injustice is not
what poor people face; they confront a host of unjust institutions,
acting for and within an unjust society. The whole notion of an ad-
versary proceeding is unsuited to dealing with social problems. Insofar
as it is used to resolve social injustices, the lawyer's game is like mo-
nopoly. The lawyers play as hard as they can; they charge whoever
lands on their property as much as the rules will allow; they build
houses and hotels; their actions have no consequences in the real world;
in the end, they sweep the pieces and the play money into a box, and
play again tomorrow.

10. Cf. M. BLOOM, THE TROUBLE wITH LAWYERS (1968).

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The Yale Law Journal Vol. 79: 1049, 1970

Even if the game did not waste time and skill that might be better
used, it is dangerous because lawyers for the poor lose too often. They
lose because the rules are against them and because the most unflinch-
ing players are the lawyers for the other side-the United States Attor-
neys, the State Attorneys General, the landlords' lawyers, the loan
companies' lawyers, and others. Our office recently litigated a case in
the United States District Court for the District of Columbia; while
we were waiting for a motion in our case to be called for argument, we
heard the argument of another case involving a soldier who wanted to
get out of the Army for religious reasons. His petition for habeas corpus
was denied, and his attorney asked the court to prohibit the Army from
transferring him to Vietnam pending the filing of an appeal. The
Assistant United States Attorney on the case looked, for all the world,
like an ordinary human being; yet, when the soldier's attorney asked
for the stay of transfer orders pending an appeal, the Assistant United
States Attorney said "I'm afraid we'd have to oppose that."
Why did the government lawyer have to oppose the motion? Surely
there are enough soldiers in the Army so that this one did not have to
go to Vietnam for the twenty or twenty-five days it might take for the
Circuit Court to hear a motion for a stay pending appeal. No one even
checked with the Army to see if it would cause a problem. The delay
was opposed because within the lawyer's game it could be opposed. One
little piece on the board was the U.S. Army, the other was the soldier;
and the soldier's lawyer had just drawn a card which said: "ON HIS
NEXT TURN THE OTHER PLAYER MAY MOVE YOUR PIECE
TO VIETNAM-IT MAY BE MOVED DIRECTLY TO VIETNAM
-YOU MAY NOT PASS THE CIRCUIT COURT OF APPEALS."
The poor people's lawyer will oppose a great many lawyers who play
the game to the hilt. There will be absolutely no reason why both sides
should not agree to take a certain action, yet there will be opposition,
because the rules of the game permit opposition. Suits will be delayed
because it is possible to delay them; petty rules will be relied on, be-
cause one can rely on them; discovery will be opposed, not because
there is anything to hide, but because the rules permit the opposition.
Knowing that he will face an unreasoning lawyer machine, the poor
people's lawyer can either make himself a better machine, which some
poverty lawyers have done, or structure for himself a practice in which
he will not fall into the lawyer's game. The most dangerous thing in
the game itself is not the way the other side plays, but the tendency of
the poverty lawyer to play the game himself. A suit can be filed, so a
suit is filed; an appeal can be taken, so an appeal is taken; the little

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Practicing Law for Poor People

pieces can be moved around the board and the lawyer gets trapped
into moving them. This, after all, is what he went to law school to
learn; it is the reason that he sat through an outlandishly long bar
exam which did not test his real skills; it is the reason he went through
the degrading initiation of a character and fitness examination. More-
over, since no one but a lawyer can play the game, playing it justifies
the receipt of a salary far in excess of his clients' income.
It is a tempting trap, and there is much psychological reinforcement
for falling into it. The other side plays the game better, but our side
is usually smarter. We lose because we are playing a game and the rules
are against us, but while the game is on, the other side, the judges, the
clerks, even your own typists come grudgingly to see that you know the
law, that you are bright, and that you are doing something "impor-
tant." Everyone wants to feel that he is bright and that he is doing
something important; lawyers like to feel that they "know the law."
But the lawyer's game is a trap; it is a way to feel useful and not be
useful.
The D.C. District Court case mentioned above asks that the Secre-
tary of HEW be enjoined from certifying payment of federal matching
funds for welfare programs in thirty states, and that he be ordered to
recoup funds improperly paid to those states.11 By the time the suit is
finished, more than one billion dollars will be involved. I personally
devised an iron-clad legal argument demonstrating that the money is
being paid illegally and must be taken back. In his motion to dismiss,
the United States Attorney completely misunderstands my legal argu-
ment. If my opposition to his motion is good-and it is wonderful-
then the court will see that it has no choice but to grant the order. If
the District Judge fails to see it, the Circuit Judges surely will. Yet
one need not know anything about law or the issues involved in this
case to conclude that the United States government will not be ordered
to take one billion dollars from thirty states. "But, we can win!" I wake
up screaming in the night. But realistically, we can't; I have gotten so
involved in the game that I can no longer see the obvious truth: we
will lose.
The time we have spent on this suit may not be entirely wasted be-
cause the organization I work for has gotten some publicity from it,
and it may have helped in a series of negotiations which we have been
conducting with HEW. And indeed we might win.12 But the expendi-

11. NWRO v. Finch, Civ. No. 2954-69 (D.D.C., filed Oct. 15, 1969).
12. Id. (motion to dismiss denied, Feb. 25, 1970).

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The Yale Law Journal Vol. 79: 1049, 1970

ture of time is not the worst of it. In preparing the suit, a lawyer in our
office spent several days calling welfare recipients in the thirty states
who were being hurt by HEW's illegal payment of funds to states
which were not obeying the federal welfare laws. Since the issue in the
case was a fairly technical one, we were interested in choosing the
plaintiffs carefully, in order to show the court that real injuries were
being done. At one point, the other lawyer turned to me and said, "I
just talked with a woman who'd be a great plaintiff; for years she has
walked seven miles to the nearest source of water, but she is finding it
hard now because she just had one leg amputated. The department
won't give her extra money so she can install plumbing in her house."
"Great," I said gleefully.
But it wasn't great; it was part of the horror of poverty in which I
don't live, and it should have outraged me. It did not because I was
playing lawyer. The game had made it better for me, the worse it was
for her. The law is bad because judges do not hear poor people's cases
on the merits, but must be won over through the presentation of
barbarities. But the game is worse, because by playing it I was made to
delight in someone else's pain.
Reveling in the misery of one's clients is not the only bad attitude
that playing the lawyer's game draws down on a lawyer's head; the
game engenders a host of others. Mrs. Johnnie Tillmon, President of the
National Welfare Rights Organization, listened to a group of her
lawyers explain a "very important" suit we had argued before the D.C.
Circuit Court of Appeals, and then said:

The trouble with you lawyers is that you expect to change things
too quickly. You think that if you don't accomplish a lot you
haven't accomplished anything. Welfare was the way it is a long
time before lawyers came to help us. I've been organizing recipi-
ents for six years, and I'll be happy if we can get all that you're
talking about in another ten years. When we win it, no one will be
able to take it away; even if you did win it now, they'd take it back
and we'd only have to win it over again our own way.

We lawyers had so much ego invested in our skills, we had put so much
time and effort into preparing the court papers and arguments, and we
had so many laminated diplomas hanging on our walls that we could
not help believing that "our" Court of Appeals case would bring about
the millenium. It is hard, of course, for such gods to talk to any mere
mortals, let alone poor, uneducated ones.
Most lawyers, like professionals of every kind, manage to get on with
laymen by using a language that no layman can understand and by

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Practicing Law for Poor People

charging fees that only a miracle worker could deserve.13 The poses
that the traditional lawyer adopts in order to be able to talk to his
clients are called his professional bearing or manner; it is very im-
portant that a poor people's lawyer drop that professional bearing. He
must realize that what make him a lawyer are accidents of birth and
interest, and those accidents have not made him something special;
they have only given him the opportunity to help someone else. Being
in the position to help, rather than of needing help, is a privilege. The
lawyer must remember that he is where he is in order to help poor
people do their thing, and not in order to do his own thing. His avoid-
ance of the lawyer's game will reflect that understanding, and the
affirmative techniques of his practice should bear it out. More impor-
tant than either of these, however, is that the way in which the de-
cisions are made about what the lawyer does must reflect a full under-
standing that the lawyer is there to do what poor people want, and
not vice versa.
The dominant attitude in law school is that the client is a trouble-
some pain-in-the-neck. Occasionally, the law student hears hints that he
should present his clients with the legal alternatives, among which the
client should choose. Many lawyers are now aware that people should
control their lawyer, and are beginning to present alternatives from
which their clients can choose. But the control which poor people should
exercise over their lawyer is much greater than that of merely selecting
among his proposals. Because he does know more about the possibilities
in the law, the lawyer should present new knowledge and options to
his clients; but, because they know what is helpful to them and possible
for them, they can and must structure their own alternatives and make
their own choices. The lawyer should not push his clients toward or
away from jail. "Jail" must, of course, be read as a metaphor for the
whole range of possible consequences of possible actions, of which jail
is only the worst.
The last portion of the preceding sentence makes clear why a lawyer
must not lead his clients. For me, as for most lawyers, jail is the worst

13. I recently talked with a "liberal" young doctor who criticized the medical pro-
fession for charging excessive fees. "A doctor should charge $25 an hour and no more,"
he said. When I asked whether that wasn't rather high, he explained, "Well, plumbers
make $18 an hour." I asked why doctors should make more than plumbers. "Because
they go to school for so long to learn their jobs," he replied. When I suggested that they
go to learn a job they like, not to make money, he shifted to a justification based on
the difference between the importance of a doctor's work and that of a plumber: "I
have the responsibility for your life, and he has the responsibility for your sink." When
I argued that this was not necessarily the proper basis on which to decide the question,
he spluttered and called me a Communist. His attitude toward his profession strikes me
as all too typical of the lawyer's attitude toward law.

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The Yale Law Journal Vol. 79: 1049, 1970

possible consequence of a political action. But it is clear that jail is not

the worst consequence. Welfare recipients have lost the only money
they have to live because they protested the policies of welfare depart-
ments; people have lost their homes; children have been unable to
obtain medical care; Fred Hampton was shot.
The lawyer must offer information so that the people can structure
their own alternatives and make their own choices among them. The
lawyer may know what the law can do; the people know what needs to
be done, and what can be done. I can offer two illustrations of how this
approach works in practice.
I went to talk to a local welfare rights group in New Jersey. While I
was there, two women who were not members of the group came in.
One had been denied a welfare check to which she was entitled, the
other had a severely malnourished child; both had heard that the local
WRO might be able to help them. The group chairwoman, Mrs. Davis,
suggested that the group go with the two women, first to the welfare
office, then to the hospital. (To the welfare office first, because it closed
and the hospital did not-a point which had not occurred to me.)
I was asked to explain to the whole group why the lady who had been
denied the check was entitled to it, and then I was detailed to check
with a New Jersey lawyer on the appropriate provisions of the welfare
manual. I also was assigned the job of chauffering the group to the
welfare department.
We arrived at the welfare office and went in as a group. Mrs. Davis
asked to see the director (Mrs. Davis no longer deals with the under-
lings). The receptionist gaspingly reported to the director that "a whole
group of people are here to see you, and they're all wearing buttons."
After some scuffling, threats and negotiations, we had gotten an emer-
gency check for both ladies and taken a copy of the latest edition of the
welfare manual. I had not said anything to anyone official, except to
deny that I had come to see my caseworker. (Since then, whenever I see
the ladies from New Jersey, they ask about my caseworker.) I was able
to support the ladies with information and with my presence as a
lawyer; I was fully committed to the action and never questioned the
tactics or process the ladies chose.
After the welfare office victory, we went to the emergency room of
the general hospital. The ladies went in and demanded that a doctor
examine the baby. Flushed with the welfare office win, I went along
with this tactic, although uneasily.
After a little time had passed without a doctor appearing, the women
walked into the hallways of the emergency ward, and, when that did

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Practicing Law for Poor People

not bring any action, they stopped a doctor and demanded that he
examine the baby. The doctor, a small man who spoke English only
haltingly, explained that he could only treat for poisonings and con-
vulsions. Malnutrition was not an emergency, and the baby would have
to be brought back to the clinic on Monday morning. The ladies re-
fused to accept this answer and surrounded the doctor (a somewhat
comical picture: eight big black ladies towering shoulder to shoulder
around this small doctor), ordering him to examine the baby. He did
so, and, though he could not be forced to prescribe anything for the
baby, he was induced to write the mother a note indicating that she
had been to the emergency room and should be seen first at the
Monday clinic.
I was called on to do no more in the hospital than I had done in the
welfare office. I remained physically with the ladies throughout the hos-
pital action. I will not try to pick out the point at which I ceased to
be emotionally in favor of the action; somewhere along the line my
sympathy for people who have trouble speaking English, my faith in
the doctors who had been so nice to a white boy in the suburbs, my
feeling that hospital routine was more reasonable and justifiable than
welfare office routine, my realization that there was "really nothing"
that the doctor could do, my knowledge that we had no legal right to
what we sought, and many other feelings of mine which the ladies did
not share made me wish that I did not have to stay with them. Had I
been able, I would have called the action off; had I realized what
would happen at the hospital, I would have tried to dissuade the ladies
from going there; I would never have thought of the relief that the
ladies finally obtained. But forcing the doctor to write that note was
a real victory for the ladies. No lawyer has a right to deny them that
victory by structuring the alternatives as he sees them or by denying
the ladies the chance to choose their own way and use their lawyer to
achieve their end. A lawyer must help them do their thing, or get out.
A second illustration of this approach is perhaps more telling be-
cause it does not deal with street action where the lawyer is not ex-
pected to be an expert, but with law, where he is. The Social Security
Act, under which states receive federal grants providing from 37.2%
to 83.7% of the costs of the state-run welfare programs,'4 requires each
state, as a condition of eligibility, to institute a mandatory work and

14. NATIONAL CENTER FOR SOCIAL STATISTICS, SOCIAL REHABILITATION SERVICE, U.S. DEP'T
OF HEALTH, EDUCATION AND WELFARE, REP'T F-1 (CY 68): SOURCE OF FUNDS EXPENDED
FOR PUBLIC ASSISTANCE PROGRAMS, Table 7 (1968).

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 The Yale Law Journal Vol. 79: 1049, 1970

training program (Work Incentive Program-WIP) for all appropriate

recipients of Aid to Families With Dependent Children.15
I was assigned to learn the program and to prepare to teach re-
cipients about it. Because of my background and those of the social
work and organizing professionals on the staff of NWRO with whom I
talked about WIP, I concentrated on learning about and developing
strategies to beat the coercive aspects of the program. I then traveled
around the country talking to state-wide and regional meetings of
welfare rights leaders. Because WIP, especially the coercive side of it,
is so bad, I got to give fairly ferocious and therefore lively talks. Some
fairly good protections had been built into the program to placate the
liberals who would have been upset by a naked forced labor program.
From the definition of and process for appealing a determination of
"appropriateness," I was able to outline a strategy of delays and appeals
which virtually assured a recipient a way out of WIP. Because this
strategy played "the man's game," it delighted welfare recipients; the
talks were a great success, and, therefore, very satisfying to me per-
sonally. It is quite an ego trip to travel around to groups of poor,
usually black, people and find that they like you. The few questions
which came up about compelling the departments-welfare and em-
ployment service-to provide decent training, decent day care, an
opportunity for volunteers to get into the program, opportunities for
college education, and decent medical care, I answered sketchily, in-
dicating that the law offered fewer ways to compel the government to
give one benefits than to stop the government from inflicting pain.
Those problems have, however, turned out to be the problems in
which people are involved, and if a lawyer puts his mind to them he
can suggest ways to help poor people compel the government to give
them the services it has promised.
It took a long time for me to learn that because WIP was decidedly
underfunded, the officials administering it were, by and large, more
likely to deny people entrance to and services in WIP than to force
people to enter it. I ignored the real problems of the recipients actually
involved with WIP in favor of the problems which I was disposed to
see, on which I could better exercise my skills, and which were more
like the problems that the majority of recipients face in other areas.
These biases are typical of those which make it imperative that a poor
people's practice be fully controlled by poor people, not by their law-
yers.

15. 42 U.S.C.A. ?? 602(a)(19), 630-644 (1969).

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Practicing Law for Poor People

I have suggested a way of practicing law which is very different from

the one which law students learn and most lawyers follow. It is diffi-
cult to adhere to, still tentative in its outlines, and by any professional
standard less rewarding than traditional practice. Nonetheless, I believe
it is the only kind of practice which offers any hope of meeting the
needs of poor people. If enough lawyers accept it and develop it, they
may begin to make up for the scandalous failure of the legal profes-
sion to serve those who need it most.

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