FROM POTENTIAL BOASTING TO INCREASED DISILLUSIONMENT
By Jonathan A. Weiss Esq.
I had a fulfilling and rewarding life in Neighborhood Legal Services. I was fortunate to be hired by Earl Johnson, an excellent lawyer, then Judge, and human being as the first lawyer to be in the field. Earl was later the national Legal Services Office of Economic policy Legal Services leader in making the program nationwide and extensive – aided by specialized offices to help or lead in complicated, difficult, or important cases. There, I wrote the ethical foundation memorandum paper and then went to the office in the heart of the Cardozo ghetto (now gentrified) at Park and 14th Street in Washington, D. C.. I believed that bringing lawyers to a new class of clients, appealing when necessary to establish good precedents, bringing some affirmative class actions, working with and in a community, would be both an extension of the civil rights movement and fulfill the ideal of oppressed poor people represented in civil court- as well as then mandated in Criminal Court – would produce real social progress in conjunction with the War and Poverty. At the beginning we faced strong opposition in and out of Court (with some lawyers complaining we cost them business even though the eligibility standards for our representation were stringent) but we were quite successful. But, as time went by, the Federal legislative system for funding was increasingly restrictive while Federal Judicial, as well as local, became more and more reactionary affecting adversely the ability to represent fully and to achieve fair results in Courts. What follows is a summary account of some of my successes and then the growing amount of losses (some with good results remaining) in Washington, D.C. New York and nationally.
Civil Liberties in General
Losing your child is perhaps the worse thing that can happen to someone but occur under local Neglect proceedings usually in Family Court. I have won many Juvenile Delinquency trials saving poor children from “terrible prisons” – as Chief Judge Bazelon quoted my affidavit in the DC Circuit. I’ve also had and won more than 30 neglect and child placement cases, writing a “how to handle” summary for Legal Services. I spearheaded (litigated and argued for) the successful decision in the New York Court of Appeals which later established the right to counsel for the parents facing the loss of their children – now implemented Statewide helping some against this terrible deprivation. The other label varies from jurisdiction to jurisdiction “Minor in Need of Supervision” – a Family Court procedure where parents go to get their children “disciplined” or to get rid of them (the same result as neglect); I had (and won) about 25 of these cases but they are not really primarily legal victories. Social workers and community organizations are the key for involvement and in finding placement of juvenile (with family members particularly). This situation illustrates why Legal Services Offices (as the 6 neighborhood ones in which I worked) must have fine knowledgeable (and preferably local) Social Workers. The War on Poverty combined these with other services, tenant and welfare organizing, home care, consumer and health education etc. which were all very important for the community. Sadly, in the only free Presidential Library, of Lyndon B .Johnson, the display for the War on Poverty is found only in a corner and only features a video of my being interviewed in the Store Front office at 51st and 10th in New York. I have received recognition elsewhere including a Yale Las School display, an award in my name for public interest students at Cardozo Law School (where I also taught both Legal Ethics and Law of the Elderly as an adjunct; later I was an adjunct at Pace Law school teaching Judicial Legal Ethics), on the National Advisory Board for Legal Services, one of the New York County Bar Public Interest Lawyers of the Year, (shortly before my program Legal Services for the Elderly was terminated). Appreciation by Verdict Magazine, while the UPI once ran my full page profile as a Neighborhood lawyers, in their Sunday supplement for over 250 papers (one of my friends was delighted to see it in Alaska.)
My amicus language was used as the lynch pin in the Supreme Court Case, Stanley v. Illinois establishing the rights of the father to have custody of children the mother didn’t want. My article (co-authored with Oscar Chase) on the NY legal provision cutting off fathers’ rights (which helped in its repeal) was cited in the Supreme Court as by “experts.” in a subsequent case. Earl Ward worked with me, when with NYCLU, following up on my 2nd Circuit victory preventing chaplains sending a prisoner to solitary because of a religious disagreement (reported on the front page of New York Law Journal). Bruce Ennis of the ACLU and I litigated rights of the confined to keep control of their money and not being held “insane” on religious beliefs (described in his book for first go around before trials on damages.) I won over 30 elderly “incompetence” or “insanity” trials in the special Court for them – often where “guardianships” were cover for depletion of a person’s financial assets when detained in a facility. Based on that litigation and the reports of the psychiatrist I used an expert, City Report proposed reforms.(I have published on 1st Amendment and Criminal Constitutional systems of rights in Yale, Texas Southern Law Review and the Seton Hall Legislative Reviews – listed in the appendix bibliography).. I won in the DC Circuit the right to swear at a policeman when falsely arresting (as I tried misdemeanor cases targeting D.C. Blacks, the first to do it for free.) This decision followed the longest misdemeanor trial thereto in DC (with a big audience) where after the police contradicted each other, sequestered to be out of the Court while the other testified, apparently for the first time moved and granted, the charge was changed from disorderly conduct to swearing at mid trial. Mysteriously, the whole transcript was lost for appeal so that the swearing issue was the one presented to the Court whose decision footnoted some of my trial achievements Subsequent cases I entered were dropped and not prosecuted – arrest record erased when we agreed not to sue civilly. I seemed to be the first to visit clients in the local jail before trials because I had to argue my way in, there was no place for a private interview, so I did it at the dining table with guards on the balcony pointing guns at me and the individuals I interviewed.
I basically won the right to bail for Juveniles in the DC circuit. Norman Siegel, Wayne Hawley of MFY Legal Services, and I litigated to save neighborhoods from Times Square redevelopment where my office was located then (“urban renewal is Negro removal” back to the 60s) We lost eventually but the time consumed prevented the monstrous substitution of buildings and made the situation less awful (believe it or not) than it now presents. The client was a woman whose residency I had previously saved (with repairs made) who objected to the destruction of her neighborhood (so that when the suit was filed her picture was on the front page of the New York Times)..
I also pioneered extensive litigation against Age Discrimination (before and then using the Federal and State Act) and published on the subject. I represented my father, on my own time, twice – the first when Fordham withdrew the offer of the Schweitzer chair, stating the reason was his age (68). Unfortunately, due to a clerical error, it was not a Jury trial (the transcript and briefs are in the Weiss-Weiss archives at the University of Indiana.) Judge Tyler had already told his law students, after reading the Times front page coverage of the Complaint filing, that the case was nonsense. Later, after he left the Republican administration, he joined and then was forcibly retired from a law firm, bitterly complaining about age discrimination. (The AARP runs articles about this permitted, pervasive, practice starting in the 30s and 40s with all its manifestations. I have posted on this site about its media acceptance and use with misogynistic practices.) Only the elderly Justice Douglas dissented when I petitioned for certiorari. About 25 years later, in spite of accolades, Catholic University fired him (faculty meetings notes disclosed the reason was his age.). The first case, as mentioned, made the front page of the Times. This one Newsweek. The EEOC recognized the strength of our position so that Catholic University agreed to our terms of continuation. As Appellate Courts became more and more reactionary, I returned to focus more on trial work with a major part of my litigation against Age Discrimination. I won or successfully settled almost all of these (one trial where I was invited to co-ousel in Detroit.- two week trial for jewelry seller at Hudson store for many years replaced by a years younger person while out sick – judgement of $50,000 for her). Some led to me representing my now poor clients and other discharged indigent employees in successful union hearings on collateral matters. I always believed that once I had a client I should represent that individual in all other legal problems.
I defended clients who were victims of police brutality and brought subsequent suits against the police (sovereign immunity doctrine wrongly important here. I don’t understand the large legal fees taken from the winning plaintiffs described. Some settlements suggested it would have been better to litigate) I went down to DC after moving to New York for its Martin Luther King riots sweep arrests getting a number of people (all I handled) out of jail (during massive pretrial detention) before trial. The dramatic moments were driving back to sleep at 4 AM. There were armed police at every corner of Constitutional Avenue, who stopped our car with 4 lawyers, although we were draped with big “Legal Services” sign. They put bayonets (on rifles) in the windows, close to the throats of the two of us (one me) in front, as they demanded and received our identification, even after seeing our last stop and demands satisfied. Eight times.
I have published against the War on Drugs ( Iowa Law Review; cyberpgplayground.org) War on Terror (Patriot Act) which justified actions from airport searches to wire taps. Otis King and I published two articles on the reenfranchisement of the ex prisoners which is now also becoming popular legislation. Many cases and causes which follow also have civil liberties aspects, often particular for poor people.
I had the first Welfare hearing in D.C. (and maybe the first Unemployment denial hearing.) They had said my client had a man supporting her (her landlord!) because she had man’s slippers below her bed! They had to create a whole system to handle the hearing, place, procedure, and parties. I had to carry her in on my back. We won. (Over my career I won about 50 such hearings.)
Later, when I had moved practicing law from DC to New York, I started with the Columbia Center on Welfare Policy and Law. The first successful Supreme Court case we handled was King v Smith on the issue of whether men were supporting welfare recipients (e.g. fathers who visited.. There was a Federal Regulation but published which supported our position. I was able to insist on addressing its authority, although unpublished in the Federal; Register by locating a Supreme Court decision never before referenced – as this struck me as a serious problem. Douglas, for the Supreme Court addressed the matter directly referring to that case as an important element for decision in the welfare recipients favor.
Steve Wizner, now retired from running the Yale Law School clinic, was always interested in Administrative Law application and de process applying to welfare. After we both had moved from the Center to MFY Legal Services, had a client cut of welfare with no hearing. He came to my office and I typed up the complaint under his direction. This case was such a Supreme Court success that many individuals claim primary credit for it, although I and Owen Fiss who finds fault with it at his Yale Law School class mainly credit Steve. I participated in the messy strife for control and credit during its litigation. A little after the case was filed (becoming Kelly v Goldberg,) I recruited Lee Albert from Morgenthau’s office to become the Director of the Columbia Center, since after being Law Review Editor in Chief and Number One in my class at Yale Law School, he had recently clerked for Justice Byron White. I was able to persuade the lawyers involved, therefore, to let him argue the case in the lower Court. Other lawyers were upset when he accepted the new city plan, looking for a broader decision. (He has published his defense; others claiming his failure.) A struggle ensued about who would argue in the Supreme Court. I told him if he filed the brief first (before Harold Rothwax of MFY) could, he could denominate himself as the one to argue. He tried to write the brief at his office but felt paralyzed. I advised him to go home to write it. He then called me to come down and work on the brief with him, as I did, and which was submitted before argument. I also filed an amicus brief focusing on the broadest issue. Both MFY and Columbia still claim credit in their official self descriptions. There had to be considerable follow up as the cut offs continued so there was first a Federal day to enforce the decision by lawyers, including me, and then in State Court. Steve and I later interviewed a client in the Projects on another welfare issue to discover there were fines assessed, added to the rent, with no stated basis nor procedure. After we started the case, it was taken over by the Columbia Center which won the right to be free from such arbitrary cost assessment.
Ed Sparer had originally filed an attack on the durational residency case for welfare recipients in Connecticut State Court where it went nowhere. I wrote the complaint for a Federal Action (its handwritten draft on Yellow pad should be in Indiana archives.). The Commissioner of Welfare for Connecticut (Shapiro – hence the case was Shapiro v.Thompson) was opposed to this disqualification and so testified at the District Court. I went to assist in the Connecticut argument and then in the many other cases that were filed, I think resulting in 26 wins. It then went to the Supreme Court, with what I argued to the lawyers, were weak arguments. Apparently, the Supreme Court was going to reverse but in the light of so many lower Court cases, decided to hear it again. The three lawyers who had received much publicity when they won below were eager to continue. Larry Silver and I (and maybe others) called a conference of all lawyers involved. I proffered many new names, e.g. Simon Rifkind, Telford Taylor which were all turned down. The Peter Smith, one of the successful lawyers, brought up
Archibald Cox’s name (he had argued, at that point more cases in that tribunal than anyone else.)
He agreed. (Two weeks before the argument, one of the three previous oral advocates wanted to reclaim a portion as his “obligation” to the client. I managed to dissuade him.) I had filed an amicus brief for the original argument, making the case that the a State could not penalize a person for the past excercise of the Constitutional right to travel (both with Supreme Court cases so saying. This argument, left out of the three briefs earlier submitted, over my objection but stated in my amicus submission was taken up by Cox, in his brief, to become the lynchpin of the final triumph. Earl Johnson, an appellate Judge then for many years, has written it was the best oral argument he has ever heard.
After this case, the Supreme Court was changed with the new Judges, the Minnesota Twins, Warren Burger and Harry Blackman. I was lead counsel along with Christopher Clancy and David Gilman in a case (remember my first hearing) challenging the New York State Welfare practice of making “home visits”, invading privacy, with no notice. We offered to have interviews out of the home to emphasize the unique Constitutionally protect nature of the home. We won below, but since the Court had changed since filing, my brief was against that Court granting the review it did. I tried to cover all bases. I had the Welfare Social Workers file a brief saying it was counter-productive and a misuse of resources. A criminal law group filed a brief arguing it was unconstitutional since a criminal search was while Welfare was required to report any crime observed. The Court, per Douglas, had held, in addition,, that “civil searches” were Unconstitutional The State played dirty pool. The State filed a sealed case record for the named plaintiff in a class action which we were not allowed to see. (An outrage) The information I received was that a neighbor had complained about the main mother’s treatment of the child.. I pointed out in my reply brief that no neglect proceeding had ever occurred.
There is apparently a tradition that a new Judge is assigned an opinion where he can expound his views. During the lively argument, the only Judge who paid no attention was Blackman. (His law Clerks in the Brethren reported he did not seem to understand the case.) According the a next morning’s newspaper, Burger (who voted with Blackman) called the reporters together to say I had given the best argument so far that year. (It is reprinted in One Hundred Best Arguments in Supreme Court.). We lost 6-3, marking the radical change with the reactionaries in control.
In the meantime, I had persuaded the Columbia Center to use that complaint annotated with cases and possibilities by a former Second Circuit Count into a pamphlet as a model to be used in filing Federal Welfare suits .It was widely used (with a Congressman complaining about that fact on the floor.). I have published in an article about winning and losing that sometimes you can lose but still win. New York State never resumed the practice. (On the other hand, I had a case against Pan American for Age Discrimination which, for various procedural changes and challenges, went to the 2nd Circuit and New York Court of appeals (after lower courts) both twice consuming 19 years. After a Judgement for a considerable sum, I had to wait 30 days to file during which time Pan Am went bankrupt).
I consulted for and lectured at the conferences given by the National Institute in Law Poverty – consumer law, welfare law, housing law etc. I created for their handbooks questionnaires in these areas, then letters to write, complaints to draft, discovery to do, and how to try the resulting cases all interconnected.. This complemented the Welfare pamphlet and was widely used to good effect.
Before the Supreme Court changed there were many excellent cases about aliens. It was held they were able to practice law (the plaintiff was the wife of a former brilliant law clerk, John Griffith, again number one and Editor in Chief of the Yale Law Journal – a couple of years after Lee Albert.) MFY, with my assistance won the right of a teacher (I never inquired as to eligibility) to teach when not a citizen in the Supreme Court, I co-counseled Tony Ching in Arizona and Jonathan Stein in Pennsylvania successfully in the Supreme Court so that “aliens” could receive medical benefits. A client came to me with an age discrimination case. By the time he would have become a citizen, he would, at 32, be too old to apply for the New York State Police. I thought he would have a better chance as an “alien”. The State accepted an immediate and permanent injunction, then the Supreme Court took case. Although the vast majority of activity by the State Police was driving tickets the Court held that their duty was too”centrally connected to the government activity” which could not accept these immigrants. During one of the oral arguments I was asked if the plaintiff would be able to arrest a member of the IRA to which I replied that I inferred that the head of the State Police, and named defendant who was also Irish would fire my client if he did not. Of some solace, Japanese aliens who had been in Concentration Camps received legislated Federal reparations through the work by the Asian American Legal Defense fund with my participation as a member of its Board..
I may have been the first lawyer, or among those, who handled Social Security disability funds as my office handled the whole range of disability applications, etc. Lawyers who started there went on to found a National Center for such cases; some went into private practice to get the 25% of retroactive benefits. Many lawyers followed suit so it became wide spread (even some Legal Services offices, wrongly I believe would take the fees for their funding.) The success rate was (and still, to some degree) high.
I discovered, however, that hearings for Bronx residents were held in Westchester which meant a long trip from the Bronx to Grand Central to Westchester to discover an obscure recessed door. It people made it there, this effort was then used as proof of their abilities and therefore a reason for denials. I took my clients by car service. Toby Golick, who later ran the highly successful Bet Tzedek clinic at Cardozo Law School, and I started to campaign with elected representatives and the Social Security Department for its move. She discovered the “smoking gun” of its purposeful discouragement, in writing, so that the office for hearings was moved to the North Bronx accessible by subway and then bus.
Sometime age and disability mix in discrimination. I and Michael Stein, pro bono, represented a holocaust survivor who did the laundry at an Orthodox nursing home (“because I wanted people to have blankets and sheets as I never did”) but the home hired a “service” and then assigned him, with a trauma induced palsy, to work in a kitchen with sharp knives, pouring juice into 5 oz cups so that he spilled the fluid. After discovery they settled.
Landlord, Eviction, and Deplorable Living Conditions
Brian Olmsted in DC Legal Services brought the first “retaliatory conviction” case which prevented landlords from evicting tenants who had complained to city authorities. (Ironically, the landlord never noted he had a valid overcrowding cause of action). It worked its way to the Court of Appeals. Bob Cipes, an advisor, and I, were concerned about a Constitutional basis but located a 19th Century case which held for the Constitutional right to petition the government about grievances – which became the lynchpin of the tenant landmark decision. I later obtained Federal Judicial approval of this principle for New York in District Court.
One virtue of the case was it meant a Jury trial could be held on the “factual basis.” Jury trials demanded in D. C prevented immediate eviction with delays (including discovery), I would advise my clients, who wanted to move at the end of the proceedings, to withhold rent to use to get a more liveable home, after I filed the jury demand. When the landlords complained, I said we would welcome a suit for the rent while we would counter claim for the terrible conditions. No one sued. On the other hand, I brought personal injury suits against slumlords. They all settled with enough money obtained for my clients to move, sometimes out of State, to a satisfactory residence so none ever went to trial (and, of course, not an appeal to create the personal injury claim definitively for tenants so badly treated.)
Rent Control was very complicated in New York (now greatly improved by new legislation.) Landlords used a trick. They would get tenants to agree to a rent increase for improvements and corrections of violations (in my case, over 400). They would promise the increase would be only minimal. But, when they obtained the “new rents” they were many multiples more. The only recourse was to a rent control “hearing.” But by the time it was held, everyone would have been evicted because they couldn’t pay the excessive rents. I filed a Federal Complaint on the basis hat this whole procedure used the Courts for a wrongful purpose (condemned by the Supreme Court for enforcing racial covenants.). I received an immediate injunction. After argument in the 2nd Circuit, the Rent Control Commission, had held a hearing and rolled the rents back to what had been promised originally so no opinion ever issued.
Most landlord lawyers did not like to try cases so I only tried a few on the “Warranty of Habitability“Partial Eviction” but they were early victories so that the landlord lawyers would settle thereafter. We already referenced the wrongful fines in State Housing.
During one of my age discrimination suits in discovery, one of my lawyers moved to the opposing (then) small firm. He subsequently told me that he had told the firm that I would litigate to the very end (which would help their billing.) I filed an Ethical Objection demanding the firm be removed from the case because of that conduct. (He was angry with me for doing that as it was a “luncheon conversation” with me when he revealed that). The District Court disagreed ed but the Second Circuit wrote a long decision disqualifying the firm on review. Because of various changes in the case law, it went up to the Supreme Court, back down to the trial Court where I was fined $1,000 for a trivial motion to disqualify. The Second Circuit reversed in a strong opinion. The case apparently is used in courses on Legal Ethics (although I never did when I taught courses in that area.)
I was arguing to prevent a forced medical exam in one of the cases with Bruce Ennis where my client had mental problems but was competent – essentially an intimidation practice. When I argued against that disposition Judge Travia in the Eastern Division responded to my statement that I had an exact case in the jurisdiction preventing such examination in these situations (present condition not relevant) that he did not care, would not read the case, but rule for the examination. I appealed that case to the 2nd Circuit and argued also that Judge Travia should be recused. They reversed and suggested he recuse. His name was in the appeal caption. he Court then introduced the rule a Judge’s name could not be included in the future.
Written solely by my office Legal Services for the Elderly (including me – also the Editor) the PLI published The Law of the Elderly (14 Chapters). In it, we described many procedural moves in all the areas with exposition of relevant law: Medical Benefits (particularly medicare and medicaid), SSI (I was in charge of the grant to fund and use advocates), Social Security, Disability Rights, Age Discrimination, Pensions under Federal Law (I had successfully litigated earlier cases under the Taft Hartley Law before there was a controlling Federal law – and worked on some case under it), Consumer problems from condominiums to fraud, etc..We lectured throughout New York and New Jersey on these matters.
Through a grant from the Department of Aging I established four models for delivery of legal services for the Elderly (as the War on Poverty was dead, and legal services increasingly under attack): standard legal aid separate office; based in and using a Social Work organization, being part of a Law Student Clinic and a part of a legal services office.
In 1971, I rook a 3 month leave of Absence from Legal Services for the Elderly (although I continued to work on cases and talk by phone daily) to teach at Texas Southern Law School (now the Thurgood Marshall Law School) where I became advisor to the Hispanic Law Student Association. In addition to teaching Legal Ethics (with examples from my practice) and Constitutional Litigation, I worked in the Juvenile Law Clinic. I discovered with my Student group that the Juvenile Prisons not only censored mail but wouldn’t let any letters go out in Spanish. (When one of my students inquired as to “Why?” the answer was: “We won the War.”) Through meetings with the authorities we were able to change these practices.
Then I lost. in a Friendly decision in the 2nd Circuit based on Juvenile rights to their chosen lawyer, (later in another case of mine in appeal, he managed to rule against a Social Security denial on procedural grounds so complicated that articles followed about the problems created.) He dissolved an injunction against the right to confer privately and excoriated me personally for bringing too many civil rights cases (he believed that only the disputes of the rich deserved Federal Courts.) On remand, however, a cooperative lawyer for the State allowed me to write the desired complete and general regulations which were then published in the Poverty Law Handbook to become a model (another loss-win).
After many others were doing disability appeals, I had just worked on papers. I went to observe one being done by my office. They were held in 26 Federal Place about a mile above Wall Street. All the claimants and lawyers were kept outside waiting (in bad weather too) for up to an hour in a line along with immigrant applicants. I then reached the local Administrator so that lawyers could be admitted immediately with Social Security applicants put it a separate line to be let in expeditiously according to hearing schedule.
I had a client on medicaid who was outraged to see that two Doctors had charged thousands of dollars for many visits when she never saw them. I pursued the matter for months with little interest from the administrators in combating fraud. Finally I obtained a hearing at the World Trade Center buildings, just up, which were being rented by the State to cover vacancies.
The elevators were not working from the ground floor. Reminiscent of my early days in DC, I had to carry my client on my back up the escalator to get into the hearing which we won with a claim they would follow up civilly and criminally. I communicated the general issue for clients reporting Medicaid fraud to the Department of Aging in New York City and received assurances that the paths would be smoother in the future but never had another case to verify – as I could the smaller crowds in front of 26 Federal Plaza
I had the great fortune, in DC Legal Services, in having Tom Willing, Catholic Law Review, assigned to me by Earl when he graduated. He had published an article on DC consumer law and remedies. In those days, student were not allowed to practice in courts or sign papers. He cranked out answers, interrogatories, and document discovery under my name while I was off in Court or Administrative procedures. As a result, I obtained a reputation for producing a great deal of work, including high quality consumer papers. All the cases folded under his barrage.
In New York, I continued what I had learned from him. My rule of thumb was pay 10% immediately if the suit against my client was weak; up to 50% if it were strong. All cases settled or were dropped after extensive discovery demands. Steve Wizner and others followed the same practice.
Our knowledge was incorporated into model pleadings in the Poverty Law Reporter and in the National Institute on Law and Poverty handbook – as well as the subject of several Chapters in Consumer Law in the Law of the Elderly, In 2008, I laid out how to do depositions in my article “Towards Effective Advocacy.”
I had a client I successfully represented in another matter who was a founding member of the Silver Belles. This group was comprised of the retired chorus line at the Apollo theater in the 1920s. They had led a successful strike in the 1920s which led to the white Chorus Girls getting a raise so they would not get less than “the Negroes uptown.” They still were dancing for the public into the early 2000s. I became their lawyer as they were all financially eligible, separately and collectively. I negotiated the royalties (and contract) for them for the excellent documentary about them Been Rich My Whole Life. Not only was I listed as their lawyer on the letterhead, but they and the Sledge Sisters (We Are Family) provided the musical entertainment at two fund raisers for which we rented the Cotton Club for a buffet and bar with no other expense. Dick Cavett, an old friend, served as MC, witty and urbane as ever. Our first and only fund other raiser was sponsored by my old friend and mentor since I was 14, Robert Rifkind at and by Cravath, Swaine, and Moore where he was a partner and Dick Cavett was the mc again – so they both discovered they had been class mates at Yale.) They referred some athletes who were members of their friends and families who were drafted high for the NFL and NBA expecting millions of dollars to sign. Of course, I referred them to the Bar Association.
The Redstockings were the major founder of the Feminism, beginning in the 1960s. Famous members included Kathy Sarachild who coined the phrases “Conscious raising” and “Sisterhood is Powerful” – the title of a book they published with Random House about the range of feminism and its interrelationship with other forms of oppression, Naomi Weisstein, Kate Millet, T. Grace Atkinson, and Shlulamith Firestone. I represented one of the members who was in danger of eviction and incompetency commitments. I explained to the female Judge that I was worried that if anything happened to her, there would be mass picketing of the Courthouse. We immediately went into the Judge’s conference room where she and her “sisters” and I agreed to leave the woman alone. As the group then lacked money, I became their lawyer and represented many, now older, women associated with them in the range of cases indicated above. I also negotiated the Contract to publish and place their archives (at a price) in major institutions across the Country. They are now inspiring a younger generation of activists.
Opposing Decline and Demise Of Legal Services
I had wondered when Legal Services would be attacked for publicly funding lawyers who sued the government which funded it. The answer is they function as an omnusbudman. Further, as indicated above, we opened up many areas for private practice lawyers such as disability, neglect, slumlordism. In particular, decisions we achieved Age and Disability Discrimination, Medicare, Medicaid Civil Rights Law suits, and the Federal Pension Law (ERISA) produced attorney fees which would attract private lawyers for both their own and public good with fees lasting for enforcement for long times. (Legal Services for the Elderly received a substantial amount of resources each year up to a quarter of the budget, I believe.)
Meanwhile, the reactionaries in Congress, with the unfortunate cooperation with various legal services groups claiming to save funding, followed up on a few restrictions (such as representing aliens) with a blunderbuss bill including the elimination of class actions (efficient for Courts and injured), attorney fees, raising Constitutional claims in Welfare litigation (while allowing the State defendants to do so), etc. The ACLU declined my request to bring a suit about this destructive legislation. I then sent out an e mail to all programs in the Country to organize resistance (causing controversy because of claim of preserving funding). A suit was filed by Hawaii legal services (rejected by Byron White as premature) and various programs resisted in various ways. The Village Voice published an article about the controversy with opposite page pictures of Alexander Forger, the head of the Legal Services Corporation ( which had been separated from other Poverty Programs for protection) and me..
My office decided to take action. Valerie Bogart, David Udell, and I, from Legal Services for the Elderly then asked NYU’s Constitutional Professor and Litigator, Burt Neuborne to represent us to declare the Act Unconstitutional and improper for lawyers and Court administration. Our office and those two became lead plaintiffs for the suit in New York. The Second Circuit, per Pierre Leval, struck down the restriction on one sided Constitutional arguments. The Supreme Court, now packed with “conservatives” upheld the whole bill.
New York City Legal Services founders did not follow the funding system we had in D.C. and ethically justified under Supreme Court rulings of funding lawyers for the poor directly (as I had written in the beginning). Instead, overriding my objections, they sought approval from the Appellate Division which denied it; then rewrote it for acceptance. This created a large, mainly useless, but expensive Central Office as an “umbrella” with powers over the separately created borough-wide programs. Legal Services for the Elderly was then functioning as a “back up” Center among many others with specialities to litigate and advise programs across the country that did not have expertise in various areas which the “back up” Centers provided. These centers were closed down by the Corporation but friendly people there continued Legal Services funding by routing it through New York legal services as a funding conduit. (The NLRB held, and then reheld that we were separate from the other programs in New York in all personnel and labor matters, etc.) We also received separate funding from the Federal Office of Aging for a while. Norman Siegel, while heading MFY Legal Services, obtained a grant to represent SSI claimants for Manhattan. He then expanded it city wide with our office as central, running task forces etc. One accomplishment of that task force was winning a cortical mass of appeals from a terrible Disability Hearing Officer so that we were able to bring a Federal law suit against her to prevent her continuing.
After the Supreme Court upheld the highly restrictive funding conditions, members of Congress complained that we were uniquely in the Country, still receiving past attorney fees (not prohibited) for several years which sustained our budget. The New York Central Office decided to abandon the idea of community local offices keeping themselves large and intact while instead consolidating all the different programs in each borough into one program so that we became more anomalous – to the discontent in the Central office about what was designed to be a funding conduit. They finally were successful in closing the Legal Services for the Elderly office completely and placing some attorneys in various borough offices.
The ideal and ideals are no longer viable, but capable of being revived as the New Deal and the Great Society are. In Landlord-tenant court, lawyers are now available for all eligible perhaps partially inspired by the right to counsel cases we had won. I served on the Administrative Council of the United States with future Supreme Court Justice Breyers, other Federal Appellate Judges, famous experts on Administrative law: Kenneth Culp Davis, Walter Gellhorn, the counsel of the Social Security Department, other notables etc. while Edgar Pauk, our ERISA expert, at that time served on the national advisory board to the Labor Department Pensions. Both of us in the era of Republican presidents had good influences on the legal outcomes, I believe.
Many people have been helped. Early we achieved notable progress in precedent, persuasion, and example. As the Courts grew more inhospitable to poor people, their needs, and rights we ended up with bad precedents. Many beneficial changes have been institutionalized by the actions and involvement of Legal Services lawyers. As I concentrated more on trials and less on appeals which would advance the law and equality, I personally was gratified by winning – then, publishing, and lecturing on how to be successful in these ways.
This story of some personal highlights, with the decline and demise of the ideal is sad. I still keep in touch to help my clients and some they refer. Many others with Legal Services background, teach, run clinics, or are in private practice after benefitting from the Legal Service experience. Some lawyers remaining in the field make real differences tor the clients they represent.
Tragic it is that the Courts (and technology) have so reduced effective lawyers for the poor in all tribunals while bad laws, decisions, and regulations now proliferate. I really can’t boast about what I did, but do bask in the sun of memory, people, and the Phoenix possibility.
JONATHAN A. WEISS Esq. BIBLIOGRAPHY