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To be sure, it would be a great step forward to award fees in successful public interest suits; but what we should really be looking for is a funding device that will permit public interest lawyers to operate on a basis of at least rough equality with their brethren who represent private interests. What we really need, in addition to the award of attorneys' fees, is a device whose support is consistent regardless of whether a litigation is instituted and regardless of whether a litigation which is instituted is ultimately successful. Only in this way can public interest representation-however it is definedbe placed on even a roughly equal footing with representation of private interests.

As the Chairman indicated in his letter of invitation, the Washington Council of Lawyers has a very specific suggestion to make in this regard. It is a suggestion which might be regarded as radical in many quarters but which I believe makes good sense in view of the special nature and obligations of the legal profession and the clear importance of public interest representation.

Our proposal is simply this: that the bar should undertake to tax itself sufficiently to assure permanent funding of public interest representation at a reasonable level. As an example of how this might be done, I use the District of Columbia Bar, membership in which is now required of every lawyer who practices in this jurisdiction. The D.C. Bar has approximately 17,000 members, most of whom are now required to pay dues of $24.00 per year. This means that the elected officers and Governors of the Bar are already vested with the responsibility of handling hundreds of thousands of dollars annually.

As the Chairman indicated in his letter of invitation, the Washington Council of Lawyers has a very specific suggestion to make in this regard. It is a suggestion which might be regarded as radical in many quarters but which I believe makes good sense in view of the special nature and obligations of the legal profession and the clear importance of public interest representation.

Our proposal is simply this: that the bar should undertake to tax itself sufficiently to assure permanent funding of public interest representation at a reasonable level. As an example of how this might be done I use the District of Columbia Bar, membership in which is now required of every lawyer who practices in this jurisdiction. The D.C. Bar has approximately 17,000 members, most of whom are now required to pay dues of $24.00 per year. This means that the elected officers and Governors of the Bar are already vested with the responsibility of handling hundreds of thousands of dollars annually.

As further background, it is our understanding that experienced lawyers have an average yearly income in the $25,000-$30,000 range on a national basis. Thus, even if the average income of D.C. lawyers does not exceed that of lawyers nationally-an asumption which is probably very short of the mark-D.C. lawyers now contribute less than one-tenth of one percent of their before-tax income to their official professional association. Our suggestion is that this figure should be increased tenfold for lawyers who have been in practice ten years or more and to a lesser extent for less well-established lawyers and others for whom special treatment is warranted.

I hasten to add that the Council is not necessarily locked into this particular magnitude of dues increase. But if an increased dues structure of some sort eventually resulted in an average per-lawyer contribution of $200 the total annual amount at the D.C. Bar's disposal would be approximately $3,400,000. Of this amount, something on the order of $3,000,000 could, we believe, be allocated by a committee of the Bar, or a special foundation established jointly by the Bar and the community at large, to fund a broad range of public-interest representation—not just the "big cases" which make headlines, but also the less visible kinds of representation and counselling which many public interest causes must have.

It is our information that a dollar figure like the one I have just mentioned is on the same order as the amounts which private foundations have been contributing until recently to the Washington-area public interest law movement. But under our scenario, it will be lawyers who see to it that the representation of otherwise unrepresented interests goes forward on

a permanent basis within their own community. Eventually, we would hope, such a program might be instituted nationally to provide funds for legal work which has a peculiarly national orientation.

As you might expect, experience with "floating" this proposal has already indicated some resistance among members of the Bar. Why, we have been asked, should lawyers be required to finance other lawyers when doctors do not finance other doctors, nor plumbers-for that matter-other plumbers. Leaving aside the question whether the omission of other professional groups should be permitted to control what lawyers do, I think there are some answers-some "distinguishing factors," as lawyers would put it. First, equality under the law is a principle which is absolutely fundamental to our system of government. The Constitution-at this point anyway-says nothing about equality of food or medical service, but it has been consistently interpreted to require practical, as well as theoretical, equality before the law. However, as experienced lawyers and litigants know all too well, this equality before the law is an empty promise in the absence of effective representation, and effective representation costs money. The second distinguishing factor is the very nature of the adversary system, in which the resolution of diffi cult conflicts-both large and small-is given over to a process which itself assumes a rough equality of representation for each point of view. In this respect, the legal profession differs from most others; and it is this difference which, in our view, justifies imposing on lawyers obligations which should not necessarily accrue where the adversary element is absent.

Moreover, the collective responsibility of lawyers to see to it that all meritorious causes are represented is itself enshrined in the ABA's Code of Professional Responsibility. Canon 2 states:

"A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available."

One of the Ethical Considerations appended to this canon provides that "Every lawyer should support all efforts to meet this need for legal services." At bottom, our proposal simply recognizes these obligations but takes account of the fact that some lawyers should meet them by means of financial contribution rather than commitment of their own time. In short, if we lawyers really believe that vigorous representation of all relevant points of view leads to an intellectually and practically sound resolution of difficult conflicts, then we ought to be willing to put at least a little of our money -1% or so where our professional principles are.

So much for the theoretical justification for the type of funding device we have recommended. There remains a very fair question whether the thing will work. For instance, is it realistic to assume that the manner in which the dues money is allocated could ever satisfy a substantial portion of even the public interest bar itself-much less the bar generally. To these types of questions there can be no definitive answers absent some actual experience with the kind of approach which we have suggested. Fortunately, however, we do have somewhat of a track record for such things in the experience of the Beverly Hills, California Bar and on a more restricted basis-a recent action of the D.C. Bar itself.

In Beverly Hills, the 1800-member voluntary bar association recently voted to increase its dues payments by one-third in order to provide permanent funding for one public interest law firm established by the Bar itself. This firm's mission-like that of other public interest firms throughout the United States is to provide representation for litigation on behalf of minority groups and other interests which have heretofore not been able to secure such representation. Closer to home from the Council's point of view-if not from the Chairperson's-is a recent initiative of the D.C. Bar itself. The Bar's Board of Governors voted a few weeks ago to set aside $30,000 to establish a Government Legal Advice and Referral Service. The aim of this new entity will be to provide services to Government employees who feel that they have been discriminated against in the course of their employment. As yet, there is no reason to believe that this new service will be anything less than completely successful. Admittedly, it is on a much smaller scale than what we have suggested, but it does indicate that officials of the Bar are willing and able to make difficult judgments on how to allocate collected dues.

More generally, the Council for its part is confident that a Committee of the Bar, or a panel of distinguished lawyers, judges and ordinary citizens acting as an independent foundation for these purposes, could certainly be entrusted with the task of allocating public-interest monies in ways which would be faithful to the adversary system and responsive to changing needs. Again, while the details of an ultimate structure are surely important, serious exploration of this suggestion should not, in our judgment, have to await the resolution of every potential problem which fertile legal and political imaginations can conceive.

Thank you for your attention, and I will attempt to answer any questions you may have.

[From The Washington Post, September 28, 1973]
ENVIRONMENTAL GROUPS FACE FUND CUT

FORD FOUNDATION CONSIDERS ENDING GRANTS TO FIVE FIRMS

(by Cathe Wolhowe)

The Ford Foundation wants to end its grants to five public interest law firms that have won pioneering decisions in the field of environmental law. "No formal decision has been made, but yes, we have asked them to investigate other funding sources," Marshall Robinson, vice president of the foundation's Resources and the Environmental Section, said yesterday. "We would like to focus more on environmental research."

He said the foundation will "collaborate" with the office to find money from other sources by 1975. He added the foundation would reconsider funding any firm unable to find adequate funds.

"The conservation issue has gripped society now and we think the publile and other private sources will support them," he said.

Most of the firms, however, do not share his optimism.

"If Ford pulls out, there will be a crash in the environmental law market," Roderick Cameron, executive director of the Environmental Defense Fund, said. "I'm sure some will survive, but which ones-I don't know."

are:

The firms, with the amounts they received from Ford last year, Center for Law in the Public Interest Los Angeles, $75,000; Environmental Defense Fund, Washington, D.C., $120,000; Natural Resources Defense Council, Washington, D.C.; $365,000; Public Advocates, San Francisco $275,000, and the Sierra Club Legal Defense Rund, San Francisco, $49,000.

The proportion of Ford funding in the firms' programs ranges from 12 to 50 per cent.

These groups have won major victories in the courts, many of which were controversial. They have:

Delayed the construction of the Trans-Alaska pipeline.

Forced various industries to abide by, and the government to enforce the National Environmental Policy Act and the 1970 Clean Air Amendments. Obtained a ban on DDT and predator poisons.

Forced the Interior Department to give in depth consideration to alternative sources of energy before granting offshore oil leases in the Gulf of Mexico. "We've been successful," John H. Adams, executive director of the Natural Resources Defense Council, sail. "But our success rate is not going to help much in getting sufficient funds if Ford cuts back. Money is hard to come by these days."

He said Ford funds about one-third of the council's budget.

Most of the other firms said they always had known Ford would cut back on its funding at some point, but expressed surprise that it might happen by 1975.

Just last spring, the foundation created a new section, Natural Resources and the Environment, and named Robinson as its head. Environmental lawyers thought this move indicated the foundation would give more emphasis, not less, to the environmental law field. However, they knew the foundation frequently has withdrawn support from programs after they are started.

"Perhaps they've been too controversial," one public interest attorney said. He refused to allow his name to be used for fear his firm would lose foundation support for other activities.

"No question about it-we've stirred up controversy," Cameron said. “But the Ford Foundation has been somewhat independent of politics."

The Ford Foundation was attacked Wednesday in the Watergate hearings by White House aide Patrick J. Buchanan for "unbalancing the political process" toward the Democratic Party.

Asked whether he considered the public interest programs susceptible to criticism for being too politically involved, Robinson responded, "Sure, these programs are political. Anything that is controversial is political. Lots of people's toes get stepped on."

Robinson denied that the change is being made to avoid controversy. "We consider the environment too important not to help keep it live and healthy," he said. "But we need more information so that judgments can be made with adequate data. These issues are complicated."

He said the proposed change would not drastically affect these firms because "much of what they do now is research; they just don't call it that." He added that some of the firms have received large sums from other sources.

But Adams of the Natural Resources Defense Council disagreed. "Certainly, we must have broad looks at environmental problems," he said. "But then we have to have a way to bring these broad looks into the system and we need the courts to accomplish this part."

Without large grants from Ford, the largest of the foundations, Adams said, the council would have difficulty being assured adequate long-term adequate funding to fight cases that, he said, take years of costly analysis before being finished.

"We get only one chance to present our case in court and we want it represented in a responsible way," he said, adding that expert witness costs for one case can total at least $100,000.

Cameron expressed similar doubts.

"Ford is the only one with sufficient resources to foot all our bills," he said. "There are small foundations willing to help but no large one like Ford."

CLOSING STATEMENT OF HON. JOHN V. TUNNEY, SENATOR FROM CALIFORNIA, CHAIRMAN, SUBCOMMITTEE ON REPRESENTATION OF CITIZEN INTERESTS

Senator TUNNEY. We have concluded six days of hearings on the subject of legal fees. I think it might be useful to reflect for a moment on what we learned so far.

The premise of these first six days of hearings is that legal fees affect, if not determine, the availability and quality of legal representation. As these hearings began to put flesh and blood on the bare bones of this original premise, it became quite clear, at least to me, that we hit the nail on the head. Economics, both in terms of what consumers can afford to pay and what lawyers can afford to work for, are the nub of the issue.

We began with a look at citizen access to attorneys. We encountered a prevailing notion attorneys are expensive, and a number of cases where attorneys were unavailable or ineffective. We looked at minimum fee schedules, now under attack under the antitrust laws, and saw the impediments they pose to citizen access to attorneys. We looked at two very different Federal programs to regulate, and, in one case, to subsidize attorneys. Under the Black Lung Benefits Act of 1972 and related laws, a few attorneys are growing rich while a number of miners go unrepresented and the taxpayer foots an enormous bill. Under the Veterans' Benefit sections of title 38 of the United States Code, lawyers are prevented from making more than $10 per claim, and representation of veterans is left to service organizations, with which young veterans have little in

common, or some veterans represent themselves. This is hardly an adequate system.

Finally, in the last days we have viewed in great detail what impact, the mechanism of fee-shifting can have on enabling representation of previously unrepresented interest. There should be, by the time this record closes on November 6, a wealth of information submitted by interested citizens and attorneys on these issues.

Let me close by quoting portions of some of the letters we have received since these hearings began. A distraught woman from Wisconsin writes:

"We have finally found an attorney who charges a straight $35 per hour plus $150 per half day court appearance. This is still an outlandish amount of money for anyone who takes home $121 per week, but I would prefer spending myself into bankruptcy than to sit back and do nothing. It seems that only those who are very wealthy or those who are very poor can afford lawyers. The middle classes certainly cannot. I wonder what will happen when we wake up to find ourselves in a police-state simply because people did not have the money to defend themselves."

A gentleman from California writes:

The plain truth is the majority of us do not have access to justice simply because we cannot afford it.

He concludes:

It cost us $100 to get an attorney just to learn it was cheaper for us to pay than to stand the suit . . . Legal justice-What in the world is that? It isn't available around here at prices anyone can afford.

I believe that the work of this Subcommittee is now clearly focused. It is going to be important for us as the weeks and months unfold, to develop answers to some of the questions that have been presented.

[The following statements were received for the record:]

PREPARED STATEMENT OF FRANK W. LLOYD, EXECUTIVE DIRECTOR,
CITIZENS COMMUNICATIONS CENTER

I appreciate this opportunity to submit this written statement to the Subcommittee, to complement the comments you heard on the subject of court awards of attorneys' fees to the prevailing party in public interest litigation at your hearings held October 4-5, 1973.

As the Chairman of the Subcommittee stated in his October 31, 1973 letter seeking our comments in this matter, none of the witnesses at that hearing specifically addressed an important related topic-reimbursement of attorneys' fees by federal administrative agencies to counsel representing citizens participating in agency proceedings on behalf of the public interest. My comments will address that specific point.1

Citizens Communications Center ("Citizens") is a public interest law firm, incorporated as a District of Columbia non-profit corporation in 1971. Citizens provides legal assistance, research and educational services to individua's and community groups seeking to participate in the processes of federal regulation of the communications media. These groups and individuals seek to foster increased responsiveness of broadcasters and cable system operators to the public interest of the communities they serve.

In order to serve these interests, the majority of Citizens' work consists of pro bono representation of non-profit groups without adequate economic resources to hire counsel in proceedings before the Federal Communications Commission (F.C.C.). The jurisdiction of federal regulatory matters concerning communications is vested by law almost entirely in the F.C.C., with appeal only to the US. Circuit Court of Appeals level.

1 The supporting legal research contained herein was conducted by Mary Lyndon, a law student intern at Citizens Communications Center.

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