The Gazette 1976

GAZETTE

March 1976

v. Federal Communications Commission can be taken to illustrate the reformist aspect of public in- terest law representation. 1 The case arose from the granting of a renewal of a broadcasting licence to a company in respect of a sta- tion based in Jackson, Mississippi. The grant of re- newal of the licence had been made by the Federal Communications Commission, which is the authority responsible for the regulation of broadcasting in the United States, despite allegations made by the petition- ers of discriminatory broadcasting by the licencee. In particular, the petitioners alleged that the licencee had failed in the past to give a fair and balanced presen- tation of controversial issues, especially those concern- ing Negroes and the Catholic Church. The petitioners had claimed the right to participate in a hearing by the Federal Communications Com- mission concerning the licence renewal. They had claimed standing to participate on the basis: (a) that they were the owners of television sets; and (b) that they represented "all other television viewers in the State of Mississippi". The Commission had denied them a hearing, stating that only persons alleging electrical interference or some economic injury had standing to contest applications for renewal of broadcasting lic- ences. The position taken by the Federal Communications Commission on the question of standing was in accord with the existing judicial rulings on the matter. The lawyers for the petitioners, however, resorted to the Courts because of their conviction that important issues of public interest were involved in the case. Their conviction was vindicated by the United States Court of Appeals for the District of Columbia. The Court held that the grant of renewal of the licence was erron- eous and directed that the Commission hold a hearing on the renewal application at which the petitioners would be represented. It stated in part that "(some) mechanism must be developed so that the legitimate interests of listeners can be made a part of the record which the Commission evaluates", and that "in order to safeguard the public interest in broadcasting . . . we hold that some 'audience participation' must be allowed in licence renewal applications". 12 Finally, the role of public interest lawyers is value- oriented. For most public interest lawyers, public in- terest work is a form of retreat from what they regard as the unemotionality and neutrality demanded of them in regular practice. They seek, through the practice of public interest law, to bridge the "(sharp) dichotomy between the lawyer's professional work and his per- sonal values". The lawyers engaged in public interest law select clients who are pursuing goals with which they can identify. The tendency has been for them to adopt specialised goals — such as, the monitoring of govern- ment agencies, the advancement of tenants' rights or the representation of consumers •— and to select clients who can further these goals. For that reason, the pub- lic interest law client is often referred to as "a client for a situation". Public Interest Law and Pro Bono Concepts Distinguished It follows from the value-orientation of public in- terest law work that the ability to pay for services re- quired is not the sole, or even an important, criterion used by public interest lawyers in the selection of clients. Some public law constituents indeed, such as those caught up in the poverty syndrome, are such

because they lack the means to command legal ser- vices in the private market. At this point, however, it is necessary to draw the important distinction between pro bono work and public interest law work. Pro Bono is the term used to characterise legal ser- vices rendered gratuitously to indigent clients. Most lawyers in private practice make allowance for a cer- tain amount of pro bono activity. In addition, schemes under which public funds are made available for the provision of legal services for indigents exist in the United States as they do in other developed legal systems. Finally, the provision of legal aid to the poor is the raison d'etre of most Legal Aid Societies. The public interest law concept developed independently of the pro bono concept as that has been incorporated within the traditional role of the lawyer, and is clearly distinguishable from it. Firstly, as had previously been indicated, public interest law connotes a much greater range of activities than the provision of legal services to the poor. Secondly, while pro bono work is normal- ly undertaken under an ill-defined sense of charity, public interest law work is undertaken under a definite sense of duty by the lawyer to utilise his skills for the benefit of society. Thirdly, whereas "success in the action" is the objective of pro bono advocacy, public interest law representation is commonly designed to bring major social issues into relief. Methods of Public Interest Law Representation The reformist aspect of most public interest law representation requires the selection of techniques and strategies that will give greatest visibility to the issues in question in order that public consciousness be evoked on these issues. Consequently, public interest law rep- resentation is characterised by a "search for greatest impact". One public interest law firm has stated that its methods of representation are based on those of the large private Washington firms; "The successful private Washington firm has made it abundantly clear that full representation of a client's interests requires vig- orous and usually simultaneous representation before four independent forums; the Courts, Administrative Agencies, the Legislature, and the public itself (prin- cipally through the press). The effective law firm is the one that can supply the appropriate orchestration to receive a result harmonious with its client's interest". 11 Certain techniques and strategies which have be- come associated with the Public Interest Law Move- ment will now be considered. These include: research and dissemination of information, test case litigation, organisation of the community base, monitoring of government agencies and political lobbying. 1. Research and Dissemination of Information In accordance with the precept that there is "no accountability without visibility", public interest law- yers attempt to collect and disseminate information necessary for intelligent policy decisions in their special- ised fields. This information may be used to a variety of ends. It may, for example, be published in order to de- velop public consciousness about specific issues. Illus- tratively, the Friends of the Earth Society, which in- cludes a number of public interest lawyers among its mentors, is a group of environmentalists committed to a programme of education through publication. Alter- natively, the information may be used to provide ex- pert advice and technical assistance to Courts and other decision-making bodies. Public interest lawyers have,

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