The Gazette 1976

GAZETTE

March 1976

other than the broad investigative approach. Effective representation of a client's interest may often be achieved by participation in the formal rule making processes of the Agencies or by informal discussions with agency officials. Litigation of course provides another means of checking administrative perfor- mance, but it is commonly viewed only- as a "last resort" because of the expenses involved. 5. Political Lobbying The democratic ideal is that all competing interests will be equally represented in the rule making pro- cesses and that, consequently, balanced rules will be formulated. The reality, however, seldom conforms with the ideal, and this is particularly true in the case of the Legislature. The Legislature, although com- monly regarded as the ultimate Public Interest responder in any democratic society, is by its nature particularly susceptible to pressure-group domination. The basic goal of Public Interest law representation is to achieve social change by promoting a more com- plete and equalised presentation of competing interests in the decision making processes. Some Public Interest lawyers believe that this goal can best be achieved in the legislative rather than in the judicial, administra- tive or public fori. Consequently, they direct their energies in seeking to introduce new laws through political lobbying. The use of political lobbying as a technique of Public Interest Law representation has, however, been curtailed to some extent by the Federal Taxation laws. The Internal Revenue Code contains a provision which subjects Foundations to 10% tax on any expenditure made for any attempt to influence legislation by appealing to the public or by communicating with any member or employee of a legislative body. 13 In consequence, Foundations have been willing to sup- port only research and educational ventures, with the result that Public Interest Law Firms, who rely on foundation support, are -precluded from political lobbying. Political lobbying, more so than any other tech- nique of Public Interest law representation, requires the support of a strong constituency base. James Lorenz, Jnr., of the California Rural Legal Assistance, has graphically recorded the result of an effort to promote legislation where such support was lacking; "We introduced model Landlord-Tenant Legislation before the California legislature and submitted 40 pages of well reasoned documented testimony on behalf of our tenant-clients. The California Real Estate Association came into the hearing for three minutes, said that it was opposed to the legislation, and the Assembly Housing Committee then voted against us by a large margin — in part, because the Real Estate Association gives money to their Assembly-men campaigns and remembers how they vote and our clients don't." 14 Public Interest lawyers have actively promoted the "private attorney-general theory" under which mem- bers of the general public are empowered to challenge administrative performance in cases where they have neither a personal nor an economic stake. This theory has been increasingly recognised in statute law where, as the Supreme Court of the United States has recently noted "the trend is towards enlargement of the class of people who may protest against administrative action". 15 Thus, for example, several States including Michigan, Connecticut, Indiana and Minnesota have given private citizens the right to enforce compliance with laws protecting the Environment.

Form taken by the Public Interest Law Response The Public Interest Law Movement evolved during the social and political turmoils of the 1960's. Many lawyers, during that decade, perceived a need to fashion for themselves a new role whereby they could utilise their skills, not merely in the adjudication of disputes between individuals, but also in the resolu- tion of conflicting social demands. The role adopted by the new public interest lawyers, and the methods of representation which have become associated with the new professional role, have already been noted. It is now proposed to discuss the forms taken by the Public Interest Law response, both within and outside the organised Bar. Responses within the organised Bar Private law firms have adopted a variety of forms for addressing Public Interest Work. A number of small firms of young lawyers have been formed to devote all or most of their time to public interest practice. Such firms exist in Washington, Portland (Oregon), Boston, New Haven, and Los Angeles. These firms finance their efforts either by taking reduced fees from previously unrepresented clients or by using regular fees from private clients to finance public interest cases. In addition, several of the larger, well-established firms have consciously restructured themselves in order to extend access to the legal processes to individuals or groups lacking the means to bring their injuries or interests into the legal system. The response of these firms is due partly to the growth of a new sense of profes- sional responsibility and partly to the impact of the Public Interest Law Movement on the market for law graduates. It has been recognised that Public Interest Law Work carries an intangible increment of "psychic income", and the Public Interest Law Symbols have come to be regarded as one form of currency that can be used by the law firms in competing for law graduates. Various forms of restructuring have been adopted ]by these larger firms. The most popular form consists of the designation of a Special Public Interest Partner or Committee. It is the responsibility of such partner or committee to screen cases for a public interest element, to advise on any conflict of interest that might arise between public interest work and firm or private client interests, and to decide on the fee, if any, to be assessed on public interest clients. Also, the Partner or Committee may be authorised to institute and develop a Specific Public Interest Law Project. A second form of restructuring involves the estab- lishment within a firm of a Public Interest Department or section. The Public Interest Department or section has a greater element of permanency than does the public interest work, and helps to promote an external image for the firm. The head of the Department or section is responsible for seeking out public interest business, and for incorporating it into the everyday practice of law. Finally, the Public Interest Law response of some of the large firms takes the form of participation in "ghetto law offices". The firm may staff and operate the ghetto office under the firm name or, alternatively, may support an existing ghetto office by making staff and facilities available to it. Apart from the Public Interest Activities of Private Law Firms, a number of the Bar Associations have broadened their activities to include Public Interest

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