The Gazette 1976

GAZETTE

March 1976

v. Federal Communications Commission can

taken to illustrate the reformist aspect of public in-

terest law representation.

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".

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".

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,