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.

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."

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".

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