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MONDAY, MAY 24, 1971




New Orleans, La.

The subcommittee met in room T-9007, Federal Building, 701 Loyola Avenue, New Orleans, La., Hon. William D. Ford, chairman presiding.

Members present: Representatives William D. Ford, Lloyd Meeds, and William A. Steiger.

Staff members present: Marty LaVor, minority legislative associate, and William H. Cable, legislative assistant.

Mr. FORD. The Special Hearing Subcommittee of the House Committee on Education and Labor is here in New Orleans for the purpose of continuing hearings on programs under the Economic Opportunity Act, with particular emphasis this morning on the legal services program, which is a part of that act.

This subcommittee has been holding hearings in Washington and other places around the country at the mandate of the full Committee on Education and Labor for the purpose of carrying forward the dual obligation that the committee has to provide oversight on programs financed with Federal funds, as well as to examine the ongoing programs and make a report back to the full committee and to the Congress with regard to the wisdom or lack thereof in reenacting or changing in some fashion the present legislation.

We have with us this morning on my left, Congressman Lloyd Meeds of the State of Washington; and on my right, Congressman William Steiger of the State of Wisconsin.

We have scheduled on the program this morning a panel to start with, and I am just informed by counsel that one of the members of the panel is on his way here, so we will pass over the panel for a


Is Professor Sutton here?

Professor SUTTON. Yes.

Mr. FORD. Professor Sutton, would you mind leading off for us this morning.


Mr. SUTTON. I will be glad to.

Mr. FORD. Just take a seat over by the microphone.

Mr. SUTTON. I had hoped I might see the tone set by the panel, but I will be happy to lead off, and I might say

Mr. FORD. You stay until they testify, and then if you wish, you may respond.

Mr. SUTTON. Fine. I might say at the outset that I am not experienced in testifying before congressional, committees, and if I violate any of your procedures, correct me; but what I would like to do is enter some disclaimers. I have found this necessary, because as a professor of law at the University of Texas, I need to state that I am not representing the views of the university or of the law school. I might enter the same disclaimer on behalf of some other organizations. I am a member of the Ethics Committee of the American Bar Association. I am not representing their views. I am a member of the board of the LADS organization, Austin, Tex., and I am sure I am not necessarily stating their views.

With that, I would like to say that what has attracted my attention and what I would like to direct my remarks to primarily are the ethical problems that might be anticipated under the two bills that I have seen, the Legal Services Corporation Act and the National Legal Service Act. I served as a reporter for the

Mr. FORD. Excuse me, Professor, would it be convenient for you to refer to the bills, whenever you are attempting to identify them, by number?

Mr. SUTTON. If you will give me the number of the Legal Service Corporation Act

Mr. STEIGER. H.R. 6360 is the number of the National Legal Services Corporation Act.

Mr. SUTTON. And the National Legal Service Corporation Act? Mr. STEIGER. That is H.R. 6360.

Mr. MEEDS. The administration bill is H.R. 8163.

Mr. SUTTON. H.R. 8163.

Mr. FORD. It will make the record a little easier for us.

Mr. SUTTON. My interest goes back to the fact that I was the reporter for the ABA Special Committee which prepared the Code of Professional Responsibility; and during my service on the LADS board in Travis County, I have constantly seen-I receive calls from around the country about ethical problems in connection with legal aid, so this is the primary thrust of my remarks, if I may direct them to that.

To begin with, I suppose that we go back to canon II of the Code of Professional Responsibility which states-and to me, this is one of the basic ethical problems-that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available; and part of the ethical consideration of the code states-our problem with the poor is, as I see it, to see that they are represented by lawyers who are not prevented from complying with the ethical statements of the code nor required to perhaps violate them. I have a press release which appeared in the U.S. Law Weck, that apparently accompanied the administration's bill; I think it states the problem beautifully. The President's message stated that there were three main objectives of the new legislation: First, independence of the corporation

itself; second, independence of the lawyers working in the program; and third, national support for the program.

The Law Week service quoted Justice Black in a case as saying that no person can be denied access to these courts because he cannot pay a fee, finance a bond, or afford to hire an attorney. As I see it, H.R. 6360 states it quite well in sections 906 and 907, in the words "to establish procedures to assure that attorneys who are paid by these funds carry out the same duties to their clients and enjoy the same protection from interference as if such attorney were hired directly by the client." I think that states correctly the position that I would take under the Code of Professional Responsibility. I might say-and this is a small matter-that in comparing the two bills, H.R. 6360 states that the objective is to provide financial assistance to qualified programs furnishing legal services. I notice that the other bill, H.R. 8163, states the purpose as providing legal services in noncriminal matters. To me, there is a distinction. The code speaks of paying for legal services and furnishing legal services as being distinctive matters. To me, we are not really talking about providing legal services. Legal services are provided by legal counsel on a local level. The problem is really one of financing the services for the poor who are unable to pay for them, so to me it is much more accurate to say that we are providing financial assistance rather than that we are providing legal services. I think this gives a-when we talk about providing legal services, it gets us off on the wrong footing sometimes as to the ethical problems.

If I may take up-first, I have some comments in particular about the two bills. If I may take up first H.R. 6360, I find no serious legal ethical problems in connection with it. I do have some three comments that I would like to make about it. The first one is a sort of nitpicking criticism, perhaps. Section 906 (b) (6), states that the corporation is authorized, and I quote-"to establish procedures for the conduct of legal services programs assisted by the corporation containing a requirement that the applicant will give assurances that the program will be supervised by a policymaking board." The only words in there that trouble me are "supervised by a policymaking board." I think it might be better if it stated that the program will be conducted pursuant to policies set by a policymaking board. This may be a minor matter, but I bring this up because of the recent American Bar Association opinion 324 which was handed down by my committee-that was the week I went on it, so I had nothing to do with it, as far as I recall-on August 9, 1970, directed specifically to this point, and this has come up on our LADS Board in Travis County. The headnote of the opinion sums it up fairly well this way: The governing body of a legal aid society has a right and an obligation to establish and enforce broad policies concerning the operation of the agency, but beyond this, the handling of specific cases with the representation of specific clients by the staff attorneys-the opinion is several pages long, and it quotes in detail the ABA code of professional responsibility, but I think that accurately sums it up.

In essence, it is saying that under the code of professional responsibility, which has been in effect for 2 years now-and I might digress by saying it has been adopted by 43 or 44 States, either by the bar association or by the courts, so it is the prevailing code at this time.

Mr. FORD. If I may interrupt you-
Mr. SUTTON. Certainly.

Mr. FORD (continuing). So that the record will be abundantly clear, I understand what you are saying is that, on page 14 of the bill, in lines 18 through 23, we find the words, "Applicant will give assurances that the program will be supervised by a policymaking board on which members of the legal profession constitute a majority and the members of the client community constitute at least one-third of the members of such board."

Mr. SUTTON. Right.

Mr. FORD. The distinction you are drawing for us is that the language referring to the program's being supervised by policymaking boards may suggest that this board would, in fact, interfere with the client-lawyer relationship on an individual basis. I take it that you are not objecting to the concept of having a lawyer-dominated-if I can put it that strongly-policymaking board, with one-third of the members from the client community, but your objection is to the language that might suggest this board would do more than draw a broad policy, and would, in fact, involve itself in specific relationships on a lawyer-client basis. I take it then that you don't object to the board or to the idea that such a board would draw a broad policy, but you would object if this section of the law were interpreted-or the proposed law were interpreted to confer on the board the authority to intervene on a case-by-case basis in the operation of the program? Mr. SUTTON. That sums it up so completely that I don't think I need to pursue the point further. That is correct.

Mr. FORD. You and I are making what we might call legislative history. Some lawyer will look at this and win or lose his case, I guess.

Mr. SUTTON. Referring back to ABA, that sums it up completely, and I will move to my next point. Section 910 (c) (2) states that the corporation shall have access to all documents and so forth that are pertinent to assistance received under this section.

I am just wondering if it might not be better to add that the recipient is not required or authorized hereby to grant access to confidences or secrets of a client as defined in disciplinary rule 4-101 of the code of professional responnsibility. My reason for bringing that point up is to make abundantly clear that the legal aid attorney is to comply with that provision of the code of responsibility, the same as other lawyers and, in effect, maybe to make legislative history, this should not be interpreted in a way to require him to reveal confidences and secrets of a client that are protected under the code of professional responsibility.

Mr. MEEDS. What is the Code citation?

Mr. SUTTON. Disciplinary rule 4-101. Section 4 defines legal services to include education concerning legal rights and responsibilities, and I have no objection at all to that. On the contrary, I think that is an excellent provision. I am very pleased to see it in there, and putting this on the basis of ethics, I am pleased to see it there because this permits

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