Necessity for Employing Attorneys

IN DISCUSSING the need for improvements in the administration of justice, W. F. Willoughby, in his book Principles of Judicial Administration (1929), says:

A third category of expense involved in the conduct of litigation is that of the payment for services of counsel. Four methods have been developed for meeting this expense: (1) Elimination, as far as possible, of the need for counsel; (2) assignment by a court of counsel to act without compensation or for such compensation as the litigant may voluntarily offer; (3) provision by the Government of counsel to care for the interests of those unable to meet the expense of employing private counsel; and (4) provision of counsel by private organizations specially created to render this service.

When it is said that the expense of engaging lawyers places a serious handicap on the less well-to-do members of the community the unthinking reply is apt to be, "then let's abolish the lawyers." The abolition of lawyers, however, would paralyze our administration of justice as completely as the abolition of all judges. The reason for this is simple enough. It is like attempting to abolish doctors, engineers, and architects. Human life daily becomes more intricate; day by day man finds himself involved in closer relationships with, and more dependent upon, the fellow members of his community. The law which seeks to regulate this life and its relationships steadily becomes greater in its scope and more complicated in its provisions.

Even for the legal profession the difficulty of understanding the law became so great that some 13 years ago a group of eminent lawyers and judges formed the American Law Institute for the sole purpose of restating and simplifying the substantive rules. This organization meets annually in Washington to discuss the labors of a large staff of experts who are engaged in coping with the technical details.

Nothing would be gained by any attempt to fix with mathematical certainty the number of persons debarred from justice because of their inability to retain counsel, but a rough approximation does help in realizing the magnitude of the problem. The population of the United States, exclusive of its outlying possessions, was nearly 123,000,000 according to the 1930 census. This population consists of men, women, and children, many of whom obviously are not engaged in work and have no income whatsoever. According to the United States Bureau of the Census, in 1930 the number gainfully employed was above 48,000,000. In 1935 the Committee on Economic Security in its report to the President helped to fill out the picture as follows:

The need of the people of this country for "some safeguard against misfortunes which cannot be wholly eliminated in this man-made world of ours" is tragically U. S. Department of Commerce. Bureau of the Census. Fifteenth Census of the United States: 1930, Abstract, Washington, 1933, p. 9.

' Idem, 1930, vol. 5, Occupations, General Report, Washington, 1933, p. 10.

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apparent at this time, when 18,000,000 people, including children and aged, are dependent upon emergency relief for their subsistence and approximately 10,000,000 workers have no employment other than relief work. Many millions more have lost their entire savings, and there has occurred a very great decrease in earnings. * * * In 1929, at the peak of the stock-market boom, the average per-capita income of all salaried employees at work was only $1,475. Eighteen million gainfully employed persons, constituting 44 percent of all those gainfully occupied, exclusive of farmers, had annual earnings of less than $1,000; 28,000,000, or nearly 70 percent, earning less than $1,500. Many people lived in straitened circumstances at the height of prosperity; a considerable number live in chronic want. Throughout the twenties the number of people dependent upon private and public charity steadily increased.

With the depression, the scant margin of safety of many others has disappeared. The average earnings of all wage earners at work dropped from $1,475 in 1929 to $1,199 in 1932.

*

*

A publication by the Brookings Institution, Washington, D. C., entitled "America's Capacity to Consume" (1934), states that even in 1929 there were 2,102,000 families with an annual income of less than $500, and 3,797,000 families with an annual income of $500 or over, but less than $1,000 (p. 54).

Yet these millions of persons, and especially the larger proportion who live in cities, may at any moment and through no fault of their own find that they need legal advice or legal assistance in the enforcement or defense of their personal and property rights guaranteed them by the law of the land. This is the great dilemma; this is the core of our problem. The present study is devoted to the solution of the difficulty, showing that in certain kinds of cases it may be partially solved through new types of courts or administrative tribunals, but that in most instances a permanent solution can be had only by facing the issue squarely and by supporting those new agencies which have come into being for the avowed purpose of supplying the services of lawyers to all persons who need legal aid and are unable to pay for it. But before taking up a consideration of these new plans which seem so full of promise if they can be wisely developed, it is well to review briefly what has been done or attempted in this direction by the administration of justice itself.

Poverty is perennial, and impecunious suitors have besought aid from the courts throughout our legal history. The Supreme Court of Wisconsin summed up this very issue by asking:

Would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial, and yet say to him when on trial that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him?

and then answered the question by stating: "It would be a reproach upon the administration of justice if a person thus upon trial could not have the assistance of legal counsel because he was too poor to secure it." The most usual method evolved by our administration of justice for meeting this difficulty has been the system of assigning counsel. The

theory is that a lawyer is an officer of the court and is bound by his professional oath to render gratuitous service to poor persons. This same conception may be found in the legal systems of nearly all civilized countries. In practice it has never worked satisfactorily. W. F. Willoughby, in his book, Principles of Judicial Administration (1929), states:

It will be noted, furthermore, that the effort to provide counsel for those unable to employ counsel for themselves has been made only in the case of criminal No attempt is made in this way to aid the poor litigant in civil cases.

cases.

In civil cases statutes authorizing the assignment of counsel exist in only 12 States. None of these statutes provides any compensation to the lawyer. Judge Levy, of the New York municipal court, in speaking of the statute authorizing the court to assign counsel without compensation, stated to the New York State Bar Association in 1920: "The power of the court has frequently been invoked in that direction." How frequently it has been invoked, we do not know, but subject to this exception, the general rule throughout the United States is not to assign counsel in civil cases at all. As civil cases constitute the majority of the cases in which wage earners, as well as other litigants, are interested, the statement is warranted that the assignment system has failed. It has failed because it is based on an economic fallacy. We may be reasonably confident that this is the true reason, because the same economic considerations in various countries have produced precisely the same break-down in the assignment-of-counsel plan.

The assignment plan in America has been an altogether inadequate solution, but it should not be abandoned. Potentially it has great usefulness, and if reasonable compensation were allowed to assigned attorneys the weakness of the plan as it now exists would be removed. The most notable step has been taken by the Legislature of New York at its 1935 session, when at the instance of the New York Legal Aid Society it amended sections 196, 199, 558, 1493, and 1522 of the Civil Practice Act and section 174 of the Municipal Court Code.

Any thorough plan for adapting the machinery of justice to modern conditions should include some provision for assignment of counsel so that the courts would have power to act to prevent injustice as occasion might arise. The wise exercise of the power would probably serve as a complete solution of the difficulty in smaller communities and in the sparsely settled districts. For the great urban communities, where the need is far more extensive, it could serve as a last resource, but in actual practice it would need to be invoked only rarely, for our American experience indicates another more efficient, more economical, means whereby the desired result can be accomplished. This will be discussed in another article.

Nutritive Value of Diets of Families of Wage Earners and Clerical Workers in North Atlantic Cities,

1934-35

By HAZEL K. STIEBELING, BUREAU OF HOME ECONOMICS, UNITED STATES DEPARTMENT OF AGRICULTURE

T

HE nutrition of the workers is a matter of world-wide concern

today. The International Labor Office and the League of Nations, as well as several individual governments, are giving thoughtful attention to the problem, recognizing that nutrition, especially in early life, may profoundly affect the well-being and social value of an individual. A study of this subject will concern itself with the available income as related to food costs and with the relative efficiency of different patterns of expenditure for food. This latter aspect, which places emphasis on the nutritional as contrasted with the economic considerations, is dealt with in this article.

One of the earliest scientific reports on food consumption in this country (1) gave considerable attention to dietaries of working people. Atwater, in his appraisal of their diets 50 years ago, wrote: "It is undeniably true that much money is wasted in the purchase of food which is lacking in the elements of nutrition, and that the income of the working classes might be made far more effective if it were expended in accordance with the results of scientific research." The advance in our knowledge during the last half century serves to emphasize this position, and to extend its implications. McLester pointed out in his presidential address before the American Medical Association that whereas in the past science has conferred on those peoples who availed themselves of the newer knowledge of infectious diseases better health and a greater average length of life, in the future science promises to those races who will take advantage of the newer knowledge of nutrition a larger stature, greater vigor, increased longevity, and a higher level of cultural attainment (4).

2

As part of the 1934-35 study of disbursements of families of wage earners and low-salaried workers, the United States Bureau of Labor Statistics has secured about 3,000 weekly records of food consumption from urban families in different parts of the country at different seasons of the year. Analysis of these data from the nutritional view

1 Italic numerals in parentheses refer to Literature Cited (p. 23).

For previous articles on various phases of this study, see Monthly Labor Review, 1936, issues of March (p. 554), April (p. 889), May (p. 1457), and June (p. 1744).

point has been undertaken by the United States Bureau of Home Economics at the request of the United States Bureau of Labor Statistics. This article presents an interim report on the content and nutritive value of winter diets of families living in eight North Atlantic cities. Dietary records were secured from 209 white families living in these eight cities.

From these 209 records, 73 were selected for special analysis, on the basis of the level of the expense for food. To accomplish this classification, the number of equivalent adult food-cost units in each of the 209 families was determined by the use of figures on the cost of feeding individuals in different age and activity groups relative to the cost of feeding a moderately active man. These were derived by applying average retail food prices for 1934 to food budgets for individuals, developed from earlier studies of the food-consumption habits of urban and village families spending moderate amounts for food. In a population distributed as to age, sex, and probable activity as was the population of this country in 1930, it appears to cost as much to feed each 100 persons as it would cost to feed 92 to 93 moderately active men.

On the basis of their expense for food per food-cost unit, the 209 families were classified into 10 groups. One hundred and ninety-two of the families fell into 5 groups, 3 to 7, inclusive, with too few at lower or higher levels to permit satisfactory averages. Since funds were insufficient to analyze in detail the data referring to each of the 5 important groups, group 3, consisting of families spending for food $1.20 to $1.80 per food-cost unit weekly; group 5, those spending $2.38 to $3.00; and group 7, those spending $3.57 to $4.17 weekly for food, have been chosen to represent the larger random sample. The sample selected for special analysis is made up of records from 23 families in group 3, 36 in group 5, and 14 in group 7. Since earlier studies have shown that values for expenditure groups 4 and 6 may be interpolated from those for groups 3, 5, and 7, the significance of the present report should not be measured by the comparatively small number of 73. The selected sample is really representative of the larger random sample of 209 families.

For 70 of the 73 families, figures are also available showing the level of expenditures for all goods and services per "consumption unit" during 1933-34, the year covered by the schedule inquiry. In general, with increasing economic well-being, families spend more money for food. That this is not always true for individual families,

* Records were secured from 21 families living in Berlin, N. H.; 26 from Dover; 24 from Keene, N. H.; 35 from Manchester, N. H.; and 6 from Portsmouth, N. H. Nineteen were from New York City, and 20 from Rochester, N. Y. Twelve were from Philadelphia, Pa., and 46 from Pittsburgh, Pa.

This "food-cost unit" is the same as the "food-consumption unit" employed in other articles of this series. In either case the emphasis is not on changes of price as affecting the cost of food, but on differences in consumption with varying age, sex, etc., as measured, however, by money expenditure. For definition see Monthly Labor Review March 1936 (pp. 558-559).