Free Civil Legal Assistance in the United States, 1863–1980

Abstract

Legal aid organizations were first created by a variety of private groups during the Civil War to provide legal advice in civil cases to the poor. The growing need for legal aid was deeply connected to industrialization, urbanization, and immigration. A variety of groups created legal aid organizations in response to labor unrest, the increasing number of women in the workforce, the founding of women’s clubs, and the slow and incomplete professionalization of the legal bar. In fact, before women could practice law, or were accepted into the legal profession, a variety of middle-class women’s groups using lay lawyers provided legal aid to poor women. Yet, this rich story of women’s work was later suppressed by leaders of the bar attempting to claim credit for legal aid, assert a monopoly over the practice of law, and professionalize legal assistance. Across time, the largest number of claims brought to legal aid providers involved workers trying to collect wages, domestic relations cases, and landlord tenant issues. Until the 1960s, legal aid organizations were largely financed through private donations and philanthropic organizations. After the 1960s, the federal government provided funding to support legal aid, creating significant controversy among lawyers, legal aid providers, and activists as to what types of cases legal aid organizations could take, what services could be provided, and who was eligible. Unlike in many other countries or in criminal cases, in the United States there is no constitutional right to have free counsel in civil cases. This leaves many poor and working-class people without legal advice or access to justice. Organizations providing free civil legal services to the poor are ubiquitous across the United States. They are so much part of the modern legal landscape that it is surprising that little historical scholarship exists on such organizations. Yet the history of organized legal aid, which began during the Civil War, is a rich story that brings into view a unique range of historical actors including women’s organizations, lawyers, social workers, community organizations, the state and federal government, and the millions of poor clients who over the last century and a half have sought legal assistance. This history of the development of legal aid is also very much a story about gender, race, professionalization, the development of the welfare state, and ultimately its slow dismantlement. In other words, the history of legal aid provides a window into the larger history of the United States while producing its own series of historical tensions, ironies, and contradictions. Although this narrative demonstrates change over time and various ruptures with the past, there are also important continuities in the history of free legal aid. Deceptively simple questions have plagued legal aid for almost a century and have also driven much of the historical scholarship on legal aid. These include: who should provide legal aid services, who should receive free legal aid, what types of cases should legal aid organizations handle, who should fund legal aid, and who benefits from legal aid.