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The Interorganizational Politics of Legal Activity

Published online by Cambridge University Press:  20 November 2018

Mark Kessler
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Abstract

This paper explores influences on the legal activity of attorneys in five federally funded legal services agencies. I examine the effect on legal activity of three sets of variables: lawyer characteristics, organizational features, and interorganizational en vironment. The data suggest that legal activity is influenced most directly by the nature of the interorganizational environment. The influence of personnel and organizational characteristics is indirect and situational, conditioned by the interorganizational context. The findings call into question many of the criticisms expressed by opponents of the Legal Services Corporation. They also suggest that constraints imposed by local organizations on legal services activities are at least as important as national attempts to modify the corporation's mission.

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Articles
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American Bar Foundation Research Journal , Volume 11 , Issue 1 , Winter 1986 , pp. 1 - 30
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Copyright © American Bar Foundation, 1986 

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References

1 Sullivan, Lawrence A., Law Reform and the Legal Services Crisis, 59 Calif. L. Rev. 1 (1971); Jerome B. Falk & Stuart R. Pollack, Political Interference with Public Lawyers: The CRLA Controversy and the Future of Legal Services, 24 Hastings L.J. 599 (1973); Harry Stumpf, Community Politics and Legal Services (Beverly Hills, Cal.: Sage Publications, 1975); Phillip J. Hannon, From Politics to Reality: An Historical Perspective of the Legal Services Corporation, 25 Emory L.J. 639 (1976); Earl Johnson, Justice and Reform: The Formative Years of the American Legal Services Program (New Brunswick, N.J.: Transaction Books, 1978); Anthony Champagne, Legal Services: A Program in Need of Assistance, in Anthony Champagne & Edward J. Harpham, eds., The Attack on (he Welfare State (Prospect Heights, I11.: Waveland Press, 1984).Google Scholar

2 Warren George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681 (1976).Google Scholar

3 Letter from National Defeat Legal Services Committee to Congressman Robert F. Drinan, Sept. 8, 1980. This letter was circulated by the National Legal Aid and Defender Association to warn of trouble ahead for the LSC. Letter in author's files. For a similar statement, see Howard Phillips, Legal Services Should Not Be Federally Funded, Conservative Dig. 31 (1980).Google Scholar

4 Heritage Foundation, Mandate for Leadership: Project Team Report on the Poverty Agencies (1980).Google Scholar

5 Cramton, Roger C., Crisis in Legal Services for the Poor, 26 Vill. L. Rev. 521 (1981).Google Scholar

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8 There is substantial literature, much of it cited in this paper, describing the operations of local agencies funded by the OEO legal services program. The OEO program preceded the LSC and differed from it in some significant ways. One major difference relevant to the research questions posed in this paper is how local agencies are funded. OEO officials had discretion in funding decisions and employed the budgetary process for the first several years of the program to encourage law reform work. See Johnson, supra note 1. The LSC, on the other hand, funds local agencies according to a formula based on the number of poor people located in the area. This difference in funding may affect the activities of local agencies, and therefore earlier findings may not apply to LSC agencies. Only one published study examines the work of agencies funded by the LSC. Carrie Menkel-Meadow & Robert G. Meadow, Resource Allocation in Legal Services: Individual Attorney Decisions in Work Priorities, 5 Law & Pol'y Q. 237 (1983). This study describes the types of cases handled and task allocation decisions of lawyers in one legal services agency. Also, Hosticka looks at lawyer-client interactions in two offices of one legal services agency. Carl J. Hosticka, We Don't Care About What Happened, We Only Care About What Is Going to Happen: Lawyer-Client Negotiations of Reality, 26 Soc. Probs. 599 (1979).Google Scholar

9 Carol Ruth Silver, The Imminent Failure of Legal Services for the Poor: Why and How to Limit Caseload, 46 J. Urb. L. 217 (1969).Google Scholar

10 Donald J. Black, The Mobilization of Law, 2 J. Legal Stud. 125 (1973); Leon H. Mayhew, Institutions of Representation: Civil Justice and the Public, 10 Law & Soc'y Rev. 401 (1975).Google Scholar

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12 Ted Finman, OEO Legal Services Programs and the Pursuit of Social Change: The Relationship Between Program Ideology and Program Performance, 1971 Wis. L. Rev. 1001; Anthony Champagne, Legal Services: An Exploratory Study of Effectiveness, Sage Professional Paper, vol. 3 (Beverly Hills, Cal.: Sage Publications, 1976).Google Scholar

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18 Herbert Simon, Administrative Behavior (3d ed. New York: Free Press, 1976).Google Scholar

19 Harry, Stumpf & Janowitz, Robert J., Judges and the Poor: Bench Responses to Federally Funded Legal Services, 21 Stan. L. Rev. 1058 (1969);Harry, Stumpf, Schroeluke, Henry P., & Dill, Forrest D., The Legal Profession and Legal Services: Explorations in Local Bar Politics, 6 Law & Soc'y Rev. 47 (1971).Google Scholar

20 Joel F. Handler, Ellen Jane Hollingsworth, & Howard S. Erlanger, Lawyers and the Pursuit of Legal Rights (New York: Academic Press, 1978).Google Scholar

21 Organizational theory has recognized for some time that an organization's environment may influence its behavior. E.g., James D. Thompson, Organizations in Action (New York: McGraw-Hill Book Co., 1967); Paul R. Lawrence & Jay W. Lorsch, Organization and Environment: Managing Differentiation and Integration (Boston: Graduate School of Business Administration, Harvard University, 1967). Theorists who consider the organization's relation to its environment typically argue that the organization's major goal is survival. In seeking to survive, organizations attempt to control relevant environmental segments that provide essential inputs. The effective control of environmental segments reduces or eliminates uncertainty. With the increasing density of organizations in society, organizational theory has evolved to account for the existence of many organizations in any agency's “task environment.” Thompson, supra. Recognizing that interactions among organizations have increased, several theorists identify various interaction patterns and assess their impact on behavior. Levine and White, for example, identify “exchange” as a theoretically important interaction between organizations. Sol Levine & Paul E. White, Exchange as a Conceptual Framework for the Study of In-terorganizational Relationships, 5 Ad. Sci. Q. 583 (1961). Relationships based on exchange result from a realization that both organizations benefit from cooperation. “Domain consensus,” agreement on specific organizational goals and functions, is a necessary condition for cooperation. Benson identifies a second form of exchange that occurs when organizations within a network are unequal in power. Kenneth J. Benson, The Interorganizational Network as a Political Economy, 20 Ad. Sci. Q. 229 (1975). “Power-dependence” relations are characterized by organizations employing their influence within a network to force linkages with other organizations. Organizations that control critical resources of another organization are considered powerful. Jeffrey Pfeffer & Gerald R. Salancik, The External Control of Organizations (New York: Harper & Row, 1978). The control of critical resources enables the powerful organization to shape the dependent organization's behavior. When examining actual relations between organizations, often it is difficult to separate exchange from power-dependence. Schmidt and Kochan argue that organizations probably engage in a mixture of exchange and power-dependence interactions. Stuart M. Schmidt & Thomas A. Kochan, Interorganizational Relationships: Patterns and Motivations, 22 Ad. Sci. Q. 220 (1977). Further, no single relationship is purely of one type. Instead, most relations are a product of “mixed motives.” In response to this mix, organizations segment relevant environmental actors and adopt unique strategies for dealing with each. Although organizations typically interact with a variety of organizations, not all are able to shape behavior. Certain organizations are more important to the focal organization than others. An organization's response to environmental demand is conditioned by the external organization's perceived importance.Google Scholar

22 Pfeffer & Salancik, supra note 21.Google Scholar

23 These pseudonyms are used to ensure the anonymity of agencies and individuals studied.Google Scholar

24 To select agencies that varied on these dimensions, I conducted interviews in 1980 with national, regional, and state legal services officials and read recent agency evaluations of the LSC.Google Scholar

25 Interviews were conducted in 1981 and early 1982. They were tape recorded and transcribed. Interviews with legal services personnel lasted from one to three hours and covered such topics as lawyer backgrounds, political attitudes, agency characteristics, agency environment, policies, and work priorities. The questionnaire administered to legal services lawyers asked about their background, experience, organizational affiliations, political affiliations, and ideology. Interviews with representatives of external organizations ranged from 45 minutes to two hours in length. Topics covered included the organization's relationship to the legal services office, general assessments of the agency, and avenues available to express criticism or praise for agency activities. With only one exception, I interviewed all lawyers in the rural and suburban agencies. Because the staffs of the metropolitan agencies were quite large, I could not interview everyone. Lawyers in these agencies were selected for participation based on their office location. The total sample of lawyers in each metropolitan agency includes a percentage from any one office that corresponds to the percentage from that location in the entire agency. Representatives of external organizations were identified and selected in a number of ways. First, the literature on legal services suggests that certain groups, such as the local bar association and judiciary, are important groups that interact with legal services programs. Legal services lawyers identified judges they appeared before most often, and I interviewed as many of them as possible. Bar association officials were identified by agency lawyers, governing board members, or by calling the bar association's headquarters. Other external groups of importance and contacts within such groups were identified by agency lawyers in their interviews or by others in the community that I met.Google Scholar

26 Since community organizations often are legal services agency clients, I did not assume a priori that their participation in issue definition was different from that of individual clients. Although in some circumstances community groups, like individual clients, bring specific problems to the lawyer who then reacts to this definition of the problem, interviews with lawyers who represent groups indicated that the mobilization process typically is more intricate when organizations participate, acquiring many of the characteristics of a proactive process. The dynamics of this process are discussed in Mark Kessler, Legal Services Agencies and Low-Income Community Groups, in Stuart Nagel, ed., Research in Law and Policy Studies: Volume 1 (Greenwich, Conn.: JAI Press, 1986).Google Scholar

27 All cases brought by agencies in the state in which the five agencies are located were culled. Figures presented in table 3 should be interpreted with caution because the journal prints cases in response to submissions by local agency lawyers. The Clearinghouse Review's staff makes no independent effort to identify law reform cases (telephone conversation with Lucy Moss, editorial staff of the Clearinghouse Review). While an admittedly crude measure of law reform effort, these data provide a check on the self-reported measure.Google Scholar

28 Of course, it is somewhat arbitrary to categorize certain institutions as “prestigious” or “elite.” I have used a list of institutions commonly considered to be of the highest quality in other social science research. Elite law schools are those most commonly cited among the top 5 in the country. Prestigious law schools are those rated consistently in the top 15, but not among the top 5. This categorization may be validated by examining ratings in Elliot M. Epstein, Jerome Shostak, & Lawrence M. Troy, Barron's Guide to Law School (Woodbury, N.Y.: Barron's Educational Series, Inc., 1980). The distinction between elite and prestigious law schools is employed and discussed in John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation; Chicago: American Bar Foundation, 1982).Google Scholar

29 Five of the lawyers who attended elite or prestigious law schools spend nearly 50% of their time on law reform. But five others spend between 10% and 40% of their time on law reform, and two others spend 10% or less. Of the eight others with less-distinguished educational backgrounds for whom data were collected, six spent 50% or more of their time on law reform and two spent 10% or less.Google Scholar

30 Katz, supra note 13.Google Scholar

31 The four categories of partisan affiliation were collapsed from eight that appeared in the questionnaire. For each party, categories of strong, moderate, and weak identification were combined for a clearer, more efficient presentation.Google Scholar

32 The four categories of ideology were collapsed from six that appeared in the questionnaire. Those viewing themselves as “moderate conservatives,” were combined with “conservatives,” and “left liberals” were combined with “left radicals” into a “left-of-liberal” category.Google Scholar

33 During interviews, lawyers were asked about their beliefs regarding the appropriate mix of activities for legal services agencies. Responses favoring more service than reform were coded as “service orientation.” Those favoring more law reform than service were coded as “reform orientation.” Finally, those advocating an equal amount of each were coded as “equal mix.”.Google Scholar

34 Meadow and Menkel-Meadow also found no direct relationship between lawyer ideology and law reform activity in two agencies they studied. Robert G. Meadow & Carrie Menkel-Meadow, The Origins of Political Commitment: Background Factors and Ideology Among Legal Services Lawyers, Paper presented at the Law and Society Association Annual Meeting, Toronto, June 3–6, 1982.Google Scholar

35 All lawyers were asked to indicate the number of active cases that they were handling at the time of the interview requiring at least one future action. The highest number of cases, averaging more than 100 per lawyer, were handled by lawyers in SLS and RLS. A majority of lawyers in IRLS and RegRLS handled more than 80 cases each. Caseloads in these agencies are designated as “high,” although a few lawyers in both agencies handle a lesser number of cases. “Moderate” caseloads are those averaging between 40 and 80 cases. “Low” or light caseloads are those that average less than 40.Google Scholar

36 Caseload exclusion policies in MCLS are determined by three sets of actors. First, the governing board excludes several case categories for all offices. These include wage claims, name changes, property settlements, negligence and tort claims, several types of visitation cases, and traffic offenses. In addition, each office has its own list of excluded cases. Finally, each substantive speciality unit (e.g., welfare, housing, utilities) in several of the offices has additional exclusions. This three-tiered exclusion process makes it difficult for management personnel to know what types of cases are being handled at any particular time throughout the program.Google Scholar

37 MCLS administrators are required by the lawyers' union contract to consider the following criteria when deciding on adjustment requests: “the number of open and active cases, complex litigation, active group representation, and legislative and administrative advocacy work.”.Google Scholar

38 The most important criterion in hiring is the applicant's commitment to individual client service. One SLS administrator explained: The thing we look for more than anything else when I've been involved in the interviewing is somebody that we think will feel comfortable in our concept…. 1 think the idea of individual services to individual clients has been handed down through the history of the program. One of the big things we look for in interviewing somebody, quite frankly, is somebody who we think is gonna be a team player along those lines. I remember one interview we had with a young lady. All she wanted to talk about was who did we sue last month. “Did you sue the county on any housing issues? Did you sue the state? Did you sue the prison?” And I can tell you right now, five minutes into that interview we knew she was not in the running because we just don't feel comfortable with that.Google Scholar

39 Rather than consider the program's governing board of directors as part of the program, I viewed it as a component of the environment. I based this decision on the fact that governing boards are composed of members from other external groups, primarily the bar association, which seek to monitor the program's activity. Indeed, in some programs, such as Rustic Legal Services and Suburban Legal Services, the board plays a significant role in channeling legal community demands to the program. For more detail on the governing board's role in representing legal community interests, see Mark Kessler, The Politics of Legal Representation: The Influence of Local Politics on the Behavior of Poverty Lawyers, 8 Law & Pol'y 149 (1986).Google Scholar

40 It is noteworthy that none of the agencies included in their enacted environment the Legal Services Corporation—a major source of funding. This omission is explained by the fact that the LSC has no discretion over funding levels, allocating its monies according to a formula. Because the LSC is unable to make demands on agencies in return for its financial support, local agency personnel do not view it as worthy of concern.Google Scholar

41 On differences between individuals and organizations, see Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974).Google Scholar

42 Rather than enacted environments shaping activity, it may be argued that activity shapes perceptions of the environment. For example, lawyers engaging in little or no law reform may perceive conservative groups as salient and fail to notice organizations that encourage activism. However, the RegRLS case suggests otherwise. On several occasions, RegRLS attempted to organize client groups to better balance the demands made on them and diversify their sources of support. In essence, RegRLS attempted to transform its environment from a monolithic to a pluralistic composition. It seems unlikely, then, that the program's reliance on conservative local organizations is a function of its activity mix. Most of the lawyers would have preferred alliances with more activist groups.Google Scholar

43 Part of the variation in activity between MCLS and RegRLS may be explained by differences in aspects of their objective environments, such as the number of poor people served and the nature of the problems. In addition to having a large number of low-income organizations, Metro City has a far greater concentration of low-income residents than the area served by RegRLS. It is possible that the problems experienced by the poor in these rural communities are of a distinctly different nature and order than those in the city. Unfortunately, limitations in the data collected for this study do not permit a rigorous analysis of this possibility. However, interviews with RegRLS lawyers suggest that these aspects of the objective environment at best provide only a partial explanation. The lack of contact with low-income groups presents lawyers with difficult, often insurmountable, obstacles in pursuing law reform. For example, lawyers complained that their clients were easily “bought off” by local agencies seeking to avoid broad-based court rulings. Unlike MCLS lawyers, they could not replace plaintiffs with others experiencing the same problems identified by community organizations. Instead, they were forced to wait for other clients to identify themselves during an office visit. Moreover, since both programs are located in the same state, it is likely that the rural poor are at least as likely as those in Metro City to experience problems with state laws and the implementation of programs by state agencies. However, these laws are challenged and state agencies sued much more frequently by lawyers in Metro City.Google Scholar

44 Marilyn Gittell, Limits to Citizen Participation: The Decline of Community Organizations (Beverly Hills, Cal.: Sage Publications, 1980).Google Scholar

45 Johnson, supra note 1.Google Scholar

46 Champagne, supra note 1; Cramton, supra note 5.Google Scholar