美國에있어서의 貧者를 위한 法律奉仕 = Legal Services to the Poor in the U.S.

다국어 초록 (Multilingual Abstract)

1. The presentation of the Problem and its Evolvement
Equal justice for all under law-in the gatehouses and mansions- has been the ideal of the American democracy. The American legal profession has recently come to realize that equal justice means access to the services of a lawyer-in the broadest sense an abvocate who can advance one's interests by every available means, and to achieve the goal it should be recognized as a national duty on the one hand and as the poor's legal right on the other for the poor to be made provided with effective legal services in their everyday lives. Responding to the recent social and economic change in the American societies, the lawyers have been taking the unique role, to actively participate in the national policy 'the war aginst poverty' in the midst of plenty in America.
In the last several years the legal service programs has become intensified. Following the decision in Gideon v. Wainwright, there has been a widespread increase in the number of organized efforts to provide defense for the indigent in criminal cases. In the civil cases the promotional activities of the Office of Economic Opportunity's legal service programs have given a new impetus and strength to the legal services for the poor. Each year the federal allocation to the programs has moved upward. The budget for the fiscal year 1970-1971 has provided 63,200,200 and over 2000 attorneys are employed at various neighborhood legal offices (over 850 OEO-funded neighborhood law offices in more than 200 communities)
2. Legal Aid Work
The most publicized source of legal help for the poor is the Legal Aid Society. Although the first organized programs for extending free legal assistance to the poor were begun later in the 19th century, the number of legal aid societies sharply increased after the World War 11.
Legal aid as an organization has been handicapped by the manners in which it is organized, financed and operated. Its main limitation is its restrictive policy in accepting cases both in terms of eligibility and in the substance of the cases themselves. The caseload pressure has also deterred many legal aid societies from publicizing themselves or conducting education, and caused them to treat all cases routinely. The sources of funds, the locations of their offices and low salaries of their attorneys have prevented many legal aid agencies from further growing. Since the administrators of legal aid conceive of the service as charity, not as a right stemming from the principle that all members of society are entitled to equal justice, they are likely to withhold assistance from those who wish to perform acts deemed morally unsound, and subvert the lawyer-client relationship.
3. Neighborhood Law Office
Traditionally, legal aid offices have been close to the courts, in the midst of the business section. Such a location is often inconvenient for the clients of the program for various reasons, among which very important are the psychological barriers that prevent many indigints from visiting a downtown legal services center. A Detroit study has shown that only 1.3 percent of the poor have ever had contact with legal aid.
If all the poor are to receive legal services, the lawyers must be located in the slum neighborhoods. On the surface, the only significant difference between these offices and old-line legal aid was a commitment to decentralization. In Washington, for instance, a network of eight neighborhood offices brought the lawyers directly to the low-income residents, This contrasted to legal aid's dependence upon single downtown office to which the poor were expected to travel. The goal envisioned by the neighborhood lawyer is that every poor resident should think of the neighborhood lawyer as "his" lawyer and of the neighborhood law office as "his" law firm. Hopefully, the feeling of a competent professional agent on his side, ready to represent him when needed, will bolster the indigent's confidence, encourage him to assert himself politically and economically, and so be a factor in breaking through the apathy of the poor and interrupting the cycle of poverty. Here this writer briefly covered the structure, the functions, and the policy of MFY, which operates four neighborhood law offices in the Lower East Side of Manhattan.
4. OEO and Legal Service Structure
Lawyers are of the unique importance in aiding the effort the Economic Opportunity Act of 1964 is aiming to achieve. Neither equal opportunity nor equal justice can be provided to the America's poor unless they are represented by counselors and advocates. The National Program to Provide Legal Services to the Poor has been established as part of the Community Action Program to support projects which will make available to the needy the aid and advocacy of lawyers. OEO will provide funds to enable the legal profession more effectively to meet the challenge which it has increasingly accepted as its obligation to represent indigent persons against unequal treatment under the law.
There is no standard legal services program prescribed by OEO, but there are Guidelines to assist applicants in the formulation of proposals. These Guidelines were established prior to the 1967 amendments. The legal services program funded by OEO is normally operated as an independent unit under a one-year contract, under the direction of a governing board separate from the board of the community action agency.
This writer has briefy described the five standards prescribed in the Guidelines, several examples of indigency standards and some ABA Cannons of Ethics related to Legal Services Programs for the Poor.
5. Legal Service Functions
Firstly this writer has reviewed some skeptical opinons about LSP from independent legal practitioners and small firm lawyers, and Bar contributions to LSP. Mr. Theodore Voorhees has pointed out two aspects of poverty: one physical, the other spiritual. Of course there are many cases in which a legal defficulty keeps a person from moving out of the poverty class. But the mere fact that an indigent client receives assistance may be beneficial, above and beyond the specific service performed. To give the poor a feeling that someone will intercede for them is as important as helping them with their legal problems. Underlying the Economic Opportunity Act and OEO policies is the belief that poverty is largely a psychological state, apathy, defeatism antagonism, suspicion and bitterness, caused by lifelong history of pressure and frustration. The then Attorney General, R. Kennedy, on Law Day, 1964, said about the failure of the legal profession to develop a rule of law for the poor: "We have being asserting rights which the poor have always had in theory but which they have never been able to assert on their own behalf. Unasserted, unknown, unavailable rights are no rights at all. Lawyers must bear the responsibility for permitting the growth and continuance of two system of law- one for the rich, one for the poor. Without a lawyer, of what use is the administrative review procedure set up under various welfare programs? Without a lawyer, of what use is the right to a partial refund for the psyment made on a repossessed car? What is the price tag of equal justice under the law? Has simple justice a price which we as a profession must exact?…… To the poor man, 'legal' has become a synonym for technicalities and obstruction, not for that which is to be respected. The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away."
The lawyer's principal service to his client is winning his case, or performing whatever tangible service is necessary. What distinguishes a legal services program from many other social agencies is that the lawyer works with his client for a concrete goal desired by the client rather than for the client for goals deemed desirable by the lawyer.
This writer has discussed a number of areas in which the poor encounter at least as many legal problems as do the rich, and the ways and the kinds of the services which legal services attorneys perform. The important areas in which the poor are legally involved are: (1) Criminal, (2) Landlord-Tenant, (3) Welfare, (4) Domestic (5) Consumer-Credit, (6) Civil Rights, (7) Debt, and (8) Mental Illness. In 1970 nearly 40 percent of one million cases handled by OEO funded legal services attorneys were family problems divorce, adoption, child custody. Another 20 percent are consumer problems and 10 percent are landlord tenant conflicts. Over 10 percent are disputes between low income persons and various governmental agencies, chiefly welfare departments. The remainder are cases involving juvenile offender, employment problems, and minor criminal offenses.
6. Non-Legal Service Functions
If the new legal services programs were to restrict themselves to the service function, their value as part of the War on Poverty would be slight and they would be making only a limited contribution toward the goal of equal justice. The non-legal service functions are directed at improving the legal position of all the poor.
1) Law Reform
The law reform device which is most closely related to and arises most naturally out of the service function is the test case. But the test case is a long process and always involves the risk of an indecisive or adverse result. Since the neighborhood lawyer's first responsibility is to the client, he cannot ethically turn down a generous settlement offer simply because he would like to litigate a point of law. When a more comprehensive and coordinated change in the law is sought, the usefulness of the test case usually is more limited. Accordingly almost all the large OEO-funded programs expect to do some legislative work. Many legal services programs have established research departments to give full-time attention to law reform. The University of Detroit program has openly taken an active part, including research, drafting and lobbying.
2) Community Action
3) Community Education
7. Law Students and Law schools
law Schools and law students are playing important roles in mobilizing the legal war on poverty. Many of law schools have restructured their curricula to add new courses such as urban law, poverty law and other public assistance laws. Here are discussed some of the legal services performed at law schools and by law students under the agencies of OEO.
8. Public Defenders and Private Lawyers
In recent years there have been some debates as to the respective merits of salaried public defenders and appointed private counsel. Actually, studies comparing the effectiveness of public defenders and appointed counsel do not reveal any significant difference in their performance. The number of public defenders rose from slightly over 100 in 1964 to approximately 1500 in 1970. Meanwhile financial support for public defenders and compensated private counsel increased from under $3 million to over $30 million per year in that same six-year period. In recent years the courts have broadened the scope of the right to counsel first anticulated in Gideon.
9. Judicare and Group Legal Services
10. Some Concluding Remarks
Some legal programs have done a magnificant job especially in welfare area. There have been strong demands upon the federal government to allocate more funds to LSP. Accordingly the budget for each year has gradually increased. But some resolutions of the difficulties in the legeal service problems are closely related to political ones. Taking an illustration, the caseload problem, which has become a serious problem in the legal services programs, is basically related to the American poltical economic system. Of course there have been suggested various legal ways of reducing the caseload.
There seem to emerge three ways of development in the immediate futures of legal services for the poor. One is that lawyers for rich and poor alike will have free rein to serve their clients in the ways that seem to them appropriate and effective. Another is that lawyers for the poor are to organize themselves to improve their working conditions and the quality of the services they render. A third is that there will be estabilished more administrative counsel agency for the poor which would represent the poor in rule-making proceedings before the departments and administrative agencies of the Federal Government.

목차 (Table of Contents)

• Ⅰ. 問題의 提起 및 發展
• Ⅱ. 法律救助事業
• Ⅲ. 隣近法律事務所
• Ⅳ. OEO와 法律奉仕構造
• Ⅴ. 法律奉仕機能
• Ⅵ. 法律奉仕외의 機能
• Ⅶ. 法科大學과 法科學生
• Ⅷ. 結言