Felice Batlan, Professor of Law, IIT Chicago-Kent College of Law

Similar to the late 19th and early 20th century social service organizations that I study in my book, a very common issue for today’s worker centers is wage claims, for example restaurants and other employers not paying overtime or are otherwise not paying full wages...Ultimately, by the sharing of knowledge and resources, these centers serve as a means of worker empowerment.

Felice Batlan is Professor of Law at IIT Chicago-Kent College of Law as well as Associate Dean for Faculty, Director of the Institute for Compliance, and Co-Director of the Institute for Law and the Humanities. Batlan is the author of the 2015 book Women and Justice for the Poor: A History of Legal Aid, 1863–1945, which explores in detail the role played by women’s social service and charitable organizations in creating and providing legal assistance. Serving as “lay lawyers” such women created a robust model of legal aid which would later be dismantled as the bar demanded the full professionalization of legal aid.

The book shows us that during the time period that I studied, legal aid was not connected to the professional bar. That connection did not occur until much later. During the Post Civil War period in the U.S., legal aid developed from a variety of reform organizations, often women’s organizations. Some of these organizations specifically saw themselves as providing legal assistance, whereas others understood that what they did was part of a larger movement of what I would call “charitable community building.” Legal aid was viewed not only as philanthropy, but also as a method of reform of the abuses of the late 19th century, which included unregulated capitalism, especially in relation to women’s labor.

One of the interesting things about my research is that some of these larger organizations were very much spurred on by, and were part of, first wave feminism. They were interested in a wide variety of reforms — suffrage, divorce, opening employment opportunities to women, and certainly domestic violence. In their vision, legal aid was part of and interspersed with larger reform and political movements.

I see a particular elegance and beauty in the work that they did. These organizations often spoke of “sisterhood.” They imagined that through hands-on ministering to the poor, class inequality would break down. At the beginning, women lay lawyers were primarily Christian and their organizations often had an undertone of the social gospel.[1] They interpreted Christianity as offering to individuals the opportunity to build a society that was Christ-like — one of love, care and nurture.

The most important of these organizations were closely connected to what would become the Women’s Club Movement.[2] In Chicago, the leading legal aid organization was the Protective Agency for Women and Children. It provided legal assistance to women, and it was often women who were not lawyers who provided these services. Similarly, in Boston there were women’s organizations, such as the Women’s Educational and Industrial Union, that had come out of the abolitionist movement and that performed a wide range of reform work as well as providing services to poor women. So, the concept of legal assistance was integrated with other types of assistance: help to find employment, housing or clothing, culture, and spiritual life. Those were on a continuum with legal assistance.

Almost all of these early organizations were engaged in advocating for women’s rights. At the same time, they functioned as spaces for the intellectual development of women. They had talks and lectures and speeches, and they had rooms where women could gather. They held classes to teach a number of different subjects, and legal assistance was a part of that.

To generalize how it often worked: a group of women would organize, sometimes hire a supervisor for the office, and then put out a call to women and children in need of legal assistance. These middle class women would train themselves regarding how to provide legal assistance and their knowledge would grow through hands-on experience. In other words, the development of legal aid was grassroots, experimental, and experiential. It started on the ground within these women’s clubs, which would themselves gain in importance at the turn of the 20th century. As these organizations soon learned, there was always greater need for legal aid than what could be provided.

During the period when these organizations were active, the two largest legal claims across organizations invariably related to the failure to pay wages and to domestic relations problems, including child custody, domestic abuse, and sexual violence. Social service organizations provided a wide range of legal assistance in the area of family law: divorce, domestic abuse, child custody and support. These cases are similar to the ones that you see today. In contrast, what you don’t see today is the material relief that these social service organizations provided, in addition to legal assistance. That is, they would assist a woman escaping from an abusive situation by helping her to find lodging and paying for transportation. Sometimes they would provide small loans, what today we would call microloans. They also handled child custody cases. These organizations tended to be sympathetic to mothers seeking custody, and especially in the face of what they perceived as often violent and alcoholic working class husbands. That being said, most men did not want custody, and cases of desertion were more common than custody disputes.

Women lay lawyers prided themselves on having one-on-one contact with clients, and on following cases through to the end. Most of the organizations were small. Many of the women who worked — in them were not paid – they saw their work as a labor of love. The women who were paid – typically the managers or supervisors — stayed with an organization for decades. This meant that they had tremendous experience. In contrast, male lawyers at professional legal aid societies turned over quickly. Many male lawyers saw their positions in legal aid as a stepping stone to something else, whereas for the women, that was it — that was their career. In part, this goes to the lack of employment opportunities for women.

Most cases involved very small sums of money, and such cases ended up settling. What would typically occur is that a poor woman would bring her claim (for unpaid wages, a dispute with a landlord, for child support) to one of these organizations. The woman would be interviewed in order determine if there was in fact a colorable claim, and if it was accepted, there would be an attempt to settle. If there was no settlement, then a case would be brought in court. If that occurred, then most — but not all — of the time, it would be a lawyer working for the organization who would bring the claim before the court. But that was a very small percentage of the claims that were brought to the organization, because 95% to 98% of them settled before going to court.

In terms of the number of cases that social service organizations handled in any given year, it varied greatly from a couple of hundred to a couple of thousand or even more. It is also not possible to estimate how many of these social service organizations existed. The archives are not organized in a manner that makes this information easily accessible. Notably, these organizations were not archived under the category “legal aid organizations” — instead, they were archived under “women’s organizations.” So, in my research, I first had to find the archives for women’s organizations, and, in going through these archives, I had to look for references, large and small, to anything pertaining to legal aid. Sometimes it was by following up on just a tiny hint in one document that would prompt me to search and uncover more. Finally, in order to understand the legal services that were being provided, I had to comb through the contents of files to separate out the legal services in ways that the organizations themselves did not do. The organizations did not see the legal services as separate from the other services they provided, and accordingly their documentation does not separate them, either.

My research was principally focused on organizations that were created in the Midwest and Northeast, and notably in Chicago, Boston and New York City. There is still much research left to do, especially in regard to African-American organizations and immigrant organizations. The relevant documentation is extremely hard to obtain but these organizations existed and two examples are the White Rose Mission and the YMCA, both in Harlem.

While some of these women’s social service organizations continued well into the 1930s, today they no longer exist. Some of them merged with male-led professional legal aid societies which were created in the 1890s. In some cases the merger was voluntary, and in other cases the social service organization lost its funding, and did not have a choice. Further, as more women went to law school, there was a belief that there was less need for women’s social service organizations providing legal aid as women lawyers could be hired by professional legal aid societies, and they would deal with the types of cases that the social service organizations previously handled. Finally, some of the work done by social service organizations ended up going into settlement houses,[3] as well as into the building of our specialized court system, notably family and juvenile courts.

In addition, as the book discusses, in the early 1900s a process of professionalization began on two fronts. Male lawyers created legal aid societies and slowly tried to take over the provision of legal assistance. The men in these organizations truly believed that only lawyers could provide this kind of assistance.

This explains how men like Reginald Heber Smith, a recent law school graduate with little experience in legal aid, could come in and run the Boston Legal Aid Society. At the same time, women who had been working in legal aid for decades were fired. This was justified by an ideology of professionalization, which was seen to trump experience.

One of my favorite parts of the book concerns Reginald Heber Smith. By his third year of working in legal aid, he was considered the guru of legal aid, and was in the process of re-writing its entire history. He was young, aggressive, obviously very smart and clearly cared about legal aid. He travelled to Chicago on a study tour, and there he met a woman named Minnie Low. She was a small, Jewish woman who was the Director of the Bureau of Personal Service. This was an organization of women that provided legal services to the Jewish community of Chicago. Smith did not seem to have any idea who Low was, even though she was well-known in Chicago as the “Jewish Jane Addams.” In his notes of his meeting with her, you can see his shock to discover these women who even he had to admit really knew the law. He wrote that they followed the law, that they followed cases through, and that they engaged in what was a radically different model of legal aid.

Despite his surprise at discovering the Bureau of Personal Service and other organizations like it, any mention of them is intentionally omitted from the book that he wrote on the topic of legal aid: Justice and the Poor.

Let me explain how women’s organizations were written out of history. Like any historian writing a book, Smith had to decide what he put into his book and what he did not put in. Smith truly believed that legal aid organizations needed to look like any other law firm, and that in order for that to happen, it needed to be made up of male lawyers. He saw women social workers who were providing legal aid as part of a realm that did not belong in law, that could never have the prestige of law, and could not attract other lawyers to it. From his point of view, legal aid would not be prestigious until these women lay lawyers and social workers were removed from the equation. Smith and others saw women lay lawyers and social workers as “monstrosities,” and Smith simply could not get his head around the idea that women could actually provide quality legal services.

While the provision of legal aid was undergoing professionalization, social work itself was undergoing a similar process. That is, social workers were creating a profession in which one would attend school, and learn the new discipline of social work.

So, the space for women “lay lawyers” to provide legal assistance constricted. It became sandwiched between the professionalization of law and the professionalization of social work. I try to explore, and historically ground, the question of who is recognized as an expert and why are they recognized as such?  By the late 1920s, the division of legal aid work became extremely gendered, with men providing legal services and women providing social work.

You could ask whether Smith’s primary objection was to women providing legal services, or social workers. But in fact, given how difficult it was at that time for women to become lawyers, these were one and the same thing. One of Smith’s protégés, John Bradway, was opposed to having a woman trained in law act even as a law firm’s secretary, because this gave the impression that it was not a real law firm. From the perspective of both Smith and Bradway, women themselves destroyed prestige.

Today we are taught that one cannot practice law without a license, and we are under the impression that there has been long and strict enforcement of the rules of unauthorized practice. My research shows that this is a more modern phenomenon. The legal profession was not policed until the 1920s and 1930s, and even after that it was extremely rare for anyone, and especially for women, to be charged with practicing law without a license. And of the few cases one sees from that time, it is cases of fraud, where someone has taken fees for providing a legal service without actually providing the corresponding service (in other words, a stealing of fees). What you don’t see are claims of unauthorized practice being brought against charitable organizations for providing legal assistance.

None of this activity was hidden. It was out there. Often women lay lawyers and social workers were praised by judges and lawyers. So, the issue of unauthorized practice of law simply did not arise.

As a historian, I am dependent upon my archival documents. In my research, I did not discover any evidence of ethical complaints being made against these social service organizations or against professional legal aid societies until the 1930s. During the Depression, the bar became very worried about the unauthorized practice of law. It was at that point that they focused on the work not so much of the social service organizations but on the legal aid societies. Notably, they focused on their work in the area of personal injury, and complained that legal aid societies were taking business away from members of the bar. Again, however, these complaints were not made until the 1930s: by that time professional legal aid societies had developed (whose lawyers were mostly but not exclusively men), and they were the principal targets of this criticism rather than the social service organizations (who, again, were made up mostly if not exclusively of women).

The book describes a period of tremendous fighting between legal aid societies (professional male lawyers) and social service organizations (women lay lawyers or social workers). The legal aid societies made three types of allegations against social service organizations:

First, they alleged that women social workers and lay lawyers at social service organizations represented their clients too zealously: that they did not understand that their clients had bad cases and that in pursuing their cases, lay lawyers badgered and annoyed professional lawyers.

They also alleged that the social service organizations did not represent their clients zealously enough, because so many of their cases settled. But when I compared the settlement rates of the matters handled by social service organizations as compared to professional legal aid societies, there was no difference in settlement rates.

Finally, they asserted that social service organizations prioritized social justice and the community over the individual client and his rights.

As regards this last allegation, they had a point. Social workers providing legal aid were often very sympathetic to women’s claims and notably their claims for child custody and for financial support from husbands. With respect to some of these organizations, when they brought a claim on behalf of a man — a personal injury matter, for example, where there was actually money that was changing hands — the organizations were sympathetic to the wife in such contexts. Even though the husband suffered the injury, the organization saw the family as a unit. So, if there was money coming in as a result of a settlement or a judgment, social workers often made sure that the money was being used for household expenses (demonstrating a significant distrust of working class men). This conformed to the ethics of social service organizations at that time, because they saw the family as a unit. Of course, under our modern ethics rules, this prioritization of the family over the individual client would be troubling to us. (Of course, ethics is a social construct that changes over time).

On the other hand, social service organizations argued that professional legal aid societies acted unethically when they turned away cases involving divorce (which many legal aid societies refused on principal to handle) or because they estimated that the client had too many assets to qualify for legal aid or that the client otherwise did not meet certain guidelines.

One dispute that went on for decades is that social service organizations did not respect attorney-client confidentiality. In making this allegation, the legal aid societies did not suggest that the social service organizations did not protect confidential information as a general matter or that they disclosed it indiscriminately. Instead, the accusation was directed towards the practice of social service organizations sharing information amongst themselves. They did this under a formalized central registry, where a social worker from one organization could see a client’s history with other social organizations. Professional lawyers argued that the use of this registry was unethical. Social service organizations responded that this claim was ridiculous, because the information in the registries was already in the public realm, and secondly because the exchange of this information was necessary to prevent the same client or family from seeking duplicate relief from a variety of organizations.

Some of lawyers’ attacks on social workers were shocking to those social workers, who asserted that they worked under their own code of ethics, and that the fact that these suggestions were even made demonstrated a failure to recognize that social workers themselves were professionals. In fact, and especially for the women of the earlier organizations, their belief in their own ethics went even deeper: they believed that their mission as privileged women was to carry with them an ethics, a morality, and a lack of conflict of interest that many men did not possess. Many of these women looked upon the legal profession itself as soiled. One social service organization that I studied talked about lawyers as vampires, and another talked about lawyers as “the dark side” and a profession that has no morality.

These women understood lawyers to be immersed in a world involving money, and that they were soiled by this money, whereas women’s organizations had no conflict of interest because they were not being paid. In other words, the women’s organizations flipped the argument of lack of ethics back onto lawyers.

In my opinion, the organizations that I studied for my book were highly successful in fulfilling their missions. When you think about what poor people need and what poor people want, and what women in abusive situations desire — they want relief, and they need that relief quickly. These organizations were able to reach a lot of people, and help them to meet their immediate necessities: women who were going to be evicted, women who were having their clothing repossessed, women who needed their wages, women who had to leave abusive husbands. These organizations were able to work quickly, they truly cared about the people they were helping, and there was very little bureaucracy. Such organizations existed for decades, and people kept coming to them. Further, the people that ran these organizations understood that professional legal aid societies staffed by men would not provide services like these to women. For that reason, the women who ran these organizations were not willing to merge with legal aid societies or otherwise relinquish their control until they received promises from male-led organizations that women lawyers would be hired and that women’s cases would be taken seriously. The documents I reviewed demonstrated to me that the women in these organizations understood the value of their work and they took tremendous pride in it, incorporating it into their very identities.

Unfortunately, I was unable to find many documents that contain the impressions of clients in their own words. Further, I was not able to find any documents that reflected client complaints against the women’s organizations that I studied. I don’t know what can be concluded from that fact — whether it means that little or no complaints were made, or if it means that complaints were made, but records of them either were not kept, or that I have not found them yet.

What I did find was that beginning in the 1910s and 1920s, complaints were made against professional legal aid societies. For example, I found letters from concerning the New York Legal Aid Society. In those letters, people who either were clients of the Society or whose cases the Society did not accept, complained of being treated badly, of being insulted, of having to wait in long lines, of having attorneys speak down to them, of attorneys not recognizing that there was a legal claim or refusing to take a case because a private lawyer might take it. The fact that I found these letters with respect to these male-led societies and not the women’s organizations fits within my overall understanding of both types of organizations and how they operated at the turn of the century.

The late 19th and early 20th century social service organizations that I studied offer perhaps some lessons for us today. These organizations took cases that no one else wanted because they were so small. The services were provided with a broader understanding of social justice, and that legal aid was not entirely separated from other material assistance. My research with respect to legal aid as well as to settlement houses demonstrates that legal aid for the poor needs to be provided in a holistic manner. If someone comes in and they have a problem, such as being evicted from their home, that person also needs help finding shelter and a variety of other services. They need that help, but it is not necessarily lawyers that need to provide it.

My research intentionally begs the question: what is legal advice? For me, what is fascinating is the everydayness of legal advice. I link this to my research on how legal assistance is provided today, and notably my research on modern-day legal secretaries. That research shows that many legal secretaries are the first people in their families who have attended university. They typically work in law firms for decades, and they may be connected to immigrant communities. So, often they are the person that others come to: “I’ve got this legal claim but I don’t understand it” or “can you help me to understand this legal document?” So the secretary reads the document for that person, and provides advice. Other examples of everyday advice are when people apply for food stamps, or veterans’ benefits or social security benefits and they receive help from friends — we could call this “community legal knowledge. Further, what about travel agents who have learned a lot about immigration law and help others to fill out immigration paperwork? In all these examples, people are seeking advice that often becomes legal advice, and these questions are asked on an everyday and on an unorganized, basis. How do we think about this? How do we categorize it? This of course raises the issue of lawyers’ monopoly over legal services. Let me give you an example. Some of students at the Chicago-Kent College of Law staff information desks at the Daley Center in Chicago, where the courts are located. The students can provide people with forms, and can tell them what division they should go to, but they cannot provide any help in telling people how to best answer questions on forms. Why do we create the boundary there? I think that boundaries can be created, but I don’t think it’s been given enough thought.

Legal aid lawyers do incredible and valuable work. But, legal aid needs to reach so many more people and the site of legal aid needs to move from offices and be embedded within the community. We need, for example, a legal aid provider in every library, in churches, and in hospitals. This person does not need to be a lawyer, but they need to have a level of knowledge sufficient to enable them to respond to questions like “how do I fill out this form?” and “how do I request a restraining order?”

Legal aid organizations need greater funding from the government — that is for sure. But greater funding, alone, will not enable the huge need to be met. Lawyers, even legal aid lawyers, are expensive and they do not necessarily come out of the communities that need to be served.

I think that the provision of legal aid needs to include the desire to love and to create community. This requires people who understand what it means to be poor. We are starting to see this in worker centers, here in Chicago, for example. These are community-based self-help organizations for workers, often immigrants. Rather than lawyers providing advice, workers with different kinds of experiences help each other. Similar to the late 19th and early 20th century social service organizations that I study in my book, a very common issue for today’s worker centers is wage claims, for example restaurants and other employers not paying overtime or are otherwise not paying full wages. A typical scenario is that someone from the center writes a letter to that employer, explaining that it is a serious matter that needs to be resolved and stating that they will visit the employer in order to sit down with them and come to a solution. Lawyers are not used in this process. Ultimately, by the sharing of knowledge and resources, these centers serve as a means of worker empowerment.

At what point do the activities of these centers cross the line into the practice of law? It is nebulous. At the same time, the types of matters that organizations like the worker centers help with are the types of matters that most lawyers simply would not handle. From a financial perspective, it does not make sense for lawyers to take many if not most of these cases.

I have tried to situate legal aid historically, so let me situate myself in terms of time and space. In the early 2000’s, I decided to go back to graduate school in order to study women’s legal history. I had begun working on topics relating to women’s organizations, such as how they were involved in legislative reform, and how different settlement houses provided legal advice. I was living in New Orleans and teaching at Tulane University at the time Hurricane Katrina hit the city in 2005. Immediately after Katrina, FEMA (the Federal Emergency Management Agency) established a series of disaster recovery centers in and around the city, where residents could seek aid. I set up a legal assistance booth in one of these centers. The “booth” was a table, a cell phone and few attorney friends.

Before I went to graduate school, I had practiced law for a decade in a highly prestigious environment. When I set up the booth, I was struck by how unable I was to deal with the emotional side of what the people around me were experiencing. I wished that I was a both a social worker and a lawyer. That made me think about who was really providing all these grassroots, on the ground services in legal aid, and what was the role of social workers and lawyers. I wondered if I was practicing law. I didn’t think I was — I was providing education and enabling people to engage in self-help. I was helping thousands of people — how could I have been practicing law? How could I have had a confidential relationship with all those people in a massive hall?

In asking myself about what were the origins of legal aid and where it came from, I discovered that there was no history of it, other than Reginald Heber Smith’s. As a historian, I just started digging in women’s history archives. I dug and dug, literally going through boxes, and found one organization after another. As the book explains, my work was heavily archival. The entire process of researching and writing the book took about eight years. I know that I did not find everything, and that much work remains to be done. For example, I did not touch organizations on the West Coast or in the Southwest.

Further, I don’t believe that this is just a US story. This is a story that replicates itself all over Europe. For example, as I was reviewing the US documents, I came across references to women’s social service organizations in Germany that provided legal assistance. Through them, women offered legal services to the poor at a time when women could not be members of the bar in Germany. For those who have the language skills and access to funding, this is important research that needs to be done. Hopefully others can build on my work and shed even greater light on what the past has to teach us about how we can construct “new” kinds of organizations to meet the legal needs of the poor.

[1] Social gospel was a protestant Christian intellectual and reform movement of the late 19th and early 20th century United States that sought the betterment of society by the application of Christian ethics to social problems such as poverty, alcoholism, and crime.

[2] What would become known as the “Women’s Club Movement” was a mid- and late 19th-century American social movement founded to provide women an independent avenue for education and active community service. Examples include Sorosis, founded in New York City, and the New England Woman’s Club, founded in Boston and whose founders included Julia Ward Howe.

[3] In the late 19th and early 20th centuries, the “settlement movement” inspired the creation of “settlement houses,” in poor urban areas as places in which middle-class volunteers would live, with the purpose of sharing knowledge with and alleviating the poverty of their neighbors. A prototypical example is Hull House, founded by Jane Addams and Ellen Gates Starr.

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