of the law concerning SSI, nutrition programs, social security, public and private pensions, guardianship, medicare, medicaid, nursing homes, veterans benefits, mandatory retirement and age discrimination are very complex; training and other support services in these areas have traditionally been very meagre. The National Senior Citizens Law Center and several other AoA model project grantees may in actual fact represent very close to the sum total of these support services presently available.

An obvious way of increasing the effectiveness of existing special field programs (and, as is discussed below, the private bar also) is for the existing resources providing training and other technical assistance to receive continued and expanded financial support. It is hoped that both the Administration on Aging and the Legal Services Corporation will take a leading role in making certain that these critical support services will be provided.

"

Regarding training and other support services, 60 percent of the projects responding to NSCLC's survey indicated they have utilized backup services or other model project services for such assistance. Of the 40 percent who indicated they had not used a backup service, 96 percent of them said they would do so if an appropriate case arose. 96 percent of the respondents indicated that they were interested in attending training conferences at which training would be provided by a backup center. When asked the type of training and technical assistance which they felt was necessary, 87 percent requested training in the area of nursing homes, 80 percent requested training in the areas of social security and SSI, 77 percent requested training in consumer problems concerning the elderly and 73 percent requested training in guardianship and involuntary commitment. (The analysis of training needs are more completely delineated in Appendix C [see p. 323]).

The Private Bar: A Potential New Source of Legal Assistance®

Legal Services attorneys acting specifically on behalf of the elderly can increase their effectiveness by complementing rather than duplicating the conventional sources of legal assistance in the community. Here again, by stimulating other legal resources in the community to recognize and adopt roles in a coherent scheme for the representation of aged persons, legal services attorneys can reserve their time for services which they alone can provide.

Attorneys general, city attorneys, county attorneys, and other government attorneys, for instance, should be persuaded to devote more of their legal resources to aiding the elderly. This might include assistance with problems relating to consumer fraud, property tax exemptions, special assessments, guardianships, involuntary commitment, nursing homes, and probate matters. In each instance, individuals concerned with the rights of the elderly should examine the charters and statutes creating such legal offices for ways in which these offices can begin to assist the elderly.

On a nationwide basis, the organized bar has hitherto limited its activities to forming committees of the American Bar Association to study the legal problems of the elderly. Hopefully, however, some concrete volunteer programs, especially programs utilizing the vast resources of retired attorneys, can be devised and implemented to serve the elderly. The ABA is apparently becoming aware of this latent potential in its older members. A past president of the association-taking a cue from the activities of retired business executives in SCORE -recently suggested that retired attorneys be mobilized under ABA auspices to provide legal help for other retirees."

Assistance may also be obtained from other organizations. A Jewish organization in Los Angeles, for example, is using member attorneys to provide volunteer assistance in a primarily elderly neighborhood. Another recent development has far-reaching potential. In Los Angeles, a reserve contingent of the civil affairs unit of the Army decided to devote the time of reservists to legal services for the needy. One office served primarily older people. Failing the necessary approvals from Washington, this program has been halted.

A substantial part of the following testimony is combined in an expanded_article cited as: Nathanson, Paul, Legal Services for the Nation's Elderly. 17 Arizona L. Rev. 275 (1975)

The ABA family law section and probate and trust section have special subsections dealing with the elderly.

8 SCORE is an acronym for Service Corps of Retired Executives. See generally 42 U.S.C. 5031-5032 (Supp. III, 1973).

Nationwide program to provide free legal service to elderly sought by ABA president, ABA Release No. 111574 (Nov. 18, 1974).

The problem of providing truly adequate legal representation to the elderly cannot be solved without full and effective participation by the private bar. Although members of the private bar may provide some services on a pro bono basis, their participation as private attorneys will largely be on a compensatory basis. The thrust of any effort to increase the availability of legal services for the aged from the private bar, therefore, must be to identify services which can be provided on a fee-generating basis and to develop methods for providing these services at a cost which the elderly can bear.

As noted, a substantial portion of the legal concerns of the aged relate to government benefit programs. The development of assistance from the private bar in the pursuit of these benefits is trapped in a vicious circle. The belief of private attorneys that practice in this area cannot be remunerative prevents them from developing expertise concerning entitlement to benefits.10 The circle is completed when this lack of expertise prevents the development of office practice methods which permit assistance within feasible cost parameters including reasonable remuneration for the attorney." Thus, if sufficient compensation were available for representing elderly clients with benefit disputes, an incentive would exist to develop the necessary expertise.

14

Social security, SSI, and veterans benefit statutes establish fee systems which may well act to deter private attorneys from pursuing claims on behalf of elderly clients 12 since the Social Security Act 13 and other programs regulate fees. For example, the Social Security Administration sets a reasonable fee upon the application of the representative of a claimant successful in an administrative hearing." The fee is contingent in nature. If the administrative proceedings result in the award of past-due benefits, the representative may receive directly from SSA a fee not to exceed 25 percent of such benefits." In successful proceedings before a court, the representative receives a reasonable fee set by the court, but not exceeding 25 percent of the past-due benefits resulting from the judgment."

16

This system is irrational. The fact that fees are deducted from past-due benefits not only unduly burdens needy claimants, it also encourages attorneys to delay presenting claims so that retroactive benefits will accumulate, increasing the maximum fee.19 Moreover, existing fee levels are considered grossly inadequate by those few attorneys practicing in the field." As a result of the restrictive fee system, less than 2 percent of dissallowed claims ever reach the courts, even though courts have overturned the administrative decision

10 See generally, joint hearing on Improving Legal Representation for Older Americans, before the Senate Special Committee on Aging and the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 2d Sess. (1974) (hereinafter cited as joint hearing on legal representation).

11 For an excellent overview of problems of access to legal services, including questions regarding use of paralegals, group legal services, government-funded legal services, and fee mechanism, see Symposium, 4 U. Tol. L. Rev. 353 (1973). For a lengthy and complete bibliography dealing with all aspects of delivery of legal services, see Brickman, Legal Delivery Systems-A Bibliography, 4 U. Tol. L. Rev. 465 (1973).

12 The general situation is well summarized by Yarowsky, Attorneys' Fees in Social Security Proceedings: A Criticism of the Official Restrictive Design, 17 Kan. L. Rev. 79, 88 (1968):

The issues of attorneys' fees in social security proceedings is closely tied to legal aid. If the claimant does not meet the standards for indigency established by the local legal aid program, he is generally referred to the local bar association. However, if no private attorney will take the case because of the fee problems involved, the claimant who desires an attorney has no one to champion his cause. While some legal aid societies will represent those for whom the referral system has failed, this places the burden of the claimant's litigation on society even though the claimant, through the fees allowed, has an "ability to pay." Such procedure seem (sic) contrary to the concept of legal aid. This problem would not arise if the private practitioner were permitted to earn what his time and effort were worth.

13 42 U.S.C. § 406 (a) (1970).

14 42 U.S.C. § 1383 (d) (3) (Supp. III 1973) (SSI); 38 U.S.C. § 3404 (c) (1970) (veteran's benefits).

15 42 U.S.C. § 406 (a) (1970); 20 C.F.R. § 404.975 (b) (1975). Claimants may be represented before the Social Security Administration by lay persons, 42 U.S.C. § 406 (a) (1970): 20 C.F.R. § 404.971 (1975); cf. id. § 404.972(b), but unlike attorneys, the particular qualifications of such lay representatives are taken into account in allowing fees, id. § 404.976 (a) (6). and they are ineligible for direct payment from past-due benefits. Id. § 404.977 (b) (2). See 42 U.S.C. & 406(a) (1970).

16 Hopkins v. Cohen, 390 U.S., 530, 531035 (1968).

17 42 U.S.C. § 406 (a) (1970); 20 C.F.R. & 404.977 (b) (1975).

18 42 U.S.C. 8 406(b) (1970); 20 C.F.R. § 404.977(a) (1975).

19 Blankenship v. Gardner, 256 F. Supp. 405, 410 (W.D. Va. 1966); Yarowsky, supra note 12, at 84.

20 For a practitioner's view of the fee scheme, see Yarowsky, supra note 12.

25

22

in 63 percent of the appealed cases. In addition, only 5 percent of all claimants are represented by attorneys at the administrative level, even though a vast majority of such cases involve complex matters regarding proof of disability."3 The fee situation with respect to veterans benefits may only be characterized as bizarre. The statute limits fees to $10 for any one claim before the Veterans' Administration (VA)." In addition, the decisions of the VA on any question of law or fact regarding a claim for benefits or payments are final and not subject to any judicial review. The $10 fee limitation clearly inhibits private attorneys from ever taking a case on behalf of a veteran. Veterans' organizations argue that they, the Red Cross, and other groups provide very effective counseling for veterans. This is exactly the kind of counseling that should be encouraged, but it should not be considered a substitute for necessary legal assistance. These organizations depend largely on the good will of the VA for their efficacy. Moreover, these groups work with the VA on many matters other than benefit entitlement, and it is plainly in their interest to maintain good working relations. Therefore, a claim challenging a statutory or regulatory scheme and VA procedures has little chance of ever being asserted by these organizations. Without private counsel, it seems unlikely that such cases will come to the fore. Of course, without judicial review, there is even less chance of airing such issues. In light of the extremely restrictive provisions regulating fees in veterans benefit cases, the only solution to this stalemate appears to be amendment of the statutory scheme.

In cases that can generate even modest fees, including social security and SSI claims, another method exists for breaking the vicious circle inhibiting the private bar from pursuing government benefits for the elderly. An initial investment in developing office practice procedures, including specialization and routinization of a lawyer's tasks, could allow the private practitioner to increase his representation of the elderly without altering the basic practice of a small private firm. Greater efficiency results in greater profits for the time invested. If an attorney can represent many clients with small claims, charging small but adequate fees, it may be profitable to serve such clients. Many of the special legal services sought by the elderly are susceptible of routinization and simplification. For example, manuals could be prepared for social security and SSI claims which would allow assistants to prepare a case for ultimate review by an attorney. Many of the tasks presently performed by attorneys are unnecessarily complicated and could be simplified to allow more efficient treatment of individualized problems.

The natural adjunct to the specialization and routinization of the lawyer's job is the effective and expanded use of paralegals." Paralegals are being employed increasingly in private practice; their utility is well established within Legal Services Corporation programs because of the very limited resources available to attorneys for the poor." Paralegals can handle routine substantive matters, do initial client interviewing, go to aged individuals who cannot come into the office, handle administrative appeals, and do factual investigations." It may be particularly advantageous to employ elderly people as

28

21 Id. at 80. See also Scott_v. Celebrezze, 241 F. Supp. 733, 736 n.21 (S.D.N.Y. 1965) (citing 47 reversals and 27 affirmances in volumes 227 to 236 of the Federal Supplement); Seldomridge v. Celebrezze, 238 F. Supp. 610, 620 n.17 (E.D. Pa. 1965) (75 percent reversals in volumes 231 to 234 of the Federal Supplement).

24 38 U.S.C. § 3404 (c) (1970): Hoffmaster v. Veterans Administration, 444 F. 2d 192 (3d Cir. 1971) (constitutionality_upheld). However, a recent decision by the Ninth Circuit in Gendron v. Saxbe, 501 F. 2d 1087 (9th Cir. 1974), holding that the question of the constitutionality of the $10 fee limitation did not present an insubstantial constitutional question for purposes of convening a three-judge court, is an indication that the provision might be found to deprive the veteran of his right to counsel, equal protection, or procedural due process. The court observed that the United States Supreme Court had never passed on the validity of the provision of the context of the constitutional rights of the veteran, as opposed to the rights of an attorney seeking fees. Id. at 108S-89. Accord, Staub v. Johnson, 44 U.S.L.W. 2169 (D.C. Cir. Sept. 15, 1975). 25 38 U.S.C. § 211(a) (1970; De Rodulfa v. United States, 461 F. 2d 1240 (D.C. Cir. 1972), cert. denied, 409 U.S. 949 (1973) (constitutionality upheld).

26 See B. Terris, supra note 2, at 23-25; Fry, The Senior Citizen Paralegal: An Advocate for the Elderly Poor, AGING Jan.-Feb. 1974, at 11.

27 See Lander, Legal Assistants: The Experience of the Legal Aid Society of the City and County of St. Louis, 6 Clearinghouse Rev. 663 (1973).

28 According to informal information and funding proposals reviewed by NSCLC staff, the vast majority of legal projects serving the elderly use paralegals extensively.

30

paralegals. Elderly clients may respond more openly to questions and suggestions from their peers than to those of a younger person." A further benefit is that some older individuals will thus find meaningful employment. It is however, critical to note that, in order to fully realize the potential of paralegals in the delivery system, restrictive regulations promulgated by local bar associations designed to preserve the entire delivery domain for licensed attorneys must be carefully scrutinized for their potentially adverse impact on the elderly's access to justice and needed legal services.

32

Experience in using standardized methods and paralegals in a variety of legal specialties indicates the potential of this practice method. Preliminary findings show lawyers saving from 25 to 50 percent of the time normally required to perform some services. An analysis of the tasks involved in corporate formation confirms that delegation of ministerial tasks to paralegals can reduce the cost of providing this service by one-half. Adequate figures have not been developed for legal services of interest to the aged. The reduction in cost to the client made possible by such efficiencies may bring many needed services within the reach of elderly people of moderate means. Legal services attorneys can encourage the private bar to involve itself in aiding the elderly by making their expertise available in the development and preparation of such methods.

A prime example of combining routinization, specialization, and the use of paralegals is the legal clinic of attorneys Jacoby and Meyers in Los Angeles." This office has pioneered the use of kits and paralegals in order to provide low cost legal assistance to low and moderate income individuals. From all indications, a successful private practice has resulted. The experience of Jacoby and Meyers, however, brings to the fore one problem which must be dealt with by the private bar if low cost legal assistance is to be available to the moderate income individual: the prohibition of advertising by private practitioners. If profit, and derivatively, significant involvement of the private bar rests on a large volume of clients paying smaller fees, it is critical to let potential clients know about available low cost services."

Another possibility for providing low cost legal services for the elderly is through a prepaid legal services plan. Without adding to the large and growing literature on such plans," it is worth noting that they may be designed to conform almost perfectly to the needs of many elderly people. The elderly may participate in such plans on several bases-as union members or as members of senior citizen groups or of other organizations which have special benefit plans for older members. The first and perhaps most likely way is through union membership and participation in a plan which benefits retirees as well as active members. A recent amendment to the Taft-Hartley Act, which permits employers to provide legal services as an employee benefit under collective bargaining agreements, promises to catapult group legal service plans

38

29 See, e.g. Fry, supra note 26, at 11; Joint hearing on legal representation, supra note 10, at 30-31; National Senior Citizens Law Center, Senior Legal Assistants, 7 Clearinghouse Rev. 273 (1973). See also Collins, Flanagan, & Donnelly. The Senior Citizens Project of California Legal Assistance: An Action Arm of the National Senior Citizens Law Center, 6 Clearinghouse Rev. 22 (1972).

30 B. Terris, supra note 2, at 25.

31 K. Strong & A. Clark, Law Office Management 93 (1974).

32 American Bar Association special committee on legal assistants, Liberating the Lawyer: The Utilization of Legal Assistants by Law Firms in the United States, 44–45 (Prelim. Draft, 1971).

33 Disco and Meyers, Legal Supermarkets, Harper's Magazine, July 1973, at 30. 34 It should be noted that the office does not specialize in legal problems of the elderly, but in problems of the moderate income individual. Many of those problems, however, are also problems of the elderly, such as wills, social security, disability claims, and small claims court matters.

35 ABA, code of professional responsibility, DR 2-101 (B) (1975); Cal. Bus. & Prof. Code § 6076, rules 2-101 to -102 (West Supp. 1975). The California bar has instituted proceedings against Jacoby and Meyers. Disco and Meyers, supra note 33 at 30. It should be noted, however, that it has not been clearly established that advertising was involved in this case.

36 Legal services attorneys are presently allowed to advertise the availability of free legal services to their potential client community. ABA, code of professional responsibility, DR 2-101 (B) (1975); Ariz. Ethics Op. 74-7 (1974).

37 See, e.g., Hallauer, The Shreveport Experiment in Prepaid Legal Services, 2 J. Legal Studies 223 (1973); Politz, Prepaid Legal Services-The Shreveport Plan: The LongSought Answer? 7 Trial, Mar.-Apr. 1971, at 29; Roberts, The Shreveport Plan for Prepaid Legal Services-A Unique Experiment, 2 La. L. Rev. 45 (1971).

38 29 U.S.C. § 186 (c) (8) (Supp. III, 1973).

into prominence as a means of financing services for middle-income people. Plans formed under the amendment should be designed to capture the amendment's benefits for retirees. One limitation on Taft-Hartley legal service plans which may restrict their utility for retirees is that such plans are barred from rendering services in actions against the employer or the union." Thus, actions relating to some aspects of pensions or other retirement benefits could probably not be financed by these plans. However, actions against the pension trust or its trustees, as distinguished from the employer or the union, appear to be covered."

It would also appear that senior citizen groups, by making small regular payments, could finance an insurance-like group legal service plan to benefit members. Such a group legal service plan should be designed specifically to benefit this age group. The services available under a closed panel plan, which are often restricted to employment related matters, should be expanded to include both a preretirement legal checkup and services in substantive areas of concern to the aged, such as special benefit programs, estate planning and probate, and guardianship. While open panel plans usually offer a wider range of services, the choice between open and closed panels should be guided by whether lawyers are available with expertise in the legal areas of concern to the aged. Where available expertise is limited, a closed panel plan permits development of needed expertise in areas of particular concern to the elderly. Finally, a plan should not automatically exclude legal representation in cases which could be taken on a contingent fee basis. Because the fees available in social security and pension matters are, as already noted, often insufficient to secure actual representation, attorneys with appropriate expertise may simply not be available to handle such matters. Thus, the contingent fee case would be no more than an illusion, with no attorney actually available.

As previously discussed, it is more difficult to provide legal services in rural areas. Assuming that no ongoing legal services program exists in a rural area, it may become necessary to contract with a local private attorney in order to provide legal services to the elderly community. These services might be provided on an as needed basis. If the legal needs of the elderly in the area require only 50 percent of an attorney's time for example, the attorney could be funded to do only half-time work on behalf of the elderly. Additionally, a local private attorney might be funded to supervise paralegals. As noted above, the use of paralegals can significantly reduce per case costs and allow the program to do outreach which might otherwise be infeasible because of the expense involved. Experiments (more fully discussed in Appendix C [see p. 323]) are currently going on which combine the extensive use of paralegals, WATS telephone lines, mobile vans and the rural private bar with an eye toward solving the special legal needs of the rural elderly. These projects should be carefully studied and assessed and additional model projects which attempt to solve the special access problems of the rural elderly should be generated and funded.

If the private bar is to become involved in handling cases for elderly clients, private attorneys and paralegals must be provided with the proper training and backup services. It must be demonstrated to the private bar that there are ways to handle seemingly complex issues for reasonable fees without spending unduly long periods of time in research. Training, backup, and research services provided to private attorneys and paralegals could potentially reduce fees charged to elderly clients. Without training, most attorneys could only, with great difficulty, handle cases involving issues concerning private or public pensions, social security, SSI, veterans matters or age discrimination in employment. The Administration on Aging and others should seriously consider funding programs designed to train and provide these backup services to the private bar thus enabling private attorneys to operate more efficiently and to reduce fees charged to elderly clients.

CONCLUSION

In order to develop a strong and meaningful national network of legal services providers, it will be necessary to do several things:

39 Tunney, Financing the Cost of Enforcing Legal Rights, 122 U. Pa. L. Rev. 632, 633 n.2 (1974).

40 29 U.S.C. § 186 (c) (8) (A) (Supp. III, 1973).

See Id. § 186 (c).