1 The overall purpose of these projects was “bar activation,” by which the sponsors meant increasing the involvement of the private bar in providing legal services to the institutionalized. This aspect, to be treated by the “evaluator” responsible under contract to the Clark Foundation for assessing the entire demonstration effort, will not be dealt with here except to say that “activating” the bar did not work out very well, that the concept itself may be overoptimistic or at least that it takes more money and a more sustained effort to get private lawyers involved in a major and lasting way in an area as remote from their general experience and interests as the legal difficulties of the institutionalized mentally ill are likely to be.Google Scholar

2 The population from which the clients are drawn may be even larger than the official estimate, as no good way of distinguishing exists (or has been formulated by the project) between those disabled persons who have in fact been inpatients in the mental health system and those who might well have been but never were, or at least not in Illinois.Google Scholar

3 The area is an elongated strip running some 10–15 blocks south to north (roughly from Montrose Ave. to Bryn Mawr Ave.), but only 3–4 blocks wide, much of it in the shadow of the El, beginning a block or so west of Broadway Ave. and bounded on the east by the lakefront (less a block of better-kept property on the lakefront itself). The project office is at 4753 N. Broadway.Google Scholar

4 The admission rate is still only about half of what it would be if the average stay figure of two weeks were accurate; it must in fact be closer to four weeks.Google Scholar

5 A telephone call to the project in June 1980 revealed that its life had been maintained through the past year on “internal” (Law School Foundation) funding. The project's continued existence on a more secure footing was being sought through funding from “regular” legal services sources (the Legal Services Corporation). In view of the corporation's announced commitment for 1980–81 to begin to support service efforts for the institutionalized, the Virginia project's prospects should be good.Google Scholar

6 Among the main pieces of background reading, going from the generally to the more specifically relevant, were: Dallin H. Oaks & Warren Lehman, A Criminal Justice System and the Indigent: A Study of Chicago and Cook County (Chicago: University of Chicago Press, 1968); Samuel J. Brakel, Judicare: Public Funds, Private Lawyers, and Poor People (Chicago: American Bar Foundation, 1974); Barlow F. Christensen, Lawyers for People of Moderate Means: Some Problems of Availabiliity of Legal Services (Chicago: American Bar Foundation, 1970); Jerome E. Carlin, Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, N.J.: Rutgers University Press, 1962); Quintin Johnstone & Dan Hopson, Jr., Lawyers and Their Work: An Analysis of the Legal Profession in the United States and England (Indianapolis: Bobbs-Merrill Co., 1967); Louis M. Brown & Edward A. Dauer, Perspectives on the Lawyer as Planner (Mineola, N.Y.: Foundation Press, 1978); Samuel J. Brakel & Ronald S. Rock, eds., The Mentally Disabled and the Law (rev. ed. Chicago: University of Chicago Press, 1971); Alan A. Stone, Mental Health and Law: A System in Transition, DHEW Pub. No. (ADM) 76–176 (Washington, D.C.: Government Printing Office, 1975); Alexander D. Brooks, Law, Psychiatry and the Mental Health System (Boston: Little, Brown & Co., 1974); Developments in the Law—Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190 (1974); Richard J. Bonnie, ed., Psychiatrists and the Legal Process: Diagnosis and Debate (New York: Insight Communications, Inc., 1977); American Bar Association, Model Code of Professional Responsibility and Code of Judicial Conduct (Chicago: American Bar Association, 1970); Jacob, Bruce R., & Sharma, K. M., Justice After Trial: Prisoners' Need for Legal Services in the Criminal-Correctional Process, 18 U. Kan. L. Rev. 493 (1970); M. Marvin Finkelstein, Perspectives on Prison Legal Services: Needs, Impact, and the Potential for Law School Involvement (Springfield, Va.: U.S. Department of Commerce, National Technical Information Service, 1971); Barbara A. Curran, The Legal Needs of the Public: The Final Report of a National Survey (Chicago: American Bar Foundation, 1977); Erving Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, N.Y.: Doubleday & Co., 1961); Hubert J. O'Gorman, Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Professional Practice (New York: Free Press of Glencoe, 1963); Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale L.J. 1126 (1978); Note, The Role of Counsel in the Civil Commitment Process: A Theoretical Framework, 84 Yale L.J. 1540 (1975); Andalman, Elliott, & Chambers, David L., Effective Counsel for Persons Facing Civil Commitment: A Survey, a Polemic, and a Proposal, 45 Miss. L.J. 43 (1974); Cohen, Fred, The Function of the Attorney and the Commitment of the Mentally Ill, 44 Tex. L. Rev. 424 (1966); Broderick, Albert, One-legged Ombudsman in a Mental Hospital: An Over-the-Shoulder Glance at an Experimental Project, 22 Cath. U.L. Rev. 517 (1973); Gupta, Raj K., New York's Mental Health Information Service: An Experiment in Due Process, 25 Rutgers L. Rev. 405 (1971); Note, The New York Mental Health Information Service: A New Approach to Hospitalization of the Mentally Ill, 67 Colum. L. Rev. 672 (1967); Symposium: Mental Illness, the Law and Civil Liberties, 13 Santa Clara Law. 367 (1973); Pye, A. Kenneth, The Role of Counsel in the Suppression of Truth, 1978 Duke L.J. 921; Lowry, David R. & Kennedy, Robin M., Clinical Law in the Area of Mental Health, 1979 Wis. L. Rev. 373; Dickey, Walter, & Remington, Frank, Legal Assistance for Institutionalized Persons—an Overlooked Need, 1976 S. Ill. U.L.J. 175; Henry J. Steadman & Alexander Brooks, A Program for Mental Health Advocacy Services for Pennsylvania: The Independent Evaluation of the Statewide Mental Health Advocacy Services Proposed by the American Bar Association's Pilot Project (Albany, N.Y.: Special Projects Research Unit, Division of Research, N.Y. State Department of Mental Hygiene, 1977); Brakel, Samuel Jan, The Role of the Lawyer in the Mental Health Field, 1977 A.B.F. Res. J. 467; Woody, Robert Henley, The Lawyer in the Mental Health Field: Beyond Brakel, 1979 A.B.F. Res. J. 211; and Brakel, Samuel Jan, Legal Problems of People in Mental and Penal Institutions: An Exploratory Study, 1978 A.B.F. Res. J. 565.Google Scholar

7 Though this was not possible or advisable in all cases, it was in most cases. The patients usually thought I was part of the intake team, the introduction regarding my research objectives notwithstanding. Often they addressed questions to me, which the intake workers did not seem to mind.Google Scholar

8 See Brakel, Legal Problems, supra note 6.Google Scholar

9 Between the writing and editing of this article, a number of “internal” reports on the ABA-Clark projects have been published. Because of their timing these reports were not used as source material for the article. Instead I relied on unofficial “quarterly reports” and on firsthand information from the field visits. The reader may wish to compare the article to the reports, particularly the Final Report: The Bar Funding Program, by Judith A. Sabella (American Bar Association Commission on the Mentally Disabled, 1979), which is long on background description of the various projects but rather short on analysis. Also John Decker, Providing Advocacy Services for Mental Patients: An On-Site Demonstration; Harold Garwin, Community Mental Health Law Project, Inc.: An Experiment in Community Advocacy for the Mentally Ill; Jeremy Fogel, Establishing Comprehensive Advocacy Services: A First Year Report; and Paul P. Freddolino, Assessing Advocacy Services for the Mentally Disabled: An Evaluation of the Mental Health Advocacy Project—all published by the ABA Commission on the Mentally Disabled simultaneously with the Final Report.Google Scholar

10 Brakel, Legal Problems, supra note 6, at 576.Google Scholar

11 Id. at 574 table 1, 578.Google Scholar

12 E.g., Hughes-Heiss & Associates, Inc., An Evaluation of the Santa Clara County Bar Association's Inmate Legal Services Project iii (Washington, D.C.: American Bar Association BASICS Program, 1978): “Based on the expressed client need, we have placed greater emphasis on the representation of inmates in jail administration matters rather than in the traditional civil areas of legal practice.”.Google Scholar

13 Because of the change in reporting practices, we cannot tell whether the increased proportion of activity in the other problem areas has gone into commitment-discharge or institutional problem services—it is all hidden within the broad category of “mental health” cases. A fair assumption is that services have been increased in both cases.Google Scholar

14 Christopher Slobogin, Western State Hospital Legal Aid Society Manual 2 (unpublished 1978).Google Scholar

15 From direct client interviews we know that patients put a higher priority on problems of this type, and, absent multiple services, a matching legal response would result in a higher concentration of service (a larger percentage) in this area. The project's own manual confirms this client priority: “By far the majority of patients who approach Legal Aid are those desiring a discharge from the hospital.”Id. at 12.Google Scholar

16 The patients' cases are described below:. Case 1 would probably escape the intake statistics altogether. Though the patient—a young man in his early 20s—clearly had some particular concern or anxiety that he wanted to communicate to the lawyer, he was unable to do this in a way that was understandable. Case 2, although ostensibly presenting a commitment-discharge request, really concerned grounds privileges, if anything at all. The patient was a man in his mid-50s or thereabouts who began by saying he had to be released because he was getting married the following day. This statement was followed by a lengthy, half-joking ramble about how long he had been in the insitution and how everyone knew his reputation as somewhat of a ladies' man. He then said he would be content with a pass that would allow him to visit his “girlfriend” on another ward. The attorney said he would talk with the patient's social worker and check upon the patient's legal status and his eligibility for such a pass. Case 3 involved a man in his 20s who expressed the desire to be discharged rather clearly. Among his reasons he gave the fact that he simply did not like being at the hospital. He also complained about the medication. He felt furthermore that he would be better off at a mental health clinic in his home area in the northern part of the state where he had done previous stints. On the side, he presented a request for help to obtain social security benefits. The comparative clarity with which these demands were stated (and which might argue for a lawyer response in direct accordance with them) was marred, however, by the fact that interwoven with these “legitimate” requests came a confusing story of very low credibility about secret service agents, various informers, and other shady figures and dealings, which culminated in an insistent plea that the lawyer “give a message” on the patient's behalf to one of the leading characters in this imagined drama. The lawyer's response was to talk to the patient soothingly but not to make promises of legal or other action to be taken. It soon became clear that the talking was sufficient to calm and appease the patient. Case 4 involved the commitment-discharge concerns of a male patient who was only 17 years old. He had seen the attorney before about these concerns, shortly after admission. The attorney had taken no action at that time because the patient had appeared too confused. On this occasion, he was not much better. He could not understand, and was very anxious about, why he was at the hospital and how he had gotten there. He talked ceaselessly, but his speech was often incoherent and difficult to follow. Indeed, a wholly unrelated and trivial concern came across with much more clarity: the patient, very conscious of his appearance despite his “lack of contact” in other respects, wanted to have his hair cut at a beauty parlor instead of getting it butchered by the hospital barber. He expressed deep resentment at the hospital staff's lack of sympathy for this request. A little further on in the interview he also voiced a complaint about medication and then something about staff conduct. And gradually, one began to receive the impression that if the attorney would stick around long enough, the patient would “oblige” by going down the entire list of possible complaints against the institution. But the attorney was experienced enough to cut the interview off, vaguely promising an investigation into the patient's legal status and a report back to him about it. Case 5 was strikingly similar to case 4. The patient was of the same race and sex and very close in age to the previous one, but more than that, his behavior and verbalizations showed remarkable similarities to those of patient 4. Perhaps this mode of conduct is “learned” at the institution or else in the region, or at least in the mental illness subculture of the region, from which both patients came. The patient was confused about when, how, and why he had been hospitalized. He had seen the attorney once before and claimed to be “much better now” and capable of going back home. He had obtained a grounds pass, and his medication had been cut back. On the other hand, his general demeanor was not such as would inspire in a layman much confidence in his ability to make it on the outside. Moreover, the attorney knew that the patient was not wanted “back home” because of his history of drug abuse, conflicts with his family and with the law, and previous hospitalizations. Nevertheless, the attorney indicated that he would try to set the discharge machinery in motion—a process slow enough to ease momentary qualms about invoking it.Google Scholar

17 Id. at 2.Google Scholar

18 Id. at 13.Google Scholar

19 Id. at 14.Google Scholar

20 See generally Brakel, Legal Problems, supra note 6.Google Scholar

21 Internal report of project B operations in second and third quarters of 1977, at 6; also at 7–8.Google Scholar

22 In the Legal Needs of the Public study (Curran, supra note 6), in the effort to avoid reports of trivial legal problems or needs, the word “serious” was often (but not always) inserted in the basic survey question “Have you ever had a serious problem [of this or that kind]?” But there was of course no guarantee that the researchers, the respondents (the “public”), or the legal practitioners to be informed by the study's results shared a common understanding of what was serious and what not. To the contrary, there is almost certainly wide disagreement on this score both among and within these groups.Google Scholar

23 These averages are based on records of 50 cases from the North Carolina project, 75 cases from Wisconsin, and 40 cases from Chicago.Google Scholar

24 The following table makes the point:Google Scholar

25 74 Wis.2d 487, 247 N.W.2d 109 (1976).Google Scholar

26 I describe some of the student intake interviews below:. A male patient of about 30 tells the law student in coherent terms that he needs legal aid to have the criminal charges against him dropped so as to permit his transfer to “the VA hospital.” Apparently well up on legal niceties, the patient knows (or thinks, at any rate) that the VA will not take individuals who have charges pending against them. The patient has been at the hospital for two years—a longer-than-average stint—and indicates that he had presented an identical request for legal help a number of months ago to a different student with the project but that nothing came of it. The present student is unaware of this prior contact and apologetically concludes the intake interview saying that he will “check it out.”. A young woman patient who has great difficulty speaking manages eventually to communicate her concern about how long she will be kept at the hospital. She was committed after a finding of not guilty by reason of insanity on a burglary charge, which could have netted her a maximum prison sentence of ten years. Since she has been hospitalized since 1975, the law student tells her she has “only [!] until 1985” before a guaranteed discharge. What the effect of that statement is on the patient is not clearly discernible, but she proceeds to produce a crumpled letter from another law student indicating that the matter has been considered by the project before. The contents of the letter fail, however, to set out the patient's prospects in a fashion that is either legally adequate or likely to be comprehensible to the patient. As in the previous case, the present student winds up with the lame promise to “check it out further.”. A young male patient (about 25) explains to the student doing intake that he wants to go to trial on the kidnapping charge (of a young girl) for which he had originally been found incompetent to stand trial and committed to the present hospital. A month and a half prior to the present interview he had been reexamined by the court, found incompetent still, and recommitted with the tacit assent of his private attorney. The student comments to the patient to the effect of how much “better” he (the patient) seems today compared to his condition at an earlier contact, implying that a discharge for the purpose of standing trial may be both possible and desirable. He then adds that he will contact the patient's private attorney to transmit the request for another hearing on competency. By these statements, the student shows insufficient sensitivity to a number of possibilities: (1) that he is misreading the patient's mental condition on the basis of this brief interview; (2) that the raising of the patient's expectations about being ready to stand trial may result in disappointment and potentially adverse psychiatric consequences; (3) that the private attorney's judgment in acquiesing to recommitment a month and a half ago may have been substantively correct or strategically advantageous to the patient with a kidnapping charge against him; and (4) that intruding into the relationship between the patient and his attorney should be done only under compelling circumstances. Finally, there is this incident: As one of the project students walks down the hall from the ward's reception center to the recreation room, one of the patients at the other end fixes a baleful stare on him and begins to stride toward him in a straight and steady line, keeping this look fixed on the student. When the two get within a few yards from one another, the student “freezes,” raises his hands in self-defense, then quickly sidesteps the patient and hurries on. What in the manner of legal or other help or anything at all the patient wanted is of course not disclosed.Google Scholar

27 The hospital's right to be informed of the identity of patients who became legal aid clients was established by contract in Virginia. In several other locations—notably at ABA-Clark project A—this question was a major and continuing source of dispute between the hospital and the project. The lawyers contended that revealing this information would have an inhibiting effect on patients who wanted to become clients and would constitute a breach of lawyer-client confidence. Hospital administrators argued that it was therapeutically and administratively essential for them to know which patients had and were receiving help on legal problems.Google Scholar

28 There were indications that a few of the paralegals were not wholly comfortable with the strident posture and actions originating at the top, but they were urged—in the name of good lawyering—to suppress these qualms.Google Scholar

29 For a while there was talk about libel suits, formal retractions or apologies, and so forth—none of which materialized. Perhaps more telling is that the research experiment went on with the doctor's participation.Google Scholar

30 The patient advocate also conceded that the project played a role in promoting awareness of legal rights among patients and hospital staff. But she undercut this concession by asserting that really her office was already doing all this, showing a patients' rights booklet prepared and distributed by her staff to substantiate the point.Google Scholar

31 O'Gorman, supra note 6.Google Scholar

32 Note, Lawyering for the Child, supra note 6.Google Scholar

33 Brown & Dauer, supra note 6.Google Scholar

34 O'Gorman, supra note 6, at 132–35.Google Scholar

35 Id. at 137.Google Scholar

36 Note, Lawyering for the Child, at supra note 6, 1138–40, 1148.Google Scholar

37 Id. at 1141, 1145–46.Google Scholar

38 Id. at 1156 n.144. The phrase is Justice Brandeis's.Google Scholar

39 349 F. Supp. 1078 (E.D. Wis. 1972).Google Scholar

40 Supra note 6.Google Scholar

41 Brown & Dauer, supra note 6, at 50.Google Scholar

42 Id. at 2.Google Scholar

43 Talcott Parsons, A Sociologist Looks at the Legal Profession, in Essays in Sociological Theory 370, 374–77, 384–85, (rev. ed. New York: Free Press, 1954), quoted in id. at 75.Google Scholar

44 Redmount, Robert S., Attorney Personalities and Some Psychological Aspects of Legal Consultation, 109 U. Pa. L. Rev. 972 (1961), quoted in Brown & Dauer, supra note 6, at 83.Google Scholar

45 Johnstone & Hopson, supra note 6, at 80. An insightful study on the role of lawyers in the consumer protection field identifies economic as well as normative motivations for departing from the classic advocacy model. At one point, the theme of the lawyer's responsibility toward the client is stated in this way:. Elihu Root remarked …“About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” About the only amendment of Root's statement needed to bring it up to date is that it is not necessary for a … lawyer to tell a client anything in order to bring damned fool behavior to an end. The lawyer often has the power to channel the behavior of clients without their awareness of what is being done. Stewart Macaulay, Lawyers and Consumer Protection Laws: An Empirical Study 60 (Madison: University of Wisconsin, 1979).Google Scholar

46 See Darold A. Treffert, The Practical Limits of Patients' Rights, in Bonnie, supra note 6, at 227; Hoffman, P. Browning, Living With Your Rights Off, Bul. Am. Academy Psych. & L., vol. 5, no. 1 (1977), also reprinted in Bonnie, supra note 6, at 231. Treffert is the originator of the phrase “dying with your rights on” to describe the situation where excessive concern with legal rights can become fatal to the mentally ill individual's need for (or “right” to) psychiatric care, and, in the worst cases, to the individual himself. See also Shwed, Harvey J., Protecting the Rights of the Mentally Ill, 64 A.B.A.J. 564 (1978).Google ScholarPubMed

47 See generally O'Gorman, supra note 6, and Note, Lawyering for the Child, supra note 6.Google Scholar

48 See table 1 supra, presenting problems reported by the patients themselves, and also the report of that phase of the study, Brakel, Legal Problems, supra note 6.Google Scholar