Standards for the Provision of Civil Legal Aid

Introduction

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These Standards for the Provision of Civil Legal Aid replace the Standards for Providers of Civil Legal Services to the Poor which were adopted by the American Bar Association in 1986. Since 1986, there have been a number of fundamental changes in society, in low income communities, in the legal aid delivery structure and in the practice of law, all of which profoundly affect how legal aid providers function and how they serve low income persons.  The Model Rules of Professional Conduct have undergone significant changes, some directly related to legal aid practice.  There has been an explosion of developments in the use of information technology that have had a revolutionary effect on society and have reshaped the practice of law.  The regular use of limited representation has been expanded in what is sometimes called unbundled or discrete task representation.  Courts have significantly increased their efforts to accommodate the needs of unrepresented litigants.  These changes have profoundly affected legal aid practice, and in turn have led to delivery techniques that were rare or non-existent when the 1986 Standards were adopted.

Legal aid practice has also witnessed a significant diversification within the delivery system, as the number and complexity of legal aid providers have increased and the sources of funding have expanded, particularly at the state level. These changes have been accompanied by an increased awareness of the need for legal aid providers and others interested in civil justice to work together in a state or region to maximize the collective ability to respond fully to the needs of all low income individuals and communities.

At the same time, communities served by legal aid providers have become increasingly diverse.  Many communities have a multiplicity of immigrant populations, many of which have limited facility in English.  The legal needs of low income persons and the strategies to respond have also shifted in response to ongoing societal, economic and policy developments that affect low income communities.

These Standards for the Provision of Civil Legal Aid reaffirm the important values that underlie effective legal aid work and provide fresh guidance to providers in the face of these changes.

Application of the Standards

These Standards focus on both the responsibilities of legal aid providers as organizations which serve the civil legal needs of low income persons and the role of practitioners who represent low income clients under the aegis of such an organization.

Legal aid providers. The Standards are written to provide guidance to all organizations providing legal aid, whatever their method of delivery or source of funds. There is wide diversity in the form and organization of legal aid providers. Some are large organizations with multiple funding sources that offer a wide range of services across a large geographic area and may serve diverse communities through a number of offices utilizing a variety of delivery techniques. Others are relatively small and may focus on a small geographic area, a specific population or a comparatively narrow legal issue. Other legal aid providers, though relatively large may specialize in one form of assistance, working in concert with other providers to assure that a full range of service is provided to the low income community.

Legal aid providers may have different institutional structures as well. Many operate principally, or exclusively, to provide legal assistance to low income persons and their communities. For some others, legal assistance to low income persons may be incidental to their central purpose. Many providers operate with a core of staff attorneys, supplemented by components that involve other members of the bar working on a volunteer or compensated basis. Some programs, which principally use the volunteer efforts of members of the bar to provide legal assistance, are sponsored directly by bar associations, either as an integral part of the association or as a free-standing operation. Law school clinical programs provide legal services through law students working under the supervision of faculty or outside attorneys. Some providers are operated by church groups, ethnic societies or charitable organizations.

The Standards are intended to apply to all such organizations, but recognize that a provider's institutional structure and funding will affect how a particular Standard might apply to it. Some legal aid providers will not be able to meet certain Standards for legal, practical and institutional reasons. A legal aid component of a large social service agency, for example, would likely encounter difficulty complying with all of the Standards related to governance. Other Standards may be impractical and unnecessary for some programs and for individual practitioners who participate in a private attorney component of a provider. Where application of a particular Standard is not reasonable or is impractical for some types of providers, it need not be followed. Where possible, the commentary to the Standards acknowledges such limitations and suggests how the provider might seek to serve the underlying principles embraced by a Standard by alternate means.

Practitioners. To facilitate their utilization by practitioners, the Standards pertaining to practitioners are assembled together in the seventh and last section. The Standards found in the first six sections relate primarily to providers but offer guidance with which a practitioner should be familiar as well.

Many attorneys represent poor clients free of charge, independent of any legal aid organization. Because the Standards are written as a guide for representation provided through a legal aid provider, they are not intended to apply to such individual efforts. Nevertheless, the Standards pertaining to the responsibility of individual practitioners may provide practical guidance to effective lawyering by those attorneys.

Use of the Standards

These Standards are presented as aspirational guidelines for the operation of legal aid providers and the provision of service by their practitioners. They are based on the combined and distilled judgment of individuals with substantial experience in the area. The Standards do not create any mandatory requirements and failure to comply with a Standard should not give rise to a cause of action or a finding of a legal ethics violation, nor should it create any presumption that a legal aid provider or a practitioner has breached any legal duty owed to a client or to a funding source.

The Standards do not expand, add or change any ethical responsibilities with which a legal aid provider or practitioner must comply and all lawyers are bound by the ethical rules that apply in the jurisdiction in which they practice. The Standards do touch upon issues that are governed by the accepted rules of professional conduct, and elucidate their application in the context of providing civil legal aid to low income persons. In those instances the commentary may make appropriate reference to, but does not alter, the controlling ethical requirement. Because the American Bar Association historically has taken the lead in developing and articulating the ethical norms that govern the practice of law, the commentary to the Standards generally refers to the ABA Model Rules of Professional Conduct in analyzing pertinent professional responsibilities. These Standards do not provide references to every ethical rule that may apply in the representation of a low income person.

Each Standard is accompanied by extensive commentary to explain or illustrate the Standard, and to identify issues that might arise in its application. The analysis in the commentary is critical to full understanding of each standard and, therefore, it is the intention of the drafters of the standards that they always be published with the commentary.

Underlying Principles of the Standards

A number of values that underlie effective legal aid practice have guided the development of these Standards. The broad principles that are reflected throughout the Standards are discussed below. Values that are germane to a particular Standard are discussed in the commentary to that Standard.

Responsiveness to the needs of low income communities and of clients who are served. A legal aid provider has an obligation to be responsive to the low income communities that it serves. On the broadest level, the provider needs to be aware of critical legal needs of the low income communities it serves and to deploy resources to respond. In some circumstances, the provider may be the principal or only organized source of assistance for low income persons with a legal problem. In other cases, the provider may be one of many organizations dedicated to addressing such needs. The Standards assert that in all cases, the provider needs to ground its choices about where it focuses its resources and what delivery strategies it employs on its awareness of the low income communities’ critical legal needs.

Achieving results. The Standards also espouse the view that providers should strive both to achieve clients' objectives and to accomplish lasting results that respond to the low income communities' most compelling legal needs. They affirm that the objective of any strategy chosen - whether offering full representation, limited representation or legal information - should be to help the individuals served resolve their legal problems favorably. The Standards also acknowledge that there are often broad issues that affect large numbers of low income persons that can most effectively be addressed through systemic legal work that seeks to create lasting results for the low income community overall.

In representation of individual clients, the Standards note the provider's and practitioner's responsibility to be responsive to the specific needs of the client being represented. The Standards reiterate the ethical requirement that clients must decide the objectives sought by the representation and they emphasize the need for specific efforts at every stage of representation to assure that practitioners consult and communicate with their clients consistent with ethical requirements.

Treating persons served with dignity and respect. The Standards also affirm the responsibility of the provider and its practitioners to treat all persons who seek assistance from the provider with dignity and respect. Proper treatment of persons seeking and receiving assistance requires staff who can interact effectively with low income persons and who can competently relate to culturally diverse communities. It also calls for systems, such as intake, to be accessible and efficient and not inadvertently to demonstrate a lack of regard for applicants’ and clients’ time and sensibilities.

Access to justice. A core mission of a legal aid provider is to facilitate access to the legal systems for resolving civil legal problems and to help low income persons with legal problems obtain fair and lasting results. The Standards recognize that there are a number of ways in which this responsibility might be carried out. First, is in the direct assistance to individuals to advocate on their behalf or to assist them to do so themselves. The second is in the choice of delivery methods that efficiently use resources to facilitate access for large numbers of people in ways that respond effectively to their legal needs. The third is to work with other providers, the courts, the organized bar and other community organizations to increase the overall responsiveness of the system to the need for effective access to justice.

High quality and effective assistance. The legal work undertaken by a legal aid provider should be of high quality and should be effective in responding to the need it is intended to address. The Standards state that, at a minimum, a practitioner should meet the competency norm that is stated in the Model Rules of Professional Conduct and should aspire to a benchmark of high quality. To this end, the Standards address issues of practitioners’ qualifications and training, supervision systems that support quality, specific quality assurance mechanisms and the fundamental elements of effective representation.

Some of the assistance offered by a provider will involve non-representational assistance, such as community legal education and legal information to help individuals avoid legal problems and take steps on their own to address their situation. In all cases, the Standards state that the provider should undertake the activity with commitment to high quality. The Standards also express that strategies should be deliberately chosen and should be evaluated periodically to determine if they are successful in achieving their intended result.

Zealous representation of client interests. All lawyers should pursue their clients' interests with zeal consistent with the law and applicable standards of professional conduct. Zealous pursuit of clients’ interests has particular implications for legal aid providers. When effective resolution of individual clients' problems is circumscribed by existing laws and practices, or when existing laws and practices result in the same or similar problems for many low income persons, a practitioner may be called upon to reach beyond the individual problem to challenge the law, policy or practice.

It is a challenge for a legal aid provider to serve all of the values that are important to effective legal aid practice. These Standards and commentary are intended to provide useful guidance regarding how to accomplish this important task.

Definitions of Significant Terms Used in the Standards

The Standards and accompanying commentary use many terms that have unique or particular meaning in the context of legal aid practice. Such terms that are used frequently in the Standards and commentary are defined below.

"Case" refers to legal representation of a low-income individual or group client with regard to a discrete legal matter. It entails the formation of an attorney-client relationship and includes litigation in court or an administrative tribunal as well as other legal assistance, such as counseling, brief service, negotiation, and transactional representation.

"Legal work" refers to all of the work that involves the use of legal skills and knowledge that a provider performs on behalf of the low income community it serves. It includes legal representation of individuals and groups. It also encompasses non-representational services and forms of assistance, such as community legal education and the provision of legal information, pro se clinics and other forms of self help assistance as well as studies and reports on issues of general importance to the low-income communities served by the provider.

"Low income community" refers to a population of persons with limited economic resources who are located in the area served by the provider, but is not limited to those individuals or groups who actually receive legal assistance from the provider. The term is often used in the plural in the Standards to denote the fact that some low income populations served by the provider are comprised of individuals who share a common characteristic, such as race, ethnicity or culture or have some other common interest, and that a provider may serve many such communities within the overall low income community.

"Outside practitioner" and "outside attorney" refer to a private attorney, government attorney, corporate counsel or other attorney who is not employed by a legal aid provider but who represents a low-income client referred by a legal aid provider on a pro bono or significantly reduced fee basis.

"Pro se" refers to circumstances in which individuals represent themselves in a court or administrative proceeding without representation by a practitioner or who, primarily represent themselves, while receiving limited representation with respect to discrete parts of the proceedings, such as assistance preparing pleadings. The term includes other terminology such as "pro per" and "self represented litigants."

"Practitioner" refers to an attorney, paralegal, law student, lay advocate or tribal advocate who represents a client of a provider and engages in representational activities authorized by federal, state or tribal law. Where an activity requires a particular type of practitioner, such as an attorney, the Standards and commentary use the specific descriptive term rather than the general term "practitioner."

"Legal aid provider" and "provider" refer to any not-for-profit organization or distinct part of a not-for-profit organization that regularly makes civil legal assistance available to low income individuals or groups without charge or at greatly reduced cost. The term is intended to be applied broadly to include organizations even if they may not, for practical or legal reasons, be able to meet every Standard. The term does not include outside practitioners or law firms that accept referrals from a legal aid provider for the representation of low-income clients.

Conclusion

A nation that lays claim to being just has a responsibility to make justice available to all regardless of their resources and their status in society. The men and women who labor to bring civil legal aid to low income persons and help them address their legal needs are instrumental to the effort to make justice universally available. These Standards and accompanying commentary are offered to provide thoughtful and practical guidance on how those efforts might best succeed. The drafters hope that the guidance offered herein will play a small part in helping create a more just society.