Standards for the Provision of Civil Legal Aid

Standard 2.7 on Integrating the Resources of the Legal Profession and Involvement of Members of the Bar

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Standard

A provider should integrate the resources of the legal profession and individual members of the bar into its delivery of services, including in direct representation of clients.

Commentary

General considerations

A legal aid provider should fully recognize the legal profession as a valuable resource in addressing the needs of the low income community it serves. The resources of the legal profession should be integrated to the greatest extent possible into a provider’s efforts to respond to its clients needs and other members of the bar should be involved in the direct representation of clients.

Members of the legal profession play a critical role in the justice system’s response to the legal problems of low income persons. Lawyers who do not work for a legal aid provider supply a significant amount of free and low cost assistance to low income persons through free standing pro bono programs and those that are a component of a legal aid provider. Private practitioners also provide significant pro bono services to low income people who are not referred by legal aid programs.

The adoption of Model Rule of Professional Conduct 6.1 in many jurisdictions has formalized the long-standing commitment of all lawyers to the provision of pro bono services to persons of limited means. Most states that have not adopted the language of revised Model Rule 6.1 operate under the former version or their own rule, which generally state an obligation for lawyers to render pro bono publico legal services It is incumbent on legal aid providers to make effective use of this valuable resource. Providers should seek assistance from members of firms, sole practitioners, government attorneys, corporate counsel and lawyers working for non-profit organizations other than legal aid providers.

Integration of the resources of the legal profession

Each legal aid provider should take full advantage of the resources of the legal profession to support its effort to respond to the needs of the low income communities it serves. There are a variety of ways, in addition to the direct representation of clients, in which the resources of the legal profession can be utilized by a provider to support its efforts.

  • Access to justice projects. Providers may work jointly with the leadership of the organized bar and with prominent members of the legal profession to plan and implement strategies to enhance access to justice for low income persons. Often such efforts are formalized into access to justice commissions that support the overall system for delivering legal aid to low income persons. Such efforts may focus on increasing resources available to the system, increasing public awareness of the legal needs of low income communities and serving as a resource in the design and implementation of the legal aid delivery system.
  • Policy advocacy. Individual practitioners and the organized bar can be important and powerful partners engaging in advocacy on policy matters that affect the provider or the low income communities it serves. Such engagement may include advocating before a legislative or administrative body on behalf of or in partnership with a legal aid provider. It may also involve informal efforts to convey to the public and to policy-makers the importance of issues that affect low income persons and their access to the legal system.
  • Joint projects. The resources of the legal profession can also be tapped in the creation and implementation of joint projects that address the needs of low income persons. The organized bar or prominent members of the profession may join with a provider to galvanize a broad response to a widespread problem that confronts many members of the low income communities served by the provider. Thus, a project might be developed to respond to a natural disaster or to recruit private practitioners to respond to a commonly recurring problem that affects many low income persons. Large law firms will sometimes take on a signature project on which to focus their pro bono efforts.
  • Filling gaps in service. Working with members of the bar often offers an opportunity for a provider to serve clients and respond to issues that may be difficult or impractical to address because of limited funding, restrictions by a funder or other practical impediments. Outside practitioners may, for instance, make it possible to provide services in geographic areas that would otherwise be difficult for a provider to serve. In rural areas, private attorneys may be available to serve remote communities where it is not economically feasible to maintain a staff office. In urban areas, offices of private attorneys may be located in neighborhoods that are convenient to clients.

Collaboration with members of the bar may also provide an opportunity for a legal aid provider to address issues or serve populations that it is unable to serve because of funding restrictions. A provider, for instance, may be prohibited by a funder from representing undocumented persons or from seeking attorneys' fees. It may in concert with members of the bar establish a project for the referral of such cases to help assure that important needs of the low income community are served. It may also co-counsel with other members of the bar who can handle portions of a case that the provider is prohibited by funder restrictions from addressing.

  • Responding to cultural and linguistic diversity. A provider may call upon members of the bar who can help it in its efforts to reach out and serve diverse cultural and linguistic communities in its service area. Where possible, it should work in partnership with lawyers who speak a language of or have an affinity with various cultural groups not only to serve individual clients from those communities but also to reach out and establish credible connections with them.
  • Training and mentoring. Experienced private practitioners can assist providers by participating in training and mentoring of staff advocates and other staff. Such support can be particularly helpful in areas such as trial and appellate advocacy in which staff practitioners may not have experience. Assistance might be offered through training offered generally to staff practitioners, or in assistance to an advocate preparing for trial or an appellate argument. An experienced private practitioner might be enlisted to help prepare an effective cross examination or to critique and moot court an oral argument. Private practitioners might also provide training and mentoring in new areas of the law, such as community economic development, in which a provider might embark in response to changing needs of the low income community.
  • Resource development. A provider may also work with the leadership of the organized bar and prominent members of the bar to increase resources available to serve its clients. Such assistance may include support for campaigns to raise funds from members of the legal profession and others as well as efforts to obtain funding from governmental sources and from private foundations.
  • Funding fellowships. Law firms can support a provider by funding fellowships in whole or in part that place a lawyer in the provider’s offices for one or two years to represent clients or to work on a special project that benefits low income communities.
  • Assistance from non-attorney staff of law firms. Some providers obtain the assistance of paralegals, legal assistants and support staff from law firms with projects, even when no lawyer from the firm is helping. Paralegals, for example, can help prepare deposition digests, create demonstrative exhibits, or conduct initial reviews of document productions in major cases that have been undertaken by the provider.
  • Information technology. Small providers that find it difficult to maintain an internal capacity to support their information technology needs may enter into a collaborative relationship with a local firm to help meet such needs. Such assistance might be offered in the form of technical assistance, network administration and staff training in the effective use of software.
  • Provision of legal information and community legal education. Attorneys who do not work for a provider can also assist with efforts to provide legal information to the low income community, either in community legal education presentations offered to groups or in clinics. They may participate in the drafting or review of legal information that is posted on a website or published in self help materials.

Representation of clients

A provider should seek to expand its resources by involving as many other members of the bar as possible in the direct representation of low income clients. Providers should have a wide variety of ways to engage other members of the profession in order to best use their skills and expertise as well as to take advantage of their different motivations and to meet the needs of each lawyer. Some lawyers want to control the length of their commitment, and can do so by assisting clients with short term problems that can be addressed by advice or brief service. Many lawyers who lack expertise in the legal problems of indigent persons will only volunteer if they are properly supported. Other attorneys will be attracted to complex or high profile issues that will challenge their legal skills and raise their profiles in the community.

There is a range of ways to involve members of the bar in representing clients and a provider should seek to make as many as possible available to participating members of the bar.

  • Limited representation. Many practitioners are more willing to participate as volunteer attorneys if they know what the commitment of their time will be - a calculus that cannot be certain in cases involving the full representation of a client. Various forms of limited representation, therefore, lend themselves to participation by members of the bar who have such a concern. An attorney might, for instance, be asked, under a limited scope agreement, to represent a client with a discrete portion of a legal problem, such as child support, or obtaining a restraining order.

    Providers should also consider involving members of the bar in periodically staffing an advice clinic or a telephone advice line. Members of the bar can also assist in clinics to give advice to pro se litigants and to help them evaluate their case and prepare appropriate pleadings. They can also conduct intake and an initial assessment and offer preliminary advice to persons at locations such as homeless shelters and community and senior centers.
  • Individual representation. A provider should offer the opportunity for members of the bar to provide full representation for clients in individual cases. Many attorneys not working for a provider are familiar with consumer and family law and regularly take referrals in those areas. Lawyers who have previously worked for a legal aid provider are often familiar with other areas of the law that affect low income persons, including landlord-tenant and public benefits.

    Practitioners not employed by legal aid can also be recruited to handle cases in areas of the law with which they are not familiar. Lawyers who are just starting out in their practice are often attracted to taking cases when they are offered proper training and an opportunity to be mentored by a staff or other practitioner with expertise in the area. Experienced lawyers can also be recruited to work in unfamiliar areas that involve compelling issues such as service to the homeless or persons affected by HIV/AIDS.
  • Complex legal work. A provider should offer opportunities to those members of the bar who prefer more complex legal work and are willing to engage in advocacy that involves multiple clients and complex legal issues. Members of the bar should be encouraged to co-counsel with a provider, particularly when a private attorney's firm has special expertise and resources to support complex and costly litigation. In some cases, a volunteer attorney may handle part of a case or represent one of a group of clients that the provider cannot because of restrictions by a funder. Private practitioners can also present the interests of client groups before legislative and administrative bodies.
  • Special projects. Members of the bar not working for legal aid can also be called upon to assist in projects where their special expertise may be helpful. Providers that are undertaking community economic development, for instance, may find that attorneys whose practice consists largely of corporate clients can assist in the representation of groups and non-profit organizations regarding issues such as incorporation and compliance with local, state and federal requirements.
  • Representation by compensated private attorneys. Although all lawyers have a responsibility to render pro bono legal services to low income persons or to support organizations and entities that are designed primarily to address the needs of persons of limited means, there are a number of circumstances in which it is appropriate for a legal aid provider to compensate private attorneys to represent clients. In many remote and sparsely populated rural areas, for instance, there is not a sufficient number of private practitioners to support a pro bono effort and it is impractical to serve the area with staff practitioners. In other circumstances, staff practitioners may not have sufficient expertise in an important area of legal need for clients and no lawyers may be available to serve as volunteers to address the need. Such representation should be compensated at a reduced rate.

    It should be noted that in many communities, private practitioners represent a number low income persons for a full or somewhat reduced fee, but do not participate in the organized efforts of the provider. Such lawyers often have expertise in the same substantive areas as the provider and may be an important resource to the low income community. In its planning, the provider should be aware of the degree to which such private practitioners are responding to the legal needs of the low income community. Where appropriate, the provider should seek to target them in its recruitment efforts to represent its clients or to provide support, such as training and mentoring of staff and other participating attorneys.

Provider responsibilities in involving members of the bar

Conformity with pertinent standards and guidelines. Specific guidelines that relate to the involvement of volunteer attorneys in the representation of legal aid clients have been developed over the years. In 1996, Standards for the Providers of Pro Bono Civil Legal Services to the Poor were adopted by the American Bar Association. Those Standards cover governance, relationship with clients, relationships with volunteers, financial responsibility, ethical and professional issues and effectiveness of the delivery system. Providers that involve pro bono lawyers in the representation of clients should be familiar with the Standards and should strive to adhere to their aspirational goals and guidelines.

Integration with the provider's delivery system. The efforts of members of the bar, whether on a volunteer or a compensated basis, should be integrated into the provider's overall service delivery approach. The resources should be focused on the identified, most compelling needs of the low income community served by the provider. To accomplish that calls for the provider to match the identified legal needs of low income persons it serves with the skills and knowledge offered by its participating practitioners.

Because members of the bar may come from diverse backgrounds and many may not have experience in areas directly pertinent to the legal needs of the program’s clients, the provider needs to be deliberate in the design of its private attorney component. Several factors need to be considered.

  • The interests of the participating attorneys. Most attorneys prefer to be referred cases that involve procedural and substantive issues with which they are familiar. Cases that disrupt the routine of a lawyer's practice by requiring a substantial commitment of time to research the background law governing the matter may discourage some attorneys from accepting more cases. On the other hand, repetitive referrals of routine cases can cause burnout, inadvertently devaluing the lawyer's time and commitment. Some attorneys prefer diversity and the opportunity to be exposed to new and challenging legal issues, if they are offered adequate support. To be most effective, the provider should be sensitive to the particular interests of its panel and should keep records that reflect each lawyer's specific interests.

    In some cases, a lawyer who is volunteering may have expertise in an area pertinent to a legal need in a client community, but not in an area in which the provider focuses. A trusts and estates lawyer, for instance, may be available to serve clients who wish to write a will-a legal need which the provider may have decided not to address. If the provider is able to link the volunteer attorney with a person eligible for its services without significant cost, it may use such volunteers in their area of expertise. It should not, however, incur significant costs in setting up a system to identify and refer clients whose legal need falls outside what has been identified as the most compelling needs of the low income community.
  • The need for quality assurance in the part of the provider. Referral of cases to attorneys who have expertise in the substance of the case can assist the provider to meet its responsibility to assure that cases are assigned to lawyers competent to handle them. Referral of matters that are unfamiliar to an attorney requires a commitment to support, including training and backup to assure that competent work is done for the client.
  • The needs of clients. The provider should also make certain that the cases it refers to its outside attorneys have significance for the clients referred. If volunteer attorneys continually see cases that seem trivial or relatively inconsequential, they may lose interest in assisting further and may draw a faulty conclusion about the nature of legal problems that low income persons face.

A legal aid provider should maintain ongoing, effective communication with the lawyers on its panel and strive to fashion a policy that responds to the interests of the lawyers, while maximizing the service offered to clients. The provider should periodically reassess its utilization of members of the bar and should adjust its approach as appropriate to reflect the changing interests of the attorneys and the changing needs of its clients.

Appropriate institutional support. A legal aid provider should dedicate resources to support the infrastructure necessary to support its efforts to integrate the resources of the legal profession in its work. It should make an adequate commitment of its own resources to be used in conjunction with those available from the bar to recruit, train and provide backup assistance to members of the bar who represent legal aid clients. That calls for support from both the governing body of the organization and from senior management. The provider should make certain that adequate financial resources are provided to support the effective operation of its private attorney component. Staff of the component should be well trained and should have the skills and capability to interact effectively private practitioners and with the leadership of the bar. The provider should assure that it has sufficient staff to recruit members of the bar, to assign cases properly, to follow-up on referrals and to provide appropriate support.

There are a number of activities that are necessary to carry out an effective project to involve members of the bar in representing clients of the provider.

Establishing a clear understanding with the client. It is very important that the provider establish a clear understanding with clients whom it refers to an outside attorney for representation. Clients should know that an outside attorney, and not the provider, will be representing them.

It should be clear whether the provider retains an attorney-client relationship with the referred client. It is a matter of contract among the client, the outside attorney and the provider as to whether the provider is included in the attorney-client relationship, once the referral has been made. The existence - or absence - of an attorney-client relationship between the provider and the client is significant since it directly implicates whether the provider can receive confidential information to provide support for the outside attorney, or to oversee the representation and to intervene if a problem arises between the client and the attorney.

Clients to be represented by a practitioner who is not employed by the provider should be advised how to contact their attorney, and of the importance of following up with the lawyer. Clients should be informed that although they will be represented by an outside attorney, they will not be charged a fee. The provider should also let the client know that the attorney has agreed to represent the individual only with regard to the matter referred and that clients who encounter other legal problems for which they seek uncompensated representation should contact the provider and not the outside attorney to seek new assistance. The client should also be told what to do in the event of a complaint about the representation.

Establishing a clear understanding with the attorney to whom a case has been referred. Whenever a case is referred to a lawyer who is not employed by the provider, there should be an explicit determination of the level of responsibility the provider assumes for the case and of its authority to oversee the representation. A number of factors should be resolved by specific agreement between the legal aid provider and the outside attorney:

  • The extent to which the attorney-client relationship includes the provider within its purview;
  • Who is responsible for costs that may be incurred in the course of the representation;
  • The extent of involvement of the provider's staff in strategic decision making prior to referral and during the course of the representation, particularly if the provider has agreed to pay costs;
  • Who is responsible for determining if the client will be represented in a possible appeal in the case;
  • The level of back-up and support that will be offered and how to access it;
  • The reports that the provider will request during the course of the representation and at its end; and
  • The procedures that will be followed in the event of a complaint by the client regarding the representation.

Supervision of referred cases. The extent to which the provider can directly supervise the conduct of each case is a function of the extent to which it stands within the attorney-client relationship that is created. If the provider stands outside the relationship between the client and the outside practitioner, it cannot ethically obtain confidential information about the case without the client's consent, nor can it interfere with the professional judgment of the lawyer. Its authority to supervise the representation is, therefore, necessarily circumscribed. If on the other hand, the provider and the outside practitioner share in the attorney-client relationship, the provider has both greater responsibility and greater authority to supervise the handling of each case matter.

The degree of responsibility that a provider assumes for a case referred by it and the nature of the quality assurance procedures that it employs, will vary among different types of providers. In some instances, a full range of quality assurance measures, including requiring the submission of progress and close-out reports may be appropriate. In other cases, the staff of the provider may engage in substantial preparation of the case, including legal research, investigation, and preliminary counsel and advice to the client, but may relinquish further direct responsibility for the matter on consummation of the referral. In such circumstances the provider may offer research and other support, as well as discussing strategy with the outside attorney.

A few providers, because of budget and staff limitations may simply forward cases to participating volunteer attorneys in accordance with the policies and procedures agreed upon between the provider and its panel of attorneys, and may explicitly delegate all responsibility for the case to the outside practitioner. When a legal aid provider does not directly supervise the work of participating attorneys it, nevertheless, should offer training, take reasonable steps to assure that referrals are made to lawyers of known competence, and provide backup and support.

In all cases, the provider should ask for a close out report indicating that the case has terminated and whether the client’s objective was achieved. The information should be reviewed by the provider to gauge the effectiveness of its plan for using other members of the bar.

Backup and support. The provider should offer back-up and support to its participating attorneys. The type of support that is possible will vary depending on whether the provider falls within the attorney-client relationship and on practical considerations, such as staff size in relation to the number of participating outside attorneys.

A provider can offer guidance through printed and on-line manuals covering the law and procedure in commonly occurring cases. The provider can assign a staff lawyer to provide advice and support to the outside practitioner, when requested. Some providers have paired less experienced attorneys with more experienced ones for consultation and assistance.

Training. To the extent that outside practitioners are called upon to represent clients in areas such as public benefits, or indigent health care with which they may not be familiar, they should be offered appropriate training. Training can be in substantive areas or regarding issues related to representing low income clients generally, as well as what is necessary to work with a particular low income population. A project, for example, to work with members of the bar to represent homeless persons or persons with HIV/AIDS, should include training in the challenges associated with serving those populations. Many members of the bar will not have had significant experience working with low income clients, although training may have the ancillary effect of encouraging them to represent other low income clients who seek their assistance directly. The provider should also make its cultural competence training available to its participating attorneys.

Recruitment of attorneys. The provider should have an ongoing capacity through its own organization or by agreement with another to recruit new attorneys. To the extent possible, it should work closely with the judiciary and bar leadership to support its efforts to engage volunteer attorneys in assisting clients and to increase the pool of attorneys available to assist the low income community. The provider should also recruit in-house corporate counsel and government attorneys to the extent to which their participation is allowed.

The provider should take appropriate steps to show appreciation for volunteer attorneys who have assisted clients. Appreciation can be shown through bar luncheons, favorable articles in bar publications and the local press and a simple thank you letter.