Standards for the Provision of Civil Legal Aid

Standard 3.4-2 on Representation Limited to Brief Service

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Standards

A legal aid provider may choose to provide brief service on clients' behalf if, in its judgment, clients will benefit from the representation that is provided.

Commentary

General considerations

Based on its understanding of the needs of the low income population it serves, a legal aid provider may decide that it will only offer brief service in certain types of legal matters. This Standard applies to circumstances where a provider makes such a policy decision. Limiting representation to brief service is appropriate in matters where the limited intervention is likely to be successful and where the risk of loss to the client is relatively small if the representation is not successful.

The Standard is not meant to apply to decisions made in the course of representation that limited intervention is all that is called for in that particular matter. A practitioner, for instance, may determine in the course of a case that the likelihood of the client prevailing on the merits is small, even if full representation, including representation in litigation, were pursued. Or a client might decide against a long-term strategy that includes litigation or other potentially protracted approaches and might seek more limited assistance. Such individual case decisions are based either on the lawyer's responsibility not to pursue an unmeritorious claim or the client’s right to determine the objectives for the representation.

The benefits of representation that is limited to brief service

The practice of law is evolving rapidly. There is a growing recognition that legal representation that is directed only to certain aspects of a legal matter can help clients resolve their legal problems and take advantage of legal rights to which they are entitled. Limited representation that involves brief interventions on the clients' behalf can result in significant costs savings by focusing attorneys' time on those aspects of a case where their expertise or advocacy skills can make the crucial difference, leaving the client to undertake the rest. The costs savings can be crucial for a paying client to be able to afford the assistance of a lawyer. For legal aid providers, they can stretch limited resources by identifying areas in which limited intervention, short of full representation, on clients' behalf may be sufficient to help clients to obtain favorable outcomes with their legal problems.

Brief service has the advantage of allowing practitioners to vary the level of intervention based on a judgment regarding the capacity of each client to take the necessary steps. Thus, for one client, it may be adequate for the provider to help draft a letter for the client's signature, leaving it to the client to send the letter and make a follow-up call. For another client, on the other hand, in a practitioner's judgment, it may be necessary to write and sign a letter on the client's behalf and to follow up with a phone call.

The provider should make certain that practitioners making such judgments are properly trained to make them. That involves both knowledge of the law and the ability to assess each client's capability.

There are several factors that determine the level of intervention that is appropriate. First is the capacity of the client to take appropriate steps without the assistance of the provider. Each practitioner needs to be sensitive to the client's level of education, language capability and emotional strength. The practitioner should be aware of any cultural and linguistic barriers to a client taking self help steps.

The second factor is complexity of the law and procedures that relate to the legal problem. Limited intervention on behalf of a client is only useful if it furthers the client's objective in seeking the legal help. If the success of the ultimate intervention is dependent on the client taking steps that are unlikely to occur because of the complexity of the law or the procedure that would need to be followed by the client, then the brief service offered is not an appropriate level of assistance.

A third related factor that should be considered is the risk to the client if the individual is not successful with the steps that are left to be accomplished. Some legal problems carry graver risk of loss to clients than others and those that present the gravest level of risk may require full representation. For the provider to meet their responsibility to clients, it should provide full representation in such circumstances, or if it cannot, it should refer the client to another organization that will.

Types of brief service

This Standard covers a number of forms of limited representation that go beyond merely providing advice, but which fall short of full representation. The actual representation offered may involve a combination of the following activities.

  • Offering guidance and information regarding the preparation, filing and serving of documents. A common form of brief service is to assist the client in understanding and filling out various documents, such as applications, that need to be prepared and filed. Such assistance might, for instance, be provided to clients who will appear on their own in an administrative proceeding. Guidance might range from explaining procedural steps to helping the client include the appropriate information.
  • Helping clients prepare documents and letters to send in their own name. The provider may assist the client to prepare a letter or document to assure that it effectively conveys what is appropriate to further the client’s interest. It is particularly appropriate not to have the letter signed by the practitioner who helped prepare it when the provider wants to assure that responses are directed to the client.
  • Preparing and sending documents and letters signed by the attorney on behalf of the client. In some circumstances, the intervention of a lawyer is sufficient to obtain an objective sought by a client because of the respect and, occasionally, fear accorded them. For that reason, a practitioner might agree to prepare correspondence on behalf of the client in order to add to the apparent gravity of the missive. It is important that the practitioner recognize the professional responsibilities that attach to formally speaking on behalf of the client. These are discussed below.
  • Legal research and analysis. A practitioner may agree to research a legal issue and provide the benefit of the attendant legal analysis to a client who wants to understand the options that are available with a legal matter. A practitioner might also prepare a legal memorandum to a client regarding the legality of a course of action the client contemplates taking. Such assistance might be particularly germane to an organization that is being represented in the context of a long-term strategy of economic development.
  • Intervening informally to obtain a favorable agreement, a benefit or other services for a client. A common form of intervention by an attorney is to communicate on behalf of a client to seek an agreement to settle a dispute or to obtain a benefit for the client. This can be helpful, for instance, where the other party is represented by an attorney and the client feels intimidated about dealing with the adversary’s lawyer. Similarly, many legal aid clients seek assistance obtaining or maintaining some form of a government benefit that has been denied or is threatened with termination. At times, because of their familiarity with such programs and the personnel who administer them, an informal communication, such as a phone call on behalf of the client will facilitate the client getting or keeping the needed assistance.
  • Factual investigation for the client (such as interviewing witnesses and conducting searches) to assist them to take appropriate steps to address their situation. There may be times when a client is capable of self help but needs assistance gathering appropriate facts to support the claim. A client may have difficulty, for instance, obtaining the name and address of a registered property owner that is necessary to pursue a claim.
  • "Coaching" - being available at the initiation of the client to answer questions and provide guidance regarding how to proceed at various steps in a case. Coaching involves the practitioner operating behind the scenes to answer questions and offer strategic advice to the client upon the client's request. While coaching often takes place in the context of limited representation to pro se litigants in court, there may be circumstances not involving litigation in which coaching is offered. A provider may, for example, determine that it is appropriate for its practitioners to coach a community group in making a presentation before a zoning commission, rather than providing full representation before such a body. Or it may have its practitioners available to coach clients about how best to represent themselves in administrative proceedings, such as a welfare or unemployment compensation hearing.

Responsibilities of the provider and practitioners offering brief service

The provider and practitioner need to clearly convey to their clients the level of assistance that is being offered. As with all limited representation, it is essential that the client is aware of the limitations and consents to it. It is particularly important that the client be made aware of the steps that may be necessary to resolution of the issue and that will not be undertaken by the practitioner. It is also important that the client and provider agree on whether it is the client or the practitioner who is to communicate with and receive communications from the other party as well as others interested in the case.

The provider and practitioner also should be aware of what is communicated to other parties, including potential adversaries, courts, administrative tribunals and others involved with the issue. A question is whether there is a duty to disclose to other parties the fact of the limited representation of the client. Writing a letter on the client’s behalf, for example, may imply that the lawyer will represent the client in any litigation that ensues, even though that may not be true.

There are ethical concerns that arise with regard to representation that involves only brief service on a client's behalf. Model Rule of Professional Conduct 4.1, which requires candor to third parties, raises the question of what level of disclosure is necessary regarding limited representation on behalf of a client. Absent an ethical ruling to the contrary in the jurisdiction of the provider, a practitioner can appropriately not disclose the limited nature of the representation if it would jeopardize the client's interests. On the other hand, it would appear to violate the requirement of truthfulness in statements to others to actively misstate the nature of the lawyer's assistance. Thus, in a letter implying further action if necessary, a practitioner could be silent on the fact that representation of that client has been limited to drafting the letter. On the other hand, it would be wrong to affirmatively state that the provider and practitioner will represent the client, if such is not the case.

Two other issues should be considered with regard to communication to other parties where the provider is offering only brief service. The first has to do with the veracity of facts that the practitioner asserts on the client's behalf based on the assertions of the client. In full representation, there is generally an opportunity for the practitioner to investigate the facts so that there is some confidence that assertions in letters and pleadings are accurate. Letters written in the course of representation involving limited intervention may be based on a single conversation with the client without any opportunity for independent verification. The Comment to Model Rule 4.1 regarding Truthfulness in Statements to Others notes that: "A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false."

The ethical rule is violated if the practitioner knowingly incorporates a false statement of another. A practitioner, however, does not have a duty to confirm the veracity of a client's assertion in drafting a letter as part of a limited intervention on the client's behalf. Such a requirement would render brief service of this type impractical to offer. On the other hand, if a client asserts a set of facts that on their face are not credible, the practitioner should avoid reasserting such facts as if they are true, lest knowledge of their falsity be imputed because of their inherent incredibility.

A second issue arises where the provider is coaching or otherwise advising the client regarding communication with another party. If the other party is represented by counsel, the practitioner could not ethically communicate directly with the adverse party. The question arises whether a lawyer who is representing a pro se litigant under an agreement to provide limited representation can ethically "script" a communication with the other party if the party is represented by counsel. A practitioner is not prohibited from advising a client concerning a communication that the client is legally entitled to make, but the practitioner should not "script" the client to make a communication that the practitioner would be prohibited from making.

Legal aid providers should be aware of applicable ethics requirements in their own jurisdiction regarding these matters. Absent another ruling, it appears that any advice to the client about communication with the other party should be limited and should not be initiated by the lawyer.