Standards for the Provision of Civil Legal Aid

Standard 5.2 on Policy for Acceptance of Applicants for Service

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Standard

A provider should establish a policy to guide its decisions regarding the assistance it will provide to persons accepted for service.

Commentary

General considerations

Nearly every provider confronts legal needs and demands for services that far outstrip its resources. In order to allocate its resources rationally, the provider should establish a policy and procedures for determining whom it will serve. The policy should focus resources on the identified priorities of the provider, consider the maximum amount of legal work the provider can reasonably handle and allocate available resources to assure high quality representation and assistance. For many providers, the decision also involves determining whether it will provide persons accepted for service with full or limited legal assistance or will offer non-representational assistance that does not establish an attorney-client relationship. Such decisions are separate from the determination of an applicant's financial eligibility.

The term typically used to describe such a policy is "case acceptance policy" and for purposes of clarity the term is used in this commentary, although the policy for many providers will encompass assistance that is not strictly a "case," since it does not involve the creation of an attorney-client relationship. Not every provider will offer the full range of options from full representation to non-representational assistance. Some will offer full representation exclusively, while others may be established to offer only limited representation in the form of advice, and then refer cases that call for full representation to other providers. Some providers will not offer any non-representational assistance. Most providers will offer some mix of these various levels of service.

Whatever services a provider offers, its case acceptance policy should guide it in determining whom it agrees to serve, and the level of service offered. Providers that do not provide a full range of service should be aware of sources of assistance from other providers and should actively participate in state and regional delivery systems to support a full range of services.

The provider's case acceptance policy should meet the following objectives:

  • To allocate resources to the legal problems identified as priorities in the provider's planning process;
  • To control demands on the provider's resources and its practitioners' available time so that the assistance that is provided to persons served is of high quality.

Focusing resources on identified needs

The goals and priorities established by a provider will identify a broad outline of issues affecting clients and will determine which categories of legal problems the provider should address. The provider's case acceptance policy should be designed to provide further guidance in implementing the priorities by stating, in general, the type or level of service that the provider will offer, if any, to address different kinds of legal problems. A provider may decide, for instance, generally whether it will consider full representation, limited legal representation or non-representational services for different kinds of problems.

In determining the level of service that will be offered for various types of legal problems, the provider should consider a variety of factors, including the following:

  • The degree of importance accorded the issue in the provider's priorities;
  • The potential benefit to the low income community in general, if the issue is successfully pursued with full representation;
  • The potential consequences to individuals with that type of legal problem if only limited representation or non-representational assistance is offered;
  • The availability of non-representational services from the provider or elsewhere that might help individual applicants resolve that type of problem;
  • The existence of collaborative relationships with other organizations, such a domestic violence shelters, that work with the provider to support individuals with the type of legal problem;
  • The availability of new sources of funds to support the provider in addressing the legal problem.

The policy should also guide the evaluation of the specific legal problems presented by each applicant to determine if the individual will be accepted for service. Considerations that are appropriate for determining how to treat each applicant's legal problem include:

  • The likelihood of success, based on the merits and the facts at hand;
  • The existence of sufficient provider resources to assure high quality representation if the case is accepted for full representation;
  • The availability of other legal resources to assist the provider in handling the case, including the availability of outside attorneys who may be willing to co-counsel or provide other support;
  • The applicant's capacity to benefit from limited legal assistance if full representation is not offered, including personal factors, such as the individual's understanding of the legal system, language facility or the ability to take time off from work;
  • Whether the individual has additional, related legal problems that also need to be addressed in order for the individual to resolve the underlying problem.

In addition, it is important for the provider to have the capacity to observe trends in the legal needs of low income communities and to identify newly emerging legal issues that it may not be addressing currently. Case acceptance policies should be flexible enough so that they can be periodically adjusted to take account of such trends and identified changes in client need.

Maximization of available resources

The provider's case acceptance policy should be designed to minimize the pressures on practitioners to accept legal work they cannot handle. Case acceptance policies serve the legitimate purpose of limiting the cases that the provider accepts in order to permit it to address its priorities and provide high quality legal assistance. Case acceptance policies should be adjusted when necessary to avoid such drastic measures as having to close intake completely. A provider should also reevaluate its case acceptance policies periodically, taking into consideration changes in its priorities, its staffing, its financial resources, its other legal work, the restrictions imposed by its funders, as well as changes in the law, public policies and socio-economic conditions that impact client communities.

A legal aid provider and its practitioners face a constant tension between the desire to help every eligible person who comes to it with a critical legal problem and the realization that resources are inadequate to provide quality help for all who seek it. Case acceptance policies are important tools to help the provider focus resources on the most important issues. They should be developed in the context of other strategies to encourage efficient program operations to maximize the amount of time and resources that are available to support high quality representation. Providers should consider the utilization of technology and non-attorney practitioners to improve the efficiency of their operations. They should consider the use of limited legal assistance and non-representational services that make less intensive use of staff resources. They should seek ways to increase the funds available to support their work. Providers should encourage other members of the legal profession to participate in the representation of clients in order to increase the pool of attorneys and resources available to serve low income client communities.

Agencies that work with the low income communities in the provider's service area, particularly those with which it collaborates on a regular basis, should be kept informed of the services the provider offers and the kinds of cases it will accept. Outreach and education about the provider's case acceptance policy may save needless efforts by applicants in seeking services that are not offered by the provider. The provider should be careful to draft its legal information materials and its community legal education presentations so as to be informative about available services, but not to discourage contacts by potential applicants with new and emerging legal problems that it should consider in its planning efforts.

Procedures in applying the provider's case acceptance policy

Every individual who interviews prospective clients to determine whether or not to accept them should be thoroughly skilled in interviewing techniques and should have the ability to elicit appropriate facts in order for the provider to make an informed decision about whether the applicant should be accepted for representation or should be offered non-representational services. Such individuals should be fully versed in the kinds of services that the provider offers and should have access to information regarding outside resources that are available for referrals for those applicants who are not accepted for service.