Standards for the Provision of Civil Legal Aid

Standard 5.5 on Policy Regarding Costs of Representation

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Standard

A provider should establish a clear policy and procedure regarding budgeting and payment for appropriate costs and expenses in the representation of clients.

Commentary

A legal aid practitioner should be able to use all of the tools necessary for effective representation of client interests, including those, like discovery, investigation and use of expert witnesses that may be costly. The provider should also budget for interpreter and translator services when necessary to successfully represent a client. Because low income clients can rarely pay such costs themselves, the provider should assure that, where necessary and appropriate, sufficient funds are budgeted and available for these purposes.

The funds available should be sufficient to permit the provider, in appropriate instances, to make significant but necessary litigation expenditures in major cases. The provider should budget sufficient money to permit the routine use of some form of discovery in all cases where it is appropriate. Practitioners should have some assurance that once a case is accepted by the provider, adequate funds will be available to pursue the case appropriately.

At the same time, the provider should ensure that extraordinary and unanticipated expenditures for representation do not undermine its fiscal integrity. Management should continually monitor total expenditures of funds for costs of representation so that timely steps can be taken to adjust the budget, seek new resources, restrict commitments to new cases, or otherwise protect the provider from fiscal problems caused by excessive expenditures for representation costs.

The provider should establish a clear policy and criteria for spending provider funds for significant representation costs. Among the appropriate criteria for such a policy are:

  • The likelihood of success in the matter;
  • The need to incur costs in order to pursue the matter successfully;
  • The relationship between the cost and the potential benefit to the client;
  • The availability of less costly alternatives;
  • The availability of processes to waive costs for low income litigants;
  • The availability of pro bono assistance for costs;
  • The potential for recovering the costs;
  • The potential for benefiting other members of the low income community as well as the client.

The criteria should be applied consistently in committing funds to major cases and in developing case strategy in routine cases. In routine cases, practitioners, in consultation with provider management, should have the discretion to incur necessary costs in accordance with the established criteria. In major cases requiring significant expenditures, the provider should determine before the case is accepted that it has available sufficient resources to effectively pursue the case. Outside attorneys should be informed of the provider's policy regarding reimbursement of representation costs.

In situations where the provider can anticipate at the outset that it will not have sufficient funds to fully litigate a case, the provider should consider taking one or more of the following actions:

  • Seek outside sources of funds to cover the required costs, including bar associations and private donors;
  • Associate outside co-counsel who agrees to pay for necessary costs;
  • Refer the case to another provider or an outside practitioner with the resources to pursue the case fully;
  • Limit the representation to a less costly alternative;
  • Reject the case entirely.

The provider should have a clear procedure for early identification of cases that may require significant expenditures. Practitioners should estimate the costs of litigation at the earliest opportunity, as an integral part of case strategy, and should select the strategy that will best achieve the client's goals at the least expense. For example, interrogatories and requests for admissions may be adequate for some discovery purposes, at a fraction of the cost of depositions. Similarly, the practitioner may be able to find expert witnesses who will testify at no cost or at a reduced fee, and court reporters who may offer their services on a pro bono or reduced fee basis.

Complete records of all costs should be maintained, and practitioners should routinely seek and enforce orders awarding them costs. When the provider is successful in litigating the client’s case, it should make every effort to recover these costs from the opposing party in the case.