Standards for the Provision of Civil Legal Aid

Standard 7.13 on Legislative and Administrative Advocacy by Practitioners

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Standard

When advocating before legislative and administrative bodies, a practitioner should proficiently and zealously present the interests of clients and low income communities.

Commentary

General considerations

Legal aid practitioners who advocate before legislative and administrative bodies have an essential role in promoting the adoption of laws and policies that are favorable to the interests and needs of low income communities and defending against those that are detrimental to those interests. Such policy advocacy should be conducted consistent with the procedures and practices of the legislative or administrative bodies to which it is directed. Legislative and administrative policy advocacy needs to be grounded in a thorough understanding of the issues involved and a thoughtful analysis of how to present the most persuasive case in favor of the advocate’s position.

The responsibilities of providers in relation to legislative and administrative advocacy are discussed at length in the commentary to Standard 3.2 on Legislative and Administrative Advocacy. Legal aid practitioners should be aware of the considerations set forth in that Standard and commentary when engaging in legislative and administrative advocacy.

General factors associated with legislative and administrative policy advocacy

Skills and abilities. Practitioners engaged in legislative or administrative policy advocacy may encounter a wide array of entities at a local, regional, state or national level. Each is likely to have its own procedures and mores regarding how decisions are made and what motivates the decision-makers. Legislative and administrative policy advocacy, therefore, calls for effective interpersonal and analytical skills and the capacity to relate to different personalities and interests. Practitioners often need to relate effectively with organizations and individuals with divergent interests and motivations in order to form coalitions and partnerships.

The key to effective advocacy is often based on the practitioner’s ability to communicate effectively with diverse decision-makers and their staff and to understand their personal and political motivations. With legislative advocacy in particular, a practitioner's effectiveness is significantly enhanced by the advocate’s familiarity and knowledge of the legislative system and the regular actors, including lobbyists and other advocates. Having a regular presence and maintaining personal contacts can be particularly important for the legislative advocate to navigate the process effectively and to negotiate compromises with opposing interests.

The advocacy also needs to be tailored to what can be a complex array of dynamics that affect how the various decision-makers will respond to the advocacy. A successful result seldom turns on a narrow legal analysis and frequently requires an analysis of the political, social, economic and moral implications of the law, rule or policy being considered as well as the immediate and long-term consequences and practical impact of its adoption or rejection. Legislative and administrative policy advocacy also often entail a long-term, persistent presence with the legislative or administrative body and patience to stay engaged with issues that may take years to resolve and in which there may only be partial victories and many losses.

Accountability. Policy advocacy before legislative and administrative bodies sometimes involves direct representation of a client or group of clients. Other times, it involves advocacy in which there is not a specific client or in which there is only a general retainer for representation before the legislative or administrative body. Considerations associated with assuring accountability to a client or to the low income communities affected by legislative and administrative advocacy are discussed in the commentary to Standard 3.2 on Legislative and Administrative Advocacy and should be consulted by the practitioner.

Where a practitioner directly represents a client or a group of clients before a legislative or administrative body on a relatively narrow and specific issue, there is an attorney-client relationship and usually the practitioner's accountability to the client is addressed by meeting the standard ethical duty to consult with the client. At times decisions have to be made quickly and unexpectedly, so that there is not time to consult with the client. The practitioner should be aware of the broad objectives and priorities of the clients and should keep them informed of emerging developments.

At times, the practitioner may not have a client when advocating before a legislative or administrative body. The practitioner should rely on the indirect means established by the provider to seek guidance on priorities for legislative and administrative advocacy and to keep members of the low income communities served by the provider informed of public policy developments.

Monitoring legislation and administrative policy and regulations. Legislative and administrative policy advocacy frequently requires ongoing monitoring to follow the development and introduction of proposed laws, rules or policies and their progress through the legislative or rulemaking process. A practitioner should be alert to the formal and informal means for keeping track of such developments. The practitioner should help to keep members of the low income communities served by the provider informed of proposed laws and policies that may affect them.

Follow-up on the adoption of legislation, rules and policies. Effective advocacy regarding a matter that is the subject of policy-making through legislation and administrative rule-making often does not stop with the adoption of the law or policy. How the policy is implemented through formal and informal rules, internal agency policies, manuals and instructions to agency workers, for instance, will significantly determine the actual impact of the policy on communities served by a provider. The benefit of a policy or law that is perceived to be favorable can be lost if it is poorly implemented. Similarly, the effects of a bad law or policy may be ameliorated by effective advocacy regarding implementing regulations and procedures.

Legal aid practitioners should also take appropriate steps to inform affected communities of newly enacted regulations, rules and legislation. They should also work with other advocates to seek judicial interpretation and clarification of ambiguities in newly adopted laws and policies in ways that are beneficial to low income persons.

Ethical considerations. Practitioners should also be aware of and comply with the ethical requirements in their jurisdiction regarding representation of clients before legislative or administrative bodies. If an appearance is in on behalf of a client, the fact of the representation should be disclosed and the lawyer is bound to conform to certain aspects of ethical rules pertaining to candor toward the tribunal, fairness to the opposing party and counsel, and impartiality and decorum of the tribunal, even if such requirements would not apply to a non-lawyer who is engaged in the same activity.

Other legal requirements. Practitioners should also be familiar with the requirements of the Internal Revenue Code and accompanying regulations related to lobbying by tax exempt organizations, and should understand the range and level of activities that are permissible. In addition, they should be aware of and comply with the requirements in the jurisdiction in which they operate regarding the registration by advocates before administrative and legislative bodies.

Considerations regarding policy advocacy before administrative bodies

Practice appropriate to the procedures of the administrative agency. Procedures and practices vary widely among administrative agencies. Some matters may be governed by longstanding rules of procedure and be relatively formal. Others may be subject to ad hoc rules adopted for the particular matter being considered. Some rule-making procedures may offer an opportunity for direct testimony and oral argument, while others will primarily call for written submissions. The practitioner should know the pertinent procedures in the proceeding and consider how to present the most compelling position, consistent with those procedures.

Administrative representation should be tailored to the legal sophistication of the administrative agency and the complexity of the matter being considered. Some matters, such as public utility hearings regarding rate structures, are complex and involve a well‑established body of law and financial analysis. A practitioner should enter such proceedings with a full understanding of the conceptual framework in which the matter is being considered and with a strategy that is responsive to the agency's principal concerns. The practices of other administrative agencies may be informal and the matter being considered may be uncomplicated. Advocacy should be appropriate to the level of complexity of the matter.

Effective relations with staff. To the degree possible, a practitioner should be aware of the agency’s informal procedures and should develop cordial relations with key agency staff. Many administrative agencies rely on staff for recommendations and the chances for a favorable disposition will be significantly enhanced by a recommendation that favors the position espoused by the legal aid practitioner.

Some administrative agencies create task forces and study committees to consider issues and make recommendations. Some policies are adopted in a negotiated rule-making process that seeks in a non-adversarial forum to analyze acceptable approaches to complex matters. The practitioner should seek to participate on such bodies or facilitate the participation of others who will forward the positions responsive to the interests of low income communities.

Considerations related to legislative advocacy

Practice appropriate to the procedures of the legislative body. Each legislative body will have its own set of procedures and customs for considering and acting on legislation. Key decisions are often made outside the formal legislative process. Some state legislatures meet for only a few months and much of the analysis that affects the legislation ultimately considered is undertaken in study commissions and other interim processes. An effective legislative practitioner needs to understand and operate effectively in all the formal and the informal processes that are part of legislative decision-making in the pertinent jurisdiction.

A legislative practitioner should seek over time to develop credible relationships with legislators and their staff. Practitioners should be cooperative and immediately responsive to requests for information and assistance. Legislative and committee staff are often key to what happens with the substance of legislation, and practitioners should be aware of who those key staff are and should maintain positive relations with them. The appropriations committee is often key to the legislative process. In addition, the practitioner should be familiar with the role of fiscal or budget agencies that advise legislators and can significantly affect how legislation is developed and implemented.

A legislative practitioner can be particularly effective in analyzing the long‑term impact of legislation. Many legislators do not have the time to assess the wide ramifications of legislation being considered. An incisive analysis of proposed legislation on behalf of clients may demonstrate an effect beyond or contrary to the intent of the legislature and can have significant impact on the outcome of the legislative process.

Legislatures respond to a variety of constituencies, some of which are far more influential than others. A legislative practitioner should be aware of other interests that may be affected by legislation being considered and should, when appropriate, align the advocacy efforts with those of groups, institutions, and individuals who share their objectives.