These revised standards attempt to recognize the changes experienced by legal aid organizations, client communities, and society at large since the last revision in 2006. Technology has advanced, professional rules have changed, and the country has experienced a reckoning with racism. The Standards have been updated herein to reflect these changes. Legal aid organizations have become more complex in order to respond to the changing environments in which they operate. For this reason, a Standard for Leadership and Management has been added. Wherever possible, the Standards reference external guidance, such as those that govern the practice of law, best practices for board governance, and rules that govern accounting practices. Legal aid organizations do not operate in a vacuum and must often rely on external guidance. The Standards highlight where expectations of legal aid organizations should be different from those governing other types of lawyers or nonprofit organizations because of legal aid organizations' unique missions and relationships with their clients.
These Standards apply to legal aid organizations, as defined below. They also include appendices that provide guidance to legal aid practitioners. The Standards relate primarily to legal aid organizations, but they offer guidance with which a practitioner should be familiar as well.
Nevertheless, the Standards and appendices pertaining to the responsibility of individual practitioners may provide practical guidance to effective lawyering by those attorneys.
These Standards for the Provision of Civil Legal Aid reaffirm the important values that underlie effective legal aid work and provide fresh guidance to organizations in the face of these changes.
Application of the Standards
These Standards focus on both the responsibilities of legal aid organizations as those that serve the civil legal needs of clients, who are most often low-income, and the role of practitioners who represent such clients under the aegis of such an organization.
Legal Aid Organizations
The Standards are written to provide guidance to all organizations that:
- Provide legal representation or other legal assistance to clients; and
- Offer that representation for free or at a reduced cost.
They do this because the clients have insufficient income to obtain legal counsel otherwise, face other barriers to accessing legal counsel, or have some other special need.
These organizations are referred to in the Standards as "legal aid organizations."
Legal aid organizations are generally not-for-profit organizations or a distinct part of a not-for-profit organization that regularly makes civil legal assistance available to low-income individuals or groups or other underrepresented groups, without charge or at greatly reduced cost. The term is intended to be applied broadly and is meant to include organizations even if they may not, for practical or legal reasons, be able to meet every Standard, as noted below.
These Standards also apply to legal aid organizations providing representation to individuals pursuant to a constitutional or legislative right to counsel, whether those organizations are directly appointed by the court or contracted by a government agency. Every state in the country has a right to counsel in one or more civil legal areas, and some cities do as well. In 2021, as these Standards are updated, the movement for a civil right to counsel, particularly in the context of evictions, is surging. As more jurisdictions enact a right to counsel in various civil legal areas, legal aid organizations must be supported, fully funded, and ready to carry out that obligation in compliance with these Standards. A right to counsel is a step toward justice in civil proceedings where basic human needs are at stake. Still, organizations carrying out that right have to be consistent in their provision of services and, therefore, comply with these Standards.
The term "legal aid organizations," as used here, does not include outside practitioners, as defined below; law firms that accept referrals from a legal aid organization for the representation of low-income clients; issue-focused organizations; or organizations that provide legal assistance on a contingent fee basis. While not written for these outside practitioners and other entities, however, they may find these Standards useful.
Legal aid organizations share a history of growth from the legal aid movement of the late 19th and early 20th centuries, often comprised of volunteer attorneys serving the needs of immigrant communities. These organizations then grew in size and number with the introduction of federal funding through the U.S. Office of Economic Opportunity and the Legal Services Corporation, as well as state-based funding through Interest on Lawyers Trust Accounts, filing fees, and state appropriations. There is wide diversity in the form and organization of legal aid entities. They utilize a variety of delivery methods and sources of funds. They may provide a range of services or focus on specific substantive areas. They may be contracted by the state or local government as a designated organization for purposes of a right to counsel or be appointed directly by the court in certain civil proceedings.
Today, what legal aid organizations have in common, in addition to this history, is that they provide free or low-cost civil legal assistance to people who face barriers, economic or otherwise, to obtaining legal assistance. They take on the representation of cases that, in many cases, would not find a home in the legal marketplace because the clients do not have sufficient funds to pay, and the cases are not viewed as economically viable for the private market. They pursue both access to justice and justice for clients who, without them, would likely have neither.
Legal aid organizations may have different institutional structures. Many operate principally, or exclusively, to provide legal assistance to low-income persons and their communities. For some others, legal assistance to low-income persons may be incidental to their central purpose. Many organizations operate with a core of staff attorneys, supplemented by components that involve other members of the bar working on a volunteer or compensated basis. Some organizations, which principally use the volunteer efforts of members of the bar to provide legal assistance, are sponsored directly by bar associations, either as an integral part of the association or as a free-standing operation. Law school clinical programs provide legal aid through law students working under the supervision of faculty or outside attorneys. Some organizations are operated by faith groups, ethnic societies, or charitable organizations.
The Standards are intended to guide all such organizations, but also recognize that an organization's institutional structure and funding will affect how a particular Standard might apply to it. Some legal aid organizations will not be able to meet certain Standards for legal, practical, or institutional reasons. A legal aid component of a large social service agency, for example, would likely encounter difficulty complying with all of the Standards related to governance.
Other Standards may be impractical and unnecessary for some organizations and for individual practitioners who participate in a private-attorney component of an organization. Where application of a particular Standard is not reasonable or is impractical for some types of organizations, it need not be followed. Wherever possible, the commentary to the Standards acknowledges such limitations and suggests how the organization might seek to serve the underlying principles embraced by a Standard by alternate means.
Use of the Standards
These Standards are presented as aspirational guidelines for the operation of legal aid organizations and the provision of service by their practitioners. They are based on the combined and distilled judgment of individuals with substantial experience in the area. The Standards do not create mandatory requirements, and failure to comply with a Standard should not give rise to a cause of action or finding of a legal ethics violation by a lawyer in and of itself. Legal aid organizations are encouraged to check their consumer regulations to understand how failure to comply with any Standard will be interpreted under local consumer protection statutes and rules. As the Standards are aspirational, not meeting them does not create any presumption that a legal aid organization or a practitioner has breached any legal duty owed to a client or funding source.
The Standards do not expand, add, or change any ethical responsibilities with which a practitioner must comply, and all lawyers are bound first and foremost by the rules of professional conduct that apply in the jurisdiction in which they practice. The Standards do touch upon issues that are addressed in the Model Rules of Professional Conduct and elucidate their application in the context of providing civil legal aid. In those instances, the commentary may make appropriate reference to, but does not alter, the controlling ethical requirement. Because the ABA has historically taken the lead in developing and articulating the ethical norms that govern the practice of law, the commentary to the Standards generally refers to the ABA Model Rules of Professional Conduct in analyzing pertinent ethical responsibilities. These Standards do not provide references to every ethical rule that may apply in the representation of a legal aid client.
Each Standard is accompanied by extensive commentary to explain or illustrate the Standard, and to identify issues that might arise in its application. The analysis in the commentary is critical to full understanding of each Standard and, therefore, it is the intention of the drafters of the Standards that they always be published with the commentary.
Underlying Principles of the Standards
A number of values that underlie effective legal aid practice have guided the development of these Standards. The broad principles that are reflected throughout the Standards are discussed below. Values that are germane to a particular Standard are discussed in the commentary to that Standard.
Institutional stature and credibility.
Compliance with these Standards will result in a strong legal aid organization with institutional stature and credibility in the communities in which it operates. In turn, effective representation of clients is enhanced if the organization establishes a positive institutional presence in the communities in which it operates. In order to achieve institutional stature and credibility, the organization should operate in ways that command respect both in client communities and among public leaders and others who make decisions that may affect client communities. Such esteem will in part be gained by the organization producing high-quality legal work that is responsive to the needs of its constituents, as described in these Standards. It also derives from the organization being a visible presence in the communities in which it operates. Institutional stature and credibility also promote high morale and discourages turnover as staff and others providing service to clients find increased satisfaction in being part of an institution that commands the respect of clients and the community at large. Finally, establishing institutional stature and credibility is an important ingredient of successful fundraising.
Responsiveness to the needs of client communities and of clients who are served.
A legal aid organization has an obligation to be responsive to the communities it serves. On the broadest level, the organization needs to be aware of critical legal needs of the communities it serves and to deploy resources to respond. In some circumstances, the organization may be the principal or only organized source of assistance for low-income persons with a legal problem. In other cases, the organization may be one of many organizations dedicated to addressing such needs. The Standards assert that in all cases, the organization needs to ground its choices about where it focuses its resources and what delivery strategies it employs on its awareness of the client communities’ critical legal needs.
Allocation of resources.
The Standards are drafted with an understanding that at the current time, legal aid organizations do not have enough resources to meet the legal needs of communities they serve. This lack of guaranteed sufficient funding has galvanized the right to counsel movement, because where there is a right, the government has an obligation to fund it. In addition, legal aid organizations have a responsibility both to clients they represent and client communities at large. This means legal aid organizations must wisely allocate resources, both with regard to what matters they agree to take on, and to how they manage the matters they commit to handle. In the fee-paying market, the amount of time and resources a lawyer puts into a case is often limited by the clients’ choices of how much money to spend. Legal aid organizations do not have this same control mechanism because client fees are not the primary source of funding for the work. Therefore, legal aid organizations must, in consultation with and with the informed consent of their clients, make resource allocation decisions that influence each client matter. How much time and costs should be expended on any particular matter should be determined by considering the potential outcome that can be expected for the client and/or client community. It is reasonable, and in fact required, that legal aid organizations put limits on the resources they will commit to any individual matter. These allocation decisions must be made in consultation with and with the informed consent of each individual client and must ensure quality of services provided.
The Standards also espouse the view that organizations should strive both to achieve clients' objectives and to accomplish lasting results that respond to the client communities' most compelling legal needs. They affirm that the objective of any strategy chosen - whether offering full representation, limited scope representation, or legal information - should be to help the individuals served resolve their legal problems favorably. The Standards also acknowledge there are often broad issues that affect large numbers of client community members that can most effectively be addressed through systemic legal work that seeks to create lasting results for the client community overall.
In representation of individual clients, the Standards note the organization's and practitioner's responsibilities to be responsive to the specific needs of the client being represented. The Standards reiterate the ethical requirement that clients must decide the objectives sought by the representation and they emphasize the need for specific efforts at every stage of representation to assure practitioners consult and communicate with their clients consistent with ethical requirements.
Treating persons served with dignity and respect.
The Standards also affirm the responsibility of the organization and its practitioners to treat all persons who seek assistance from the organization with dignity and respect. The organization and its practitioners must respect the dignity and worth of all people, and the rights of individuals to self-determination. Proper treatment of persons seeking and receiving assistance requires staff who can interact effectively with those seeking legal assistance and who can competently relate in a manner reflecting the values of racial equity, cross-cultural sensitivity, and cultural humility. It also calls for systems, such as intake, to be accessible and efficient and to not inadvertently demonstrate a lack of regard for applicants' and clients' time or unique circumstances or barriers.
Accessing justice and achieving justice.
A core mission of a legal aid organization is to facilitate access to the legal systems for resolving civil legal problems and to help clients with legal problems obtain fair and lasting results. Opening the doors to the courthouse does not in itself achieve justice. Accessing the systems that resolve problems is not enough. Those systems must also operate in ways that meaningfully deliver justice and those entering through the doors must have the support they need to realize justice. The Standards recognize that there are a number of ways in which this responsibility might be carried out. First is in the direct assistance to individuals to advocate on their behalf or to assist them in doing so themselves. The second is in the choice of delivery methods that efficiently use resources to facilitate access for large numbers of people in ways that respond effectively to their legal needs. The third is to work with other organizations, the courts, the organized bar, and other community organizations to increase the overall responsiveness of the system to the need for effective access to justice.
High-quality and effective assistance.
The legal work undertaken by a legal aid organization should be of high quality and effective in responding to the need it is intended to address. The Standards state that, at a minimum, a practitioner should meet the competency norm that is stated in the Model Rules of Professional Conduct and should aspire to a benchmark of high quality. To this end, the Standards address issues of practitioners’ qualifications and training, supervision systems that support quality, specific quality assurance mechanisms, and the fundamental elements of effective representation.
Some of the assistance offered by an organization will involve nonrepresentational assistance, such as community legal education and legal information to help individuals avoid legal problems and take steps on their own to address their situations. In all cases, the Standards state that the organization should undertake the activity with commitment to high quality. The Standards also express that strategies should be deliberately chosen and evaluated periodically to determine if they are successful in achieving their intended result.
Diligent representation of client interests.
All lawyers should pursue their clients' interests, as defined by the client, with diligence consistent with the law and applicable rules of professional conduct. Diligent pursuit of clients' objectives has particular implications for legal aid organizations. When effective resolution of an individual client's problems is circumscribed by existing laws and practices, or when existing laws and practices result in the same or similar problems for similarly situated persons, a practitioner may be called upon to reach beyond the individual problem to challenge the law, policy, or practice.
It is a challenge for a legal aid organization to serve all of the values that are important to effective legal aid practice. These Standards and commentary are intended to provide useful guidance regarding how to accomplish this important task.
Definitions of Significant Terms Used in the Standards
The Standards and accompanying commentary use many terms that have unique or particular meaning in the context of legal aid practice. Such terms that are used frequently in the Standards and commentary are defined below.
"Case" refers to legal representation of a client with regard to a discrete legal matter. It entails the formation of an attorney-client relationship and includes litigation in court or an administrative tribunal as well as other legal assistance, such as counseling, brief service, negotiation, and transactional representation.
"Legal work" refers to all of the work that involves the use of legal skills and knowledge that an organization performs on behalf of the low-income community it serves. It includes legal representation of individuals and groups. It also encompasses non-representational services and forms of assistance, such as community legal education and the provision of legal information, pro se clinics and other forms of self-help assistance, as well as studies and reports on issues of general importance to the low-income communities served by the organization. Finally, it includes advocacy in legislative, administrative, and civic settings, done on behalf of clients and/or their communities.
"Client community" refers to a population of persons with limited economic or other resources who are located in the area served by the organization but is not limited to those individuals or groups who actually receive legal assistance from the organization. It also includes individuals who are part of a larger group that shares a significant barrier to access to justice, such as people with disabilities or those with language barriers. This term is often used in the plural form in the Standards to denote the fact that some populations served by the organization are comprised of individuals who share a common characteristic, such as race, ethnicity, or culture, or have some other common interest, and that an organization may serve many such communities.
"LGBTQ+" is an acronym for "lesbian, gay, bisexual, transgender, and
"Outside practitioner" and "outside attorney" refer to an attorney in private practice, a government attorney, corporate counsel, or other attorney who is not employed by a legal aid organization, but who represents a client referred by a legal aid organization on a pro bono or significantly reduced-fee basis.
"Practitioner" refers to an attorney, paralegal, law student, lay advocate, or tribal advocate who represents a client of an organization and engages in representational activities authorized by federal, state, or tribal law. Where an activity generally requires a particular type of practitioner, such as an attorney, the Standards and commentary use the specific descriptive term rather than the general term "practitioner."
"Self-represented" refers to circumstances in which individuals represent themselves in a court or administrative proceeding either without representation by a practitioner at all, or who primarily represent themselves while receiving limited representation with respect to discrete parts of the proceedings, such as the assistance preparing pleadings. The term includes other terminology such as "pro se."
A nation that lays claim to being just has a responsibility to make justice available to all, regardless of their resources and their status in society. All of those who labor to bring civil legal aid to those in need of assistance and help them to address their legal needs are instrumental to the effort to make justice universally available. These Standards and accompanying commentary are offered to provide thoughtful and practical guidance on how those efforts might best succeed. The drafters hope the guidance offered herein will play a small part in helping create a more just society.