A legal aid organization should establish clear policy and procedure regarding budgeting and payment for appropriate costs and expenses in the representation of clients.
A legal aid practitioner should be able to use all tools necessary for effective representation of client interests, including discovery, investigation, and use of expert witnesses that may be costly. The organization should also budget for interpreter and translator services when necessary to successfully represent aBecause clients of legal aid organizations can rarely pay such costs themselves, the organization should ensure that, where necessary and appropriate, sufficient funds are budgeted and available
The funds available should be sufficient to permit the organization, in appropriate instances, to make significant, but necessary litigation expenditures in major cases. The organization 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 organization, adequate funds will be available to pursue the case appropriately.
At the same time, the organization 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 organization from fiscal problems caused by excessive expenditures for representation costs. Wherever clients can and want to contribute to these costs, their contributions should be accepted.
The organization 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.
Budgeting, Payment, Application
Among the appropriate criteria for determining budgeting and payment for costs and expenses 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; and
- Access to the internet if the case and representation require that and the client does not have affordable access to it. This might include setting up local hotspots, lending laptops to clients, and making other reasonable accommodations.
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 organization management, should have the discretion to incur necessary costs in accordance with the established criteria. In major cases requiring significant expenditures, the organization 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 organization's policy regarding reimbursement of representation costs.
In situations where the organization can anticipate at the outset that it will not have sufficient funds to fully litigate a case, the organization 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.
- Engage outside co-counsel who agrees to pay for necessary costs.
- Refer the case to another organization or an outside practitioner with the resources to pursue the case fully.
- Limit the scope of the representation to a
- Reject the case entirely.
Recovery of Costs
The organization should maintain complete records of all costs, and practitioners should routinely seek and enforce orders awarding costs. When the organization is successful in litigating the client's case, it should make every effort to recover these costs from the opposing party in the case.