A legal aid organization should deploy its resources for legal representation and assistance to individuals in a manner designed to achieve positive legal outcomes, reach a broad and diverse population, and further the organization's mission.
Most legal aid organizations focus their resources on the provision of assistance to individual people in their service regions. While the form of this assistance may vary among organizations, or from one legal situation to another, the mission of most organizations is to get legal help to individuals and families. Even organizations whose primary focus is community development or systemic advocacy typically achieve these goals through some form of individual assistance. An organization's strategic decisions about service delivery, therefore, will almost always focus on how best to provide such individual service.
Historically, "legal aid" has meant not only providing assistance to individuals, but also representing individuals and families in a set of "core" legal areas that typically affect low-income communities: Defense against eviction and foreclosure; denial of subsidized housing; debt collection defense and bankruptcy; denial or termination of public benefits; divorce; custody and domestic violence cases; and access to health care. But those served by legal aid also face a broad range of other legal problems that they cannot resolve because of the inability to retain an attorney. Organizations must make strategic determinations about what kinds of individual service they will offer and how they will coordinate their work with other regional organizations to meet these needs.
Legal aid organizations should avoid a "one-size-fits-all" approach to individual service provision. The "client community" is not a monolithic entity, but rather a complex and diverse range of individuals, families, and communities with differing legal needs, capacities, and resources. As it develops strategies for individual service delivery, the organization must look to the broad range of individuals within its service area and ask how their needs can best be met. Are some individuals more deeply impacted by lack of affordable housing? How do language barriers impact domestic violence survivors? When does limited pro se assistance (such as ghostwriting) allow for effective legal outcomes? What community partners can facilitate getting assistance to underserved individuals? The organization should tailor its service delivery models for individuals to account for these types of considerations.
In most cases, in order to address these needs, the organization must employ a range of service delivery modes, incorporating some combination of full representation, limited-scope representation, and information and referral. Unless the organization focuses on a narrowly defined legal area that demands a specific type of service, the organization should have multiple, coordinated service delivery strategies. The type of service deployed for a particular community or legal issue must balance the effectiveness of the service for the individuals served with the limitations of the organization's resources in order to maximize the equitable access to assistance and the effectiveness of the legal outcomes for those individuals served.
Modes of Assistance
Historically, most legal aid organizations have viewed the legal assistance provided to individuals as a spectrum, ranging from full representation on one end to very brief information and referral on the other. In this analysis, the "full representation" mode looks most like the traditional private attorney-client model of taking a case on an unrestricted retainer, while "limited-scope representation," "brief service," or "pro se assistance" means that the practitioner provides a more circumscribed service.
In developing strategies for service delivery, the organization should view these delivery options from several different perspectives. Each of these lenses provides useful information to the organization as it determines how to deploy its limited resources to serve individuals. Below are items to consider:
- Time spent per contact: An organization has a finite number of work hours to devote to individual client service. In assessing what modes of service to provide in certain case types or to specific cases, the organization must balance the most effective service for the case type, the number of individuals who may be served, and the available hours to provide the service.
- Scope of assistance: Will the practitioner and organization staff only speak with the client, or will there be contact with other parties, including opposing parties, opposing counsel, or non-adversarial parties? This consideration differs from time spent (a practitioner may spend a great deal of time only talking to a client), speaking to the types of interventions the organization chooses to employ.
- Strategies for assistance: Practitioners may provide written or oral advice to clients. The organization may offer to draft legal documents, under a practitioner's name or for the client to submit pro se, if ghostwriting is ethically permitted The organization's practitioners may engage with adversarial parties informally, in alternative dispute resolution settings, or in formal proceedings. Each strategy of assistance requires not only differing amounts of staff time, but also differing ways that staff will engage with clients.
- Infrastructures for assistance: Some delivery methods, such as hotlines and clinics, require extensive infrastructures and a commitment of resources by the organization to ensure effective assistance. Online self-help resources require technology support to ensure that tools such as guided interviews, triage portals, or fillable forms provide effective legal assistance. Other methods, such as quick advice cases, coaching or drafting, more typically happen through individual advocates, and may need little support other than a computer and a telephone, and perhaps some templates for commonly used pleadings. The organization must consider the resources needed to support its chosen delivery modes.
While some service delivery modes, such as traditional "full representation" or phone-based quick advice, tend to remain essentially the same over time, new modes of service delivery are constantly evolving, especially in light of the needs of underserved communities and the opportunities provided by rapidly evolving technology. In the appendix to these Standards, there is a more detailed discussion of the range of service delivery modes and the specific ways that practitioners may employ them to promote competent, effective, and efficient service delivery to
Determining Levels of Assistance
Along with deciding what modes of assistance the legal aid organization will offer - the "how" question - the organization must also determine the level of assistance - the "how much" question. The organization's decisions on how much time and effort to put into its response to an individual application for service should be guided by a coordinated strategy rooted in a range of factors, such as:
- Broad priority decisions. Strategic allocation of services starts by examining the legal needs of the organization's service area. In most cases, this process will require a formal assessment of community legal needs, conducted at regular intervals. The organization's governing body, legal management staff, or both in combination, then outlines its case handling priorities to respond to those needs. The organization may determine that there are many important case areas, devoting equivalent resources to each. The organization may decide to devote a large percentage of its staff time to in-depth representation in a small number of high-priority areas, a lesser amount of time to less-involved cases for other clients in the same areas, and an even smaller percentage of staff time to brief assistance in lower-priority areas. Priority decisions must account not only for the organization's own resources, but also the resources of partner organizations, to ensure effective coordination of resources among organizations. The organization should have a clear, readily accessible outline of its priorities to guide case handling decisions.
- Resource decisions. The organization must examine the type of legal resources necessary to achieve an effective outcome for clients, and then make resource deployment decisions to budget staff time and energies accordingly. Some case areas, due to their legal complexity or broad community impact, may demand a team of experienced attorneys devoting substantial time with a small number of clients. Other advocates may more effectively handle a higher number of shorter-term cases to achieve positive outcomes. Paraprofessionals and lay advocates may be well-suited to provide effective assistance in certain The organization can look to partner organizations or pro bono resources to take on cases beyond In each case, the decision to expend staff time should reflect the organization's defined priorities.
- Case impact decisions. The organization may determine to put more resources into an individual case, or type of case, because of the potential positive impact for the client of a successful outcome, or the detrimental impact of a negative outcome. Cases that threaten permanent loss of shelter, income, or health care, or that threaten the stability and safety of the family, for instance, often call for more extensive representation because of the potential harm that may befall clients. In other circumstances, there may be valuable affirmative gains in economic benefit to an individual or community, or vindication of civil and constitutional rights based on race equity, that merit extensive litigation. Similarly, the organization may take on a particular type of case to pursue a legal precedent or educate the judicial system about the legal perspectives of the organization's constituent community.
- Technology decisions. The organization must include available technology in making its resource A supervisor's day-to-day decisions about deployment of legal resources tend to focus on personnel matters: Who is going to take the case; and how much time will be spent on that matter. But the organization must also ensure that it has invested in resources to support its service delivery strategies, including remote staff work and remote delivery of services. These investments support the effective and efficient delivery of legal assistance at all levels. Technology is also vital to support equitable access to services, through language supports, ADA-compliant websites, and remote access tools. For more information, see Standard 3.10 on Effective Use of Technology.
- Individual case decisions. As with all legal representation, practitioners must tailor the level of service to the individual case. Case management should be used across all the organization's work to triage the merits and potential impact of cases and to maximize the organization's impact.
- Emergent Circumstances. As recent history has shown, the circumstances that impact the legal needs of low-income communities can change with alarming speed. Legal aid organizations must have systems in place that allow for the quick redeployment of staff resources to meet emergent legal needs. While such decisions must ensure that the organization maintains its core mission and equitable delivery of services, it must also stay aware of its changing landscape and be willing to revise its resource allocation models to address these changes.
Equity in Limited-Service Delivery
The greatest challenge in making decisions about level of service is when the organization decides to restrict that assistance in some way. While not all effective service requires heavy expenditure of resources, organizations never can do as much as they would like to for all cases. Putting more time into some cases inevitably means putting less into others. Limited-scope representation of a client, with the client's informed consent, is only useful if the assistance provided furthers the clients objective in seeking the legal help. If the success of the ultimate assistance provided depends on the client taking steps that are unlikely to occur due to the complexity of the law or the procedures that must be followed by the client, then the limited-scope representation may not be appropriate. In making decisions to engage in limited-scope representations to individuals, the organization must ensure equity and access to the full scope of its client base.
An organization may determine that there is a particular client or group of clients for whom limited representation would not be appropriate because of language or cultural barriers, disabilities, inflexible work schedules, or other limitations. That said, when deciding to limit the scope of service in a particular matter, it is up to the practitioner must consider whether the client can competently handle the matter with limited assistance or the relative benefit to the client if the services will be limited. Organizations must also ensure that clients who receive full representation are not just those whom the organization can access easily, or who require less staff time to bring a case to conclusion. Organizations must create systems that enable the full range of service modes to be provided as needed to all its constituent communities. Organizations should use available technologies and creative strategies to serve unserved communities that are not easily connected to the organization's offices. For instance, organizations serving large, sparsely populated rural areas should be aware of the challenge of reaching some parts of their service area. Some rural areas, for example, may not have high-speed access to the internet or other technologies, so website access may be of limited use.
Organizations should train those making resource allocation decisions on implicit bias and be clear that limited-scope representation should only be considered when the client can clearly complete a legal process on their own, and not at the convenienceSuch decisions should not disadvantage clients because of the need for deployment of additional resources. For example, a lawyer should not recommend limited-scope representation to a non-English speaking client because the organization wants to limit the costs of an interpreter. The organization must ensure that if its lawyer provides limited-scope representation, that there is not an adverse impact, in a disproportionate manner, on clients of color or those who are non-English speaking, disabled, and/or identify as LGBTQ+, and, if so, the legal aid organization must take steps to remedy any such disparities. Organizations must determine through evaluation data that clients benefit from the representation and that such service is provided without negative race and gender equity implications.
It is important that the organization encourage its practitioners to stay abreast of changes in the issues that affect the equitable provision of services to the communities it serves, including: 1) changes in the economy; 2) changes in patterns of racial, ethnic, gender, and identity discrimination; 3) new governmental policies and practices of organizations that affect underserved communities; 4) the development of new technologies; and 5) changes by courts and major systems that impact clients. This consideration includes changes in how to submit requests for assistance, e-filing, remote hearings, use of artificial intelligence tools for practitioners and self-help tools for clients, mandatory online dispute resolution tools, and use of social media to monitor clients and their activities. Such changes give rise to new legal and ethical issues and to new strategies to address old and new legal problems, particularly at the interface of civil and criminal law. The organization should encourage its practitioners to participate in educational and professional activities in which such issues and strategies are discussed and create relationships with groups doing advanced legal research on surveillance of poverty and the criminalization ofAppropriate opportunities include state, regional and national trainings; online communities; as well as publications of national and state advocacy entities pertinent to the practitioners' work.
Ensuring Effective Communication
No matter the mode or scope of service, a practitioner must be able to communicate with individual clients effectively. In a legal aid context, effective communication can be especially challenging. High-volume legal practice puts pressure on practitioners not to spend the time or resources it may take to ensure the level of effective client communication required by professional conduct rules. Organizations must account for language barriers and the time needed for effective interpretation and translation. Organizations and their practitioners must accommodate clients with cognitive limitations and ensure they have effective supports in place.
Many organizations offer limited-scope services or brief consultations with clients. For a client to meet their obligations in a limited-scope representation, the practitioner must make sure that the client understands what the lawyer is responsible for doing and the actions for which the client will be responsible. Advice that may seem simple to a practitioner may be confusing to a client who is unfamiliar with the law and is apt to be anxious about the circumstances that gave rise to the legal problem. Reducing the key points of the advice to writing in the form of a letter, brochure, or prepared form may help to ensure clear communication. Translation of written materials should be available to clients who use a primary language
It will not always be appropriate for a practitioner to give the advice to the client in writing. Circumstances in which it would not be appropriate to send a follow-up letter or otherwise communicate in writing with a client include when a client, who as a victim of domestic violence, would be vulnerable to dangerous, possibly life-threatening retaliation if written advice were intercepted. Similarly, circumstances may be present that require advice to be acted on before it could be provided to the client in writing. Some clients may have no practical way to receive the writing by mail or other means.
Because it is difficult in advice-only systems to determine if the advice offered is actually benefiting each client, it is essential that an organization have processes in place for ensuring the quality of theA system should also be in place to review common issues and patterns to determine if other forms of assistance might be appropriate, including systemic advocacy. Organizations should consider short client surveys (consider using text or email to increase response rates) or follow-up interviews to determine the efficacy of the advice provided. A review of court files can uncover invaluable information about the actual outcomes for clients.
If the organization finds that clients generally have not been able to take advantage of the advice they have been given, it needs to consider changes in its approach. The organization should not continue to expend scarce resources operating in a way that does not actually benefit clients. The alternatives might include: 1) changing the way its practitioners give advice and follow up on it; 2) offering a higher level of limited-scope representation, such as assistance preparing documents, making a phone call on the client's behalf, or coaching; or 3) offering full representation to some or all clients in the substantive area. Or the organization might decide it is not a prudent use of its resources in that substantive area. The decision whether to change, expand, or abandon assistance in a substantive area should be determined by the relative importance of the issue to clients, the relative cost of increasing the level of service offered, the availability of other resources to the clients, and the gravity of the risk to clients if assistance is not offered.
If the organization's engagement with the client requires them to use a cell phone or an online tool, the practitioner should let the client know of any dangers or what could happen if they use a specific tool to communicate or access other resources. The practitioner will be aware of risks to undocumented clients when referring them to tools or platforms that might have agreements or standing court orders with government or law enforcement platforms. The practitioner should also advise the client if their using that tool will report their file to a credit bureau or to a data aggregator.
In making decisions to limit the scope of legal services offered to an individual, a central factor and one addressed by applicable rules of professional conduct is effective communication. Practitioners are required to clearly communicate the types of services they will provide and those for which theBefore commencing a limited-scope representation, the client must provide informed consent to it and so it is particularly important for practitioners to study and follow applicable professional In the context of providing legal aid, there are often practical difficulties, because informed consent implies that the client can choose not to accept the limited-scope representation and seek full representation elsewhere. In fact, usually there is no realistic possibility that the client will obtain representation beyond the limited assistance offered by the organization. The actual option, therefore, is often between limited representation and no representation at all.
Informed consent should be based on plain language explanations in the most accessible format and language to the client. The hard reality is that often because of resource limitations, the practitioner will not be able to offer the kind of assistance necessary to resolve the client's problem. In all cases, the organization should make certain that its practitioners know to advise the client of what is likely to happen.
Ethical considerations require that the client be apprised of the limitations of the representation, including necessary actions for which assistance is not being provided and the practical risks for the client if these actions are not taken. Care should be taken to determine whether applicable rules of professional conduct require clients to consent in writing in the event that the representation is the subject of a retainer agreement, the limitations on the representation being offered must be listed or described in the agreement.
Informed consent does not only apply to initial agreements about limited-scope representation. As a case evolves, any changes in the level of service being considered by the practitioner must be explained to the client and should be documented. The organization should build systems to ensure that clients are consulted regularly and meaningfully about the objectives of the representation and potential outcomes of decisions, including, for example, for settlement discussions and the potential impact on a client's eligibility for benefits consistent with practitioners' ethical obligations.
A persistent consideration in negotiating the different modes of service delivery is whether, in any particular instance, the organization has entered into an attorney-client relationship. Whether an attorney-client relationship has been formed depends upon the nature of the interchange between the practitioner and the person seeking assistance. The crucial distinction is whether the individual receives advice about how to proceed that is based on individual information and is tailored to the person's circumstances.
It is important to note that the establishment of an attorney-client relationship may be implied from the circumstances of the interaction with the individual seeking assistance regardless of the intent of the organization offering the assistance. The expectation or reasonable belief of the person being assisted that the organization is providing representation may be deemed to create an attorney-client relationship, even if the organization intends otherwise. If any ambiguity is present regarding whether an attorney-client relationship exists, the potential client's understanding of the relationship is likely to prevail. Consulting state ethics opinions and other law on this topic is advisable.
Public seminars and presentations to groups that are intended as community legal education, however, can sometimes be less clear. Participants in such events may press questions particular to their situation. The organization should be sure that practitioners leading such events are aware that answering inquiries about specific situations may inadvertently result in providing a response based on specific facts of the inquirer that may be deemed to be legal advice.
Webpages and other consumer-facing applications providing general information explaining how a user should proceed substantively and procedurally generally do not establish an attorney-client relationship if an attorney has not provided advice based on theThis is true even if the web-based system produces a pleading based on the user filling in blanks or responding to computer generated inquiries. On the other hand, e-mail responses to an inquiry posted to a electronic bulletin board or e-mailed to a user might well establish an attorney-client relationship, if the advice offered is tailored to the specific facts presented by the inquirer. Organizations need to be aware of ethical duties to prospective clients that require information obtained during the course of intake not to be treated as disclosed and This applies to data gathered through online tools and apps sponsored and in use by the organization.
When an organization offers legal information to individuals, the organization's intent not to form an attorney-client relationship must be clear. Such a disclaimer should preferably be in writing or in some other conspicuous form. In most circumstances, the disclaimer should also inform the individual that, while information provided by the inquirer will be treated as private, the organization cannot protect it from disclosure if properly subpoenaed. The organization may also need to advise the individual that another party may receive the same type of assistance, if sought, assuming such assistance is permissible under the relevant jurisdiction's conflict-of-interest rules. These disclosures are essential in court-sponsored projects to help unrepresented litigants where the chance of both sides seeking assistance is high.
The organization must know how disclaimers of the intent to create an attorney-client relationship are treated in its jurisdiction. While such a disclaimer would generally be valid under the traditional understanding of the attorney-client relationship as one of contract, in some jurisdictions more significance is given to the conduct of the lawyer and the expectations of the client than to a general written warning.
Other Ethical Obligations
Competence and Diligence. Limited-scope representation does not mean low-quality representation. An agreement to limit the scope of representation does not exempt the organization from the duty to provide competent representation and to protect the client's interests. The organization and practitioner must be diligent about responding to the client's needs and interests, which includes a responsibility for assuring clients can make reasonable use of the advice that is offered. Comment  to the ABA Model Rule of Professional Conduct 1.2 authorizing limited-scope representation specifically notes that a brief telephone consultation is appropriate for "a common and typically uncomplicated legal problem," but that such a limitation "would not be reasonable if the time allotted was not sufficient to yield advice on which the client could rely." The organization must put systems in place to ensure the ethical requirements for competence and diligence are met for all modes of service, and periodically review its methodologies (including studying outcomes of clients receiving limited representation) to ensure ongoing compliance.
Due diligence. The practitioner offering representation in any form has an obligation to inquire fully into the facts particular to the client's situation and apply the law with a full understanding of those facts. If limited-scope representation is being offered based solely on an interview of the client, the practitioner should ensure that the interview probes appropriately into the facts to obtain as complete a picture as possible and to identify detrimental details that may not be presented in the client's initial recitation of the facts. This inquiry is especially important for any letters written on behalf of the client based on a single conversation without any opportunity for independent verification, where the organization must still comply with the ethical obligation to present truthful statements.
Accuracy. Organizations that offer legal information in printed materials on websites, or through form-completing document assembly tools must regularly review these materials to ensure that all information is accurate and represents the current state of the law.
Conflicts. Legal aid organizations must generally comply with all conflict-of-interest obligations. However, potential conflicts may be addressed differently in different delivery systems such as hotlines, advice clinics, and counseling organizations where there is a high volume of interaction and usually only one relatively brief contact with the client.
In these high-volume, brief contact situations, it is often not feasible for a practitioner to screen systematically for conflicts of interest. The 2002 revisions to the ABA Model Rules of Professional Conduct added Rule 6.5 which states: "... under the auspices of an organization sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter." The Reporter's Explanation of Changes states the reasoning behind the new Model Rule:
Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in organizations in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed organization.
An organization sponsoring such an effort should be aware of whether the same or similar language has been adopted in its jurisdiction and how it applies to its operation.
Confidentiality. As with all representation, a duty exists withEven when an attorney-client relationship has not been formed and legal information, not legal advice, is given to the client, the organization cannot voluntarily disclose to others information provided by participants. Per Rule 1.6, an organization must treat the information as confidential even if the organization may not be able to protect it from involuntary disclosure by asserting an attorney-client privilege. The organization should avoid gathering more information about participants’ specific circumstances than required to evaluate whether to undertake a representation or offer appropriate legal information. They should operate under the assumption that less information is better and have clear data retention policies by type of relationship with the person seeking assistance.
Prospective Clients. If an organization offers legal information through a system that is also used for intake of persons who may become clients, it may be required to treat all persons who contact the organization as “prospective clients” under applicable rules ofThese rules often require generally that the lawyer "not use or reveal information learned in the consultation." It also applies general conflict rules to representation of parties with interests adverse to the prospective client.
Limited-scope Document Preparation or "Ghostwriting." It should be noted that, while most states have adopted the language in ABA Model Rule of Professional Conduct 1.2(c), some have made changes that significantly affect how the rule applies. An organization that offers limited representation needs to ensure that its practitioners are doing so in a manner that conforms to the specific ethical standards governing such assistance in its state.
Resources to Support Individual Assistance
A legal aid organization must ensure that adequate resources, including advocacy staff, support staff, infrastructure, and technology, are deployed to support the full range of services to which it is committed. It should adequately budget to meet the expense of full representation, when offered, including cost of discovery, e-discovery, witnesses, data analysis for the purpose of litigation, as well as experts. It should invest in the support systems needed to provide shorter-term forms of service, including the case management, and telephone, web, and other technologies that support these modes of client service delivery.
An organization must similarly invest in its staff, with practitioners who are trained in the law and process that is necessary for effective service delivery. Organizations have a responsibility to ensure that staff receive the necessary training to improve the advocates' practice skills and to keep them current in the substantive law so that they may represent their clients effectively. Practitioners should be familiar with the practice expectations in the various forums in which they operate, including state and federal trial and appellate courts, as appropriate. Organizations that appear in tribunals with highly specialized procedures, such as public utility commissions or zoning boards, should ensure that their practitioners are able to practice effectively in those settings.
An organization, as well as lawyers with managerial authority, have a responsibility to ensure its practitioners and other staff understand their professional responsibilities.
The organization should invest resources to ensure that its services and materials are accessible and make certain that legal information materials can be understood by the intended users. See Standard 3.10 on Effective Use of Technology and Standard 2.3 on Promoting Language Justice for more information on these topics.
Assessment and Quality Assurance
An organization should constantly strive to increase the effectiveness of the strategies that it pursues. It should examine whether established strategies are still effective at achieving successful individual outcomes and lasting results for the entire client community and should explore new approaches to advocacy that evolve as new issues arise. For guidance on evaluation of different forms of advocacy, refer to Standard 3.11 on Organization Evaluation.
Organizations should be cognizant of the evolving legal culture and of changes in how courts, administrative offices, and nonprofits work with legal aid client communities, how they respond to those without lawyers and are using technology to work with unrepresented parties. It should also be aware of technological developments and innovative techniques for offering limited representation and self-help resources to clients. Periodically, based on the assessment of the environment and of the benefit to clients of the limited-scope representation being offered, the organization should reexamine how it utilizes limited-scope representation and technology to serve these groups. The organization should be innovative and devise new ways to deliver legal services to the changing needs of their client populations.
Organizations should act quickly to correct disparities in providing services; for example, by shifting to the use of text or email surveys as a means of follow-up where telephonic contact has proven ineffective. If a disproportionate amount of assistance is going to English speakers in areas where the client community population has a high percentage of individuals of limited English proficiency (LEP), or where there are racial or other disparities in services rendered to the self-represented, the organization should correct that quickly. Disability should also be included in evaluations of potential disparities in service delivery.