A legal aid organization should deploy its resources in a manner designed to effect long-term systemic change to support its constituent communities and enhance the lives of client populations in its service area.
In a very real sense, all work done by legal aid organizations has the broad goal of systemic change. The cumulative impact of thousands of legal challenges to evictions, debt collections, and abusive family relationships has a powerful impact on the legal system and the communities the organizations serve. However, some legal problems cannot be addressed by individual, largely defensive, casework alone. Some problems come from fundamentally unjust statutes that litigation alone cannot change. Other issues come from deeply entrenched social and economic structures and pervasive biases that prevent low-income and marginalized communities from escaping poverty or accessing legal remedies. In order to address such large-scale problems, organizations may access a range of legal strategies, including targeted litigation and identified case priorities, impact litigation, and legislative and administrative advocacy.
Not all organizations will be well-positioned to employ each of these legal tools. Smaller organizations may not be able to devote sufficient legal resources to impact litigation without sacrificing other important priorities. Organizations with narrowly targeted missions may not be able to focus on deeper underlying social forces. Some funding sources may restrict an organization's ability to engage in certain types of systemic advocacy. In all cases, though, organizations should consider, as part of their strategic deployment of legal resources, how the work they do impacts the communities they serve and identify long-range goals for how they can contribute to the achievement of this impact within their means.
Organizations engaging in impact litigation and legislative and administrative advocacy must factor in the time and resources required by this work as part of the overall strategy for resource deployment. Management must allocate staff time and resources required for impact work in balance with other types of representation and outreach and include this work within stated priorities.
Impact Litigation and Case Priorities
In determining areas in which it will offer full representation, an organization may consider the degree to which it seeks to accomplish systemic change that will benefit the communities it serves, as well as individual clients. Some issues affect large numbers of people and are rooted in policies and practices of governmental agencies and businesses that frequently interact with the client community. Such issues sometimes require advocacy aimed at changing the underlying policy or practice. Systemic work is often capable of producing a long-term favorable remedy that affects many people and is an important part of the panoply of strategic approaches employed to meet the needs of the client population. Not all organizations elect to undertake systemic work. On the other hand, some organizations are organized specifically for the purpose of accomplishing systemic change for a particular population, or for a particular issue.
Organizations that adopt a policy of seeking systemic change through their work generally find that addressing such issues requires long-term strategies. While there are many ways in which an organization might seek systemic change, direct representation of clients is the most common and generally calls for some form of extended representation.
Effective impact litigation requires sufficient commitment of staff resources. Impact litigation often requires extended client and community contacts, coordination with local, regional, and national stakeholders, extensive legal research, and protracted litigation strategies. An organization undertaking such work must ensure that staff attorneys engaged in impact litigation have adequate time and access to supporting resources. Supervisors may need to adjust staff attorney caseloads and provide additional supervision and supports to ensure effective outcomes.
A focus on systemic change affects several important choices that an organization makes in determining its approach to service delivery. The first relates to the substantive areas in which it will offer extended representation. An organization that offers only limited-scope representation in a substantive area is unlikely to be able to mount a strategy to have a long-term systemic impact in the area. The second factor that may be affected is the types of representation that will be offered. A serious commitment to systemic work, for example, might lead an organization to undertake legislative and administrative advocacy, or a significant appellate practice. It should be noted, however, that systemic impact can be obtained by strategically focused individual representation in trial or administrative practice. Similarly, community economic development and group representation can have a significant systemic impact. The third factor is figuring out a service model. See Standard 4.2 for examples of different service models available.
Evaluation of the success of systemic work can be challenging, but it is also important that the effectiveness of such work be examined periodically. Systemic work should have a clear long-term objective for the effort. The proper evaluative technique will be a function of what the long-term objective is. Periodic assessments of whether the intended beneficiaries of systemic work have taken advantage of a remedy obtained can be important to guiding future efforts and in making choices regarding which strategies are most beneficial.
An organization that undertakes appellate work should have a policy regarding the approval of appeals challenging adverse rulings and defending lower court victories against appeals pursued by the adverse party. The policy should reflect factors such as the likely outcome on appeal, the potential benefit and risk to the client, the potential for an adverse impact on the broader low-income community, the resources of the organization required for prosecution of the appeal, and the relationship of the issue to the organization's substantive goals and objectives.
Legislative and Administrative Advocacy
Legislative and administrative processes are an essential part of the legal system that affect the client population. Many administrative agencies adopt rules, regulations, policies, and orders of general application that have lasting impact on low-income persons. Some recurring problems affecting clients can only be resolved by legislative action or through a rule change by an administrative agency.
Legal aid organizations, because of their knowledge of the legal problems of their client population, may provide an important perspective regarding laws, regulations, rules, and policies that are being considered for enactment. Advocacy before legislative and administrative bodies at local, state, and federal levels may prevent adoption of laws and policies that could have a long-term detrimental impact on the communities the organization serves. Such advocacy can be a more efficient way to address important issues than costly and complicated litigation that challenges or seeks to interpret an adverse statute, appropriation, rule, regulation, or policy after it is adopted. In some cases, advocacy may be necessary to protect favorable court decisions or to ensure continued access to the courts on issues that affect the client community.
Legal aid organizations often have an important advocacy role with administrative agencies regarding the interpretation and implementation of laws, policies, and regulations after they are adopted. To name only a few examples, such advocacy may apply to local housing authorities administering federal housing organizations, public benefits agencies determining eligibility for certain benefits, school districts meeting federal special education requirements, and federal agencies implementing federal statutes. Advocacy may take the form of representation of individual clients and client groups or of general intervention in an agency proceeding regarding the interests of communities affected for which the agency is responsible. Legal aid organizations are also encouraged to interact with and participate in statewide Access to Justice Commissions and to be part of the groups working to fund or manage self-help law centers and services, including law libraries and communityAs with impact litigation, organizations should ensure that staff engaging in legislative and administrative advocacy have sufficient time and resources to pursue this work effectively.
It is important that members of client communities have a means to assert their interests before both legislative and administrative bodies. All organizations should monitor legislative and administrative developments and should keep members of the communities they serve informed of issues that may affect them. This includes privacy laws and consumer protection laws for online platforms and vendors; for example, those pushing for use of client biometric data, laws about assisted technology requirements, or use of facial or voice recognition or new or emerging emotion recognition systems or predictive-type systems by government agencies, health care providers, or other service organizations. Each organization should decide if it is the appropriate one to advocate on legislative and administrative issues, or if other organizations are better able to address some or all of the need. An organization that does not offer legislative and administrative advocacy directly should participate in local, regional, and statewide systems to ensure that such advocacyOrganizations that do not advocate directly should make certain that organizations that do advocate before legislative and administrative bodies are aware of the needs of the organization's client community and, to the extent possible, undertake advocacy that responds to those needs.
Certain funders limit or prohibit lobbying for policies or legislation, which includes Legal Services Corporation per 45 CFR 1612, "Restrictions on Lobbying and Certain Other Activities." Without engaging in lobbying where prohibited, organizations should educate legislators and policymakers about their clients, their needs, how organization services address those needs, and the harm or exposure to clients without such services.
Legal aid organizations should be accountable to the populations they serve for the direction and conduct of advocacy before legislative and administrative bodies. Such accountability may take place in several ways, some direct and others indirect. The organization often will directly represent a client or a group of clients before a legislative or administrative body on a relatively narrow and specific issue. In other circumstances, an organization may have a general retainer to advocate before a legislative or administrative body on all issues that might affect the interests of the client. In either case, there is an attorney-client relationship and the practitioner's accountability to the client is a function of his or her ethical duty. Where an organization operates with a general retainer agreement, however, it is unlikely that it will be able to report to and seek guidance from its client on each strategic decision that is made during the advocacy. The organization should have a means to consult with its client about advocacy priorities and objectives and to keep the client reasonably informed about key developments.
Other times, it will be impractical or impossible for the organization to have an attorney-client relationship with an individual or group with respect to advocacy before a legislative or administrative body. In such circumstances, the organization is responsible for assuring that appropriate indirect means exist to be accountable to the population it serves. Such accountability may be accomplished by processes that keep members of the low-income community informed of public policy developments while periodically seeking guidance on priorities for legislative and administrative advocacy.
Legislative and administrative advocacy may take place in many ways, whether or not a client or client group is directly represented. Each presents its own opportunities and challenges in assuring that the touchstone principle of accountability is met.
- Some advocacies will be based on representation of an individual client or client group on a specific issue being considered by a legislative or administrative body.
- Some organizations have found that policy advocacy is most successful when conducted as part of a community-based coalition that jointly decides on and executes the advocacy strategy. When the organization's participation in a coalition is not on behalf of a client, a coalition grounded in the client community can ensure that the objectives sought are responsive to the needs of that community.
- In some regional and statewide systems, a group of organizations may look to one organization to carry out legislative and administrative advocacy. Priorities for the advocacy may be set by the coalition of organizations representing the interest of their client communities with which they have generally consulted and which they keep informed.
- Advocacy in a budget process that will affect the administration or funding of organizations that affect the client community often involves a complex array of decisions on which no one client’s interest is paramount. Moreover, the rapid and sometimes unpredictable pace and direction of developments in the appropriations process often require immediate action without any opportunity for consultation with a client. Organizations participating in such efforts under a general retainer agreement or which act as spokespersons for the general interests of the low-income communities they serve should keep their constituents informed of significant developments.
- At times a legislator or a legislative committee may ask an organization to comment on proposed legislation, to provide information about a problem that might be solved legislatively, or to draft legislation or rules that might be considered. Some rule-making procedures request comments on proposed rules and policies. It is important for the organization to respond to such requests when the proposed policy is likely to impact the people it serves.
- When legislative and administrative bodies consider measures that impact operations or funding of the organization itself, it is appropriate for an organization to appear in those proceedings on its own behalf. The organization has an obvious interest in such deliberations and will have unique insight into the potential effect of the measure under consideration.
The organization should recognize when its fundraising interests might compete with the interests of its clients or undermine its capacity to advocate on their behalf, thereby raising conflict of interest concerns that should be addressed via policy and applicable professional conduct rules. In a legislative budget and appropriations process, for example, there may be direct or indirect competition for limited funds, or the organization may be compelled to choose among issues to which it devotes its time and resources. An organization may feel subtle pressure to moderate its substantive advocacy to protect its own appropriation. If the organization determines that competing interests affect its capacity to advocate effectively on all the issues for which it is responsible, it should take appropriate steps to eliminate the tension, including referring to another organization either the advocacy on its own behalf or that on behalf of the interests of the client community.
As with all choices that an organization makes regarding how best to serve the community in its service area, it should determine the degree to which legislative and administrative advocacy is necessary to respond to the compelling legal needs of the low-income community. Based on its knowledge of the legal needs of the low-income communities it serves, an organization should determine the substantive areas in which legislative and administrative advocacy should be undertaken by it or by other organizations in the delivery system of which it is a part.
Participation in Local, Regional and Statewide Legislative, and Administrative Advocacy
Local and regional advocacy. Some legislative and administrative advocacy will need to respond to local or regional issues pending before decision-making bodies at those levels. An organization should be aware of local issues that may affect the population it serves. It should be in contact with groups and organizations that have an interest in the matters to decide if its participation in the advocacy is necessary and appropriate. Often, an organization located in the affected jurisdiction will be the most effective advocate before these decision makers.
Statewide advocacy. Because the factors of geographic location, the need for specialized staff, and resource limitations might make it imprudent for many organizations to undertake state-level legislative and administrative advocacy, it is particularly important for all organizations to participate in statewide efforts to establish an integrated, full-service delivery system. An organization that is unable or elects not to provide state-level legislative and administrative advocacy should be certain organizations are available to provide this advocacy for the communities it serves. The organization should also know how to bring the needs of these communities for legislative and administrative advocacy to the attention of organizations that provide it, and where appropriate, in order to make referrals to such organizations.
Responsibilities of the Organization
Communication with clients and with the client population. Because both administrative and legislative advocacy can affect the interests of the client population as a whole, it is important that the organization communicate with the population it serves regarding such advocacy. Such communication should take place in the context of its ongoing assessment of the needs of its client communities. An organization may learn through a variety of avenues about proposed and adopted policies, rules, orders, and statutes that affect that population's interests. To the degree practicable, a legal service organization should keep its clients and the client population informed of such matters and communicate their interests to those conducting advocacy before legislative and administrative bodies. The organization's practitioners may also advise their clients about the legislative and administrative advocacy process in the event that they wish to advocate for themselves.
Appropriate training and experience. Legal aid organizations that elect to engage in administrative and legislative advocacy have a responsibility to ensure that the advocacy is conducted proficiently and in compliance with legal requirements. Advocacy before a legislature has distinctive practice norms and procedural rules, and entails understanding the unique factors that affect the outcome of the legislative process. Administrative rulemaking may vary significantly based on the rules and customs of each administrative body. It is the organization's responsibility to ensure that its practitioners are experienced or trained to be effective in the forums in which they operate.
Organizations should be aware of any time requirements required for effective legislative advocacy. When the legislature is in session, legislative advocates may be deeply engaged in the advocacy - including long daily hours - and may not be available for other work. While the legislature is out of session, the time required for legislative work may be reduced, but still be necessary. An organization that engages in legislative advocacy should deploy its staff in ways that ensure practitioners engaging in this advocacy have adequate time to carry out the advocacy effectively. Finally, organizations have an obligation to know with precision what legislative/agency activities are prohibited by funders, and which are permitted.
Ethical considerations. Organizations should ensure that its practitioners know and meet appropriate ethical requirements in representing clients before legislatures and administrative bodies. Applicable rules of professional conduct based upon the ABA Model Rule of Professional Conduct 3.9 require that a lawyer who represents a client before a legislative body or administrative agency in a non-adjudicative proceeding "disclose that the appearance is in aOther applicable professional conduct rules apply to candor toward the tribunal, fairness to the opposing party and counsel, and impartiality and even if such requirements would not apply to a non-lawyer who is engaged in the same activity. Organizations and practitioners must take care when sharing aggregate data about their clients as a part of this advocacy as it may be possible to still connect it to a user's identity in violation of applicable professional conduct rules.
Other legal requirements. Organizations should also be aware of the requirements of the Internal Revenue Code and accompanying regulations that relate to lobbying by tax-exempt organizations and should understand the range and level of activities that are permitted such organizations. In addition, they should be aware of and comply with the requirements in the jurisdiction in which they operate regarding the registration of persons who advocate before administrative and legislative bodies. Organizations should also make certain that their practitioners are aware of rules that govern how the legislature operates and their participation in it. Finally, more states have moved to create consumer protection requirements for online services and tools, and organizations should be aware of such statutes.