Standard 4.7 on Integrating the Resources of the Legal Profession and Involvement of Members of the Bar
Standard
A legal aid organization should integrate the resources of the legal profession and individual members of the bar into its delivery of services, including in direct representation of clients.
Commentary
General Considerations
A legal aid organization should fully recognize the legal profession as a valuable resource in addressing the needs of the client community it serves. The resources of the legal profession, including individual members of the bar, should be integrated to the greatest extent possible into an organization's efforts to respond to its clients' needs and other members of the bar should be involved in the direct representation of clients.
Members of the legal profession play a critical role in the justice system's response to the legal problems of client communities. Lawyers who do not work for a legal aid organization supply a significant amount of free and low-cost assistance to client communities through free-standing pro bono organizations as well as those that are a component of a legal aid organization. Private practitioners also provide significant pro bono services to low-income people who are not referred by legal aid organizations.
The adoption of Model Rule of Professional Conduct 6.1 in many jurisdictions has formalized the long-standing commitment of all lawyers to the provision of pro bono services to persons of limited means.It is incumbent on legal aid organizations to make effective use of this valuable resource. Legal aid organizations should seek assistance from members of firms, solo practitioners, government attorneys, in-house lawyers, and lawyers working for non-profit organizations other than legal aid organizations.
Legal aid staff should be encouraged and granted time to participate in working groups and conversations related to the delivery of legal services involving the private bar, including Access to Justice Commissions, form-drafting groups, and groups creating or reviewing and testing innovative models and technology that might eventually be used by client populations such as e-filing, remote video conferencing by courts, unemployment application/appeal state systems, and the like.
Integration of the Resources of the Legal Profession
Each legal aid organization should take full advantage of the resources of the legal profession to support its effort to respond to the needs of the low-income communities it serves. There are a variety of ways, in addition to the direct representation of clients, in which the resources of the legal profession can be utilized by an organization to support its efforts.
Access to justice projects. Organizations may work jointly with the leadership of the organized bar and with prominent members of the legal profession to plan and implement strategies to enhance access to justice for client communities. Often such efforts are formalized into access to justice commissions that support the overall system for delivering legal aid to client communities. Such efforts may focus on increasing resources available to the system, increasing public awareness of the legal needs of client communities, and serving as a resource in the design and implementation of the legal aid delivery system.
Policy advocacy. Individual practitioners and the organized bar can be important and powerful partners engaging in advocacy on policy matters that affect the organization or the client communities it serves. Such engagement may include advocating before a legislative or administrative body on behalf of or in partnership with a legal aid organization. It may also involve informal efforts, such as information-sharing or other educational efforts, to convey to the public and to policymakers the importance of issues that affect clients and their access to the legal system.
Joint projects. The resources of the legal profession can also be tapped in the creation and implementation of joint projects that address the needs of clients. The organized bar or prominent members of the profession may join with an organization to galvanize a broad response to a widespread problem that confronts many members of client communities served by the organization. Thus, a project might be developed to respond to a natural disaster or to recruit private practitioners to respond to a commonly recurring problem that affects many clients. Large law firms, law schools, and voluntary bar associations will sometimes take on a signature project on which to focus their pro bono efforts.
Filling gaps in service. Working with members of the bar often offers an opportunity for an organization to serve clients and respond to issues that may be difficult or impractical to address because of limited funding, restrictions by a funder, or other practical impediments. Outside practitioners may, for instance, make it possible to provide services in geographic areas that would otherwise be difficult for an organization to serve. In rural areas, private attorneys may be available to serve remote communities where it is not economically feasible to maintain a staffed office. In urban areas, offices of private attorneys may be located in neighborhoods that are more convenient to clients.
Collaborating with members of the bar on technology issues can be an effective approach to addressing service gap. Legal aid online intake and referral systems can be integrated with bar referral systems in a portal approach that reflects no wrong door for litigants and results in no chain of referrals. If possible, legal aid organizations should collaborate on an online pro bono portal to ensure private attorneys can easily be made aware of cases needing representation. Remote practice best practices across legal aid, the private bar, and courts can also ensure geographic equity in terms of access to pro bono representation.
Collaboration with members of the bar may also provide an opportunity for a legal aid organization to address issues or serve populations that it is unable to serve because of funding restrictions. An organization, for instance, may be prohibited by a funder from representing undocumented persons or engaging in class action litigation. It may in concert with members of the bar establish a project for the referral of such cases to help ensure that important needs of the client community are served. It may also co-counsel with other members of the bar who can handle portions of a case that the organization is prohibited by funder restrictions from addressing.
Responding to cultural, linguistic, and disability diversity. An organization may call upon members of the bar who can help it in its efforts to reach out and serve diverse cultural, linguistic, and disability communities in its service area. Where possible, it should work in partnership with lawyers who speak a language of or have an affinity with various cultural or disability groups not only to serve individual clients from those communities but also to reach out and establish credible connections with them.
Training and mentoring. Experienced private practitioners can assist organizations by training and mentoring staff advocates. Such support can be particularly helpful in areas such as trial and appellate advocacy in which staff practitioners may not yet have experience. Assistance might be offered through training offered generally to staff practitioners, or in assistance to an advocate preparing for trial or an appellate argument. Private practitioners might also provide training and mentoring in new areas of the law, such as community economic development, in which an organization might embark in response to changing needs of the client community. Such a training may also support recruitment of pro bono attorneys to this area of law.
Resource development. An organization may also work with the leadership of the organized bar and prominent members of the bar to increase resources available to serve its clients. Such assistance may include support for campaigns to raise funds from members of the legal profession and others as well as efforts to obtain funding from governmental sources and from private foundations. Private firms might be able to assist with design and marketing materials for new projects or initiatives and with fund raising appeals, branding and material creation.
Funding fellowships. Law firms, as well as corporations and their foundations, can support an organization by funding fellowships in whole or in part that place a lawyer in the organization's offices for one or two years to represent clients or to work on a special project that benefits client communities.
Assistance from law firm staff. Some organizations obtain the assistance of law firms.Paraprofessionals, legal assistants, and support staff are highly trained professionals who may volunteer to assist with projects, even when no lawyer from the firm is helping. Paralegals, for example, can help prepare deposition digests, create demonstrative exhibits, or conduct initial reviews of document productions in major cases that have been undertaken by the organization. Marketing departments, technology specialists, and social media teams can also provide support and in-kind contributions to legal services groups.
Information technology. Organizations that find it difficult to maintain internal capacity to support their information technology needs may enter into a collaborative relationship with a local firm to help meet such needs.Such assistance might be offered in the form of technical assistance, review of privacy policies and terms of use of systems and tools in use, expertise in technology polices, network administration, and staff training in the effective use of software. Members of the private bar may also be helpful in evaluating complex privacy policies of private tools being promoted to client communities, evaluating the risk of using freeware tools, or understanding how data mining and artificial intelligence, or AI, impact an organization's client communities.
Provision of legal information and community legal education. Attorneys who do not work for an organization can also assist with efforts to provide legal information to the client community, either in community legal education presentations offered to groups or in clinics. They may participate in the drafting or review of legal self-help information.
Representation of Clients
An organization should seek to expand its resources by involving as many other members of the bar as possible in the direct representation of clients. As interdisciplinary approaches to serve clients with other professions and skillsets grow, organizations should become familiar and capable of providing interdisciplinary approaches to solving legal problems. This includes medical-legal partnerships, emerging regulatory innovations that authorize paraprofessionals to provide certain legal services direct to consumers, social work approaches, and the use of client advocates and court navigators, as available, in their states.
Legal aid organizations should have a variety of ways to engage other advocates as representatives in order to best use their skills and expertise as well as to take advantage of their different motivations and to meet the needs of each practitioner advocate. Some advocates want to control the length of their commitment and can do so by assisting clients with short-term problems that can be addressed by advice or brief service. Many advocates who lack expertise in the legal problems of legal aid clients will only volunteer if they are adequately supported, which may be ethically required.Other advocates will be attracted to complex or high-profile issues that will challenge their legal skills and raise their profiles in the community.
There is a range of ways to involve members of the bar in representing clients. A legal aid organization should seek to make as many options as possible available to participating members of the bar.
Limited-scope representation. Many practitioners are more willing to participate as volunteer attorneys if they know what the commitment of their time will be - a calculation that cannot be certain in cases involving the full representation of a client. Various forms of limited-scope representation, therefore, lend themselves to participation by members of the bar who have such a concern. An attorney might, for instance, be asked, under a limited-scope agreement where the client has given informed consent to the arrangement, to represent a client with a discrete portion of a legal problem, such as child support, or obtaining a restraining order.
Organizations should also consider involving members of the bar in periodically staffing an advice clinic or a telephone advice line. Members of the bar can also assist in clinics to give advice to self-represented litigants and to help them evaluate their case and prepare appropriate pleadings. They can also conduct intake and an initial assessment and offer preliminary advice to persons at locations such as homeless shelters and community and senior centers. Consider the use of technological tools, such as knowledge bases/wikis, document assembly, and training videos, that can be used in clinic or hotline settings to assist pro bono attorneys in providing high-quality and timely advice or limited representation. Online intake portals with guided interviews and legal check-up tools can help pro bono attorneys be more effective at conducting intake and assessments.
Full representation. An organization should offer the opportunity for members of the bar to provide full representation for clients in individual cases. Many attorneys not working for an organization are familiar with consumer and family law and regularly take referrals in those areas. Lawyers who have previously worked for a legal aid organization are often familiar with other areas of the law that affect client communities, including landlord-tenant and public benefits and may be willing to take referrals in these areas.
Practitioners not employed by legal aid can also be recruited to handle cases in areas of the law with which they are not familiar by consulting or associating with a lawyer who has that competency.Lawyers who are just starting out in their practice are often attracted to taking cases when they are offered proper training and an opportunity to be mentored by a staff member or other practitioner with expertise in the area. Experienced lawyers can also be recruited to work in unfamiliar areas that involve compelling issues, but should also be offered training and guidance.
Complex legal work. An organization should offer opportunities to those members of the bar who prefer more complex legal work and are willing to engage in advocacy that involves multiple clients and complex legal issues. Members of the bar should be encouraged to co-counsel with an organization, particularly when a private attorney's firm has special expertise and resources to support complex and costly litigation. In some cases, a volunteer attorney may handle part of a case or represent one of a group of clients that the organization cannot because of restrictions by a funder. Private practitioners can also present the interests of client groups before legislative and administrative bodies.
Special projects. Members of the bar not working for legal aid can also be called upon to assist in projects where their special expertise may be helpful. Organizations that are undertaking community economic development, for instance, may find that attorneys whose practice consists largely of corporate clients or property developers can assist in the representation of groups and non-profit organizations regarding issues such as incorporation and compliance with local, state, and federal requirements.
Representation by compensated private attorneys. Although all lawyers have a responsibility to render pro bono legal services to low-income persons or to support organizations and entities that are designed primarily to address the needs of persons of limited means, there are a number of circumstances in which it is appropriate for a legal aid organization to compensate private attorneys to represent clients. In many remote and sparsely populated rural areas, for instance, there is not a sufficient number of private practitioners to support a pro bono effort and it is impractical to serve the area with staff practitioners. In other circumstances, staff practitioners may not have sufficient expertise in an important area of legal need for clients and no lawyers may be available to serve as volunteers to address the need. Such representation should be compensated at a reduced rate, usually far under market value, creating an in-kind contribution to the organization.
It should be noted that in many communities, private practitioners represent a number of legal aid-eligible clients for a full or somewhat reduced fee, but do not participate in the organized efforts of the legal aid organization. Such lawyers often have expertise in the same substantive areas as the organization and may be an important resource to the client community. In its planning, the organization should be aware of the degree to which such private practitioners are responding to the legal needs of the client community. Where appropriate, the organization should seek to target those private practitioners in its recruitment efforts to represent its clients or to provide support, such as training and mentoring of staff and other participating attorneys. Some caution is warranted because once a fee is introduced, there is less incentive for that attorney to provide pro bono services.
Interdisciplinary approaches. As our understanding of poverty, systemic racism, and legal problems increases, it becomes evident that working with others who are members of the bar can be beneficial to the clients served, and it can lead to overall improvements in the health, empowerment, and skill-development of chronically underserved and victimized groups. Legal aid organizations will take advantage and lead in the creation of interdisciplinary teams that come together to support the client and the family with the goal of solving long-term problems that might create or exacerbate legal problems. This includes navigators, legal/medical partnerships, and clinics, bringing social work as part of the legal work, education, and training of specialists and other professions, or skills that lie outside of the legal domain, but complement and can be a part of the legal team's strategy and services.
Organization Responsibilities in Involving Members of the Bar
Conformity with pertinent standards and guidelines. Specific guidelines that relate to the involvement of volunteer attorneys in the representation of legal aid clients have been developed over the years. In 2013, the ABA adopted the Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means. These Standards cover governance; organization infrastructure, effectiveness, and delivery design; relationships with clients; and relationships with volunteers. Organizations that involve pro bono lawyers in the representation of clients should be familiar with the Standards and should strive to adhere to their aspirational goals and guidelines.
Integration with the organization's delivery system. The efforts of members of the bar, whether on a volunteer or a compensated basis, should be integrated into the organization's overall service delivery approach (see Standard 2.2). To accomplish this calls for the organization to match the identified legal needs of the clients it serves with the skills and knowledge offered by its participating practitioners.
Because members of the bar may come from diverse backgrounds and many may not have experience in areas directly pertinent to the legal needs of the organization's clients, the organization needs to be deliberate in the design of its private attorney component. Several factors need to be considered:
- The interests of the participating attorneys. Most attorneys prefer to be referred cases that involve procedural and substantive issues with which they are familiar. Cases that disrupt the routine of a lawyer's practice by requiring a substantial commitment of time to research the background law governing the matter may discourage some attorneys from accepting more cases. On the other hand, repetitive referrals of routine cases can cause burnout, inadvertently devaluing the lawyer's time and commitment. Some attorneys prefer working on diverse matters and the opportunity to be exposed to new and challenging legal issues, so long as they are offered adequate support. To be most effective, the organization should be sensitive to the particular interests of each participating attorney and should keep records that reflect each lawyer's specific interests.
In some cases, a lawyer who is volunteering may have expertise in an area pertinent to a legal need in a client community, but not in an area in which the organization focuses. A trusts and estates lawyer, for instance, may be available to serve clients who wish to write a will - a legal need which the organization may have decided not to address. The organization may link the volunteer attorney with a person eligible for its services without significant cost, effectively using such volunteers in their area of expertise. It should not, however, incur significant costs in setting up a system to identify and refer clients whose legal need falls outside what has been identified as the most compelling needs of the client community or the organization's priorities.
- The need for quality assurance in the part of the organization. Referral of cases to attorneys who have expertise in the substance of the case can assist the organization to meet its responsibility to ensure that cases are assigned to lawyers competent to handle them. Referral of matters that are unfamiliar to an attorney requires a commitment by the organization to support the attorney, including training and backup to ensure that competent work is done for the client as a complement to that lawyer's taking steps to comport with their competence obligations under Model Rule 1.1.
- The needs of clients. The organization should also make certain that the cases it refers to its outside attorneys have significance for the clients referred. If volunteer attorneys continually see cases that seem trivial or relatively inconsequential, they may lose interest in assisting further and may draw a faulty conclusion about the nature of legal problems that the organization's clients face. The organization may consider a component to its volunteer training that shares the impact to the client as a result of the volunteer's work.
A legal aid organization should maintain ongoing, effective communication with the lawyers on its panel and strive to fashion a policy that responds to the interests of the lawyers, while maximizing the service offered to clients. The organization should periodically reassess its utilization of members of the bar and should adjust its approach as appropriate to reflect the changing interests of the attorneys and the changing needs of its clients.
Appropriate institutional support. A legal aid organization should dedicate resources to support the infrastructure necessary to integrate the resources of the legal profession in its work. It should make an adequate commitment of its own resources to be used in conjunction with those available from the bar to recruit, train, and provide backup assistance to members of the bar who represent legal aid clients. That commitment calls for support from both the governing body of the organization and from senior management. The organization should make certain that adequate financial resources are provided to support the effective operation of its private attorney component. Staff of the component should be well-trained and should have the skills and capability to interact effectively with private practitioners, the leadership of the bar, and voluntary bar associations. The organization should ensure that it has sufficient staff to recruit members of the bar, to assign cases properly, to follow-up on referrals, and to provide appropriate support. Organizations should invest in case management systems that enable careful but simple tracking of pro bono cases - assignments, rosters, hours, and the status of cases.
There are a number of activities that are necessary to carry out an effective project to involve members of the bar in representing clients of the organization.
Establishing a clear understanding with the client. Clients should know that an outside attorney, and not the organization, will be representing them.
It should be clear whether the organization retains an attorney-client relationship with the referred client. It is a matter of contract among the client, the outside attorney, and the organization as to whether the organization is included in the attorney-client relationship once the referral has been made. The existence - or absence - of an attorney-client relationship between the organization and the client is significant since it directly implicates whether the organization can receive confidential and privileged information to provide support for the outside attorney, or to oversee the representation and to intervene if a problem arises between the client and the attorney.
Clients to be represented by a practitioner who is not employed by the organization should be advised how to contact their attorney, and of the importance of following up with the lawyer. Clients should be informed that although they will be represented by an outside attorney, they will not be charged a fee.The organization should also let the client know that the attorney has agreed to represent the individual only with regard to the matter referred and that clients who encounter other legal problems should contact the organization and not the outside attorney to seek new assistance. The client should also be told what to do in the event of a complaint about the representation.
Establishing a clear understanding with the attorney to whom a case has been referred. Whenever a case is referred to a lawyer who is not employed by the organization, there should be an explicit determination of the level of responsibility the organization assumes for the case and of its authority to oversee the representation. A number of factors should be resolved by specific agreement between the legal aid organization and the outside attorney. Those include:
- The extent to which the attorney-client relationship includes the organization within its purview;
- Who is responsible for costs that may be incurred in the course of the representation;
- The extent of involvement of the organization's staff in strategic decision making prior to referral and during the course of the representation, particularly if the organization has agreed to pay costs;
- Who is responsible for determining if the client will be represented in a possible appeal in the case;
- The level of back-up and support available from the organization and how to access it;
- The reports that the organization will request during the course of the representation and at its end; and
- The procedures that will be followed in the event of a complaint made by the client regarding the representation.
Supervision of referred cases. The extent to which the organization can receive information about the conduct of each referred case is a function of the extent to which it stands within the attorney-client relationship that is created. If the organization stands outside the relationship between the client and the outside practitioner, it cannot ethically obtain confidential information about the case without the client's informed consent, nor can it interfere with the professional judgment of the lawyer.Its authority to supervise the representation is, therefore, necessarily circumscribed. If on the other hand, the organization and the outside practitioner share in the attorney-client relationship, the organization has both greater responsibility and greater authority to supervise the handling of each case matter.
The degree of responsibility that an organization assumes for a case referred by it and the nature of the quality assurance procedures that it employs will vary, and as noted above the organization may have none. In some instances, a full range of quality assurance measures, including requiring the submission of progress and close-out reports may be appropriate. In other cases, the staff of the organization may engage in substantial preparation of the case, including legal research, investigation, and preliminary counsel and advice to the client, but may relinquish further direct responsibility for the matter on consummation of the referral. In such circumstances, the organization may offer research and other support, as well as a discussion of strategy with the outside attorney.
A few organizations may simply forward cases to participating volunteer attorneys, in accordance with the policies and procedures agreed upon between the organization and its panel of attorneys and may explicitly delegate all responsibility for the case to the outside practitioner. When a legal aid organization does not directly supervise the work of participating attorneys, it, nevertheless, should offer training, take reasonable steps to ensure that referrals are made to lawyers of known competence, and provide backup and support.
In all cases, the organization should ask for a close-out report indicating that the case has terminated, whether the client's objective was achieved, and how much time was spent on the matter. The information should be reviewed by the organization to gauge the effectiveness of its plan for using other members of the bar.
Backup and support. The organization should offer backup and support to its participating attorneys. The type of support that is possible will vary depending on whether the organization falls within the attorney-client relationship and on practical considerations, such as staff size in relation to the number of participating outside attorneys.
An organization can offer pro bono attorneys' access to knowledge databases, brief banks, and document assembly tools where appropriate. The organization can assign a staff lawyer to provide advice and support to the outside practitioner, when requested. Some organizations have paired less experienced attorneys with more experienced ones for consultation and assistance.
Training. To the extent that outside practitioners are called upon to represent clients in areas such as public benefits or indigent health care, with which they may not be familiar, they should be offered appropriate training and the ability to consult or associate with a more experienced attorney. Training can be in substantive areas or regarding issues related to the representation of low-income clients generally, as well as what is necessary to work with a particular low-income population. Many members of the bar will not have had significant experience working with this type of client. Training may have the ancillary effect of encouraging them to represent similar clients who seek their assistance directly. The organization should also make its cultural humility training available to its participating attorneys.See Standard 3.4 for more information on this training.
Recruitment of attorneys. The organization should have an ongoing capacity through its own organization or by agreement with another to recruit new attorneys. To the extent possible, it should work closely with the judiciary and bar leadership to support its efforts to engage volunteer attorneys in assisting clients and to increase the pool of attorneys available to assist the client community. The organization should also recruit in-house corporate counsel and government attorneys to the extent to which their participation is allowed.
Recognition and appreciation of volunteer attorneys. The organization should take appropriate steps to recognize and show appreciation for volunteer attorneys who have assisted clients or provided other professional support. Appreciation can be shown through bar luncheons, favorable articles in bar publications and the local press, and a simple thank you letter.