RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1751 (1999)
Legislative Advocacy:
The lawmaking process in the United States is structured to involve
a "marketplace of ideas." Because legislators cannot be experts in all
areas of the law, they depend on input from a range of persons with
special knowledge about the impact on society, or on different groups,
of existing or proposed laws. If lawmakers are deprived of access to
persons who have relevant specialized knowledge, the fairness and ef-fectiveness
of the process is compromised (diminished), and the probability of
producing fair, balanced, and effective laws is reduced.
Legislative access to legal expertise from lawyers representing the
poor is particularly important because impoverished segments of soci-ety
have particularly limited abilities to wield influence in the legisla-tive
arena, as well as limited abilities to obtain representation to
1. The recommendations are consecutively
numbered for ease of reference. Citations to these recommendations elsewhere
in this volume shall be as follows:
Recommendations of the Conference on the Delivery
of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation
___, at ___ (1999) [hereinafter
Recommendations].
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1752 (1999)
challenge problematic legislation, and, therefore, are particularly
vul-nerable to poorly designed legislation.
Moreover, laws that are poorly drafted, obsolete, or inefficient are
breeding grounds for litigation. It is wasteful of the public fisc to ham-per
efforts to update and improve laws. Restrictions on the participa-tion
in the legislative process of legal services attorneys, who are
uniquely able to identify and explain to lawmakers problems with ex-isting
and proposed laws affecting poor people, are contrary to effi-cient
and effective lawmaking, and likely to encourage litigation. Legal
problems that might be resolved through a change in law are
more likely to be litigated if poverty lawyers are not permitted to
pro-pose and advocate for such a legislative change.
We believe that it is in the interest not only of low-income clients,
but also of legislators, clients, and society at large, which pays for
all
the systems for making and enforcing the laws, to enable all attorneys,
including publicly funded legal services attorneys, to carry out fully
their responsibilities under Model Rule 6.1 (footnote
2) (concerning voluntary pro bono publico service).
For the foregoing reasons, we recommend that:
1. Funders of legal services for the poor refrain from imposing limits
on the access of legal-services attorneys to the law making
process; and
2. Standards for evaluating legal-services programs should identify
an ability and commitment to participate in lawmaking as one
component of the most effective delivery system.
Class Actions: The public has a strong interest in equal
access to justice and in the efficient resolution of legal disputes affecting
large numbers of people.
Accordingly, we have considered the following in formulating our recommendations:
Other persons affected by the common legal issue: Many low-income
persons affected by a common legal problem and who would benefit
from a class action resolution are unable to obtain counsel at all.
For them, justice would be denied altogether. In an era of very limited
resources for low-income persons, if there is not a class action, then
many people will go unrepresented.
Judicial and public economy: Repetitive litigation involving
the same issue for different litigants is wasteful of judicial resources
in
that it involves repeated interpretation of the same law. It often
leads to inconsistent decisions at the trial level, generating repeated
appeals.
This inefficiency is rendered even more wasteful if counsel for the
party adverse to a legal services client is publicly funded.
Impact on other users of the judicial system: When court calendars are clogged with numerous cases involving the same issue because
2. Model Rules of Professional Conduct
Rule 6.1 (1998).
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67 FORDHAM LAW REVIEW 1753 (1999)
court and counsel are barred from using the class action mechanism to
resolve the issue, resolution of the cases of other litigants is delayed.
This makes the judicial system less efficient and reduces public confi-dence
in, and support for, the judicial system. This is a serious con-cern,
especially at a time when court case loads are growing faster than
the judicial resources available to resolve them.
Quality of justice: One of the hallmarks of an effective government
of law is that similarly situated persons are treated the same by the
law. Multiple litigation in different trial courts on the same issue
often produces inconsistent outcomes. In legal services programs, with
lim-ited
resources, not all adverse decisions can be appealed. Some liti-gants
are therefore likely to be harmed irreparably by a decision.
Even if an appeal in another case leads to a favorable appellate deci-sion
for a low-income client, that appellate decision often cannot be
applied to prior trial court decisions in other cases that have not
been appealed. These inconsistent outcomes produce the conviction in
those harmed that they have been treated unjustly by the justice sys-tem.
This undermines or destroys their respect for the law, thus weak-ening
the fabric of society.
Legal services resources: In appropriate cases, a class action
is an extraordinarily effective way to address a legal problem affecting
a
large number of clients. A legal services program that cannot ask the
court to utilize the class action mechanism to resolve a question effi-ciently
is forced to bring the same case repeatedly before the courts, thereby
wasting resources that are already inadequate to meet client
needs and eliminating its ability to represent all clients. If the
office attempts to refer the case to another lawyer to undertake it as
a class
action, then there may be no lawyer available with the requisite com-petence
(as discussed below), or no lawyer available at all.
All attorneys have a professional responsibility to avoid wasting ju-dicial
resources and to seek the most efficient ways to resolve client
problems. We therefore believe that denying a class of attorneys and
their clients access to all of the tools of judicial economy, and denying
the courts in a certain class of cases the ability to administer justice
most fairly and efficiently, undermines the ability of both lawyers and
judges to carry out fully their professional responsibilities.
For the foregoing reasons, we recommend that:
3. Funders of legal services programs refrain from denying legal services
program counsel, or the courts in cases involving such
counsel, access to class action mechanisms when appropriate; and
4. Legal services programs' boards, in light of their fiduciary re-sponsibility
to ensure that program resources are used most cost
effectively, consider whether, in seeking funding, they have a professional
responsibility to explain to funders the negative
impact of such restrictions on the ability of legal services pro-
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67 FORDHAM LAW REVIEW 1754 (1999)
gram counsel to carry out fully their professional responsibili-ties to their clients and to the court.
A Lawyer's Individual Role in Agency and Law Reform: ABA Model Rule 6.1 makes it the responsibility of every attorney to render public service, a responsibility which includes participation in activities that improve the laws and the legal system. (Footnote 3) Legal serv-ices attorneys are not exempt from that responsibility. Therefore, we recommend that:
5. Legal services attorneys who are not permitted to use program resources
to bring an issue to the attention of lawmakers con-sider
whether they have a responsibility under Rule 6.1 to un-dertake such
efforts on a pro bono basis, and that legal services
programs that are subject to restrictions not discourage them from
doing so.
6. The lawyer should strive to:
(a) understand the origin and dynamics of racial, gender, and economic
inequality in the client community;
(b) know or strive to learn the context of community issues, including
community history, economics, politics, and
demographics, as well as its resources, leaders, allies, and adversaries;
(c) acknowledge and be aware of the lawyer's own biases and the limitations
of the lawyer's own knowledge;
(d) identify and obtain information on institutions and people who
affect the interests of clients (e. g., police, landlords,
welfare departments, school officials, and the media);
(e) establish working partnerships and coordinate advocacy with others
who work with client groups;
(f) respect clients' autonomy, privacy, and confidentiality; and
(g) overcome obstacles to establishing trust based on differ-ences
in race and class between the lawyer and client.
To the extent that restrictions by funders impede the lawyer's ability
fully to represent client communities, they compromise the ability to
provide competent representation and thus contradict the mission of
seeking equal justice.
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67 FORDHAM LAW REVIEW 1755 (1999)
Even if an individual client's interests
may be adequately served through other means, the lawyer should be prepared,
where appropriate,
to provide full information about the possibilities for seeking a broader
impact, so that the client has the option to
consent to undertaking a course of action aimed at achieving that objective.
If the lawyer is unable to provide this type of
representation, then the lawyer should attempt to provide an appropriate
referral.
8. Among the factors that a lawyer should consider in deciding whether
to bring a class action are:
(a) whether the class action is likely to benefit the class, as well
as benefit the named individuals;
(b) whether it is better to proceed with an organizational plain-tiff
rather than a class action;
(c) whether the lawyer has the capacity to handle adequately not only
the litigation but anticipated monitoring and en-forcement
of the potential relief; (d) whether the class action device is the
preferable means to
achieve the best relief for the class and the named individu-als; and
(e) whether the class action is consistent with the resource allo-cation
and priorities of the organization employing the
lawyer.
9. Among the factors that a lawyer should consider in deciding how to define the proposed class are:
(a) whether potential class members in geographical areas other than
the place of residence of the named individuals
have access to attorneys likely to undertake similar litiga-tion on
their behalf;
(b) whether potential class members in other geographical ar-eas who
do have access to lawyers likely to undertake simi-lar
litigation on their behalf would be precluded from doing so by including
them in the class;
(c) how a more inclusive class definition would provide repre-sentation
to potential class members who would not other-wise
be represented, would affect the likelihood of success or extent of
relief, or would cause the lawyer to expend dis-proportionate
resources on the litigation; (d) the degree to which the lawyer has
sufficient knowledge of
the contextual circumstances in which the claim arises for differing
potential members of the class (see the section
above on competence); (e) whether the lawyer has the resources or access
to the re-sources
necessary to monitor and enforce the anticipated relief for the defined
class;
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67 FORDHAM LAW REVIEW 1756 (1999)
(f) whether the class as defined will be manageable, and whether the
lawyer is able and willing to manage it; and
(g) the effect of the definition of the class on the possibility of
settlement.
10. Lawyers undertaking class representation should enter into a retainer
agreement that clarifies the extent of representation
and the responsibilities of the lawyer and the class representa-tive.
There is a need for further study on whether such a re-tainer
can limit the scope of representation in a way that allows the attorney
to refuse to represent the class on a poten-tially
meritorious appeal, and, if so, the extent to which judicial knowledge
or approval is required for such a refusal.
11. In the class action context, the interests of individual class rep-resentatives
may conflict with those of other class members.
Lawyers should ensure that class representatives understand their role
as fiduciaries for the class. Lawyers should attempt
to protect individual representatives' interests within the con-text
of advocacy for the class as a whole, but if a conflict is
unavoidable, they must act in the interests of the class as a whole.
12. Assuming that it is permissible for the lawyer to decide to withdraw
representation at a particular stage of the case (e. g.,
post trial), the decision whether or not to do so should be made with
due regard for such relevant considerations as: (a)
possible limitations of the lawyer's available resources; (b) the impact
of withdrawal on the class; (c) the class's or clients' rea-sonable
expectations; (d) availability of alternative counsel; and (e) the
likelihood of success.
13. There may be situations where, because of unanticipated changes
in the law or legal processes, or similar developments,
it is appropriate for a lawyer to withdraw from the representa-tion
of a class. Although such situations are difficult to define
precisely, further study should be undertaken toward develop-ing principles
that should guide this decision and the lawyer's
obligations (such as to assist in obtaining substitute counsel) in
such situations.
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1757 (1999)
14. In representing a group, lawyers should draft clear retainer agreements
spelling out the scope and objective of the
representation.
15. Representing a group competently often requires an under-standing
of a specialized area of transnational law. The lawyer
also must develop a detailed understanding of the group, its history,
its processes, and its objectives. The lawyer should
recognize needs for other kinds of technical assistance, such as accounting
and organizational development, and should work
with the leadership to identify resources to address these needs.
16. The rules of professional conduct that govern entity represen-tation
apply in this context. For example, lawyers generally
should advise the leadership of the group, and should defer to its
decisions on behalf of the group.
17. Where clients with common interests would be served well by the
creation of an entity, it is appropriate to advise them of the
option and to assist them in exploring the possibility. Lawyers working
with an emerging organization can play an essential
role in assisting the group in choosing a structure, evaluating goals,
and defining its processes. In counseling the group, the
lawyer should be alert to situations where: (a) the decisionmaking
process departs from the process pre-viously
defined by the group in light of its mission; (b) substantive decisions
appear to be inconsistent with the
group's mission or the interests of those whom the group represents;
or
(c) substantive decisions appear to be inconsistent with the re-tainer
agreement.
In these and similar situations, the lawyer should be guided by Model
Rule 1.13( b). However, the lawyer should be careful to
avoid usurping the functions of the group's leaders or substi-tuting
her judgment for theirs.
18. Further study should focus on whether traditional conflicts-of-interest
principles should control the representation of multi-ple
community groups. Factors to be considered should in-clude the availability
of alternative representation (including
pro bono representation from the private bar) and questions about the
adequacy of clients' consent to waive conflicts.
relationships across professions and between client groups and other
entities that address issues relevant to the client population.
Doing so enables lawyers to better represent their clients or client
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67 FORDHAM LAW REVIEW 1758 (1999)
community by: (1) enabling lawyers to develop competence, by pro-viding
access to information relevant to the representation of their
clients; (2) providing lawyers access to individuals and organizations
that may assist the lawyer in dealing with processes with which those
individuals or organizations have superior experience or expertise;
(3) efficiently disseminating law-related information of relevance to the
community, thus facilitating educational objectives of the lawyer or
law office; and (4) expanding or providing support for participation in
legislative advocacy and developing public awareness around client
and community matters.
Coalitions or collaborative relationships with other professionals and
client groups allow the lawyer to exchange information, skills, and
strategies. In addition, organizers and client groups often possess
both a knowledge of community resources and constraints and the
skills and experience of bringing people and groups together. As the
legal services community continues to shrink, these relationships are
essential.
Increasingly, coalitions and professional collaborations are being recognized
for their ability to disseminate information efficiently and
train the community on law-related issues and procedures. Collabora-tions
that provide another means to "legal access" are empowering to
a client community. Law reform is often best accomplished through legislative
advocacy as well as litigation. Consequently, coalitions can provide a
lawyer
with an organized body that will advocate politically (and through
the media) on an issue, as well as offer legal resources to clients with
problems. In addition, members of coalitions may offer to organize
a part of a client community.
Working in coalitions or forming collaborations also create oppor-tunities
to access additional resources for serving low-income persons.
Therefore, we recommend that:
19. To the extent that lawyers or law offices participate in a coali-tion
or collaborate in their individual capacity and not as a
representative of a particular client (or as a representative of the
coalition itself), they should clarify their role as appropri-ate
to avoid misleading others about the role in which they act.
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21. In addition to "formal" conflicts of interest among clients, public
interest lawyers may experience tensions between the
interests of an individual client or group of clients, and the in-terests
of other members of the client community or the goals
of the lawyer's organization. Potential for such tensions should be
considered in the case selection process. However,
once an attorney-client relationship has been formed, lawyers must
fulfill their ethical duties of loyalty and zealous represen-tation
even if such tensions emerge.
22. Lawyers should raise these issues in client counseling (i. e., dis-cuss
with clients how pursuing their interests may harm other
people). If the client agrees after being advised of potential harm
to other persons, the lawyer may pursue advocacy strate-gies
that seek to reconcile the client's interests with those of other unrepresented
community members. If the client does
not consent, however, the lawyer must pursue the client's in-terests
even if other community members are harmed.
23. Similar tensions may arise when a lawyer undertakes represen-tation
that later appears inconsistent with an efficient alloca-tion
of advocacy resources (e. g., when the only remaining issue in a case
involves retroactive benefits for a small number of
class members, or when an appeal is possible but unlikely to succeed).
The decision whether to withdraw from ongoing
representation involves different considerations from the deci-sion
whether to undertake representation initially. Lawyers
must comply with ethical restrictions on withdrawal from pending cases,
and, more broadly, should respect clients' rea-sonable
expectations of ongoing advocacy.
24. On the other hand, entering into a lawyer-client relationship should
not require the lawyer to pursue every available rem-edy
for the client for an unlimited time. Retainer agreements should clearly
state the scope of representation agreed upon at
the outset. Further study should be conducted on the question whether
it is permissible to terminate the lawyer-client rela-tionship
in circumstances where the potential benefits of con-tinued representation
are greatly outweighed by the costs,
risks of harmful results (e. g., making "bad law" on appeal), or by
impairment of the lawyer's ability to serve other clients.
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