ABA encourages innovation to expand civil legal services

By Barry Bridges
BridgeTower Media Newswires
PROVIDENCE, RI — Access to justice advocates are welcoming a recent resolution of the American Bar Association calling on states to consider “innovative approaches” to help the large number of Americans whose need for civil legal assistance often goes unmet.

In Resolution 115, passed with a near unanimous vote by the ABA’s House of Delegates at its midyear meeting in February, the association “encourages U.S. jurisdictions to consider regulatory innovations that have the potential to improve the accessibility, affordability, and quality of civil legal services.”

Such efforts, the measure continues, should “ensur[e] necessary and appropriate protections that best serve clients and the public, including the provision of legal counsel as a matter of right and at government expense for children facing essential civil legal matters and for low-income individuals in adversarial proceedings where basic human needs or a loss of physical liberty are at stake.”

Eliza Vorenberg, director of the Pro Bono Collaborative at Roger Williams University School of Law, said the resolution comes at a time when the nation is losing ground on ensuring that those who need civil legal help are able to get it.

“There is no doubt that we have a growing, acute crisis in this country and this state with regard to civil legal services,” Vorenberg said. “The work that we all do through pro bono efforts does not seem to be moving the needle, and as a country we need to take significant and innovative steps to increase access.”


Burgeoning problem

“We need new approaches and want to encourage states to try things in the interest of the public,” agreed Suffolk University Law School Dean Andrew M. Perlman, who assisted in drafting Resolution 115 for the ABA’s Center for Innovation.

The measure’s accompanying report states that more than 80 percent of people with low incomes, as well as many middle-income Americans, receive inadequate assistance when facing “critical legal issues” such as child custody and support, debt collection, eviction and foreclosure. And the public’s unmet need for civil legal services is only growing more severe, it concludes.

Perlman said the three traditional pillars to the problem — pro bono work, increasing funding for civil legal aid, and efforts to establish civil Gideon rights — have proven insufficient for the scope of the problem.

But he added that states have implemented or are considering a “remarkable array” of innovations, such as online dispute resolution, an expansion of virtual court services, and implementing technology to help lawyers deliver services more efficiently.

As an example of initiatives undertaken in some jurisdictions, the ABA holds out the recommendations of an Arizona Supreme Court task force to expand the use of unbundled legal services; revise Supreme Court rules to clarify situations under which a law student may work under the supervision of an admitted attorney; and develop a “tier of nonlawyer legal service providers, qualified by education, training, and examination, to provide limited legal services to clients, including representation in court and at administrative proceedings.”

The ABA resolution also calls for the collection and assessment of data to determine which innovations are best serving the public’s unmet civil legal needs.

It originally included language concerning the possible relaxation of Rule of Professional Conduct 5.4’s barriers to fee-splitting and outside investment in law firms, and also encouraged “new approaches” to the unauthorized practice of law.

But the final version approved by the ABA omitted those specific provisions, stripping any mention of “alternative business structures” or amendments to Rule 5.4.

“Some people interpreted the report as putting a weight on the scale in considering some sorts of innovations over others, but it was never intended to tell states specific ways to change, so we removed the language,” Perlman said. “But the resolution accomplishes 100 percent of its original goal to encourage states to innovate, and nothing in the final version changed that.”


Possible solutions

Vorenberg thinks the resolution is a move in the right direction.

“The idea of non-lawyers working independently has been talked about for years, but we haven’t actually seen that happen. It’s controversial because the rules concerning the unauthorized practice of law are so strict,” she said.

But she pointed to other initiatives that could make a difference, such as the ABA’s Free Legal Answers program, which is held out as a “virtual legal advice clinic” where users post online legal questions that are fielded by lawyers in their state.

“It’s an innovative program, and attorneys can do it while sitting at their desk. This could be particularly important now, when legal needs are increasing due to the pandemic and we are all working remotely,” Vorenberg said. “But Rhode Island is not yet participating.”

She also sees potential in the recent Rhode Island rule change allowing for limited scope representation.

“We have worked very hard to get the word out about this, and it’s happening very slowly. There is room for more public education about how it can be used, and over time it can make a dent, in the Family Court especially,” Vorenberg said.

Another idea, she said, is to expand the Lawyer for a Day Program, which has been allowed in other states but could perhaps be introduced in Rhode Island courts.

Historically, Vorenberg said, bar associations and the judiciary have been relied upon to find ways to expand civil representation, but she explained that some innovations need funding that may require legislative involvement.

“This is really a devastating situation, because we’re talking about basic needs like housing and the custody of one’s children, which are issues of vital importance,” she said. “In New York City, they now have a right to counsel for eviction cases, and this is a model I hope will be replicated around the country.”

In the housing context, Jennifer L. Wood, executive director of the Rhode Island Center for Justice, said her organization has been pressing for more local, state and federal funding to provide representation for low-income people. She reported that over 90 percent of tenants are without a lawyer when they go to court.

The center is also advocating for expanded support for pro se litigants, which Wood said might be accomplished through high-quality online tutorials and self-help forms.

“However, policy formation, which requires the balancing of cost and quality considerations against pressures for basic access, is always complicated,” she added. “We are clear that low-income litigants facing homelessness or unsafe and unhealthy conditions in their rental housing should not be consigned to half-measures nor watered-down representation when it comes to access to justice. We oppose a lesser standard of legal representation for families facing the loss of their homes.”

When it comes to basic needs like housing stability, tenants should have the benefit of counsel with expertise in housing law, consistent with the representation received by most landlords, she said. At the same time, Wood is hopeful that Resolution 115 will result in new innovations that the center can leverage on behalf of its clients.

“In my view, the power of the ABA resolution is in … encouraging jurisdictions to make this area a focus of study and actually collect data on which innovations are working — and, of course, to document when a method is not effective in expanding access to justice,” Wood said. “At the end of the day, however, there is no substitute for effective, efficient, technology-enabled legal representation for those who must defend their basic human needs in the courts.”