Part II of “Assessing Innovations” — A Rights Oriented Analysis

A recent post discussed how to analyze the value of different approaches to access to justice in cost benefit terms.  This follow-up post takes a different approach, looking at the same issue — of how to decided whether to implement an innovation in more traditional rights terms.

Civil Gideon” advocates assert a “right to counsel” in certain types of cases.  While they are deeply nervous about individualized assessment at the counsel assignment stage, they generally concede that there are cases that do not need, or are simply not worth, counsel.

More general access advocates assert that the right should be to access to justice, and that at a minimum one is entitled to an individualized (or triaged) analysis of what is needed to fulfill that right.  They believe that Turner, regardless of what it does to the right to counsel argument, strongly supports the general access argument in any case in which there is no right to counsel.

So, what does one do when faced, for example, with the question whether to implement an unbundled attorney advice only program, or a non-lawyer initiative?

For the general access advocates, the argument is simple, at least conceptually.  The question is whether the program, as designed, provides “access.”  Presumably that means whether the case is sufficiently presented that it is heard on the substantial and procedural merits in the particular forum.  How that is answered will depend on the court environment, as well as how what is being offered fits against what is needed to get the case prepared and presented — i.e. triage.

For right to counsel advocates, perhaps the question is simpler, whether this case fits in the broader class of case in which an attorney is necessary for such a presentation.  If the answer is yes, then it should be a right to counsel case.

If this is a fair analysis (and I welcome more nuanced versions or alternatives), then the benefit of the right to counsel analysis is that, assuming resources are available, it is less likely to produce cases in which cases that need counsel do not get them.  The obvious problem is that the resources are just not available, and are unlikely to be unless the class of cases in which counsel is needed can be radically reduced.  This too can be achieved by changes in court process.  (I would urge “right to counsel” advocates to focus heavily on court processes, and thus strengthen their argument for counsel when the process can not be changed enough.)

On the other hand, the benefit of the right of access analysis is that is more flexible, and perhaps easier to achieve, while the risks include that more complex cases are wrongly pushed into the wrong service category, or that lower levels of service to not provide the supervision and skill in fact required, given the stakes.

Perhaps the long term way to integrate these perspectives is to make sure that access innovations include real individualized triage that reduces the risk of the above errors.  It is equally important that they build in sufficiently specific and nuanced evaluations that that the lessons can constantly improve the triage process.

Similarly, perhaps right to counsel folks should focus as much as who does not need counsel as who does.

Once again, I welcome comments and alternative views on this central, important and difficult subject.

I hope to post a third part of this series, applying these modes of analysis specifically to situations in which the litigant is paying directly for the resource.  We will see how customer choice impacts the analysis, and whether this analysis then impacts back on the cost-benefit and rights analyses.

Posted in Access to Counsel, Budget Issues, Legal Aid, Non-Lawyer Practice, Systematic Change, Technology, Triage, Unbundling | Leave a comment

Assessing the Appropriateness of ATJ Innovations

The more I am involved with discussions about possible access to justice innovations, the more I am struck that often those in favor and those against are really talking across each other because they are assessing the utility and value of against two different yardsticks.  I offer some thoughts that may help clarify things

Let me suggest that the skeptics in fact are asking the question:  “Would this innovation be as good as a lawyer?’

The advocates are asking the question:  “Would this innovation be better than nothing?”

In the more sophisticated versions of the discussion the skeptics then admit that some things do not need a lawyer, but that most do, and they continue to ask the question in lawyer-centric terms.  The advocates, of which I am one, admit that some things will require a lawyer, talk about triage, and then emphasize the benefits for those who would otherwise get nothing.

So the question becomes how do we realistically and practically develop a scale of comparison.

The usual current approach is to develop a theory of triage by which one identifies those things that do not need a lawyer, and then design a service that will meet a particular cluster of services to meet the intermediate need.  But maybe in the real world that process, useful as it is, does not always resolve the dispute because it requires the drawing of too bright lines, and assumes that benefits of assistance are full or zero.

Let me suggest therefore a different algorithm.  What, in a world in which most people in need of access services still get nothing, is the point at which an intermediate cost service which gets only intermediate results, is better because sufficiently more people can get those intermediate benefits that would get the full benefits of traditional full services?

To give a concrete example, suppose expanded non-lawyer services, which hypothetically might cost half of a full lawyer, would result in more than half the return in value of additional tenancy compared to that obtained by a full lawyer.  Would that be the tipping point, or would it need much more?  And, if so, how much more?And why?

Or to put it another way, to how many people are you willing to say, we will give you no help, because we want to give someone else better help.  As was sometimes said to those who complained about the potential for “McJustice,” to how many hungry people are you willing to refuse even hamburgers, on the grounds that its better to serve steak to a few.

In such a cost benefit analysis, those innovations that have a marginal cost of almost nothing, such as well organized volunteer navigator type programs or online document assembly programs, obviously score much better than higher cost innovations.  This  is probably why very low cost innovations can be accepted even when there is a consensus that they may not be as effective as full representation, while less-super-cheap alternatives are often expected to demonstrate, even before testing, that they are just as good as full lawyer intervention, regardless of relative cost.

Obviously, these are not questions that would be asked in a world of limitless resources.  And the greatest fear is that by asking them we could exclude the possibility of obtaining the full benefit for all.  But, on the other hand, by failing to ask them, we may be condemning ourselves to ineffectiveness.  If we knew the impact of spreading around the benefits, we might be able to make better arguments for raising the standards.  Perhaps this is the lesson of last week’s New York quality of criminal counsel settlement, in which the state committed to significant investments in quality, and sufficient mechanisms to promote and monitor their implementation.

I welcome debate and different perspectives on these very difficult questions.


Posted in Non-Lawyer Practice, Self-Help Services, Systematic Change | 4 Comments

NY Quality of Counsel Settlment May be Template for National Reform

This blog has been following the New York quality of defense counsel case.  Last week, perhaps in part because of the filing of a statement of interest by US DOJ, the parties, just before trial, have come to a proposed settlement, which is now to be presented to the judge for approval (assuming certain other things drop into place, as expected). Here is the settlement proposal.  Here is the NY Times description of the five county case,which nonetheless has many statement elements.

The state agreed to cover the costs of hiring more defense lawyers, investigators and expert witnesses to improve the defense for the indigent in the five named counties. The Cuomo administration agreed to establish standards for how many cases each public defense lawyer could handle in those counties and to provide resources to reduce caseloads to those levels.

Moreover, the state agreed to assume the final responsibility for making sure people who cannot afford lawyers are well represented, rather than leaving the task to county governments.

. . .

The settlement would run seven and a half years. It requires the state to guarantee that within 20 months, all poor defendants in the five counties have defense lawyers at their first appearance. Ten months later, public defender caseloads must not exceed levels set by the state.

Less emphasized in the Times is the extensive role that the Proposed Settlement would give to the Office of Indigent Legal Services, which would responsible for establishing statewide indigency determination requirements, setting quality standards for counsel, setting caseload standards, as well as monitoring and moving forward with many aspects of the settlement.  The settlement provides for state funding of these functions.

Having worked for many years in Massachusetts with the head of the office, Bill Leahy, when he ran the Public Counsel Division of that state’s integrated public defender system (he later came to run the whole system), I have absolute and complete faith in his ability to take full advantage of this unique opportunity to create a high quality statewide system.  I hope I will not embarrass the genuinely humble Bill too much when I reveal that one of my teachers at Harvard, one who taught many of the current generation of legal leaders, once described Bill as one of the best students he had ever had.  Bill is one of those rare lawyers whom the opposition sees sort of wandering around the case — till suddenly their case has slipped through their fingers and there is Bill with an almost inevitable “not guilty”.  It was never about Bill, always about the result.

At the national level, this very high profile case, with its clear programmatic solutions and enforcement mechanism, and its strong DOJ role, is likely dramatically to shift the playing field when it comes to other similar cases around the county.  I suspect that the DOJ role is likely to be repeated.

In particular the result in this case emphasizes the need for a strong state and statewide role, even when the system is decentralized, and for state funding to solve problems and provide leadership.  That might be something to consider for those civil community-based legal aid programs that still resist moving to a statewide model.

P.S.  Lots more information about the settlement now online at the OILS site.

Posted in Access to Counsel, Criminal Law, Defender Programs, Dept. of Justice | 1 Comment

Minnesota Supreme Court Takes Important Step Reversing Attorney Misconduct Admonition in Unbundled Case

This may be the first time that a state Supreme Court has intervened to protect the integrity and force of a limited scope agreement. As such it is an important step in defending the force of the rules that protect attorneys from judges, and attorney discipline bodies who appear to ignore the concept.  The decision is here.

The case arose from an alleged failure by an attorney’s failure to appear in court.  Several of the five occasions on which the attorney purportedly failed to appear in court are disposed of by the fact that they were adjourned or the attorney was not at that point “of record”, but, in one, the attorney was formally “of record” and did not appear at an actual hearing.  However, as explained by the Court (bold added):

At most, the record establishes that A.B. failed to attend only a single hearing: the one that occurred on June 20. As to each of the other hearings, the district court rescheduled them, or A.B. was not required to appear because he was no longer counsel of record. Because there were not “four consecutive hearings” at which A.B. failed to appear, we conclude that the panel’s determination that A.B. violated [*4] Minn. R. Prof. Conduct 8.4(d) rested on a clearly erroneous factual finding. See In re Jones, 834 N.W.2d 671, 677 (Minn. 2013) (stating that a factual finding is clearly erroneous if it does not find support in the record). Based on the unique facts of this case, we further conclude that the panel erred when it determined that A.B.’s failure to attend the June 20 hearing violated Minn. R. Prof. Conduct 8.4(d).[fn2] A.L. instructed A.B. not to attend the hearing pursuant to the terms of a limited-scope legal representation, the propriety of which the Director does not challenge. A.B. reasonably believed that A.L. would attend the hearing, at which point she could inform the court that she had instructed A.B. not to attend. Under these circumstances, we vacate the admonition because A.B.’s conduct was neither prejudicial to the administration of justice nor warranted discipline.

Perhaps the greatest importance is in the Court’s finding that “[the lawyer] reasonably believed that [the client] would attend the hearing, at which point she could inform the court that she had instructed [the lawyer] not to attend.”  In other words, that lawyers can reasonably believe that unbundled clients will inform the court of that status, and thus do not need to take independent action to ensure that the court knows of the status — even when, as here the client in fact failed to come to court.

I suspect that state supreme courts relatively rarely reverse the merits of attorney discipline decisions (although changes in penalty may be more frequent) and so this protection of unbundling can be given some greater weight.

Posted in Access to Justice Generally, Unbundling | Leave a comment

NY Comission on Judicial Conduct Criticizes Judge For Failing to Recognize Need for Interpreter

It has been my experiencce that judges are far more anxious about the risk of adverse action from a judicial conduct than of an appellate reversal, no matter how harshly worded.

So it may be particularly significant that the New York Commission on Judicial Conduct has just publicly admonished Niagara Falls City Judge Robert Merino for failing to appoint an interpreter when requested.

After the tenants requested an interpreter, the Judge appeared to agree, but then continued to ask some basic questions.  When the tenant said that he did not understand, the judge asked where he was born, and the tenant replied Puerto Rico, the Judge commented:

Okay. Go ahead, Mr. Koryl. I think he understands English.

The last time I heard, I think Puerto Rico was bilingual.

The Judge then proceeded, ultimately entering judgement against the tenant.  It is clear from later comments on the record that the tenant did not even understand that the case was over, and anticipated returning for participation of an interpreter.  As the Admonishment explained:

As the proceeding continued, respondent, who never made clear that the case would not be adjourned, continued to ignore red flags indicating Mr. Santana’s litnited proficiency in English. The litigant responded to some questions in Spanish, or told his wife to respond, or did not respond at all as his wife answered for him. While his wife attempted to present defenses for non-paymnent of rent, Mr. Santana barely participated in the proceeding. In this context, when respondent asked Mr. Santana several times if he understood what was said, his halting affirmative responses hardly seem convincing. Even after respondent announced that the warrant of eviction was granted, Mr. Santana asked if an interpreter was coming and if they had to return to court, suggesting he did not realize he had just been evicted. Despite Mr. Santana’s evident confusion about what had transpired, respondent simply told him to “talk to the clerk downstairs” who would “explain what happens next.”

It is perhaps most significant from the Admonishment that the Judicial Conduct Commission took into account the asymmetry of representation status.  The tenant had no counsel, the landlord had counsel:

Mr. Santana was in an especially vulnerable position since he was unrepresented by counsel and was facing an adversary with an attorney. With no lawyer to protect his rights, the fact that he could barely communicate in English compounded his vulnerability and left him virtually defenseless.

Aside from putting judges on clear notice of their obligation in such circumstances to provide an interpreter, the decision may also highlight the extreme frequency of the overlap between self-representation and language access issues.  This is a lesson that advocates must internalize.  I remain unable to understand the focus by language access advocates on interpreters (important though that is) while placing less attention on the grossly exacerbating implications on the lack of counsel, and need for court procedures to compensate.


Posted in Judicial Ethics, LEP | 1 Comment

FLASH — New DOJ Access Head Announced — Former California Judge Lisa Foster

Eric Holder has just announced the appointment of Lisa Foster as the new head of the DOJ Access to Justice Initiative.  Ms  Foster was until recently a judge in San Diego.  Her experience on the bench, with LAFLA and the Center for Law in the Public Interest, and other groups, will stand her in good stead in this critical job.

This is indeed great news for the Initiative, as well as for access as a whole.  I particularly want to echo the AG’s comments (how nice it is to be able to write that phrase) about Karen Lash, who has been wonderfully filling the role of “acting” in the last few months, and achieved so much during that time.  (I previously wrote about Deborah Leff here.)

The full press release appears below:


WASHINGTON—Attorney General Eric Holder announced on Thursday Lisa Foster as the Director of the Access to Justice Initiative (ATJ). Founded in 2010 by Attorney General Holder, ATJ seeks to address the access-to-justicecrisis in the criminal and civil justice system by working within the department, across federal agencies, and with state, local and tribal justice system stakeholders to increase access to counsel and legal assistance and to improve the systems that serve people who are unable to afford lawyers.  By supporting the right to counsel in state and local courts, educating the defender community, supporting defender services in tribal courts, strengthening the juvenile justice system, and enhancing federal programs though civil legal aid, ATJ staff work to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.

“Lisa is a staunch defender of due process, a champion of the rights of all Americans, and a passionate advocate for equal justice under law,” said Attorney General Eric Holder.  “Throughout her impressive career – from her earliest days in public interest law, to her work as a legal aid provider and her distinguished service on the bench – she has consistently demonstrated superior judgment, impeccable integrity, and a steadfast commitment to the high ideals that the Access to Justice Initiative is charged with protecting.  I have no doubt that, under Lisa’s leadership, this important initiative will continue to expand its groundbreaking work to build the more effective justice system – and the more just society – that all Americans deserve.”
Prior to joining the department, Foster served for ten years as a California Superior Court Judge in San Diego presiding over criminal, civil and family law departments.  Foster began her legal career as a Staff Attorney at the Center for Law in the Public Interest in Los Angeles and later joined the Legal Aid Foundation of Los Angeles. Following her service at the Legal Aid Foundation of Los Angeles, Foster served as the Executive Director of California Common Cause before becoming an Adjunct Professor at the University of San Diego Law School and later joining the law firm of Phillips & Cohen as Of Counsel.  For the past year, Foster was a judicial fellow in the Office of Senator Edward J. Markey where she advised Senator Markey on a variety of issues including judicial nominees, patent legislation, regulatory reform and international law and policy.  She received a B.A. in American Studies from Stanford University and J.D., magna cum laude, from Harvard Law School.

“The Access to Justice Initiative does critical work to increase access to counsel and legal assistance for all,” said Acting Associate Attorney General Stuart F. Delery.  “We are privileged to have a person like Lisa, who has dedicated her career to supporting a justice system that is fair and accessible to everyone, guiding this important effort.  I am confident that, with Lisa’s leadership, the initiative will continue to build on the outstanding work done by Deborah Leff, Karen Lash, and the dedicated team working with them.”

Last month, as part of ATJ’s work with the Civil Rights Division, the department filed a statement of interest with the Supreme Court of the State of New York, Albany County, in Hurrell-Harring v. State of New York.  In this class action litigation, the plaintiffs allege that, due to systemic failures in four New York counties, indigent criminal defendants have been constructively denied the right to counsel.  And in April, ATJ launched the Legal Aid Interagency Roundtable Toolkit. This online resource located on ATJ’s website is the product of collaboration with the White House Domestic Policy Council and 18 federal agencies dedicated to examining current programs and practices in order to create better outcomes.

To learn more about the Access to Justice Initiative, visit

Posted in Access to Justice Generally | 1 Comment

Roger Smith on Contrast Between British Columbia and UK Legal Aid Cuts Has Valuable Lessons

I want to draw your attention to a blog post by the UK’s wonderful Roger Smith contrasting the BC and UK approach to cutting, and response to cuts in, legal aid budgets.  His essential point is that the BC cuts, while apparently just as draconian, were structured to allow for flexibility and innovation, and the challenges were  approached in that spirit.

A couple of paras of contrast from the post:

The crucial difference between our [UK] position and that of BC is that, unlike by Chris Grayling and the Legal Aid Administration, cuts were not seen as an end in themselves. Yes, the government wanted blood but, provided legal aid could work within a reduced budget, then its administration was left free to do the best that it could. At first, the extent of the slaughter left little wriggle room and lawyers still argue that they should have been the first beneficiaries of any discretionary cash. But, the Legal Services Society, the legal aid administrator, has gradually sought to re-engineer its purpose as not only to provide representation in core cases but to deliver self help and advice designed to assist people to resolve legal problems on their own.

The difference a decade after BC’s cuts is that I have come all the way to Vancouver to see the brilliant work that the Legal Services Society, the Justice Education Society and the Courhouse Libraries are providing in digital delivery to those on low incomes. Google, families, (soon to be for a host of cutting edge provision in the province. Even the Ministry of Justice is joining in. Legislation in 2012 allows the funding of an online small claims court, the civil resolution tribunal, which will come on stream next year. Try even to file an electronic document in our own dear courts. No chance. No imagination. No innovation. Just a Minister and a Ministry shorn of any interest save in reducing expenditure. Cuts, Mr Grayling, are the easy part. Making sense – or even the best – of them takes imagination and innovation. Get on a plane; meet your BC counterparts and be appropriately humble about your government’s limited imagination and barren approach to policy.

In some ways, the cuts in these jurisdictions put them roughly where the US is now.  So the question is whether we approach digging ourselves out of the access crisis with the same creativity.  Or are we only nibbling at the edge of change.  Inevitably, in the US the answer is “it depends” usually on the state and on the quality of leadership in the state.  But I fear that our fragmentation means that we lack national leadership on things like a broad roll-out of self-help centers, forms, unbundling, and the other elements of the continuum of services, and all the quality and cost benefits that would come from national strategies.  An exception is special kudos to LSC, Pro Bono Net and others for creating a near-national network of websites (although all would agree that the integration could go much further particularly on the marketing/partnering end.)

I hope that we as delivery innovators never forget that there will always be cases in which lawyers are needed — even as we work through simplification and innovation in both community based and court-based legal aid to reduce that percentage.  But I also urge right to counsel folks not to forget that explicitly or implicitly taking the position that lawyers are always needed makes their proposals far more expensive and both politically and legally much more likely to build resistance.  It’s an interesting question how the recent Boston Bar (article) (Report) and Maryland Right to Counsel reports deal with this challenge.

The key, of course, is triage and the key to the politics of a solution to the differences in perspective is common research and understanding about triage.

p.s. There is a newly updated website on right to counsel developments, including an interactive map, recently launched by the Coalition.

Posted in Access to Counsel, Budget Issues, International Models, Legal Aid, LSC, Technology | 1 Comment