Recently, I blogged about what I called the “Attorney Diagnosis” approach to Triage for Access to Justice. I believe that Turner may require not necessarily this, but at least some system that decides who needs what in terms of services to ensure a fair and accurate result.
The core idea in this approach is that following a preliminary review for financial eligibility and to determine if the matter is contested, a screening attorney would make a recommendation for or against appointment of counsel, taking into account the nature of the case, the merits and the stakes for the litigant. An appropriate decision maker such as a retired judge would make a final decision. In cases in which counsel is not provided, the attorney would provide unbundled services, or refer the person elsewhere for unbundled services or self help, thus ensuring that lower-cost forms of assistance would be provided.
At the time, I promised a more detailed development in Q and A format. Here it is:
A. Costs of the System
1. Won’t this be very costly?
The total cost would depend upon the assessment criteria. The two main elements of cost would be that of the unbundled interview, and that of any counsel found to be needed. With respect to the cost of the interview, it must be remembered that the system as a whole is already spending huge amounts of money on multiple intake and referral loops. This system would replace multiple expenditures on one litigant with a single upfront diagnostic cost – one that also provides significant access enhancing services. Moreover, some of those services are now being provided by legal aid and senior hotlines, at a not insignificant unit cost. Significant components of these interview services might be provided by pro bono attorneys, and non-poor participants might contribute to the cost (see below). The second area of cost would be the actual provision of counsel. This would vary based on the assessment criteria, and would be far cheaper than providing counsel to all cases within a category. Moreover, the provision of counsel would help make the courts more efficient.
2. Are there other way that costs might be kept under control?
This proposal has a number of points at which cost could be balanced against access. The screens, the interview protocol, and the standards could be adjusted to maintain some cost control, without compromising the core idea of access. In some cases, the attorney recommendation or the judge’s decision might be for limited unbundled assistance, rather than full representation. The diagnostic and unbundled assistance interview might well attract significant pro bono attorney participation. Moreover, if representation services are provided in a number of ways, that would maximize cost effectiveness. Finally, the key to controlling costs would be allocating decision making responsibility in such a way that those responsible have incentives to make the changes in the court system that will make appointment of counsel less frequently necessary, while maintaining and enhancing access.
3. Might remote technology-based assessment interviews save money?
Indeed. Phone services have been generally found to be much cheaper to provide than in person interviews. There is simply much less wasted time. Research would help determine if critical data was being lost, and whether video conferencing services such as Skype might be best of all.
B. Costs to Litigants
4. Would the consultation with the attorney be free?
For the poor, of course. As indicated above, middle-income litigants might be required to make a co-payment, and those above a certain amount, to pay the full cost. However, a fully free diagnostic and initial unbundled system would be much easier to administer, and would help ensure a smoother running court, thereby perhaps ultimately saving money.
C. Impact on Funding for Access to Justice
5. Would implementing this system open up new opportunities for funding for access to justice and the courts?
Yes. This system would be more appealing to potential funders, and in a number of ways.
1. It provides a mechanism for integrating new areas of categorical eligibility for counsel, without disrupting the system, and without additional administrative expense, thereby making it more likely that advocates for such funding would have success in obtaining such funding.
2. By putting in place a system that would help guarantee that only those who would reap the largest benefit for the more expensive counsel services would obtain those services, it would strengthens the arguments of those seeking the required funding.
3. By providing mechanisms by which middle income people could obtain access services, it would broaden the political constituencies in support of all access services.
4. Since the system would put in place mechanisms that would help those who can afford lawyers realize the benefits of paying for counsel, the bar would become stronger supporters of these innovations.
5. By putting in place a system that means that counsel costs could be reduced by extra investments in self-help and other non-lawyer services, it would increase the incentives for such investments in the most cost effective innovations.
6. The diagnostic process might be funded by an enhanced filing fee, with waiver for low income, and partial waiver for middle income. This would be a rare instance of a filing fee that would provide extra services to litigants, and might therefore be viewed more sympathetically by a broader range of stakeholders.
D. Screening for the Full Diagnostic Interview
6. How might the criteria used to determine who got the unbundled interview be established?
In this version of the concept, the only issues would be whether the case is contested, and whether financial eligibility were met. In the long term, the goal would be to establish criteria that would be very easy to apply, yet eliminate the need to spend attorney diagnostic time in those cases in which there was no chance that counsel would be recommended, or the unbundled advice would be necessary for access. It might be, for example, that the clerks and self-help staff might refer some uncontested cases where there were serous issues with mental capacity or linguistic barriers requiring counsel or at least unbundled assistance.
7. What other groups might be authorized to perform the initial screening?
The suggestion has been made that, as well as clerks or self-help centers, administrative agencies, mental health agencies and bar referral agencies might also be authorized, to screen and to make this referral. Note that any errors would be picked up in the diagnostic stage.
E. The Diagnostic/Unbundled Consultation Interview
8. What kind of topics would be covered in the attorney diagnostic interview?
Topics might include the facts of the case, including both their legal and factual complexity, the interrelationship to other cases, the capacity of the parties to handle the case without assistance, the amenability of the parties to negotiation or mediation, the existence of significant power differentials between the parties, whether the other side were represented, the significance of the matter at issue, and the non-frivolous nature of the claim, etc. The capacity of the parties would include not only formal criteria, but more subjective ones, like ability to manage information, present arguments, etc.
9. Wouldn’t there be a potential problem with a conflict when the diagnostic attorney talked to two litigants whose interests were in conflict?
In those states that have adopted Rule 6.5 of the Model Rule of Professional Conduct, any problem would be limited to the situation in which the lawyer doing the interviews actually recognized the conflict. In other states, a limited version of Rule 6.5, applying only to this situation, might be enacted. Alternatively, protections would have to be put in place. In any event, there would need to be at least two attorneys available to fulfill the function, when real identified conflicts existed.
10. How would the screening standards be established?
The state would need to establish a body to establish the standards. National model standards might be developed by nationally legitimate groups, and these would be subject to state modification by an appropriate body, possibly created to include nominees from a variety of stakeholders such as Supreme Court, Legislature, and Bar.
11. Wouldn’t it be the unauthorized practice of law for attorneys to do this at the court?
Firstly, if the appropriate authorizing body (Supreme Court or Legislature) authorizes it, it can hardly be said to be the unauthorized practice of law. More significant is the issue whether the court’s engagement in such an activity, which would include the provision of unbundled advice to some litigants, might violate the court’s obligation of neutrality. However, providing the litigant is informed that the unbundling interviewer is not expressing the opinion of the court, and provided that the provision of the service is provided or not provided according to neutral rules that are consistently applied, there is nothing non-neutral about the role of the court in this process. To the extent that courts wish additional insulation, they could contract out the interview, rather than use attorneys in salaried staff positions. In any event the interviewers should have insurance.
12. How would juveniles and those with significant mental disabilities we handled?
Advocates and family members might be allowed to participate in the diagnostic interview, and to submit written materials. In any event, this is a population likely to be “screened in,” provided the merits and stake tests are passed.
F. Application for Counsel
13. What would the Counsel Application document look like?
It might have two parts: a summary of fact section, to be completed by the attorney and signed by the litigant, and a statement of reasons section making and explaining the recommendation, completed and signed by the attorney.
14. Could other entities do the screening?
It might be that the system would be expanded so that other agencies might have the authority to do screening and make recommendations that would be decided upon by the judge.
15. How would final decisions be standardized?
The appropriate decision-makers, such as retired judges (or possibly sitting judges or other individuals) would use the standards as the basis of their decisions. Once the screening attorney had made a positive recommendation, it might be appropriate for this to be presumptively correct.
G. After the Decision on Appointment of Counsel
16. Would there be options for how to manage the appeal process from the decision on access services?
There are a number of possible approaches beyond the one described. One might be to have anyone able to request a second diagnostic consultation if denied counsel in the first. And/or one might allow for limited review by a second appropriate decision maker or the presiding judge if the initial reviewing retired judge rejected the attorney recommendation. Of course, as of now, there is effectively no review of denials of service by legal aid programs. It should be noted that if the litigant were initially found ineligible for counsel, he or she would receive an immediate unbundled consultation; those who then felt they were able to handle the case might well choose not to seek review of the denial.
17. Could the interviewing attorney represent the litigant?
That would present a conflict, at least when the attorney was being paid on a case-by-case basis.
18. What happens when the circumstances of a case change?
The litigant should be told at each point at which they are denied services that they can obtain a new determination if and when the facts change (and they might well be given a list of examples of such changes relevant to their situation.) This would usually involve a new attorney diagnostic interview. In addition, a judge or court staffer could always tell a litigant to seek a new decision.
19. Could a sitting judge assign counsel sua sponte?
There would be significant political and practical advantages to allowing a sitting judge, at any point in the underlying proceedings, to approve on his or her own motion, the eligibility of the litigant for counsel. The actual selection of counsel should be handled in the same way as those approved following recommendation of counsel.
H. Making the System Standard and Consistent
20. How would there be standardization of decisions?
The screening attorneys would operate under standards, particularly for what areas should be explored in the interviews, and what sorts of criteria should guide recommendations. Those standards would reflect ongoing research findings and the consensus of the justice community. Judges (or sitting judges or other deciding individuals) would look for problems with consistency. Data would be collected and reviewed for possible unconscious patterns of discrimination.
21. Might the processes and standards vary from court to court?
The answer may well be yes. It can not be avoided that in a truly self-help friendly court, it is easier for an unrepresented person to obtain access to justice than it would be in a court that has not provided education to the judges, trained the clerks, provided automated forms, and established a comprehensive self-help center.
I. Ongoing Improvement to This System
22. How would the screens, criteria and standards be improved?
Ongoing outcome studies would be structured to reveal whether certain kinds of decisions might be moved from the unbundled consultation to earlier screening by the clerk/self help center, or the attorney, and particularly if certain kinds of factors were being missed.
J. Relationship to Broader Issues
23. How does this relate to Turner v. Rogers and Lassiter v. Dept. of Social Services?
Turner requires that in non-criminal cases dealing with potential deprivation of a constitutionally protected interest, due process requires that there must be processes in place that ensure that the result is sufficiently fair and accurate. Thus while it rejected a categorical right to counsel in that class of cases (civil contempt child support incarceration), it both required alternative non-counsel procedures and impliedly a process to decide who actually needed counsel to guarantee such fairness and accuracy. Smilarly, the Lassiter court held that, at least in parental rights termination cases, in states and situations in which there is no state right to counsel, trial court judges must make an individualized determination about the federal constitutional need for counsel on the particular facts of a case. As to what process is required (for example, information, services, counsel), the court explicitly acknowledged that in some factual situations trial court judges could rule that due process requires the appointment of counsel, and explicitly stated that such rulings regarding the appointment of counsel would be appealable (in other words that judges might be in error in denying appointment of counsel). The Lassiter court’s holding, now underlined by Turner, that appointment of counsel may be constitutionally required in a given case has received remarkably little attention. This proposal would operationalize this aspect of Lassiter and Turner, in effect having the decision-makers apply the Mathews v. Eldridge factors, while also making possible the addition to the process of areas of categorical eligibility permitted in the states but not required by Lassiter.
24. How does this relate to Civil Gideon?
This proposal is about providing access to counsel or other services when needed to make real the right of access to justice. As such, it aims to achieve some of the same goals as the “civil Gideon” movement, draws heavily on its insight as to the importance of counsel in certain situations, and aims to provide counsel in some circumstances. What it would do is operationalize: a) the right of access to justice, and b) the right to an individualized determination of what is needed to obtain access to justice. It would not create or fund a civil right to counsel per se, nor would it create or fund a right to other forms of civil legal assistance; its primary effect would be to offer a procedural mechanism – one for which screening criteria would still need be independently established by local jurisdictions – for determining whether particular persons would receive counsel or, instead, would receive other forms of legal assistance, in those areas in which a legislature, court, or other entity had acted independently to fund such services.
25. Might this incentivize more radical cost-effective changes in court workflow, court structure or partnerships?
Yes, provided the system were managed within one budget system. For example, at least one court is experimenting with screening cases in which both sides are pro se as to whether providing one day unbundled services to both sides would resolve the outstanding issues, either by agreement or in front of a judge. This might require deferral or integration with a later screening interview. Since this would save resource, it would be in the interest of the administering body to move such an experiment forward. As courts bring in state agencies and others involved in problem solving in the civil courts, this too would reduce the need for counsel in some cases.
26. How might this relate to mediation?
Part of the screening might be for appropriateness for mediation. Moreover, the availability and appropriateness of mediation might be a factor for consideration in the decision as to whether counsel was required.
27. How might this relate to caseflow management?
The diagnostic interview might be integrated into caseflow management in a number of different ways. In one model, the information from the diagnostic interview might be used to determine what path the case was to be put in to, such as for agreement or hearing.
28. What role would civil legal aid programs play in this approach?
The relationship between civil legal aid programs and the proposed screening approach would be a matter for ongoing discussion, planning and negotiation within particular communities. In communities that embrace the approach, the courts would accept a stepped-up level of responsibility for determining whether counsel must be appointed for unrepresented people who pass through the courts. Civil legal aid programs would continue to have primary responsibility for determining the level of service they would provide to people who approached their offices directly rather than through a court (i.e., they would be able to continue to conduct their own screening processes). Civil legal aid programs might also become one of the providers of attorney diagnostic services (subject to conflict concerns) and of counsel to persons for whom counsel were appointed by the court. The familiar roles of civil legal aid programs in monitoring systemic problems, providing legal services based on an understanding of such problems, providing training to staff and to other attorneys, could remain relatively unaltered under – or even be enhanced by – the approach.
29. Might this incentivize court process improvements?
Yes, but only if they were cost effective with respect to providing access to justice. In other words, if a court or state could reduce its diagnostic and counsel costs by improving self-help services, this system would provide it with a strong incentive to put such changes in place. Such changes would be likely to reduce costs all round, and would therefore be the ones that bar, the judiciary and court administration, as well as the public and the funding agency, would all support.
30. How would this relate to Limited English Proficiency issues?
This is a good illustration of the flexibility of this concept. As courts need to review their LEP accessibility, they could look at the clerk/self help center screen as well as the attorney diagnosis screen, and interview topics could be adjusted to ensure than those with LEP issues obtained access. Additional factors could be built into the overall model as need became recognized.
31. What about middle-income people?
This system could easily be adjusted to meet middle-income needs. Middle-income people might be required to contribute to the costs of the diagnostic interview. Those found not eligible for free services would be referred to ongoing fee-based unbundled assistance. Moreover, a system of copayments might be established so that middle-income people could obtain subsidized, but cost controlled full representation.
32. What about access services for administrative law and transactional matters?
These areas might be added in the future. One approach would be to have administrative agencies make the referral and provide the services that courts would in litigation cases, and to have statewide phone lines provide intake and assessment in transactional matters.