As part of a very interesting article in the Georgetown Journal on Poverty Law Policy, and now on SSRN, Laura Abel discusses the potential for courts to require attorneys to disclose what tasks they are not performing for their clients, so that the judge can then take steps to ensure that needed services are provided. As she puts it:
What would happen if attorneys were required to notify the court whenever they were unable to perform a certain function? At the very least, the judge would have an opportunity to take action. In response to an attorney’s statement that he is unable to carry out specific tasks expected of him, judges have a number of tools they can use, including trying to remove fiscal or other constraints preventing an attorney from providing full representation, removing the need for anyone to carry out certain tasks, and shifting responsibility for performing certain tasks. A full explication of the instances in which judges should intervene or refrain from doing so, and which tools they should use when, is beyond the scope of this Article. But at the very least, judges should try to choose the method that would best accomplish the tribunal’s goals, including fair and accurate determinations of fact and application of law, citizen engagement, countering undue government power, and cost efficiency.
In the criminal context such a system would require a far greater degree of candor about the failures of assigned counsel, but in the civil context, it might help move towards a Turner view in which the judge can assess what is actually needed to provide access.