As states assume a larger role in the long term strategy for a national access to justice infrastructure, it might be a good time to start a discussion about what a comprehensive state level access leadership structure might looks like. (A byproduct of this discussion might be a similar exploration of how a more integrating national leadership structure might be created.)
I start with some assumptions (many of which will surely not be universally shared):
- We need to overcome in-state fragmentation of decision-making about priorities, strategy and funding.
- We need to involve courts, bar and legal aid in joint decision making about administration of access to justice.
- Distribution of available funds for access initiatives must be managed on a statewide basis that reflects statewide priority setting within a statewide strategy . (This does not necessarily mean that priorities are the same throughout the state, only that the process and overall strategy is a statewide one.)
- At a minimum, certain access to justice functions, like intake and self-represented access technology, must be managed and delivered on a statewide basis. (Indeed, this may well apply to all self-represented services, regardless of the level of technology.)
- Certain core advocacy functions, such as legislative advocacy and impact work, need to be managed in a centralized way.
- Finally, while single integrated statewide programs may be impractical in some contexts, those states that persist in structures of fragmented programs will need to find ways for centralizing decision-making that would otherwise take place within programs.
A statewide leadership structure is therefore going to need the following elements:
- An entity that brings together a broad range of committed stakeholders to establish broad policies and initiatives for access to justice to guide the various components of the system. Such a body should probably grow out of the Commission model, but with an understanding of the need for greater power and strong connection to all stakeholders.
- Staffing (including a strong director) for the above body to enable it to provide actual day to day leadership activity for its directions.
- An entity that makes decisions about funding and priorities that reflect a broad consensus about need, capacity, service delivery. This might be best placed in an Access Commission, or in a body appointed by, and responsible to the Commission.
- A capacity for integrating court, bar and legal aid innovations, particularly in areas like triage and unbundling that require the participation of these stakeholders. In other words, the Commission or other body needs to be focused on more than legal aid, and needs to have the capacity strongly to influence the behavior of courts and the bar. The design of an appropriate structure for this remains a challenge, given the institutional needs for formal independence of those bodies.
- Capacities for research, collaboration with other states and national capacities, both of which might be located in specialized units under the Commission.
Merely listing these capacities and elements underlines how far we have to go. Yet, without them, we will retain an inefficient and fragmented system, guaranteed to fail in any search for 100% access to justice. So, here are some strategic suggestions for how states might, within a real world political environment, move in this direction.
- The IOLTA program might, on a pilot basis grant some of its money to the state Commission to sub-grant in a competitive manner in a particular area of innovation. (To the extent that the IOLTA statute mandates a formula distribution, programs could agree to a give-back of some of the grant for such a purpose.)
- LSC might move towards a system in which a grant for self-help services were awarded on a statewide basis, with the Commission as the delivery partner (subject to legalities)
- The Commission might take on responsibility for certain statewide functions, such as hotline/intake etc.