Allan Rodgers of the Massachusetts Law Reform Institute was my backup resource when I did unemployment advocacy before law school, back in the mid-70s. His personal model of probity and vision is one the reasons I became a lawyer, and he has ever since been a highly valued mentor for me. I am honored that this blog is able to carry his thoughtful and well-reasoned article on the potential of lay advocates.
Lay Advocates: An Untapped Resource for Otherwise Unrepresented Litigants
In Court and Agency Adjudicatory Hearings
By Allan Rodgers
At long last, there is an upsurge of interest in some states in establishing programs that authorize trained lay advocates to represent people in adjudicatory hearings in court and at agency administrative hearings. But most of these programs propose to start with lay advocate roles that fall short of authorizing full representation in appropriate cases. I do not understand why the hesitancy. Lay advocate representation has a history of success in agency hearings going back more than forty years. Studies and experience have shown that lay advocates have an impressive record of success. I propose that we should move promptly to authorize these programs, under controlled circumstances initially, in order to start to fill the enormous gap in legal representation of poorer people. The potential numbers of people who would likely volunteer to do this is one of the most promising resources I can think of to narrow the gap.
For many years authorizing lay advocate representation in court has been a kind of third rail among lawyers and the judiciary in Massachusetts. Some of this opposition comes from people who doubt that lay advocates can do an adequate job of providing this representation. Even in the face of compelling evidence of their success for many years in agency hearings, many have reflexively stuck to this belief. Strong opposition has also been driven by the profession-protective prohibition of the unauthorized practice of law. This fear of losing legal business was present when efforts were started in the late 1960’s to fund legal services to the poor. We know that that belief was mistaken; if anything the presence of legal services advocates increased legal business for the private bar because opposing parties needed more legal representation in court when faced with poor people who now had lawyers. Since the present representational gap for poorer people is so severe, I’d predict that having lay advocates provide full representation to people in court will have no adverse impact on paying legal business.
My colleague at Mass. Law Reform, the late Tony Winsor, was an early and persistent champion of lay advocate representation in court. He advised several legal services programs that, with the cooperation of a local judge, operated lay advocate representational experiments in landlord-tenant cases, with demonstrated success. He trained and supervised college students in representing persons taking appeals to the state Department of Public Health from decisions on treatment by methadone maintenance clinics. Although the sample of these cases was comparatively small, these advocates won most of their hearings. Prior to the establishment of this program few persons prevailed. In 2010, Tony and I authored an article on these experiences, entitled Non-Lawyer Representation in Court and Agency hearings of Litigants Who Cannot Obtain Lawyers, published in the June, 2010 issue of the Massachusetts Law Review (Volume 93, Number 1).
For more than 40 years in Massachusetts (and no doubt in many other states), non-lawyer advocates have represented persons in administrative agency adjudicatory hearings in such programs as cash assistance, food stamps, unemployment insurance (UI) and at the Social Security Administration. During this time I have never heard of anyone complain that these advocates have been unlawfully practicing law. Of course this representation has been explicitly authorized in federal or state law or regulation. In UI appeals, non-lawyers also represent employers in many hearings. These hearings are in many respects similar to trials in court. The rules of evidence apply generally (although somewhat relaxed in certain cases), and a hearing involves the presentation of documents and witnesses, cross-examination of witnesses and final arguments. The hearings are transcribed and tapes are available upon request. Appeals go the court (or first to an administrative appeals agency in UI cases) but the limited standard of review of the facts is the same for appeals of both court and agency decisions. In all appeals a transcript of the hearing is prepared and the transcript and the record are forwarded to the reviewing tribunal. So the presentation of the case at trial is crucial in both types of trials. Of course there are some hearings where, because of the complexity of the factual or legal issues or the importance of the case for potential precedential reasons it is important that a lawyer handle the hearing. Legal services programs have been making those kinds of assignment decisions for many years.
Available studies show that those having representation in agency hearings, whether by a lawyer or a lay advocate, fare consistently better than those who do not. New England School of Law Professor Russell Engler collected the results of these studies in a 2010 article, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L. J., 37, at 48-49 (February 2010).
The Massachusetts Access to Justice Commission has been reviewing this matter for several years. In its 2007 report to the Supreme Judicial Court, it “strongly” recommended that the Court redefine the unauthorized practice of law “to permit trained non-lawyers to speak in the courtroom in certain civil matters on behalf of low-income people.” Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, to the Supreme Judicial Court. (available at www. massaccesstojustice.org). More recently, the Access to Justice Commission established a Lay Advocate Study Committee to prepare some recommendations to the Commission on this subject. So even though the negative climate for this program has abated in recent years, the pace of deliberation remains slow in Massachusetts.
I think the evidence and experience with the success of lay advocacy in hearings shows that we really don’t need to study the general issue more at this point. We can adopt experimental programs for full representation now, and use the results to expand and modify them where the experiences show the need to do so. My concern about some of the more limited lay advocate programs discussed recently, nearly all of them proposing roles short of representation, is that these programs will consume large amount of time, resources and energy but are unlikely to get us much closer to taking advantage of this potentially enormous resource in hearings where representation makes a real difference.
So how, you would ask, should we start such a program, especially in court? Here are my suggestions.
1) I would start with the representation of poorer people by volunteers or by employees of legal programs and lawyers. Authorizing independent lay advocates or those who charge persons who can pay for it raises issues that are best left untouched until much further down the road, in my opinion.
2) The lay advocates should be trained and supervised by a lawyer or legal program. I would not recommend setting up a special certification apparatus to do this. The lawyer or legal program should be trusted to certify in writing that the advocate has received the standard training or experience and will be supervised by a lawyer for whom the lawyers’ ethical responsibilities apply.
3) The programs should be started in courts on an experimental basis at first, but with a periodic review process designed to address questions and concerns about how it is working, but with the understanding that it can be expanded by the local judges if it goes well. Statistics on numbers of cases and their results should be kept for future review and analysis.
4) The courts should set up a special group to oversee and make recommendations about lay advocacy in court. Its first task should be to review the kinds of cases in which lay advocates can capably provide representation and set up rules by which local courts can accept or make assignments.
5) Persuade the courts to make clear that lay advocates providing representation in these cases, in courts and at agency hearings, are not engaged in the unauthorized practice of law.
6) Because (at least in Massachusetts, and probably in most states) lay advocate representation in agency adjudicatory hearings is already authorized, and there is no need for a regulatory structure, the biggest task is to find people who will volunteer to do this. I think the best way to do this is to fund a central program whose responsibility it is to develop this resource. The shortage is particularly acute for agency hearings. Even with legal services and other resources, probably less than 10% of the people who face agency hearings have representation. Yet there are many groups from which volunteers might come, such as college and law students, retirees and people who might see this as an opportunity to get work experience.
I think the pieces are already in place to start lay advocacy adjudicatory hearing programs that are workable and will bring large increases in available advocates into our ranks.
What are we waiting for?
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So, is the intention that the lay advocate be covered by the lawyer’s errors and omissions insurance?
Hi, Colleen. I thought i had replied to your comment before but I don’t see it. In Mass., lay advocates representing people in hearings are covered by the legal services program’s or law firm’s malpractice insurance. This means that they must be supervised by a lawyer. That is, in part, why I have suggested that we start an expansion of the use of this resource with legal programs and law firms. This malpractice insurance arrangement has been in effect for Mass. legal services programs for many years and I have not heard of any significant problem arising under it. Allan Rodgers