From Richard Zorza’s Access to Justice Blog comes word of an interesting new-ish paper1 on the role of nonlawyer representation (such as Washington state’s Limited License Legal Technicians) in increasing access to justice. The paper focuses on whether those nonlawyer representatives, who are limited to providing specific sorts of representation, are adequately positioned and prepared to assist clients fully.
This is not about whether nonlawyers are “trained enough” to be as good as lawyers. Instead, the authors consider whether limited-scope representation (like unbundled services or a lawyer stepping in at only one point in the case) really help increase access to justice.
Many access to justice efforts focus on crisis moments—serving an individual at a pressure point in their life such as eviction or deportation. Having lawyers step in at just those moments is, of course, critical and helpful, but can it fix the system?
The authors zero in on two types of law reform efforts that are meaningful and necessary: case-focused challenges and system-focused challenges. A system-focused challenge looks at the legal system writ broadly, and encompasses things like legislative advocacy.
Perhaps more interesting to lawyers focused on increasing access to justice are case-focused challenges. A case-focused challenge happens when a client’s representative makes tactical decisions in a case specifically designed to challenge the judge to reshape the law.
The activity itself may be a choice early in the case, such as to include a factual claim on a form pleading even though the facts are not the classic version of that claim. Or it may happen through direct interactions with a judge, such as evidentiary objections or motions, novel legal arguments of how the law applies to facts, or motions or other arguments that ask the judge to shape the law to fit a previously unanticipated circumstance. While this category of law reform activity is focused on the trial level of a case, it may also involve pursuing an appeal—set up by trial level choices—in the specific case.
In other words, clients who get limited representation are—by definition—missing out on some of the benefits of representation that traditional paying clients get. They are not getting the time, attention, and skill an advocate can employ to fully explore and realize the possibilities of the case—both for the client and for the justice system as a whole.
This isn’t because a generalist attorney assisting in an area they don’t usually practice in is bad at their job or bad for the client. It’s because they aren’t immersed enough in a particular practice area (or court location) to know about trends in the law, the views of judges on certain types of approaches, whether their client’s situation is emblematic of a problem that is becoming systemic, and so on. And how on earth could they be?
Sometimes thinking about access to justice feels like one step forward, two steps back. Unbundled services and staffed self-help desks are great ideas that can move the ball forward, but they are just not enough. This is just another indication that we aren’t going to dig ourselves out of the access-to-justice gap easily.
Shanahan, Colleen F. and Carpenter, Anna E. and Mark, Alyx, Can a Little Representation Be a Dangerous Thing? (March 7, 2016). 67 Hastings L. J. 1367 (2016); Temple University Legal Studies Research Paper No. 2016-15. ↩