Category Archives: Pro Bono

New Article: “A Solution Hidden in Plain Sight: Closing the Justice Gap by Applying to Legal Aid the Market Incentives that Propelled the Pro Bono Revolution”

New Article: Benjamin C. Carpenter, A Solution Hidden in Plain Sight: Closing the Justice Gap by Applying to Legal Aid the Market Incentives that Propelled the Pro Bono Revolution, forthcoming Chapman L. Rev. Abstract below:

The legal profession is now thirty years into the pro bono revolution, and the bar is more committed, in both word and action, to access to civil justice than at any other time in its history. Yet for most of the sixty million Americans who cannot afford a lawyer, the bar’s commitment provides little solace. Despite all the resources the bar has put into pro bono over the past thirty years, those living at or near poverty still do not receive legal help for almost eighty-six percent of their legal needs. In fact, lawyer participation in pro bono has become stagnant over the past decade, and the World Justice Project just ranked the United States 109th out of 128 countries in access to affordable civil justice. Meanwhile, law firm revenues rocket upward. In 2019, revenue at each of the nine largest law firms was greater than the combined operating budgets of the country’s 700 legal aid organizations. Revenue at one firm alone doubled the combined budgets of all legal aid organizations. Yet, as the ABA advocates for additional public funding of legal aid, law firms themselves pitch in less than four one-hundredths of a percent of their revenue. A fair question is what is truly motivating the bar—is it a foundational commitment to closing the justice gap, as it professes, or protecting its own investment in pro bono for the benefit of its members. If the bar is serious about closing the justice gap, it must not simply capture and leverage its advances in pro bono, but it must also commit to increasing its support for legal aid—in action, not just words—as it has with pro bono. While history has shown that this shift will not happen simply by encouragement and aspirational appeals, there is a blueprint for accomplishing this: the market incentives that moved big firms to enthusiastically embrace pro bono over the past few decades provide a solution hidden in plain sight. This article explores those incentives, sets out a proposal for how to apply those incentives to increase legal aid funding, and calls on the bar to live up to its public commitment to equal justice.

New Article: Creating a “Great Pro Bono Practice”

New Article: Malka Herman, Creating a “Great Pro Bono Practice”, 109 Calif. L. Rev. 701 (2021). Abstract below:

Pro bono at big law firms is often viewed as an altruistic way for attorneys to give back to society. But when big law firms partner with public interest law organizations (PILOs) to do pro bono work, conflicting interests among the parties involved may interfere with the aims of pro bono work. In this Note, I first review the history of PILOs and origins of the big law-PILO partnership model. I then use the lens of two sociological theories, functionalism and Weberian theory, to examine what motivates the actors involved—big law firms, big law attorneys, and PILOs—to engage in this model, highlighting conflicting interests among the parties. My look into these partnerships is informed by two original interviews I conducted, one with the executive director of a PILO and one with the pro bono counsel at a big law firm. Lastly, I explore the potential problems arising from these conflicts of interest and propose solutions to these problems, including how big law attorneys may be able to improve these partnerships and create a truly “great pro bono practice.”

Build Power, Fight Power Course: A Five Part Course on Movement Lawyering

Build Power, Fight Power Course: A Five Part Course on Movement Lawyering
Spend the summer learning how to use law to build a world that is better for people and the planet.

A group of movement lawyering practitioners & educators, in collaboration with Movement Law Lab invite you to register for Build Power / Fight Power: a 5-Part Course on Movement Lawyering. Times of upheaval are also times of great opportunity and change. Lawyers and legal workers of conscience are needed now more than ever to support the people’s resistance be it the Movement for Black Lives, COVID-19 rapid-response, workers’ rights, climate change, immigrant rights, and more. Yet movement lawyering is not what most of us we were exposed to in law school or  what we are trained and encouraged to do as legal practitioners. 

Some of us are ready and willing to support these movements, but aren’t sure how to help. Others of us don’t know what movement lawyering means, but know that doing case after case isn’t going to solve the problems of our clients. Finally some of us are already connected and volunteering for movements, but this moment presents new challenges that we haven’t seen before. We believe, this moment asks us to think differently about our work. To find news ways to approach our cases, new partnerships, new thought-partners and new strategies. We created this course to help all legal advocates—the experienced and the newly committed—learn and reflect together on how we can use our skills to support movements fighting for transformative change rooted in people power.

ABOUT THE COURSE

This course is an introduction on how to use law to build the power of social justice movements. It will offer you guidance no matter which movement or organized community you are trying to support. From movements of low-wage workers, youth of color, climate justice activists, indigenous communities, the immigrants’ rights movement, survivors of abuse, people coming out of prison, or people fighting to end systemic racism—if you want to use your legal skills to build a world that is better for people and the planet, then this course is for you.

WHO IS ORGANIZING THIS COURSE? This course is being organized by Movement Law Lab and taught by a collective of experienced movement lawyers across the country. We work at a range of institutions, we represent different progressive movements, we have diverse expertise and skill-sets, but we are united in our belief that law is best used as a tool to shift power, culture and systems.

WHAT WILL THE COURSE COVER? The course will consist of presentations on: key theories of social change and concepts of movement lawyering, storytelling from experienced movement lawyers, as well as tools and resources to help integrate movement lawyering approaches into your current work. In addition, we hope to build a meaningful learning/practice community that will extend beyond the sessions and continue to build a national community of lawyers dedicated to supporting mass movements and grassroots organizing. 

WHAT IS THE COURSE FORMAT? This course consists of five interactive online sessions running from July 8 – September 11, 2020. Sessions 1, 2 and 5 will be in plenary format—all of us will be in one session. Sessions 3 and 4 will be reoccurring and participants will have the ability to choose amongst a variety of dates. All sessions will be between 1.5 to 2 hours and will be recorded. There will be a course website with a discussion board and access to session recordings. Participants are strongly encouraged to register only if they can commit to attend all five sessions. 

WHO IS THIS COURSE FOR? Any lawyers, legal workers, or law students interested in learning how to use law to create social change and support movements. We strongly encourage legal advocates coming from marginalized and/or non-traditional backgrounds to register—this space is for you: i.e. BIPOC (Black, Indigenous or other people of color), women, queer/transgender people, people from low-income backgrounds, and/or people who are formerly incarcerated.

WHAT DOES THE COURSE COST? The course is free. However, we encourage those who can to make a donation to help cover the costs of the course. No one will be turned away for lack of funds.

ACCESSIBILITY: All sessions will be virtual using Zoom and/or streaming to Facebook and will have either ASL or live-captioning.

https://movementlawlab.org/mlcourse

News Coverage: In Appalachia, A Lawyer’s Vast Fraud Dogs Destitute Clients

News Coverage: Andrew Strickler, In Appalachia, A Lawyer’s Vast Fraud Dogs Destitute Clients, Law360, July 14, 2019. The massive Social Security fraud committed by attorney Eric Conn has left thousands of people trying to convince the agency to restore their disability benefits.

 

 

New Article: Things Fall Apart: Hard Choices in Public Interest Law

New Article: Anthony Victor Alfieri, Things Fall Apart: Hard Choices in Public Interest Law, 31 Georgetown J. L. Ethics 335 (2018).  Abstract below:

This essay frames the dilemmas of law school clinic and public interest law firm triage decision-making against the backdrop of the current national crisis in access to justice. The essay coincides with a moment of renewed academic interest and resurgent legal activism in inner cities for advocates pursuing law reform campaigns, academics studying social justice movements, and activists organizing low-income communities, especially historically burdened communities of color. The essay proceeds in four parts. Part I briefly traces the history of a community-based law reform campaign recently advanced in Miami and the nettlesome public interest legal ethics questions left in its wake. Part II examines the basic form and content of public interest law triage regimes and the difficult dilemmas of lawyer and law firm triage decision-making in the context of community-based advocacy. Part III considers the dominant norms and practices of the community lawyering movement explicated by the founders of the Community Justice Project, a path breaking Florida public interest law firm and a national leader in the field of social justice. Part IV assesses an alternative set of norms and practices of social justice lawyering deduced from current work on the ethics of movement lawyering.

New Mega-Post! Access to Justice, Daedalus (Winter 2019)

daedalus winter 2019.pngNew Mega-Post! Access to Justice, Daedalus, Winter 2019

 

 

Introduction, John G. Levi & David M. Rubenstein.

How Rising Income Inequality Threatens Access to the Legal System, Robert H. Frank.

The Invisible Justice Problem, Lincoln Caplan.

Reclaiming the Role of Lawyers as Community Connectors, David F. Levi, Dana Remus & Abigail Frisch.

More Markets, More Justice, Gillian K. Hadfield.

Access to What?, Rebecca L. Sandefur.

The Right to Civil Counsel, Tonya L. Brito.

The New Legal Empiricism & Its Application to Access-to-Justice Inquiries, D. James Greiner.

The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It, Andrew M. Perlman.

Access to Power, Sameer Ashar & Annie Lai.

The Center on Children & Families, Shani M. King.

Techno-Optimism & Access to the Legal System, Tanina Rostain.

Marketing Legal Assistance, Elizabeth Chambliss.

Community Law Practice, Luz E. Herrera.

The Role of the Legal Services Corporation in Improving Access to Justice, James J. Sandman.

Participatory Design for Innovation in Access to Justice, Margaret Hagan.

Simplified Courts Can’t Solve Inequality, Colleen F. Shanahan & Anna E. Carpenter.

Corporate Support for Legal Services, Jo-Ann Wallace.

Justice & the Capability to Function in Society, Pascoe Pleasence & Nigel J. Balmer.

Why Big Business Should Support Legal Aid, Kenneth C. Frazier.

Executive Branch Support for Civil Legal Aid, Karen A. Lash.

Why Judges Support Civil Legal Aid, Fern A. Fisher.

Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History, Robert W. Gordon.

The Twilight Zone, Nathan L. Hecht.

New Report: Tracking Outcomes: A Guide for Civil Legal Aid Providers and Funders

LegalData_PublicInterest

The National Center for Access to Justice at Fordham Law School just published a very important report for all lawyers who work in civil legal aid. As the Center acknowledges in the report, data is not being collected, tracked, and used in the civil legal aid community at a rate consistent with other markets in the legal profession. The report expertly addresses many of the key reasons why data in civil legal aid is less effective, and carries on to address ways to make up the gap — notably recommending “that providers adopt a culture that supports the exercise of care in gathering, organizing, and analyzing data.”

The report is a must-read (and take to heart) for all those in the civil legal aid community.

National Center for Access to Justice, Tracking Outcomes: A Guide for Civil Legal Aid Providers and Funders, 2018.

Wisconsin Law Review Symposium on Access to Justice

Lots of good articles. See below:

Democracy, Civil Society, and Public Interest Law by Catherine Albiston

Public interest law organizations (PILOs) play a significant role in democracy and American society. Historically, they have enabled underrepresented voices to be heard in the political process and have vindicated public values by enforcing civil rights laws. They also have shaped and expanded the public sphere through litigation, media coverage, and their association with social movements seeking social change. As public interest law expanded dramatically in the 1960s and 1970s, it came to mean much more than pro bono representation of the poor. Courts and lawyers recognized public interest litigation as a legitimate form of political expression and civic participation.

The Keys to the Kingdom: Judges, Pre-hearing Procedure, and Access to Justice by Colleen F. Shanahan

Judges see themselves as—and many reforming voices urge them to be—facilitators of access to justice for pro se parties in our state civil and administrative courts. Judges’ roles in pro se access to justice are inextricably linked with procedures and substantive law, yet our understanding of this relationship is limited. Do we change the rules, judicial behavior, or both to help self-represented parties? We have begun to examine this nuanced question in the courtroom, but we have not examined it in a potentially more promising context: pre-hearing motions made outside the courtroom. Outside the courtroom, judges rule on requests such as motions to continue or for telephone appearances that allow parties to participate in and access the hearing room. These requests have significant consequences for the party, do not implicate the merits of the underlying case, and are a pared-down environment in which to examine the interaction of judicial behavior and procedures.

Studying the “New” Civil Judges by Anna E. Carpenter et al.

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices for courts, litigants, and the public. From top to bottom, we can describe and theorize about our existing civil justice system in only piecemeal ways. Given legal scholarship’s near complete focus on federal civil courts, the stories we tell about the civil justice system may be based on assumptions and models that only apply in the rarefied world of federal court. Meanwhile, state judges and courts— which handle ninety-nine percent of all civil cases—are ripe for theoretical and empirical exploration.

Simplicity as Justice by Kathryn A. Sabbeth

Simplification of the legal system has attracted attention as a means of improving access to justice. A major motivation driving reform is the perception that pro se litigants have flooded the courts and begun clogging up the wheels of justice. Ordinary people do not know rules of procedure, evidence, or substantive law; do not handle their cases effectively or efficiently; and have, the argument goes, generated a “pro se crisis.” A number of states and localities have responded by increasing the availability of legal services, funding programs that offer solutions ranging from limited assistance to full representation, and a few legislatures have even established a statutory right to counsel for particular categories of cases. Given the expense of advocates’ labor, however, most jurisdictions have sought instead to improve litigants’ ability to handle their legal matters on their own. As an alternative to providing litigants with representatives who could help them navigate the courts, a growing number of commentators propose simplifying proceedings to obviate the need for such representation. Methods of simplification include creating form pleadings, introducing technology, and relaxing formal rules that could confuse lay litigants. Proponents of simplification claim that it will decrease the time and cost of proceedings, help litigants meet the technical requirements of the fora in which they appear, and increase litigants’ satisfaction with the process.

Toward Universal Deportation Defense: An Optimistic View by Michael Kagan

One of the most positive responses to heightened federal enforcement of immigration laws has been increasing local and philanthropic interest in supporting immigrant legal defense. These measures are tentative and may be fleeting, and for the time being are not a substitute for federal support for an immigration public defender system. Nevertheless, it is now possible to envision many more immigrants in deportation having access to counsel, maybe even a situation in which the majority do. In this paper, I make no real predictions. Instead, I offer a deliberately—perhaps even blindly— optimistic assessment of how concrete steps that have already been taken could grow into a system of universal deportation defense. In the process, I try to identify what still needs to happen for this to be achieved, and offer some thoughts on how this might change the practice of immigration law in the United States.

New Article: “Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services”

-, Mitch, Tipping the Scales of Justice: The Role of the Nonprofit Sliding Scale Law Firm in the Delivery of Legal Services (September 21, 2017). Univ. of Wisconsin Legal Studies Research Paper No. 1424. Available at SSRN: https://ssrn.com/abstract=3040840 [Abstract below]

Most research on providing legal services for low-income clients has focused on (1) government-funded programs, (2) private donor-funded programs, and (3) pro bono programs. Despite the valuable services these programs provide, a well-documented justice gap persists. Other models for the delivery of legal services exist, but are not well known or understood. One such approach has existed for years without scholarly study: the nonprofit organization that only serves low-income clients and receives its funding primarily on the basis of sliding-scale fees paid by clients. Based upon the author’s personal experience starting a nonprofit Sliding Scale Law Firm (SSLF), and informed by interviews with attorneys working at SSLFs across the country, Part I of this article describes the structure of these nonprofit SSLFs. Part II addresses the role that the SSLF model fills in the overall system of legal service delivery: SSLFs reduce the justice gap by providing services to clients who cannot obtain free legal services, but cannot afford to hire an attorney at prevailing market rates.

Article: The Raisins of Wrath: The Constitutionality of Interest on Lawyers’ Trust Accounts Following Horne v. USDA

Article: Max Raskin, The Raisins of Wrath: The Constitutionality of Interest on Lawyers’ Trust Accounts Following Horne v. USDA, 10 NYU J. L. & Liberty 857 (2016).

Interest on lawyers’ trust accounts (IOLTA) are programs that require lawyers to remit their some of their clients’ interest to the state. This money is used to fund legal aid programs. The Supreme Court, in a five-to-four 2003 decision in Brown v. Legal Foundation of Washington, upheld such a program against a Fifth Amendment takings challenge. This note argues that in light of subsequent Supreme Court jurisprudence, the Court’s reasoning in Brown is no longer tenable. The culmination of the post-Brown jurisprudence is Horne v. United States Department of Agriculture. Although the accounts are creations of the state, the benefits that flow from them cannot be unconstitutionally conditioned. Because no linkage can be drawn between providing free legal aid and the provision of IOLTA accounts, the interest remission requirement is unconstitutional.