I was talking to an activist friend of mine last month about a local nonprofit. She sighed, and said;
“I don’t like to refer people to them. I know they serve a lot of people, but I think they serve them poorly. A lot of people I know who went to them got really bad legal advice.”
I started to defend them, and then I stopped. She was right. They did give people problematic legal advice; it wasn’t necessarily wrong, but sometimes it certainly wasn’t nuanced advice, tailored to fit their specific situation. And sadly, occasionally it was just plain bad. I hated to admit it, but I had had this conversation before and heard other attorneys have the same conversation. So what is happening here?
Like a lot of nonprofits, this nonprofit couldn’t afford to provide one of their few staff attorneys to everyone who needed representation, and they relied on a network of external pro bono attorneys. Those attorneys typically practiced in large firms and had no specific experience that related to the needs of low-income clients, or in the substantive area of law they were providing pro bono representation in. Those attorneys then received minimal training in the relevant topic (in my experience, usually special education, immigration or family law/domestic violence) and were made available to the nonprofit’s indigent clients with minimal supervision from the nonprofit’s more knowledgeable in-house staff.
This model is deeply problematic for two reasons, first because it assumes that the substantive area of law can be taught in a one-day seminar, and secondly because it fails to appreciate that low-income clients might have particular needs that attorneys need specific training, education and experience in order to meet effectively. These failures hurt the clients and the profession as well. The lawyers don’t know what they don’t know. Frequently they think they know an area of law better than then they actually do, after all, the nonprofit trusted them with their clients after a one-day training, they must know what they need to know.
I’ll be honest – this drives me nuts.
For example, immigration, while largely statutory, is insanely complicated, has a labyrinth of loopholes, exceptions and special rules that practitioners need to know if they are going to do their job competently. Special education litigation is frequently dismissed as “merely administrative” when it, in fact, involves a great deal of substantive knowledge and for the students involved, is frequently their last best chance at appropriate services at school, because the appeal process is so long and burdensome as to be practically meaningless for many of them.
I’ve thought a lot about this lately, and I accept that that I might not be able to restructure this whole model of providing services today, but I think there are a few things we can do on the edges to make sure this model works better. Specifically –
Nonprofits must commit to supervising their pro bono attorneys. Not just to being available should a problem arise, but to actually supervising them. Frequently pro bono attorneys do not recognize when they have made a mistake, or when they may need additional help. This is not entirely their fault, it takes years of practice in area to develop that sense and it is not fair to expect an attorney to have after a one day seminar. To that end, we must move away from a one-and-done model; pro bono attorneys should be encouraged to develop a deeper knowledge of the area of the law they are providing services in. This benefits both the clients and the attorneys, and it has the potential to elevate the substantive body of law itself.
Training for pro bono attorneys must include training in relevant cultural competencies and client communication. For example, many attorneys are accustomed to working with clients who are highly educated, familiar with the legal system and reachable between 9 and 5 via phone or email. This does not describe many low-income clients that nonprofits represent. In fact, many of them lack basic literacy skills, do not use email regularly and/or can’t take calls during the workday without financial repercussions. Attorneys need to understand that, and make sure that they are willing be accessible to these clients.
Law schools need to teach their students clinical skills for the courtroom and for client communication. Lawyers need to be able to understand their clients’ concerns and needs, and know how to make the law accessible to them. Every law student writes a memo to a partner and an appellate brief, but how many practice an intake interview? How many law students can write a letter that explains a Motion for Summary Judgment to someone who never graduated from high school and is reading on a 6th grade level? To borrow a phrase from the social workers, lawyers need to meet their clients where they are, not where we want them to be.
These three things won’t solve everything, but will make it less likely that I will have the same conversation again.
Part of the Human Experience 