What Difference Representation: Case Selection and Professional Responsibility

Thanks for the invitation to participate in this interesting and provocative symposium.

I’m a legal services attorney in Boston. My employer, Massachusetts Law Reform Institute (MLRI), has as one of its primary tasks to connect the state’s field programs, where individual client representation occurs, with larger political bodies, including legislatures and administrative agencies, where the systemic changes affecting our clients most often take place. (The legal services programs in many states include organizations comparable to MLRI; we are sometimes known by the somewhat infelicitous name “backup centers.”) Among the programs with which MLRI is in communication is the Harvard Legal Assistance Bureau, and I would take this moment to acknowledge the high regard in which I and my colleagues regard their work.

The substantive area of my work is employment law. It is no surprise that during the past three years of our country’s Great Recession, the importance of the unemployment insurance system for our clients has increased enormously and, consequently, it has occupied a greater portion of my time than might otherwise have been the case.

I’m not a statistician nor do I work in a field program representing individual clients, so my comments will not address in any detail the validity of the HLAB study or the conclusions that may properly be drawn from it. As one member of the community of Massachusetts legal services attorneys, however, I have an obvious interest in the way the study portrays us: we are variously described as self-protective, emotional, distrustful of being evaluated, and reluctant to the point of perverseness in participating in randomized studies of the kind the authors wish to conduct. Our resistance in this regard has itself already been the subject of comment here. Happily, it is not often that one looks into what seems to be a mirror and sees the personage looking back wearing a black hat and a snarl. But when it does happen, it’s hard to look away without some effort at clarification. So I will devote my contribution to the symposium to the topic of the perceived reluctance of the legal services community to cooperate in randomized trials. It goes without saying, but the following thoughts are those of only one member of a larger community.

My understanding is that in the HLAB study, no significant case evaluation occurred prior to randomization. Many of us in legal services view with trepidation the idea of ceding control over case selection to the randomization process. Others have more sanguine views, either because they assume that randomization is already taking place or that it ought to be. For example, in his comments from a few months ago, Dave Hoffman was working under the assumption that to randomize client selection would not change an agency’s representation practices at all, and on that basis, he criticized resistance to randomized control trials as “trying to prevent research from happening.”

The authors of the study are enthusiastic about randomization not only because of its scientific value in statistical research but also because it can help to solve one of the thorniest problems facing legal services programs – the scarcity of resources as compared to the demand. As long as the demand for legal assistance outstrips the supply, Professor Greiner has said, randomization – a roll of the dice or the flip of a coin — is an easy and appropriate way to decide who gets representation and who does not.

I believe it’s erroneous to assume that randomization would not change representation practices, at least in the area of legal services in which I work. I also acknowledge that it is possible, at least theoretically, for all the cases in a randomized control trial to have met the provider’s standards for representation. This would provide some measure of reassurance. However, in one area of law, immigration asylum cases, the authors have concluded that time constraints make such an effort unworkable.

Moreover, to many of us allowing the attorney-client relationship to be the product of random selection rather than conscious choice would mean not only that clients with meritorious claims are being denied representation (the familiar problem of scarcity), but also that clients with unmeritorious claims are receiving representation in the furtherance of scientific experimentation. This latter outcome would almost certainly raise issues of ethics and professional responsibility. To take just one example, a lawyer whose client was assigned blindly rather than selected after at least some case evaluation could easily find himself or herself risking a lack of candor to the tribunal in order to afford the zealous representation the law requires or withdrawing from representation altogether. Neither of those results, it seems to me, would further the interests of justice or the efficient use of legal resources.

Of course we in legal services do not find it easy to make decisions about which clients to represent. Demand swamps supply, making triage (even choosing principles for triage) difficult. It is similarly difficult to allocate resources between individual representation and systemic advocacy. Among the balancing acts in which we in legal services are perpetually engaged is to attempt to meet both these important goals. Shall we spend our resources advocating for a systemic change that is necessarily speculative but potentially of great significance, or shall we focus on the representation of an individual client, a matter of less sweeping significance, but one with a frequently higher probability of success and one that might also shine a useful light on the proper direction of our systemic work? Notwithstanding the difficulties and uncertainties, it seems to me that it is our obligation to choose our clients and our priorities and not to consign the job to a coin flip, even in the face of overwhelming demand. The fact that we will make some wrong choices does not relieve us of the burden of making them.

As is the case with the study’s authors, I regard the improvement of the legal services delivery system as part of our systemic advocacy. If randomized control trials can inform us about what works and what does not and can do so without interfering with our professional responsibility as lawyers, I would welcome them.

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