Divide and Conquer: Bridging the Justice Gap through Limited-Scope Representation
Between the headline-breaking lines of legal literature — whether that be the threats to political rights brewing in Supreme Court case rulings or the formation of new, cutting-edge legal frameworks to AI and intellectual property — there lies a less popular yet more endemic legal issue: the underrepresentation of lower to middle-income clients in civil cases. Referred to as the “justice gap,” America’s long-running disparity in access to basic legal aid representation has only worsened in recent years. As of 2022, low-income Americans received little to no legal assistance for 92% of civil legal problems with substantial impact while Americans at or above 400% of the federal poverty line saw 78% of their civil legal problems unassisted — a disparity that was only exacerbated by COVID-19 and related ensuing legal issues like evictions [1]. Even more worrisome, this gap has not widened out of a lack of effort for reform. After ten years of seeking increased government spending for legal aid non-profits and pro bono incentives [2], publicly funded legal aid organizations are still forced to turn away up to 71% of the civil legal aid cases brought before them [3]. Even New York City, a metropolitan hub that enjoys twice the national average concentration of lawyers and a high concentration of pro bono aid, sees up to 99% of tenants resort to self-representation in eviction cases [4]. In the face of the yawning chasm that is the justice gap, what else — if anything — can be done to bridge the distance?
One counterintuitive strategy lies in the principle of less, not more — that is, the practice of limited-scope representation. Also known as unbundled legal services or discrete task representation, limited-scope representation (LSR) refers to the practice of attorneys and non-attorneys dividing legal representation into distinct tasks as opposed to having attorneys “represent a client from the alpha to omega” [5]. Divided practices might include anything from offering advice in the form of informational clinics, writing statements for otherwise self-represented litigants, or limited-scope advocacy [6]. While initially jarring due to its willingness to relinquish full-scope representation, it is precisely this feature that makes LSR effective both as a practice in its own right and as a remedial strategy in response to a lack of full legal representation. In particular, LSR offers a more ethical legal process in non-ideal conditions, quantitatively improves legal outcomes for clients, and leverages communal involvement to adapt to its own internal issues and shortcomings.
First, accepting the reality that legal aid providers will likely remain strained in terms of manpower and resources reveals an unexpected benefit to LSR: when weighed against the alternative, providing LSR may be the more legally ethical procedure for both clients and attorneys by preserving client autonomy and maximizing representation in conflicts of interest. Indeed for lower-income clients, the alternative to securing full representation is not setting for some other, “worse” representation but rather proceeding to trial with no representation at all — or worse, bearing the burdens of an eviction or predatory debt collection without the chance to dispute the matter in court [7]. Here, affordable and unbundled legal services with fewer strings attached are justified as the more ethical legal procedure in that their mere existence provides the client a fighting chance at exercising their legal needs.
Unbundled services, however, do more than just make the best out of the worst — by virtue of their being unbundled, LSRs offer unique ethical advantages to strained full-scope representation. As of 2018, statistics and anecdotal reports from Iowa’s Attorney Disciplinary Board and the state’s Supreme Court Office of Professional Regulation have found fewer ethics and malpractice complaints, particularly among clients who mistrusted legal counsel after suffering negative experiences like malpractice or working with attorneys unresponsive to their needs [8]. In such cases, unbundled services offer individuals more agency in the direction since LSR attorneys provide clients with necessary legal instruction and more detailed explanations of various methods of recourse than these clients would receive with an unresponsive full-scope attorney or with self-litigation [9]. Attorneys, too, may reap ethical benefits from LSR in that it allows them to maintain a degree of ethical representation even in typical cases of conflict of interest. Typically, full-scope representation runs the risk that, per procedures against conflicts of interest, an attorney will be barred from representing a client in a matter adverse to another client—even if the conflict arose after the beginning of representation. Whereas full-scope representation runs a risk of chilling and reduced incentives for pro bono representation, unbundling representation into discrete tasks allows attorneys to minimally support clients even in conflicts of interest, therefore increasing rather than decreasing the level of legal representation available [10]. This particular benefit has proved especially helpful for strained legal service providers where representation becomes lower-risk and more flexible [11]. For strained providers, then, LSR in fact respects core ethical tenets of legal practice to an arguably greater extent than an attempt at full representation.
Not only does LSR’s unconventionality offer equitable procedure, but it also offers potentially more equitable results in terms of both access to legal representation as well as judicial outcomes. While qualitative assessments of LSR’s role in increasing access to legal representation and quality of representation have abounded in the legal literature over the past decade and a half, quantitative assessments have been harder to capture until a recent 2018 Yale Law Journal study. Using a sample of over 1,200 foreclosure-related cases in New Haven from 2015 to 2017, the study compared a control group of cases of unrepresented clients against cases of clients offered pro-bono legal services that ranged from limited representation for only three hours in court to limited advice [12]. Researchers determined statistically significant positive results: clients given LSR received both an average of 48.3 more days in their home compared to wholly unrepresented homeowners as well as a higher likelihood of winning in their final dispositions, allowing them to ultimately stay in their homes [13]. The implications here should not be understated. Indeed, the study admits the nuance that LSR is never the ideal alternative to full representation but rather the next-best option for our reality in which full representation is systematically unavailable — yet, critically, it also shows that even the smallest forms of legal services such as provision of counsel yielded substantial benefits even without representation.
As encouraging as the above discussion of LSR’s demonstrated benefits may sound, it still omits a key concern: the very source of LSR’s benefits — that is, the flexibility of unbundled services — might also be the source of its inherent harms. One particular harm is the fear that unbundled services might invite low-quality or even predatory legal work at the expense of indigent clients. Clifton R. Johnston, a Midwest-based attorney practicing collection law, attests to this very fear in the concurrent growth of LSRs, online legal resources, and ghostwritten documents — that is, documents written partially or fully by another provider for self-represented clients to file in court [14]. According to Johnston, these ghostwritten documents are not only “much more frequent” but also “poorly served [by ghostwriters who] do not know how to handle proceedings beyond the initial filings” or as required under local state procedures [15]. During trials, judges may withhold the procedural leniency otherwise granted to self-represented clients when they use ghostwritten services and do not properly disclose their use of LSRs [16]. In divorce filings, too, Oklahoma’s Bar Association finds widespread anecdotal accounts of unlicensed form sellers clogging up court dockets and disappointing litigants with negligent services [17].
Whether it be collection law or divorce filings, these observations suggest that unbundling services in ghostwriting may mean unbundling the usual standards of quality required in full representation. This prompts two worrying questions: is there not, then, fundamentally a tradeoff — a risk — in seeking the benefits of cost-effective, flexible representation at the possible cost of sacrificing quality? Further, is it not unfair that indigent clients are the ones to assume the risk of these harms when compelled to use LSR? Even the most avid proponent of unbundled services must, in good conscience, admit that the answer to both these questions is “yes” — and in spite of that answer, an argument in favor of LSRs stands for two reasons. First, the risks of LSR can be mitigated when recalling that at the individual level, this is not a tradeoff between LSR versus full, high-cost representation and is rather LSR versus no representation or rare, subsidized representation. In the latter tradeoff, the aforementioned evidence of reduced malpractice claims and the statistical data from The Yale Law Journal remind us that some representation is better than none. This certainly does not erase the weight of the risks attached to LSR, but it does put these risks into perspective, especially against the alternative of a client forgoing any chance to dispute their rights in court. Yet there remains a second reason to prefer LSRs which more frankly admits the shortcomings of unbundled services. As the latter question suggests, it would indeed be an injustice to pass the risk and responsibility of bearing an imperfect tool like LSR onto the indigent client — the very individual who is already most disempowered in the justice gap. Accepting both the risky imperfections of LSRs and the inevitability of the justice gap does not give us grounds to shy away from unbundled services but rather should motivate us to develop and implement LSRs with even greater urgency. Unbundled services are not inherently destined for low-quality work or gross negligence; they only risk this fate when the representation and advocacy of a case is poorly unbundled. Low-quality service is not an inherent feature of LSRs but rather a symptom that points to an uneven division of labor among various actors — courts, attorneys, paralegals, legislators, non-profits, and legally-minded communities alike — who must each play a part in communally unbundling the legal services owed to the litigant. The importance of mutual coordination in the unbundling services can be seen in the aforementioned case of Oklahoma City’s poor ghostwriting and unlicensed divorce form sellers. Attorney and Executive Director of the Oklahoma Bar Association John M. Williams has witnessed in his own experience the weakest points of LSR in regard to ghostwriting. Yet rather than dismiss unbundled services, Williams responded with calls to collective action. To courts, he highlighted the need for rules of procedure that encourage and facilitate low-cost LSRs; to the Oklahoma Bar Association, he encourages the proliferation of educational programming on how to represent a client through unbundled services; and to lawyers, he argues that “we must communicate to the public they can go to a lawyer and get… integrity and quality in the process” [18]. A philosophy of sharing the burden of unbundling services can be applied even in strictly non-legal spaces like Harvard’s own community. Whether that be more obvious supplementary legal services provided by the Law Schools clinics, legal information offered by PBHA’s Small Claims Advisory Service volunteers, or leveraging spaces like The Harvard Undergraduate Law Review to raise awareness and discuss LSR’s role in closing the justice gap, the success of unbundling legal services to those in need might rely on a truly communal, dynamic, and interactive distribution of the yoke in bridging the justice gap. The justice gap is wide— not merely in how wide the magnitude of unrepresented clients is but rather in how widely, deeply, and acutely the problem of unequal access to justice manifests in the lives of those who are denied a right to justice. It is only fitting, then, that an unconventional and widespread issue like the justice gap is met with an unconventional, wide-ranging arsenal like communal participation in unbundled legal services.
Bibliography
[1] “The Justice Gap Study: Introduction,” Legal Services Corporation, 2022, https://justicegap.lsc.gov/resource/section-1-introduction/.
[2] “Addressing the Justice Gap,” New York Times, August 23, 2011, https://www.nytimes.com/2011/08/24/opinion/addressing-the-justice-gap.html.
[3] “The Justice Gap Study: Introduction,” Legal Services Corporation, 2022, https://justicegap.lsc.gov/resource/section-1-introduction/.
[4] James G. Mandilk, "Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation." Yale Law Journal, vol. 127, no. 7 (May 2018): 1835, HeinOnline.
[5] Lori A. Buiteweg, "Limited Scope Representation: A Possible Panacea for Reducing Pro Per Court Congestion, Attorney Underemployment, and a Frustrated Public," Michigan Law Journal, no. 8 (August 2016): 10, HeinOnline.
[6] Mandilk, "Attorney for the Day,” 1837.
[7] Ibid, 1833-1835.
[8] Tim Eckley, "Unbundling Limited Scope Representation," Iowa Lawyer, vol. 78, no. 5 (June 2018): 9, HeinOnline.
[9] Eckley, “Unbundling,” 10.
[10] Jonathan J. Lerner & William J. Sushon, "Limiting the Scope of an Attorney's Representation to Avoid Client Conflicts," Record of the Association of the Bar of the City of New York, vol. 56, no. 3 (Summer 2001): 418-419, HeinOnline.
[11] Pamela C. Ortiz, "Consent, Clarity, and Candor: The Ethics of Communication in Limited-Scope Representation,” ABA Journal of Labor and Employment Law, vol. 33, no. 3 (Fall 2018): 251, HeinOnline.
[12] Mandilk, "Attorney for the Day,” 1833-1835.
[13] Ibid.
[14] Russel C. Fagg & Clifton R. Johnston, “Reactions to Limited-Scope Representation,” Montana Lawyer, vol. 36, no. 3 (December/January 2011): 19, HeinOnline.
[15] Fagg & Johnston, “Reactions,” 19.
[16] John M. Williams, “Consider Limited Scope Representation to Expand Your Practice,” Oklahoma Bar Journal, vol. 89, no. 7 (March 2018): 50, HeinOnline.
[17] Williams, “Consider Limited Scope Representation,” 51.
[18] Ibid.