1.3 Factors for Strategic Consideration

Updated 2013 by Jeffrey S. Gutman

As your office considers the possibility of litigation, it will need to consider who the client is, the client’s goals, the capacities of the organization, available resources and time considerations, as well as who can provide the relief that the client seeks.

1.3.A.  Who Is Your Client?

 Part of the lawyer’s job is deciding who will be the client.  A person who walks into your office with a grievance will not necessarily become your client in a lawsuit.  In individual matters, questions may arise as to who the client is: The parent or the child? The leaseholder or the family member barred from the property? The guardian or the ward?  These issues and potential conflicts must be addressed at the outset through careful legal, factual, and, occasionally, ethics research.

Lawyers generally, and legal aid lawyers in particular, need to think carefully about not only which issues are suitable for litigation, but also which clients will best present those issues as parties to litigation.  The lawyer has some flexibility in deciding who the client will be.  The lawyer may seek clients and not simply wait for individuals to ask for help.  For example, when the lawyer knows that a wrong is about to occur or has been occurring, the lawyer may seek out people who want to challenge it.1  This may take the form of public education about the issue or may involve more actively contacting potential clients through networking with organizations and client groups.2

Before accepting someone as a client in potential litigation, issues of standing, ripeness and mootness, discussed in Chapter 3 of this MANUAL, must be considered.  Minimizing standing and mootness problems may justify retaining multiple plaintiffs.  Yet, representing more than one person may create conflicts, both ethical and practical.  Depending on the nature of these issues, such hurdles may counsel in favor of a non-litigation approach.

In many situations, the client may be a community organization.  Working with a community organization, especially in the context of tackling systemic issues, has many advantages.  The community group may have its own resources to contribute to the advocacy strategy.  The group may lend financial and volunteer support, credibility, networking, and potential plaintiffs in any litigation.  Most importantly, the group may understand the importance of the issues at hand and the social forces that have created the problem and can lead to its solution.  The involvement of a community group can also ensure that attorneys advance the litigation in accordance with community needs.

Working with organizational clients involves special considerations.3   Most important, the attorney and the group must agree on who speaks for the group. Counsel should also understand whether the group speaks for the community or constituency at large or only for its particular members or leadership.  The attorney must have open communications with the group and its leadership so that there is an understanding and agreement on the respective roles of attorney and client.  The institutional interests of the organization may diverge from the desires of individual members of the group.  The retainer agreement must incorporate all elements of the attorney-client relationship, and should spell out the mechanism by which the decisions of the group will be made and conveyed.  While the retainer may specify the name of an individual member of the group, the retainer should state who speaks for the group in case the named individual leaves the group.  The attorney and group must agree on the advocacy approach and on determining whether the objectives have been achieved, whether through litigation, settlement, or other means.

The retainer agreement is the blueprint for the relationship with the client.  In addition to including any language mandated by the state bar or legal services program, the retainer should anticipate the potential attorney-client relationship problems that can arise during litigation.  The respective responsibilities of the attorney and client should be discussed.  The grounds for termination of the attorney-client relationship and how such termination will be handled, costs and fees, including attorney’s fees, and settlement offers should be addressed.  A retainer should also warn a client that he or she will need to report any monetary awards received as a result of litigation and any attorneys' fees awards as income for federal tax purposes.  Some attorneys include language explaining the typical time frame for litigation.

In bringing a class action, retainer agreements and conversations with the class spokespersons must make clear that the lawyers’ responsibilities are to all class members, not just the named plaintiffs.  For example, in challenging mass evictions and proposed demolition of housing, be clear about the extent to which counsel is representing people who want to stay, people who left but will not return, and people who are in need of the housing and do not want the property demolished.  If potential conflicts are foreseen, or if those conflicts already exist, the attorney may choose to represent one of the subgroups and recruit private or other nonprofit counsel to represent other subgroups.  A conflict of interest with the local legal services office is often one of the criteria that the local office uses for placing a case with pro bono counsel.

The lawyer should not simply use the office’s standard retainer agreement without ensuring it meets the needs in the contemplated case.  While such agreements can serve as a model, they may need modification.  These agreements must be explained carefully to the client(s) and a memorandum of that conversation should be drafted and kept in the case file.

1.3.B.  What Are Your Client's Goals?

The answer to this question will shape the course of your advocacy strategy as certain approaches will be better than others in achieving clearly identified objectives.  In many cases, a client will need to define these objectives in terms of solving the immediate or individual problem, or in terms of solving deeper systemic problems that have manifested themselves in what has happened to the particular client.  Effective interviewing and counseling is necessary in order to define problems and objectives.  The lawyer must neither defer reflexively to the client’s definition nor unilaterally impose her own.  Failure to accurately and collaboratively define client needs and objectives can result in misdirected advocacy strategies, ethical headaches and client dissatisfaction.  For these reasons, initial client meetings must be carefully planned and considered.

The advocate and the client need to think initially not in legal terms but, instead, consider in a broader way the range of possible solutions and strategies for the problem the client has presented and the implications of each approach.  This avoids prematurely selecting litigation as the strategy and inappropriately allowing formulaic ways of requesting relief to limit unnecessarily the goals of the advocacy.  Focus first on the desirable outcome and not merely what is believed is attainable.  Litigation may not achieve all that is desirable.  Other approaches may achieve much of what is sought more quickly and less expensively, potentially with less risk to the client or others in similar situations, or with less risk of creating a negative precedent or provoking negative legislative or administrative responses that could undermine the client’s goals.  If such alternatives are not feasible or successful, then more narrowly focus on what is legally attainable after completing the legal research and fact investigation.

In some cases a client will have a clear view of what strategy to employ, and in those situations the lawyer’s job is to do the technical, professional analysis and work necessary to competently pursue the matter in accordance with the client’s wishes.  In other situations, the client has limited expectations or understanding of the possibilities and the lawyer’s job is to counsel the client regarding options, implications and risks.  Part of the advocate’s job is to make sure that the client has a full picture of the kinds and extent of relief available as well as the potential approaches and obstacles in achieving them.  Do not begin any legal work on behalf of a client until you have a clearly defined understanding of the client’s concerns and objectives, a full discussion of the range of potential solutions and their pros and cons, and a written agreement on how to proceed.

What a client wants must be assessed with a measure of sympathetic skepticism.  The advocacy strategy and its potential for achieving the client’s goals will turn on the client’s situation and whether the client’s desires are, or may reasonably be, supported in existing law or policy or rational and logical extensions of such law and policy.  Thus, as the advocate begins work with a client, it is wise to develop a provisional legal or policy theory (discussed below), which will help define the bounds of the possible and influence your advocacy strategy.  It is also important to consider whether particular approaches may have unintended consequences for the client.  For example, depending on the circumstances, a client who must rely, or anticipates needing to rely, on needs-based public benefits for subsistence, may ultimately be harmed by a financial recovery.  In some cases, program beneficiaries may get along fine if they are ineligible for benefits for a short time, but the loss of some types of benefits may mean a long-term loss that could jeopardize the client’s well-being or stability.  Individuals receiving needs-based public benefits generally have an obligation to timely report pending litigation and any recovery to the administrator of the benefit program, and, in some cases, may need to assign some or all of their interests in a financial recovery.  In addition, advise your client on the impact of a potential financial or attorneys’ fees award.  Because the Supreme Court has ruled that settlement awards constitute income to the client, attorneys’ fees are also considered income and may be taxable to the client.4  In these cases, the client must be notified that income and any fees generated are taxable income for federal income tax purposes and must be reported.  Every situation has to be individually evaluated and the client made aware of potential consequences and strategies to mitigate loss of needed assistance so that the client can make a fully informed decision on how to proceed.  This may counsel against litigation, or it may inform the remedies sought in the case.

1.3.C.  What Are the Capacities and Limitations of Your Firm or Organization?

The extent of any potential advocacy effort is always circumscribed by the capacities and limitations of the firm or agency.  The principal limitations are resources, which consist of staff time and funds available for advocacy-related expenses.  Legal aid firms typically are engaged in a constant and never-ending institutional struggle to evaluate and satisfy the advocacy needs of their clients with extremely scarce organizational resources.

Many legal aid organizations are funded, at least in part, by the federal Legal Services Corporation (LSC).  In 1996, Congress enacted a series of sweeping restrictions,5 subsequently codified in LSC-promulgated regulations, which limit the range of activities in which attorneys employed by LSC-funded programs may engage.6  These restrictions include, for example: class action litigation; legislative and administrative advocacy; representation of aliens and prisoners; “welfare reform” advocacy; abortion-related advocacy; and redistricting advocacy.7  Not all of these restrictions were new. Congress and LSC had long limited some of the advocacy which LSC grantees could undertake using LSC funds.  However, the 1996 changes not only added numerous subjects to that list, but also extended many of those limitations or prohibitions to any funds used by the grantee.8

The LSC regulations, which are subject to changing political currents9, must be read carefully.  Many of the restrictions are limited in their terms and permit attorneys’ specific actions (sometimes using non-LSC funds) that fall within the scope of the general restriction.10  An in-depth analysis of all the restrictions is beyond the scope of this MANUAL.  However, the restrictions do not prevent “impact advocacy” either through litigation or other means of legal representation.  Many significant legal changes have come about through the vigorous litigation of an individual client’s claim (or a group of clients’ claims): the setting of a legal precedent, a change in the law, or the obtaining of specific injunctive or declaratory relief, including broad prospective relief.11  Class-like relief may be available in declaratory and injunctive actions on behalf of an individual, group, or institutional plaintiff.12  Throughout this MANUAL, we endeavor to point out obvious issues regarding the LSC restrictions, but assume that attorneys in LSC-funded programs are cognizant of the entire regulatory scheme and its implications for their advocacy.

In addition to prohibiting certain forms of advocacy, these restrictions may counsel against the LSC-funded organization taking a certain case as a strategic matter.  In some instances, for example, where the appropriate advocacy strategy is class action litigation, ethical obligations to the client may require recruiting a non-restricted attorney to handle the case.  The point here is that advocates in LSC-funded programs must be creative, prepared to adjust their strategy in light of the restrictions, counsel their clients on these limitations, and refer them elsewhere if appropriate.

1.3.D.  What Resources Are Available?

As part of the initial planning stages of the advocacy, prepare a budget that covers both the time and staff resources and financial resources necessary to conclude the project.  If the plan is to conduct litigation, it should include an estimate of the time and staff necessary to draft and research motions, interview witnesses, review documents, conduct discovery and litigate at trial.  The financial estimate should include fees and costs, such as for depositions, transcripts, experts and witnesses.  If your office is raising funds for litigation, translate the time and staff resource requirements into a dollar figure for salary and overhead.

It can be easy to accept a case and commence litigation under the assumption that the case will settle or reach a quick conclusion.  In fact, a legal services lawyer often brings challenges to an agency’s actions where the facts are not in dispute and only a legal issue is presented.  But the result may not always be as expected.  The office should know how much it would cost to pursue the case to completion.  The possibility of appeal should be considered.  You need to be as clear as possible regarding how far your office can carry the legal strategy.13

If your agency cannot afford to bring a case that will have broad social impact, the case may be a candidate for non-litigation approaches or obtaining litigation funding.  Foundation and private supporters may fund litigation if the litigation is understood to be part of an overall strategy for obtaining an important community objective or protecting a vulnerable population, and litigation is the best tool to achieve a well-articulated goal.

Another way to obtain financial resources is to partner or co-counsel with a private law firm.14 Often the legal services program can provide the substantive expertise, and the law firm can contribute litigation and trial experience and cover ongoing litigation expenses.  In-kind assistance such as copying, secretarial and paralegal support for this litigation can free up program resources for use on other matters.  Civil rights groups and national nonprofit legal organizations such as the National Women’s Law Center, the American Civil Liberties Union, or AARP can provide expertise and in-kind assistance, media campaigns, research, and staffing resources.  Organizations are careful stewards of their resources and work on cases that further their mission.  Your relationship with a national organization may be one of full partnership or co-counsel, or it may consist of getting help in discrete portions of the litigation.  As with any other relationship formed to advance your litigation, clear communication of expectations and responsibilities is critical and should be confirmed in a co-counsel agreement, memorandum of understanding, or letter.

If your agency cannot afford the litigation, then you should not and cannot bring the litigation.  You must explain to the client the costs of the litigation and the risks of bringing underfunded litigation—making bad law and getting a bad decision for the client.  Clients often have no idea of the costs of litigation and have notions distorted by the cultural mythology about lawyers and how lawyers are paid.  They may think that they will obtain millions of dollars in damages and that you will receive a portion, or they may care so passionately about an issue that they may push you to commit resources you do not have.  Either way, your job requires understanding the reality of the economics of litigation and giving your assessment to your client.  You owe it to your client to make this determination promptly so the client can explore other possible sources of representation or advocacy before any legal or practical deadlines occur.

1.3.E.  Who Can Provide the Relief Sought?

Once you and your client are reasonably clear about the client’s goals, you must decide who is able to provide the relief sought or is able to direct that it be provided.  Consideration of this question deserves some creativity.  The relief may come directly from a private individual or local agency, but there may be one or more public agencies—federal, state, or local—with the authority to order that the relief be provided or with the power to provide it directly.  Thus, a local housing authority may be subject to direction from the U.S. Department of Housing and Urban Development (HUD); a nursing home from the U.S. Department of Health and Human Services; a private landlord from local code enforcement officials and from the mortgagee.  You should identify all potential sources of relief.  This will help illuminate the viability of non-litigation approaches to resolution and help narrow the range of particular parties in litigation.

With respect to litigation, each party that may play a role in providing essential relief should be evaluated.  An attempt to get relief that costs money from a local housing authority could include HUD because HUD’s resources might be needed.  A lawsuit seeking relief that involves financial consequences for a private landlord might include the mortgagee.  However, the advantages of bringing in an additional party must be weighed against the disadvantages.  For instance, suing HUD may delay the litigation and make informal advocacy with HUD impossible.  As in all other decisions, you must work with the client to determine what approach best meets the objectives of the particular litigation.

1.3.F.  Time Considerations

Your advocacy strategy will be significantly influenced by the timing needs of your client and the estimated time needed to accomplish the client’s goals through varying strategies.  A reality of legal services practice is that the need for our services is greater than what we can provide.  You must estimate the time you are able to spend on the matter.  You must also have a clear sense as to the timetable by which your client needs or wishes relief.

You will need to carefully and realistically counsel your clients on the time likely to be required to advance their goals.  Clients are understandably dissatisfied when matters take longer than expected.  Reasonable expectations must be explained and decisions made on advocacy strategies with the client’s needs in mind.  Do not accept a case or commence litigation or any other form of advocacy if you do not have a plan for staffing the matter and a realistic estimate of the time to pursue it.

If you have decided on a litigation strategy, keeping adequate time records is an important aspect of managing the litigation.  You may need to keep contemporaneous time records to comply with legal services program rules or to obtain attorney’s fees from the court.  Good time records can be useful should you ever have to move for or defend against sanctions.  Pre-filing investigative time should be recorded as well.  These records can also be considered in determining the staffing needs of your office, drafting funding proposals, and setting office priorities.  Many offices are now using software that captures and analyzes time devoted to cases.  

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Updated 2013 by Jeffrey S. Gutman