Thoughts For Federal Agencies and ATJ Commissions Building on the White House LAIR Meeting

I am not sure that the ATJ Community fully appreciates the scope of the implications of the recent Legal Aid Inter-agency Round-table inaugural meeting, about which I first blogged here.  Nor, I suspect do all Federal agencies yet realize the scope of the potential help that the ATJ community can provide in ensuring that the agencies fulfill their varied missions.

So, I thought it might be helpful if I laid out some of the questions that such agencies might be asking themselves as they move forward in response to the marching orders from the meeting, and also some of those that state and national ATJ organizations might together and individually be asking about how they can help agencies in both planning and substantive activities.

Questions for Federal Agencies

  1.   Participation in Agency Decisions — Adjudicatory and Rule-Making.  If, as most do, your agency either conducts decision-making that should include input by low and middle income individuals, or if your agency funds or has the ability to assist in supporting or structuring such activities conducted by states, do you have in place systems to ensure the accessibility of such processes.  Many, but not necessarily all, of such decision-making processes will administrative initial determinations or appeals.  In addition, however, much rule making, as currently structured, may also be far less accessible to such populations than it might be.  There are already a wide range of models developed in the state courts for helping in access to adjudicatory process  situations, some, but not all of which are highlighted in the recent state Conference of Chief Justices 100% Access to Justice Resolution, about which I blogged here.  Examples are self-help services, already extensively funded by HHS through the IV-D program.
  2.  Funding Streams.  Has your agency done all it can to ensure that all appropriate funding streams that might be used to improve accessibility to justice are in fact available to the groups that could make sure use of them.  Given that increasing accessibility not only improves justice, but also increases efficiency (often of many agencies), the legitimacy of government, and assists with fulfilling almost all of the substantive goals of the Federal government, I suspect that almost all funding streams would be appropriate for such consideration, unless explicitly dedicated to some other non-overlapping purpose.  Obviously, the LAIR Toolkit helps provide models and ideas.  Equally obviously, sometimes eligibility can be made clear in forms of gjidance, at other times regulations may need to be changed.  At yet others, budget language may need long term attention.  More and more agencies are seeking that descriptions of services fundable under Federal grants can include such services (See the LAIR Toolkit, and this list published by the ABA).
  3.  Breadth of Eligibility of Funding Streams.  Has it been made clear that that these streams are appropriate not only for traditional advocacy and representation assistance, usually provided by community based legal aid programs funded by LSC and IOLTA, but also for other forms of services or tools or systems improvements, many also listed in the Chief’s Resolution, such as self-help services, automated forms, referrals, triage tools, and non-lawyer informational services, which can be provided by neutral entities such as the courts or agencies themselves, because of their inherent non-advocacy neutrality when made available to all.  Often a combination of all these capacities are needed to move toward 100% access, which should surely be the goal of Federal agencies, as much as the state courts.
  4.   Development of Systems and Procedures to Identify and Assess Barriers to Access.  Does the agency have in place systems and procedures to identify barriers to those seeking the services it provides, particularly, but not only, the decision-making associated with those services.  Does it make use of outside perspectives on such barriers, and does it have mechanism for planning to remove those barriers.
  5.   Development of Systems and Procedures to Minimize the Creation of Additional Barriers to Access.  Does the agency have something like an “access to justice impact statement” requirement, that would ensure that changes in processes, either conducted by the agency, or funded by them, do not result in additional barriers.
  6.   Removing Access-Barrier Construction By the Agency in Court Positions.  Does the agency have a system to ensure that its court positions are access-friendly, even if that might increase the risk of loss in the case itself?  In other words, a court position that attempts to obtain non-merits dismissal, such as by motion to dismiss, may have the effect of making the whole system less accessible.  (Such motions are appropriate when needed to protect the integrity of the process, but not when designed for tactical advantage notwithstanding the merits.)
  7.   Obtaining Input on Needs, Priorities and Potentials.  Has the agency put in place a system for getting ideas and information from state partners, and those who deal with those state partners, about needs and potentials?

Questions for Partnering Between State Access to Justice Entities and Federal Agencies

  1. Gathering the ATJ Perspective on Federally Impacted Processes.  Does the Commission (or other responsible entity) have a mechanism for identifying all the areas of access to justice that are impacted by Federal activity, and for identifying the ways that Federal action might be structured to increase access.
  2.   Systems of Communication.  Are there systems of communication between ATJ entities and Federal agencies about these opportunities?  Does, indeed, either side have any idea who to talk to in the other group in order to seek or communicate these concerns and possible solutions?
  3.   National Networking.  Are there systems by which the ATJ groups on the one hand, and the individual Federal agencies, or groups of agencies, can coordinate this information flow so that overlap is minimized, patterns identified, and solutions are designed with as broad a range of perspectives and experiences as possible.

I am sure that others will have many more ideas, and I would urge that you share them here and elsewhere.  But above all, I would urge that we take advantage of the time between now and early next year to move as far as we can to institutionalize these perspectives throughout state and federal government.

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