Surrogate Lawyering: Legal Guidance, sans Lawyers
45 Pages Posted: 6 Oct 2017 Last revised: 21 Nov 2018
Date Written: October 5, 2017
Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and in context, to the legal problems their constituents encounter. Crafted well, and complemented by technological aids being developed by ATJ entrepreneurs, surrogate lawyering could effect a substantial improvement in the lives of the clients in need.
This Article assesses the ethical implications of the surrogate lawyering venture. It concludes that the lawyers who advise the CBO staffers would not inadvertently trigger an attorney-client relationship with the constituents/clients who benefit from the staffer’s guidance. Nor would those lawyers have agency-driven commitments to the constituent/clients. The public interest law firm likely would, though, have attorney-client duties to the CBO, and would need to account for that reality in its operations. The Article does conclude, though, that the surrogacy model generates a significant concern involving the unauthorized practice of law (UPL), and the lawyers’ assistance with that activity.
The Article proceeds to critique the UPL concerns, demonstrating that neither the constituent/clients nor the legal profession would be likely to suffer any appreciable harm by permitting surrogate lawyering ventures to operate. The Article closes with suggestions for some adjustments to the usual UPL constraints that would permit surrogate lawyering strategies while minimizing any risks associated with that means of delivering legal advice.
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