Page 135 - Impact: Collected Essays on Expanding Access to Justice

help to redress legal violations . Sometimes local government attorneys may learn about potential legal issues without expressly being asked for legal advice . Local government agency leaders may not realize that there are potential legal consequences to implementing a new initiative, especially if they are new to government .27 For example, consider a hypothetical scenario in which a social services official plans to launch a new initiative to help domestic violence victims . The agency does not have enough resources to hire new staff, and the official proposes reassigning employees who help to issue public assistance benefits . A local government attorney may learn about the proposed staff reassignment while attending a meeting, when copied on an email, or through an informal conversation with a colleague . The attorney could speak with the official about planning to ensure that legally mandated services would not be disrupted by the staff reassignment, and/or exploring alternative resources for implementing the new program .
In addition, a local government attorney may learn about an issue from sources outside of the government . For example, an attorney could be contacted by legal advocates who indicate that a local office has improperly denied Medicaid benefits to some individuals or families in violation of agency procedures . The attorney could work with the local office or with senior agency officials to ensure that the benefits are issued and that the office follows the correct procedures in the future .
Concerning litigation: a local government attorney may be assigned to defend a lawsuit that alleges unlawful deficiencies in agency performance or violations of individual rights . Class actions or other lawsuits that expressly challenge local policies and procedures clearly warrant a review to assess the merits of the allegations, and counseling concerning any changes that may need to be made .28 But attorneys defending individual litigation that seeks money damages only (and not injunctive relief ) may also learn of issues that impact other people in addition to the plaintiff . For example, consider a case in which a pro se plaintiff who was previously committed at a local psychiatric facility alleges that conditions at the facility were constitutionally inadequate . If the attorney’s investigation corroborates the plaintiff ’s allegations, the attorney can bring this information to the attention of local policymakers who would be in a position to address the conditions, and thus protect the rights of others at the facility .
However the local government attorney receives information about possible legal violations, the attorney can – and should – advise government policymakers of potential legal issues, and options for addressing them .29
The conversation may not be easy – and the results are not guaranteed . While some officials may appreciate and immediately respond to the attorney’s concerns, others may be in denial about the extent of the problem, or may feel frustrated and defensive . Some officials may be uncertain how to implement competing policy priorities and legal mandates while working under fiscal
27 See Schwarz, Jr., supra note 2, at 380-81 (“Governmental decisions affect many interests that may not always be obvious, and affect the rights of many who may lack access to decision-makers. It is often the lawyer’s role to articulate fairly those rights and interests.”).
28 Many cases seeking institutional reform raise serious issues requiring change. See Charles F. Sabel & William h. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 harV. l. reV. 1015 (2004) (discussing types of institutional reform litigation and how it can bring about change). For a critical perspective on institutional reform litigation, see ross sandler & daVid schoenbrod, democracy by decree: whaT haPPens when courTs run goVernmenT (2003).
29 model rules of Prof’l conducT r. 2.1 cmt. 5 (“In general, a lawyer is not expected to give advice until asked by the client. however, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client . . . may require that the lawyer offer advice if the client’s course of action is related to the representation.”).
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