The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future

Article excerpt

We persuaded entities conducting two legal aid programs designed to provide evidence regarding a civil right to counsel to allow us to randomize which potential clients would receive offers of traditional attorney-client relationships from legal aid provider staff attorneys and which would receive only limited ("unbundled") assistance. In both pilot programs, potential clients were occupants facing eviction from their housing units, and in neither pilot program did the legal aid provider have capacity sufficient to offer full representation to all occupants who sought it. In this Article, we report the results of one of the two randomized trials, which we label the "District Court Study" after the type of court in which it took place. In this District Court Study, most occupants who became part of the study population received limited assistance in how-to sessions, which included instruction on the summary eviction process as well as help in filling out answer and discovery request forms. After receiving this "unbundled" assistance, members of a randomly selected treated group were offered a traditional attorney-client relationship from a legal aid provider staff attorney; members of the remaining randomly selected control group received no such offer. We compared outcomes for the treated group versus the control group on a variety of dimensions, focusing primarily on possession of the unit, financial consequences of the litigation, and measures of court burden.

At least for the clientele involved in this District Court Study--a clientele recruited and chosen by the legal aid provider's proactive, timely, specific, and selective outreach and intake system--an offer of full representation mattered. Approximately two-thirds of occupants in the treated group, versus about one-third of occupants in the control group, retained possession of their units at the end of litigation. Using a conservative proxy for financial consequences, and based on a subset of cases in which financial issues were at the forefront, treated-group occupants received payments or rent waivers worth on average a net of 9.4 months of rent per case, versus 1.9 months of rent per case in the control group. Both results were statistically significant. Meanwhile, although treated cases did take longer to reach judgment, the offer of representation caused no increase in court burden as measured by other, more salient metrics, such as the number of party motions or the quantity of judicial rulings.

We discuss possible reasons for the magnitude of the differences between the outcomes experienced by the treated and control groups. For example, following previous work, we discuss the possible importance of the legal aid provider's process for client recruitment and selection. Here, the provider invested substantial resources into a system designed to recruit and identify clients for whom unbundled legal assistance would be inadequate, suggesting that identifying such cases can be done but that doing so may be expensive. We conclude by discussing future directions for a movement, growing in momentum, toward an evidence-based approach for access to, and administration of, justice.

INTRODUCTION

To the past decade, state bar associations, state courts, bodies that compose and administer ethical codes, and others have accelerated a trend begun much earlier by legal aid providers toward the legitimization and promotion of "limited" or "unbundled" forms of legal assistance. By "limited" or "unbundled" assistance, we mean some form of legal service or information provision short of a traditional, matter-specific attorney-client relationship. Advocates of unbundling argue that it has the potential to address, in part, two related crises afflicting the U.S. legal system over the past two decades: the access-to-justice challenges that have arisen as the legal system has become more complicated, and the influx of pro se litigants that have flooded the nation's courts, particularly the state courts. …