The rise of the public interest law movement ushered in an era of intense debate over the best way to provide legal representation to those unable to afford private counsel. This debate has involved two related dimensions of public interest representation. First, advocates and observers of public interest practice disagree over the proper role of lawyers acting on behalf of poor and underrepresented clients. They offer competing visions of representation spanning a continuum, from providing equal access to the courts for as many poor people as possible, to attacking the causes and effects of poverty and powerlessness.
The second dimension of the debate over public interest advocacy concerns the appropriate locus of legal services delivery within the legal profession. Proponents of a staff attorney system of legal services delivery argue that the professional obligation to provide adequate legal representation to poor people requires the involvement of professional public interest and legal services lawyers. Critics of legal services, along with funding organizations seeking to reduce their commitment to litigation, contend that the private bar is equipped and willing to assume significant responsibility for providing this representation.
The two dimensions of the debate over public interest representation frequently overlap. Those who argue for a more proactive, change-oriented role typically prefer representation by professional, full-time public interest lawyers.Those who support an individual services model often advocate relying heavily upon private practitioners to provide pro bono representation.
The debate over the proper structure of legal services delivery often rests on a set of empirical assumptions about the behavior of lawyers in particular institutional contexts. For example, proponents of a staff attorney delivery system argue that staff attorneys have greater expertise in the crucial aspects of public interest representation than private practitioners. Proponents of the private attorney delivery system argue that "private lawyers are less vulnerable to political interference than staff lawyers." These empirical assumptions have not been adequately tested and may be incorrect or overbroad.
In addition, proponents of particular models of representation frequently propose a universal norm of advocacy for public interest representation and a concomitant system of service delivery designed to implement that model. They fail to link their view of the lawyer's appropriate role with a particular institutional context or legal problem. Yet each model's desirability may vary with the needs and constraints of particular institutions and problems.
Lawyers at the Prison Gates: Organizational Structure and Corrections Advocacy,
U. Mich. J. L. Reform
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