Re-conceptualizing poverty law clinical curriculum and legal services practice: the need for generalists.

• Author: Newman, JoNel

--legal education sharpens the mind by narrowing it. (1)

Introduction The Specialization of Poverty Law How Specialization Cheats Impoverished Clients Community-Based, Client-Centered, and Holistic Legal Services Require Generalists Providing General Legal Services--One Clinic's Experience Advantages and Criticisms of a "Generalist" Clinical Model Conclusion INTRODUCTION

We are all familiar with the now romantic-seeming, "Lincolnesque" vision of the generalist lawyer, the trusted counselor who knows you and your family, who drafts your will, defends your teenager in criminal court, and files and tries your breach of contract case. (2) We are also conditioned to believe that the existence of such a lawyer is relegated to the past and that any lawyer whose practice conforms to this model is inefficient, ignorant, and likely guilty of malpractice. (3) There are many reasons for the prevailing view. The trend toward specialization has been well-documented, and is pervasive. (4) Many of us live and work in an environment that is always electronically connected. As a result our clients and we expect instantaneous answers and advice on complex legal matters. Many of us live in large metropolitan areas with correspondingly large national and international law firms whose personnel and even firm identities are in constant flux. There is no trusted solo practitioner down the street or around the corner in this environment, nor could such a lawyer provide us with the immediate answers or information on a specialized topic that we have come to expect. (5) This change has not only affected lawyers and clients in a business setting; it also has infiltrated the provision of legal services to the poor, and our ideas about clinical legal education. (6)

This Essay discusses how the legal profession and clinical legal education became so specialized. The Essay argues that specialization hurts impoverished clients, and argues for greater recognition of the value of poverty law "generalists." Finally, this Essay identifies several models for the provision of more general poverty law services and discusses the use of an exemplary model in a law school clinic.

THE SPECIALIZATION OF POVERTY LAW

Poverty law is not a specialized field. Rather, as described by Antoinette Sedillo Lopez, it is a "shorthand for the myriad areas of law that affect poor people." (7) Excluding the criminal justice system, those myriad legal fields include the areas of public benefits, housing, estate and guardianships, family, bankruptcy, consumer, employment, small business, and in increasingly larger parts of the nation, immigration. (8) Each of these broad categories can have multiple potential areas for sub-specialization. For example, the category of family law for poverty lawyers often includes domestic violence, child guardianships, child support, adoption, divorce, child abuse and neglect, foster care, and the termination of parental rights. (9) A daunting list, even for experienced lawyers? Absolutely. And that is why lawyers and legal offices serving poor clients have increasingly specialized and narrowed the scope of the legal services they provide. (10)

In some instances, entire organizations providing legal services to impoverished clients specialize in only one area of law. (11) Other large legal services organizations have compartmentalized their services, dividing themselves into specialized practice groups that resemble those of large law firms. (12) The Legal Aid Foundation of Los Angeles, California's largest and oldest legal services provider, boasts eight specialized "units" of practicing attorneys and staff. (13) Wisconsin's largest low income legal services provider, Legal Action of Wisconsin, Inc., has five separate specialized units. (14) Greater Boston Legal Services' website states, "Our staff of 68 attorneys and 27 paralegals is divided into areas of legal expertise to best address the problems faced by people living in poverty." (15) The federal Legal Services Corporation ("LSC") has expressed concern that "small [legal assistance[ programs often lack the resources necessary to develop ... appropriate specialization," (16) indicating that large programs with multiple specialized departments will have an advantage in future funding decisions. LSC has also encouraged reliance on a practice of "referrals" to other agencies by providers of legal services to the poor. (17)

Law school clinics, and clinical legal education practices, have followed this trend. Sedillo Lopez remarks that when she began clinical teaching in 1986, "clinicians seemed to teach in either civil or criminal settings, with a few brave souls doing both. The Association of American Law Schools ("AALS") brochure for the 2000 Clinical Conference lists 16 specialties and a catch-all category 'Preferred subject not listed.'" (18) The AALS brochure for the 2007 Clinical Conference lists twenty-two specialties as well as the "Preferred Subject Matter Not Listed" category. (19) Harvard Law School advertises fourteen separate clinics, many involving specialty practices such as Gender Violence, Negotiation, and Immigration and Refugee. (20) Its program is not unique. Most law schools with significant clinical offerings include clinics specialized by subject-matter. (21)

The arguments in favor of specialization are many. Michael Ariens has noted that the move toward specialization in the private practice of law over the last century, once seen as only for elitist corporate lawyers, began to gain momentum in the organized bar when the concepts of specialization and professional competence were linked. (22) Concerns about professional competence continue to dominate much of the discussion about legal specialization. (23) Specialization also assists lawyers in marketing their services, (24) and increases efficiency in service delivery. (25)

In a legal aid setting, specialization serves additional important purposes--it permits the highly efficient delivery of discrete services to much larger numbers of clients than could reasonably be served by a general practice model designed to address all the clients' legal needs. Because LSC and other funders of legal assistance to the poor often place a premium on the total number of clients served, (26) handling a large number of cases in a particular specialty can be very attractive to legal aid programs. (27)

Arguments in favor of specialization in law school clinics include all the above (28) and additional advantages for teachers and students alike. Sedillo Lopez notes that "specialization makes the teaching experience more predictable. It increases the comfort level of both students and teachers." (29) Philip Schrag comments,

Specialization also enables most teachers to offer better supervision, because they themselves don't have to spread their knowledge over several fields. Perhaps most important, specialization promotes clinic cohesion and educational sharing by enabling students to comment with some degree of expertise on each other's cases, and by making each student's case work potentially useful to every other student. (30) With such obvious advantages, why re-enact the debate over lawyer specialization in the poverty law field? Because there are disadvantages to lawyer specialization, and it is my contention that those disadvantages fall more harshly on impoverished clients than on other consumers of legal services.

HOW SPECIALIZATION CHEATS IMPOVERISHED CLIENTS

As discussed above, legal specialization and the debate over its comparative merits have been with us for quite some time. As long ago as 1910, Woodrow Wilson lamented:

A new type of lawyer has been created; and that new type has come to be the prevailing type. Lawyers have been sucked into the maelstrom of the new business system of the country. That system is highly technical and highly specialized.... [Lawyers] do not handle the general, miscellaneous interests of society. They are not general counselors of right and obligation. (31) More recent commentators, including Anthony Kronman, former dean of the Yale Law School, have observed that by specializing, lawyers in large law firms lose familiarity with the client's total situation, decreasing the lawyer's ability to see a client's problems as a whole, rendering the lawyer's judgment thinner and more abstract. (32)

The complaints about the shortcomings of the lawyer-specialist from Wilson, Kronman, and others are echoed by clinical faculty. Lauren Carasik, writing about her experiences supervising Western New England College School of Law's Anti-Discrimination Clinic, states:

In this decontextualized approach, the students were circumscribed from identifying and providing comprehensive legal services. The clinic's specialization in one discrete aspect of law, primarily employment discrimination, precluded attention to legal problems that were often inextricably linked with the discrimination and that shared a nexus of facts. As noted earlier, any legal or employment issue that did not fit squarely into discrimination law was immaterial for the clinic students, as the clinic had neither the power nor the authority to seek redress. This constraint is antithetical to whole-client lawyering and cross-substantive representation, as the client's legal reality outside those matters relevant to the [employment discrimination] case was deemed inconsequential. Without fully grasping the backdrop in which legal problems arise, a myopic focus on one discrete legal issue can obscure other seemingly unrelated legal and non-legal issues that are critical to client-centered counseling in general, and the determination of an appropriate resolution tailored to the individual needs of a particular client more specifically. (33) These authors remind us that in offering only specialized legal services lawyers lose something--basic lawyering and counseling skills that involve recognizing and connecting differing client...