OUR SOLUTION
John Adams’ defense of British soldiers involved in the Boston Massacre, Reginald Heber Smith’s Justice and the Poor, Greater Boston Legal Services’ pioneering systemic advocacy; this is the rich tradition of legal aid in Massachusetts. Our commonwealth has long found new ways to deliver on our constitutional promise:
Housing Opportunity Provider Expansion
Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay.
Our commonwealth now faces a new challenge, demanding another round of legal innovation. Ensuring that all Massachusetts residents have access to high quality, affordable housing is perhaps the most important policy issue facing the state today. Our laws create strong housing protections, and our legal services organizations are filled with exceptional lawyers. In spite of this, a gap has opened between demand for legal services and supply of legal professionals. That gap is due to an unprecedented need for legal support and a lack of funding for legal services organizations. But it is also a symptom of professional regulations out of step with the evolving practice of law. Committed non-lawyers at legal aid organizations have the expertise necessary to help, but unauthorized practice of law rules prevent them from doing so. Massachusetts does not have enough lawyers, and its legal regulations prevent qualified non-lawyers from helping ease the burden.
We propose the next chapter in Massachusetts’s legal aid story: the Housing Opportunity Provider Expansion (HOPE) program. The HOPE program will expand the ability of Massachusetts residents to receive free, limited legal services from non-lawyers and fund a limited pilot program for these services in the housing arena.
(1) Change Supreme Judicial Court (SJC) professional conduct rules to allow qualified, supervised non-lawyers, called housing justice workers (HJWs), to provide housing legal services within existing legal aid organizations. Legal services would include providing legal advice; preparing documents and filings; negotiating legal rights or responsibilities; representing clients in-person and virtually before various tribunals; and assisting tenants with eviction sealing.
(2) Create a special fund administered by the Massachusetts Legal Assistance Corporation to support organizations in hiring HJWs.
This dual-track strategy provides the legislature and the Supreme Judicial Court with a manageable change. It allows Massachusetts to balance ambition with feasibility and creates opportunities for future reform as state officials assess program performance through annual reports. The proposal is a deregulatory intervention to reduce constraints on supply. It fosters a more equitable legal system by removing the expense of law school for a small subset of legal professionals. It incorporates the best features of successful pilot programs from across the country, including in purple states like Arizona and red states like Utah. As one of the non-lawyers who participated in a similar pilot program related to housing in Arizona affirmed, such programs are a “game changer.” This reform will help bring the Commonwealth closer to its ideal of an equitable, accessible legal system.
To get the ball rolling, we need to (1) convince the SJC to make the professional conduct rule change and (2) convince the legislature to fund the pilot program.
Read the full text of our proposed SJC rule and our proposed legislative bill, see how HOPE would work in practice, or get answers to some of frequently asked questions below.
If you like what you see, use our form to send a letter to the SJC and your state representatives to make HOPE a reality.
FREQUENTLY ASKED QUESTIONS
_____________________________ How will Massachusetts pay for the program, especially given the funding cuts the state may be facing from the federal government? The legislature will appropriate money from the general fund, alongside additional grant money as it’s received. The beauty of this program is its flexibility. We can add more housing justice workers in proportion to the available funds—any additional justice worker chips away at the gap in access to justice. Ideally, many housing justice workers are able to take advantage of this funding. But even if fewer are able to, it still makes a world of difference for tenants who otherwise wouldn’t receive any legal support. Furthermore, funding required for this program is relatively minimal — it only includes human capital costs like salaries and benefits for the housing justice workers, training expenses, and administrative expenses — but does not include any fixed costs. The pilot program structure also ensures that significant funds are not spent unless the program succeeds. In future years, should the legislature and judiciary elect to continue the program, funds can be drawn from Interest on Lawyers’ Trust Accounts (IOLTA), an increase in certain civil filing fees, or other revenue-generating measures.
_____________________________ Why not just increase funding levels for civil legal aid attorneys? Conversations with civil legal aid attorneys and state and local officials that have experience in legal aid work have reinforced that there simply aren’t enough lawyers who are willing to take on this work at the salaries offered. There is not enough supply. This program offers an economical alternative for people hoping to engage in legal service and justice work. Rather than spending three years in law school, accumulating mounds of debt, housing justice workers can begin offering legal services more quickly. They need not make monthly payments on law school debt while earning the relatively low salary paid to civil legal aid attorneys. Nor do they need to tie themselves to long-term loan assistance programs: if life circumstances change, they can forgo being a housing justice worker without debt-related repercussions. The housing justice worker model offers an alternative for people that would like to engage in housing justice and tangibly affect the lives of community members but are turned away by the financial challenges that law school poses (or otherwise do not want to become an attorney, as one Arizona non-lawyer housing advocate spoke about when interviewed for the program). One policy official at the Boston Mayor’s Office suggested in an interview that the program presents cost-effective upside from legislators’ perspectives as well. To attract new attorneys not currently being drawn to civil legal aid work, the salaries offered for such positions would have to increase, resulting in a significant uptick in the funding needed—a funding boost that might not be politically feasible. Housing justice workers, by contrast, don’t have to worry about law school debt, meaning a salary that wouldn’t attract an attorney may make sense for a housing justice worker. The number of legal service providers can expand, accordingly, without escalating marginal costs—allowing a resource-strapped legislature to efficiently remediate the access to justice gap.
_____________________________ Massachusetts already passed a right-to-counsel pilot recently. Why add this pilot on top of that? The Housing Opportunity Provider Expansion initiative aims to complement the right-to-counsel measure, not render it a redundancy or inhibit its permanent adoption. Attorney supply is limited. Housing justice workers aim to fill the gaps that attorney supply cannot meet right now. Legal service providers and policymakers resoundingly endorsed a “yes, and” approach in interviews: simply put, more legal service provision is better. Attorneys, paralegals, student attorneys, and housing justice workers are needed to meaningfully address the yawning gap in access to justice in the Commonwealth. The draft Supreme Judicial Rule explicitly takes note of the right-to-counsel program and structures the housing justice worker model around it. It allows housing justice workers to represent clients in Housing Court proceedings except for eviction defense, which is where the right-to-counsel program focuses.
_____________________________ How can we be sure that the legal service provision will be high quality? Isn’t that the point of limiting legal advice to lawyers? Attorneys’ exclusive hold on legal service provision is defended as necessary to the provision of high-quality legal services, given the enormous consequences at stake in legal proceedings. Top-notch legal assistance is critical. But attorney status does not delineate between effective and ineffective representation. Any concern about decreased legal services quality as authorized practice of law expands to non-attorneys hasn’t borne out in the states that have pursued similar reform. Arizona has gradually expanded its similar “community-based justice worker” program to now allow non-attorney advocates to assist in a range of legal areas. The director of an Arizona and Utah nonprofit that advocated for and helped shepherd the adoption of these non-lawyer programs stated in an interview that reports on the quality of the legal services provided have been resoundingly positive. There have been zero consumer complaints over five years since the pilot programs began and expanded. Massachusetts's pilot program includes many requirements to ensure adequate guardrails are in place. To become a housing justice worker, one must be recommended by an approved legal services organization, undergo training tailored to the kinds of legal services the worker will engage in, and pass an exam developed for this initiative by a Supreme Judicial Court Working Group composed of law school professors and legal aid attorneys. Once housing justice workers begin providing services, they are subject to oversight from supervising attorneys who must sign off on their filings. Administrative and judicial officials overseeing the tribunals in which workers are practicing will also provide oversight. Clients will be provided with a complaint mechanism as well — although this has not been an issue in states that have advanced these reforms thus far.
_____________________________ How will we know if the program is working? Our initiative has built-in reporting mechanisms to track the progress of the initiative. Under the drafted Supreme Judicial Court Rule, any legal services organization at which a housing justice worker is located must submit information to the Massachusetts judiciary, including the number of clients served by housing justice workers, the types of cases handled, the outcomes achieved, and any client complaints received. Organizations must also track turnaway rate — the frequency at which prospective clients’ cases have to be rejected because of lack of organizational capacity. Conversations with legal aid providers and government officials have highlighted that this data is especially useful for evaluating the initiative’s impact on remediating the access to justice gap. Moreover, by funneling the program through the Massachusetts Legal Assistance Corporation (MLAC), the drafted legislation implicitly incorporates a reporting mechanism. MLAC must report annually the programs it has funded and an assessment of those programs to the General Court. M.G.L. c. 221A, § 10. Supervising attorneys and administrative and judicial officials in forums in which the housing justice workers are providing assistance will act as further watchdogs on program performance.