Stanford Law & Policy Review
Public interest lawyers, of many types and political persuasions, play a vital role in pursuing '"public justice." For public interest (as for all) lawyers, settlement provides an important means of resolving cases. Yet a persisting ambivalence about case settlement in public interest law contributes to the difficulties public interest practitioners face in sustaining themselves in practice. Indeed, public interest lawyers identify case settlement as posing some of the most vexing legal ethics problems they routinely confront.
The trouble often stems from the fact that, in public interest law where clients do not pay for legal services, the economic incentives that encourage paying clients to settle their cases do not apply. Clients ofpublic interest lawyers do not have to pay for more legal services when they decide against settling, and clients may direct their lawyers to continue litigating far beyond any rational hope offavorable judgment. Yet public interest lawyers have limited time and other resources, and must triage among many clients with worthy cases who need their attention. What, in this situation, are public interest lawyers to do?
Cognizant of legal academics' responsibility to help practitioners solve real world problems, this Article tackles this basic legal ethics conundrum in public interest case settlement. It starts by exploring what legal ethics principles dictate that public interest lawyers cannot do in case settlement, and then moves on to propose several alternatives that can help public interest lawyers protect their legitimate interests. The directions this Article proposes include: (1) using limited scope representation agreements to curtail the duration and scope of lawyers' representation obligations; (2) introducing fee-for-service arrangements after a certain point in case representations; and (3) transferring case funding risks to third-party payers, such as nonprofit organizations, to which legal ethics strictures do not apply.
The underlying point of this Article is to spark creative yet practical discussion, in an experimental problem-solving spirit, about specific ethics problems that confront public interest practitioners. In so doing it joins a collective scholarly effort aimed at assisting public interest lawyers to maintain their long-term ability to practice, in order to promote the interests of the most vulnerable and marginalized persons in American society.
Carle, Susan, "The Settlement Problem in Public Interest Law" (2018). Articles in Law Reviews & Other Academic Journals. 1367.