Bridging the Justice Gap in Federal Administrative Proceedings

In a discussion with The Regulatory Review, James Sandman offers his thoughts on why legal representation remains inaccessible for many people in federal administrative proceedings and potential ways to narrow the justice gap.

Sandman argues  that a lack of access to legal representation in federal administrative proceedings can hinder individuals’ ability to access essential benefits, protect basic rights, and address discrimination. Although expanding access to legal counsel would be ideal, he considers it impractical. He proposes increasing the supply of well-trained nonlawyers who can provide assistance and representation, simplifying the processes of federal administrative proceedings, and leveraging technology to provide better information to those without representation.

James Sandman is a distinguished lecturer and senior consultant to the Future of the Profession Initiative at the University of Pennsylvania Carey Law School. He served as president of the Legal Services Corporation (LSC), the largest funder of civil legal aid in the United States, from 2011 to 2020. Prior to his tenure at LSC, he spent 30 years in the private sector at Arnold & Porter, where he served as the firm’s managing partner for 10 years.

Sandman currently serves as chair of the executive committee and of the board of advisors of the Institute for the Advancement of the American Legal System and vice chair of the District of Columbia Access to Justice Commission. He is also a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a past President of the District of Columbia Bar.

The Regulatory Review is pleased to share the following interview with James Sandman.

The Regulatory Review: How accessible is legal representation for people involved in federal administrative proceedings today?

Sandman: The lack of access to legal representation in federal administrative proceedings is a big problem.

We don’t have good data about the problem. The Legal Aid Interagency Roundtable noted in its 2023 report that information about access to justice in federal administrative proceedings “is limited by the lack of rigorous data collection and research across federal programs.” I am aware of no data on the prevalence of self-representation in federal administrative proceedings. Other data, however, suggest that legal representation is very difficult to access in administrative proceedings. For example, the LSC’s 2022 Justice Gap Study found that 92 percent of the civil legal needs of low-income Americans receive no or inadequate assistance. That figure includes needs in federal administrative proceedings.

The problem is not limited to low-income Americans and extends well into the middle class. The Justice Gap study found that 78 percent of the civil legal needs of people with incomes at or above 400 percent of the federal poverty guideline receive no or inadequate help. We also know that 76 percent of civil cases in state courts involve at least one self-represented litigant. The Legal Aid Interagency Roundtable report noted that “[l]egal representation in administrative proceedings is not as common compared to civil or criminal court proceedings.”

TRR: What are the consequences  of limited access to legal representation in federal administrative proceedings?

Sandman: The consequences are severe for two reasons. First, federal administrative proceedings are often complicated and confusing for parties who lack representation, who have no legal training, and who may not have a college degree or a high school diploma. The system needs to work for everyone, whether represented or not, regardless of income or educational level. It doesn’t. Federal administrative proceedings are largely user-hostile to the person without representation.

Second, the stakes are often high and involve critical needs. Federal administrative proceedings can be the gateway to accessing essential benefits, including Social Security disability, Medicare and Medicaid, and veterans’ benefits; to protecting basic rights; and to addressing discrimination.

TRR: What reforms could expand access to counsel in administrative proceedings? Have any recent agency reform efforts been particularly successful?

Sandman: More funding for civil legal aid would certainly help. Legal aid is woefully underfunded. The current congressional appropriation for LSC, the United States’ largest funder of civil legal aid, falls short of the inflation-adjusted 1980 appropriation by $508 million, even though today’s population is substantially larger. The current appropriation, $560 million, amounts to less than what Americans spend every year on Halloween costumes for their pets. The Legal Aid Interagency Roundtable’s 2023 report identified a number of other federal funding sources for legal assistance in federal administrative proceedings. But I don’t think there will ever be enough money to fund lawyer representation—or any form of lawyer assistance—at a level sufficient to meet the need. The need is simply too great.

Two recent developments show promise. The first involves facilitating nonlawyer assistance in federal administrative proceedings. Both the Legal Aid Interagency Roundtable and the Administrative Conference of the United States have promoted best practices for allowing nonlawyer representation in administrative proceedings. The Administrative Procedure Act entitles a person to be assisted and represented by a nonlawyer with agency permission. And a growing number of states are relaxing restrictions on the unauthorized practice of law to allow trained nonlawyers to assist people in ways that previously only lawyers could. That movement is beginning to produce trained specialists who are not lawyers and who are providing assistance to participants in federal administrative proceedings at a new scale. For example, nonlawyer “community justice workers” trained by the Alaska Legal Services Corporation to appeal denials of SNAP benefits have brought over 23.6 million dollars in benefits into Alaska.

The second development involves simplifying administrative processes to make them understandable and accessible to people without representation. This was the focus of the Legal Aid Interagency Roundtable’s 2022 report. The report outlined a “simplification roadmap” and identified successes and commitments among a number of federal agencies.

TRR: Is providing legal representation for all participants in federal administrative proceedings a realistic goal? If not, what can be done to enhance access to justice?

Sandman: Legal representation by lawyers for all participants in federal administrative proceedings is not a realistic goal. That is one of my takeaways from nine years heading the LSC. The problem is too big. It’s delusional to think lawyers are the solution. There will never be enough lawyers willing and able to provide representation for everyone, particularly for the large number of low- and middle-income people who can’t afford to pay.

I see three other promising strategies that, in combination, could improve the situation significantly: first, dramatically increasing the supply of well-trained, competent, approved nonlawyers to provide representation and assistance in federal administrative proceedings; second, using principles of user-centered design to simplify administrative proceedings so that people without legal training can participate meaningfully; and third, using technology, especially generative artificial intelligence (AI), to provide clear, understandable, usable information to people who don’t have representation.

TRR: How could administrative proceedings be simplified to expand access to justice?

Sandman: The Legal Aid Interagency Roundtable’s 2022 report provided comprehensive guidance on simplifying administrative proceedings. The recommendations included simplifying forms, eliminating unnecessary requirements, using plain language, using multiple languages, and making default options favorable to beneficiaries.

I have my own broader recommendation: Use well-established, proven principles of user-centered design to completely redo administrative processes. Put the nonlawyer user at the center of the redesign process. Current processes, by contrast, were designed by lawyers for lawyers. Those processes just don’t work for the large numbers of unrepresented people. The redesign process cannot be driven only by lawyers. Lawyers are unfamiliar with user-centered design and don’t have the ability to reimagine processes from the perspective of an unrepresented person. We need additional disciplines, experiences, and skills at the redesign table. This is doable. There is no reason why administrative processes have to be as complicated as they are for the unrepresented person.

TRR: When you headed the LSC, you established a new office of data governance and analysis. How can data collection and analysis be used to make federal administrative proceedings more accessible?

Sandman: Good data can help identify what isn’t working and what is. Good data are essential for evaluating current processes, for testing proposed processes, and for assessing new processes once implemented. Good data allow comparisons of different processes. Good data allow you to answer important questions: Do simplification measures make a difference in time to decision, user comprehension of the process, user satisfaction, and outcomes? How do outcomes in cases with representation compare to outcomes in cases without it? How do outcomes in cases with nonlawyer representation compare to outcomes in cases with lawyer representation? Does the availability of self-help guidance through technology make a difference in outcomes? Don’t you want to know the answers to these questions? You can’t answer any of them without good data.

TRR: While at the LSC, you also explored how technology can be used to expand access to legal assistance for low-income individuals. How might access to technology make it easier for individuals to access services, including benefits, under federal administrative programs?

Sandman: The problem of access to justice in the United States, both in the civil legal system and in administrative proceedings, is a problem of huge scale. We need solutions commensurate with the magnitude of the problem. I can’t imagine a solution that doesn’t include technology as a significant component.

Here are two examples of how technology might make it easier for individuals to access services under federal administrative programs.

First, TurboTax-like apps for forms completion. An app can guide a user through a plain-language interview that elicits the information necessary to complete an agency form. The app uses the information from the interview to enter the right information in the right places on the right forms. Apps of this nature are amenable to scaling because of the uniformity of federal law across the country. By contrast, apps of this type can be difficult to scale in state civil matters, where both substantive and procedural law vary among the states. The nonprofit Upsolve has used this approach successfully for the completion of personal bankruptcy filings that have discharged almost $900 million in debt.

Second, the use of generative AI to provide accurate, clear, useful, step-by-step roadmaps for individuals in federal administrative proceedings. The problem of access to legal assistance is, in large part, a problem of lack of access to information about legal rights and protections. Nothing scales access to information like technology. I am optimistic about the potential of generative AI to assist individuals in navigating federal administrative proceedings. But I recognize that general purpose AI tools such as ChatGPT, Google Gemini, Claude, and DeepSeek are not yet at the point where they can provide accurate legal information. And legal AI tools like Westlaw Co-Counsel and Lexis Protégé are currently unaffordable for individuals.

I see a future not far off where generative AI can make federal administrative processes understandable and accessible to individuals without legal assistance.