Pro Se Assistance and Unbundled Legal Services Essential To Justice in This Economy -- Plus Additional Options to Make Justice Accessible

Relevant Text: Chief Justice John T. Broderick Jr. and California Chief Justice Ronald M. George: “A Nation of Do-It-Yourself Lawyers.” New York Times, 1/1/2010 (http://www.nytimes.com/2010/01/02/opinion/02broderick.html?hp) I was extremely pleased to read New Hampshire Chief Justice John T. Broderick Jr. and California Chief Justice Ronald M. George’s New Years Day article in the New York Times (http://www.nytimes.com/2010/01/02/opinion/02broderick.html?hp) advocating that the legal system increase the availability of unbundled legal services as a means to help close the “justice gap.” The “justice gap” refers to the existence of a major gap between the legal needs of low-to-middle income people and the legal assistance available to them. “Unbundled legal services” refers to an attorney client relationship where the attorney assists with specific parts of a legal case rather than taking on representation of the entire legal case. I hope this public endorsement of unbundled legal services and other pro se legal assistance will lead to an increase in the availability of unbundled legal services, other pro se legal assistance, and other creative solutions that make it possible for non-wealthy individuals to have their day in court. The Justices point out that the economic downturn of 2008 and 2009 has caused an increased number of individuals without sufficient resources to pay for necessary legal assistance. Unbundled legal services allows individuals to obtain legal assistance where it is most needed, rather than the burden of paying for counsel for an entire matter, which can be an extremely costly endeavor. Unbundling often involves discrete assistance such as preparing a specific document, coaching on how to present in court, or even appearing for an isolated hearing. In my opinion, this very public endorsement of unbundling by two chief justices is an essential advancement in the cause of making the court system more accessible to those without financial means. Having two State Chief Justices referring to the gap between the legal needs of low-to-middle income people and the legal assistance available to them as a “justice gap” is a public recognition that our system of jurisprudence makes the employment of counsel an almost necessity for a party to received a fair hearing. One other method of addressing the legal needs of low-to-moderate income persons has been advanced by the Civil Gideon movement. Civil Gideon is an effort to expand the types of cases in which low-income individuals are entitled to publicly funded representation. The term Gideon references the Supreme Court case Gideon v. Wainwright 372 U.S. 335(1963), which held that the Sixth Amendment requires courts to provide counsel for criminal defendants unable to afford their own. The Civil Gideon movement seeks to expand this legal right to assistance for individuals facing life-altering civil matters such as divorce, child-custody, residential evictions and termination of parental rights. The movement primarily focuses on expanding state statutes to assure that low-income individuals impacted by these issues are not left without legal assistance. The movement has also worked on seeking favorable state court interpretations of existing statutes and constitutional provision, namely interpretations that existing law requires the provision of publicly funded representation in certain life-altering civil matters. A further method worthy of consideration is expanding Title 42 Section 1988. (see http://codes.lp.findlaw.com/uscode/42/21/I/1988). Section 1988(b) provides that plaintiffs successful under certain statutes are entitled to reasonable attorney fees as part of their recovery, in addition to whatever the jury has awarded. This statute, along with its analogous employment law statute at Title 42 2000e-5(k) allow attorneys to take meritorious cases from clients who would otherwise be unable to afford legal counsel. Without minimizing the importance of unbundled legal services and other forms of pro se legal assistance, it would be hard to deny that the justice gap would be seriously decreased if an expansive form of Civil Gideon were adopted or Section 1988 were expanded. The Court in Gideon wrote that “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel….Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.” Thus, although it should be incumbent on the legal community to do everything we can do to make the court system accessible to non-lawyers regardless of personal wealth, it is fair to point out that the justice gap, to be fully met, must be addressed on various fronts. Thus, Justices Broderick and George point out the importance of the legal community making efforts to make the court system accessible to those who have no access to counsel. In the two paragraphs preceding this one, I discuss the legislative front that could substantially impact the availability of bundled counsel to low-to-moderate income persons. The third front (not previously mentioned in this post) is the educational one. Although Justices Broderick and George touch on the role of educating pro se litigants as a means to increase their instant access to the courts, I think it is important that when we are considering access to justice issues, we consider the scope of knowledge and information available to the general public concerning their rights and the court system. As Deborah Rhode points out in her book, Access to Justice, someone unfamiliar with their rights may not even be aware that they have a reason to consider consulting counsel. As it is so worth reading, please read Justice Broderick and Justice George's article for yourself: A Nation of Do-It-Yourself Lawyers By JOHN T. BRODERICK Jr. and RONALD M. GEORGE Published: January 1, 2010 AMERICA’S courts are built on a system of rules and procedures that assume that almost everyone who comes to court has a lawyer. Unfortunately, the reality is quite different. An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter. As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need. As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. California took a major step forward in October when it became the first state to recognize as a goal the right to counsel in certain civil cases. (The state also committed to a pilot project, financed by court fees, to provide lawyers for low-income citizens in cases where basic human needs are at stake.) But this is only a beginning. It is essential that we promote other efforts to close the “justice gap.” One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities. Traditionally, lawyers have been required to stay with a case from beginning to end, unless a court has excused them from this obligation. Now, in those states that explicitly or implicitly allow unbundling, people or businesses can hire a lawyer on a limited basis to help them fill out forms, to prepare documents, to coach them on how to present in court or to appear in court for one or two hearings. For example, a lawyer could advise a client in a divorce proceeding about legal principles governing the division of marital assets or provide assistance in calculating child-support obligations. A lawyer might also draft pleadings or legal memos or provide representation at a hearing to obtain a domestic-violence restraining order. What could be wrong with this? Well, some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers. We respectfully disagree. Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage. In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in financing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not. We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them. If we are to maintain public trust and confidence in the courts, we must keep faith with our founding principles and our core belief in equal justice under the law. John T. Broderick Jr. is the chief justice of New Hampshire. Ronald M. George is the chief justice of California.