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July 15, 2003

Pro Bono is Not the Answer to the Access Problem

Filed under: pre-06-2006 — David Giacalone @ 12:31 pm

The Washington Supreme Court is about to rule on the issue of mandatory pro bono service for members of the Washington Bar. (See yesterday’s How Appealing, which pointed to this article in the Seattle Post-Intelligencer, also dated 7/14/03.) Forcing lawyers to work pro bono (that is, free — for the good of the public) is not the answer to the crisis that exists for millions of Americans needing access to the legal and justice system or simply needing to solve everyday legal issues.  The best way to ensure that the non-rich — Americans of low and moderate income and wealth — have access to necessary legal and judicial services is to give them the ability to represent themselves, rather than solely using lawyers.

By combining the existence of a literate public with computer technology, and with lawyers willing to “unbundle” their services and perform discrete tasks for clients who want to handle their own legal matters, we can now make it possible for self-help law to be a viable option for solving most of the legal problems of most Americans.   (Of course, it is just that potential that worries the legal profession, which continues to expand, while becoming in many ways obsolete.  The response so far has been an attack on nonlawyer services and the de minimis provision of free services.)

There simply will never be enough pro bono lawyers, hours or resources to service the majority of Americans who cannot afford attorneys.  A pro bono mandate, or even a nation-wide volunteer program to greatly increase the amount of pro bono services performed or financed by attorneys, can only amount to a small bandage for a deeply wounded system, and an ineffective balm for a profession’s guilty conscience.As attorney-professor Russell Engler has pointed out, our courts are being flooded with the unrepresented, and studies show that 80% or more of the legal needs of the poor and working poor currently are unmet in the United States.  Ralph Warner (lawyer-turned-Self-Help-guru at nolo.com) estimates that “over 150 million citizens of the ‘Land of the Free’ are legally disenfranchised” from our expensive, inaccessible court system. Faced with a massive access and affordability problem, attorney Stephen R. Elias, has explained his perspective (in the Nolo Democracy Corner opinion piece Eliminate Bias Against People Who Represent Themselves) on what’s wrong with the pro bono approach):

Some court administrators, judges and even lawyers through their trade groups (called bar associations) have in recent years begun to get a glimmer that American courts face a huge citizen access problem. Unfortunately, they tend to think it’s a problem money will fix. As a result, they often focus their efforts on proposals to provide people who can’t afford lawyers with free (again, they insist on calling it pro bono) legal help. This response is almost hilariously wrong. Not only does it overlook the fact that poor and rich alike have a constitutional right to use America’s courts without an intermediary, but it also wrongly assumes that Americans need more lawyers, when in fact they need more access to an unbiased legal system. Of course, it’s no coincidence that lawyers tend to see self-representation as a poor peoples’ problem — after all, in their view everyone else who has a legal access problem should solve it by hiring one of them.

Law books and legal information and legal forms are no longer found only in lawyers’ offices and law libraries.   The average American is not an illiterate serf who cannot understand and handle — with a little bit of guidance — most of his or her own everyday legal problems.   Put bluntly: given the right tools and minimal assistance, the average American consumer doesn’t need lawyers to solve most legal problems and shouldn’t have to pay a “lawyer tax” everytime he or she has a legal problem. [Your editor once again suggests reading his 2000 Prairielaw.com article “Supersize Small Claims,” for an ardent discussion of the access problem and one possible solution. It is reproduced here.]

I’m not saying the legal profession has no role to play in providing and ensuring universal access to the American legal system. It should not pack its brief cases and go — but, it should roll up its sleeves and go to work on behalf of consumers of legal services, and it must be willing to change some of its practices and attitudes about serving low and middle income Americans.For, example, check out the tremendous work of the Self-Represented Litigant Task Force of the State of Maine, which was honored earlier this year by the ABA. As their January ’03 press release explained:

“The Task Force’s mission has been to develop programs and craft policies to meet the needs of self-represented litigants. To accomplish this goal, the Task Force advanced “unbundled” legal services, allowing self-represented litigants to obtain quality legal advice on a limited and affordable basis. Unbundled services are provided when a lawyer partners with a client to accomplish discrete tasks rather than to provide complete representation.

“The Task Force drafted changes to Maine’s ethics and civil procedure rules, designed to enable lawyers to participate in the delivery of unbundled services. In addition to the rule changes, the Task Force actively promotes unbundling as a method of expanding the practice of law.”

For more on unbundling, and how it can help both lawyers and consumers, I suggest reading Unbundling Legal Services, by Dianne Molvig, in The Wisconsin Lawyer, Vol. 70, No. 9, Sept. 1997.  Molvig points out, “The irony of the situation is clear: More people aren’t hiring attorneys, often hurting themselves in the process, while attorneys need more work. Can anything be done to bring these two tendencies into alignment? Many attorneys think something can be done – if a few innovations, like unbundling, work their way into the practice of law.”

Bar groups and law firms that are really serious about alleviating the access problems, should also surf over to:

The Pro Se Law Center, whose website is designed as a resource center on self-representation in civil legal matters. It provides a collection of materials and resources that can be used to create legal service delivery systems that are based on the concept of “pro se” or “self” representation within federally funded legal services programs, courts, pro bono programs, and other community-based programs. Especially, delve into the  links to court pro se sites state by state — to see what other states are already doing to provide meaningful self-help assistance (through computers, personnel, brochures, hot-lines, directories of attorneys who unbundle, and more) and to consider what your state or county can and should be doing. – The pioneering self-help centers provided by the courts in Arizona’s Maricopa County (with information and over 400 court forms available online, covering domestic violence, family law, guardianship, estate, dependency, small claims, and tax appeal); and throughout Florida (with comprehensive family law assistance).  Also, see the brand new Center for Self-Representation.in the Lake County (Illinois Courthouse (mentioned in our posting on 7/13/03), and Wisconsin Self-Help Center (discussed in our 7/8/03 posting). – The website of the ABA Standing Committee on the Delivery of Legal Services, which has the “mandate to improve the delivery of legal services to the public, with a concentration on those of moderate income.”  [Note, however, the irony that the Committee’s Pro Se page says “Individuals with legal problems are encouraged to discuss those problems with a lawyer.”]I in no way mean to discourage individual lawyers who have special causes they want to assist with pro se efforts, or who want to use their legal talents to help the needy.   Nevertheless, consumer advocates, judges, court administrators, and civic-minded bar associations across the country have come to the conclusion that the most effective way to improve access to the American justice system is to spend public and private dollars and resources helping consumers solve their own legal problems, rather providing lawyers for them. Update (Aug. 22, 2003): Thanks to Jerry Lawson at eLawyer Blog for quoting from and pointing his visitors to this posting.  That site is a great source of information on using the internet to serve the needs of the modern client and marketplace.   Also, check out the Unbundled Legal Services site for extensive materials on the theory, ethics, and practice of unbundled (discrete task) legal services. Update (Feb. 9, 2004):  See NH Report Recommends Strong Program for Pro Se Litigants, which discusses a Jan. 2004 Report by a NH Supreme Court Task Force, which stated:  “All of the suggestions within this report however, are grounded on the single principle that meaningful access to justice in today’s world means a clear recognition by those involved in the system that many of our constituents want to go it alone when they come to court. Our obligation is to give these citizens the help they want, need and deserve.”



4 Comments

  1. […] [pre-launch posting; we hope to finish construction and “go public” soon] The Supreme Court of Mississippi has issued an Order Establishing The Mississippi Access to Justice Commission (via HALT eJournal, Aug. 28, 2006).   According to the Court’s press release, (June 29, 2006), the Commission is “comprised of business and community leaders, clergy and representatives from all three branches of government,” and it will seek to ”develop a unified strategy to improve access to justice for the poor.”      With half of its population at or below the Federal poverty level, Mississippi has long had a serious crisis in access to justice.   Despite that crisis, the State has apparently relied solely on legal services organizations (with no direct state funding) and lawyer pro bono efforts to provide better access for the poor.  For example, Mississippi is not included in the NCSC directory of Self-Help/Information Centers and Resources, and the State has a “No links” designation on The Pro Se Law Center’s directory of court-based services and websites for self-represented litigants.  Despite the Access Commission’s promise to bring together “creative people” to develop new and creative access solutions, SHLEP is concerned that their exclusive focus will be on providing free or low-cost lawyers for the poor — an approach that is doomed to fall far short of the Commission’s goal (see the discussion here and there at ethicalEsq).  Why are we worried?  Neither the Court’s Order, nor its Press Release, mentions self-help programs as possible solutions, despite an extensive, seven-point list of the Commission’s mission and tasks.  The omission seems quite telling, because the Mississippi Order prominently points to Resolution 23 [”Leadership to Promote Equal Justice’] of the Conference of Chief Justices, to explain its own “primary leadership responsibility to preserve and protect equal justice and take action necessary to ensure access to the justice system for those who face impediments they are unable to surmount on their own.”  Resolution 23 “encourages individual members in their respective states to establish partnerships with state and local bar organizations, legal service providers, and others to: 1. Remove impediments to access to the justice system, including physical, economic, psychological and language barriers; and […]

    Comment by SHLEP: the Self-Help Law ExPress » Blog Archive » message to Mississippi Access Commission: “think self-help” — August 29, 2006 @ 6:51 pm

  2. […] MyShingle weblogger Carolyn Elefant is rightly skeptical [as was ethicalEsq] about the ability of traditional pro bono efforts to make a dent in the access to justice deficit in our society — even when sponsored by large corporate law firms (see Law.com article, Sept. 18, 2006).  After thinking about Google’s efforts to use for-profit entities to achieve public interest results (see NYT article, Sept. 13, 2006), and checking out Prof. Eric Posner’s recent thoughts on for-profit charities, Carolyn used her forum at Law.com’s Legal Blog Watch yesterday to ask “What About a For-profit Pro Bono Corporation?” (Sept. 18, 2006).  She wondered: “Could large law firms and corporations mimic Google’s plan? Perhaps they could set up for-profit charities that could develop sophisticated but user-friendly tools to allow clients who can’t pay for lawyers to handle cases pro se. Or these firms could develop these tools and provide them at low cost to small firms to allow them to  represent small clients more efficiently and at less cost. Perhaps there’s even some way that these firms could set up a huge legal clinic, where clients could go for cheap advice but would pay midlevel rates. I realize that as a service, law is different from designing a product like a fuel-efficient car. But maybe if lawyers have a profit motive to go after the population of clients who can’t pay for lawyers and find a way to serve them and make money, we’ll reach the goal of access to justice more quickly.” […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » could “for-profit charities” fund self-help lawyering? — September 19, 2006 @ 12:03 pm

  3. […] “With the opening of the Self-Represented Legal Services Project at Brooklyn Family Court, for the first time in New York State, low-income litigants in Family Court who do not have an attorney will be able to obtain free legal advice from pro bono attorneys right in the courthouse. Attorneys from local New York City law firms and corporations, who have completed special training provided by the court system, will conduct free on-the-spot consultations with families in need of legal services who cannot afford to pay for them. This is an initiative of the Hon. Joseph M. Lauria, Administrative Judge of the New York City Family Court, in collaboration with the Honorable Juanita Bing Newton, Deputy Chief Administrative Judge for Justice Initiatives. The project furthers the goal of Chief Judge Judith S. Kaye of providing valuable legal services to court users who are unable to afford attorneys by partnering with the city’s major law firms and corporations. . . . “The project will be supervised by a full-time court attorney, who is available five days a week to provide general court information to litigants starting this month. Beginning November 2, 2006, pro bono attorneys will be on site Tuesdays and Thursdays to provide legal advice to families involved in child support, paternity and guardianship cases. Assistance with other types of cases (beyond child support, paternity and guardianship) will be offered after the initial six months. Several New York City law firms and corporations are assisting in this new initiative by offering the services of their legal staff. The law firm of Greenberg Traurig, LLP, has taken a leadership role in this project, with attorneys from Citigroup; Strook & Strook & Lavan LLP; Reed Smith LLP; Dechert LLP, and Orrick, Herrington & Sutcliffe also participating.” It goes without saying (again), but we’re saying it nonetheless: Helping pro se litigants is an especially effective way to use the legal profession’s scarce pro bono resources.  Most Family Court litigants do not need a lawyer through every step of the process (in fact, lawyers often complicate, aggravate and prolong the process) — but, they can often use well-focused legal assistance.  Pro bono projects, like the one at the Brooklyn Family Court, greatly leverage pro bono efforts.    […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » BigLaw boosts Brooklyn pro se project — October 20, 2006 @ 12:28 pm

  4. […] It is estimated that 80% of the legal needs of the poor and near poor go unmet in this rich nation.  As discussed here, there will never be enough lawyers to serve the needs of every American [indeed, assigning lawyers to “solve” the legal needs of every American would waste dollars better used elsewhere.]  Instead, as we say on our shlep About page: The best way to ensure that the non-rich also have access to necessary legal and judicial services is to give them the ability and the option to formulate adequate solutions themselves, including acting as pro se litigants in court. […]

    Comment by shlep: the Self-Help Law ExPress » Blog Archive » MLK and the pro se movement — January 15, 2007 @ 5:19 pm

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