shlep: the Self-Help Law ExPress

If excessive Christmas-related consumption has left you too frazzled to join the shopping mall mob scene on Boxing Day 2006, you should perhaps count your blessings.  (update, 10 PM: And, be thankful you weren’t a sales clerk on “returns day,” like Bob Newhart circa 1957 – “Near death of a salesman,” New York Times, Dec. 26, 2006) Rather than hunt for a parking space, stay parked at your computer a little longer, and take advantage of some free tips we’ve discovered around the internet for the wise consumer, giftee, and/or taxpayer:

 Consumer World’s Annual Return Policy Survey — The CW report says “If you must battle the crowds this week on the return lines, expect stores to continue to enforce complicated and restrictive return policies. In Consumer World’s annual survey of return policies, the secret limits to keep you off the “returners blacklist” are revealed, the extended deadlines for holiday returns are listed, as well as tips for many happy returns.” Remember

Consumer rights vary from state to state with respect to product returns. Generally speaking, a store can set up any return policy it wants, whether it is “all sales final”, “merchandise credit only”, or “all returns in 30 days”. Most states require the policy to be clearly disclosed to the buyer prior to purchase, usually by means of a sign. Some states do not consider a disclosure that only appears on the sales receipt to meet this requirement. It is not unreasonable, however, to require customers to provide a sales slip or gift receipt to establish where and when the item was purchased, and at what price.

  Click to find state and local consumer protection offices.  A lot of civil servants are taking annual leave this week, but I’m sure they’ll be able to help with unsolved consumer issues when they return in 2007.  Of course, self-helpers can often find information on their rights, and answers to problems, directly at the government websites.

afterthought (Dec. 27, 2006):  “If a retailer didn’t deliver as promised or if you feel you’ve been ripped off, the Federal Trade Commission (FTC) has some tips for you,” on a page called Problems with Holiday Purchases?.  If you suspect the business may have broken the law, you can file a complaint with the Federal Trade Commission, by calling the FTC toll-free at 1-877-FTC-HELP (1-877-382-4357) or file a complaint online at www.ftc.gov.  Of course, you shouldn’t “make a federal case” out of every consumer disappointment.  The FTC advises:

Get Satisfaction
If you have an unsatisfactory shopping experience, the best course of action is to contact the retailer. Look for an address to write to or a phone number to call. If you’ve never heard of the seller, check on its location and reputation with the Better Business Bureau or the state attorney general’s office.

If you’re dissatisfied with the way the matter is handled, take your business elsewhere in the future. However, it is important to recognize that while some business practices – such as notifying the consumer that the order will be delayed in a less-timely manner than the consumer may like – may be poor customer service – they’re not necessarily against the law.

  If our links on Gift Cards don’t answer all your related questions, you might want to see the Wall Street Journal article “Sell or swap gift cards,” Dec. 24, 2006.  Don’t contribute to the expected total of $3.5 billion in unused gift cards.  The WSJ article links to sites that let you sell or swap or purchase gift cards that just didn’t fit the recipient.

  Thinking of buying an automobile at those much-advertised year-end sales?  Stop first at the Consumer Reports list of best and worst year-end auto deals.

  If last-minute donations are part of your year-end tax reduction plans, don’t forget to asceratin whether your target is a tax-qualified charity, using the iRS Charity Search. Also, remember that “Recent Tax Law Changes May Affect People Giving to Charity: IRS Offers Tips for Year-End Donations” (Dec. 14, 2006). For example:

• Rules for Clothing and Household Items (IR-2006-192, Dec. 14, 2006) “To be deductible, clothing and household items donated to charity after Aug. 17, 2006, must be in good used condition or better.”
• Also, the Illinois CPA Society offers tips to consider doing before December 31 to help save money and minimize your 2006 tax bill, in their Top 10 Year-End Tax Tips sheet

 Finally, if your brother-in-law tried to impress you over turkey yesterday, with a long list of ways for you to totally avoid taxes, you may want to read (or send him) the IRS Tax Scams/Consumer Alert webpage.   Better yet, download the 64-page “The Truth About Frivolous Tax Arguments (Nov. 30, 2006).

 Blawg Review‘s Anonymous Editor and Christmas Angel: For two years, I’ve had the pleasure of frequent typo alerts, pointers to items of interest, and words of encouragement, from Ed, the anonymous person who created and edits Blawg Review, the original carnival of law-related weblogs.  I’ve been amazed over how thoroughly and consistently he covers the world of lawyer weblogging (and beyond).   I’ve called Ed my “guardian angel” at times, but never knew his angel duties were global, and in partnership with that other all-seeing and omni-present creature of myth, Santa Claus. 

Their unique joint venture became apparent for all to see this morning, when Angelonymous Ed and his alter ego Santa Claus presented the Blawg Review Awards 2006.  Awards are given for the best law weblogs in numerous categories. “The list isn’t exhaustive, . . . .  But those law blogs that have been given awards this year are certainly worth your attention. In many cases, they’re obvious choices. But there are a few surprises.”

Blawg Review Awards 2006

Forget the false shows of modesty, the Shlep Team is far too pleased to downplay our bright new Blawg Review Award 2006 — “Best Law Blog In the Public Interest.”  It is a great honor to receive this particular award, which goes to the heart of our mission: presenting consistently useful information that will allow the public to be both better aware of its rights and better able to assert them and achieve meaningful and affordable access to justice (with or without lawyers). 

More important, the award is a big nudge for the shlep Team to build on our four-month foundation, by consistently providing materials of high-quality, that are of practical use for consumers and practitioners, interesting enough to keep readers coming back often, and helpful resources for those seeking answers through search engines.  [It it also a great opportunity to point out once again that the Editor continues to seek a co-Editor — or two — who will contribute a significant amount of time, knowledge and enthusiasm to making shlep fresh and timely every day.]

Many worthy law weblogs were honored in Blawg Rewiew Awards 2006, and deserve your attention.   Of the more substantive awards, I’d like to call you attention to, and congratulate those that you will find below “under the fold.”   Long-time weblogger buddies Carolyn Elefant, Robert Ambrogi, Evan Schaeffer, Denise Howell, Walter Olson, and J. Craig Williams get a special personal Hat Tip.  

Our Self-Help Santa dropped off a bundle of issues yesterday that we’ve seen before here at shlep.  Rather than further interrupt our last-minute wrapping and packing, we’re going to quickly say “Have a great, self-actualized, Merry Christmas,” and pass these chestnuts on to you while they’re still warm.

   In a post Friday morning at Overlawyered.com, titled “Teri Smith Tyler v. Carter, pro se” (Dec. 22, 2006), Walter Olson outdid his website teammate Ted Frank’s recent recycling of stale pro se case.  As we noted four days ago, Ted spotlighted the “whacky,” two-year-old, Ward v. Arm & Hammer case last week (as did ATL‘s David Lat).  Walter took his time machine back yet another decade, after a reader reminded him of the Tyler case (opinion, 151 F.R.D. 537), which was decided in the Southern District of New York in 1993. 

According to Judge Charles S. Haight,  Ms. Tyler filed a complaint “alleging a bizarre conspiracy involving the defendants to enslave and oppress certain segments of our society. Plaintiff contends she is a cyborg, and that she received most of the information which forms the basis for her complaint, through ‘proteus’, which I read to be some silent, telepathic form of communication.”  It’s another amusing pro se suit, alright, but — as I wrote in a Comment at Overlawyered — Walter left out two very important points:

• The need to drag up such an old decision helps demonstrates just how rare these “whacky” pro se cases are in reality; and
• Judge Haight handled this case appropriately, creating a very good precedent.  Explaining why he chose to dismiss the case sua sponte [on his own, rather than at the request of the parties] as frivolous, Judge Haight’s opinion states:  “A plaintiff asserting fantastic or delusional claims should not, by payment of a filing fee, obtain a license to consume limited judicial resources and put defendants to effort and expense. . . . The author of claims as irrational as these cannot be regarded as subject to the economic incentive to refrain from frivolous actions imposed by filing fees and court costs upon rational paying litigants. Similarly, a sua sponte dismissal of a complaint such as this cannot reasonably be said to deprive such a plaintiff of the opportunity of “clarifying his factual allegations so as to conform with the requirements of a valid legal cause of action.” Neitzke [v. Williams, 490 U.S. 319] at 329-30.  If this Court cannot order sua sponte dismissal of this complaint under Rule 12(b)(6), no district court can ever dismiss sua sponte any complaint under the Rule.  I do not think that is the law.”

The right to file your case without a lawyer is no different than all the other rights we have as Americans: it can and will be abused on occasion, but it is far too important and central to our liberties to be unreasonably curtailed in general in an attempt to prevent the rare abuses.  When everyone can be his or her own lawyer, some folk might think we are indeed “way overlawyered,” but we shleppers believe it means that we’re marvelously un-lawyered when we choose to be.

    Meanwhile, over at Volokh Conspiracy (the well-deserved winner as the Best Law Blog in The 2006 Weblog Awards), Todd Zywicki wonders “Why Such a Large Drop in Bankruptcy Filings?” (Dec. 20, 2006; via Carolyn Elefant at Legal Blog Watch)  Prof. Zywicki posits a few possible reasons and asks readers for their ideas and Comments.  As we stated in our “bankruptcy law self-help” posting on Oct. 16, much of the reduction in filing since the new bankruptcy law went into affect in 2004 can surely be explained by the public’s misunderstanding of the bankruptcy new Act (BAPCPA) — a situation welcomed by many proponents of the so-called reform.  Far too many people do not understand that Sec. 7 is still available to anyone making less than the median income in their state. In addition, potential bankruptcy petitioners are often deterred these days by the new, higher fees charged by lawyers since the more-complicated BAPCPA procedures went into effect. (also see the Comment to the VC post by Scott B. Riddle, of the Georgia Bankruptcy Law Blog)

For most of us, this holiday season revolves around visiting grandparents or remembering such visits from our youth.  For a small percentage of children, however, whether they get to see grandparents is a decision being made by family court judges, with grandparent rights being pitted against those of parents who want to deny or restrict such visitation. Just yesterday (Dec. 20, 2006), the U.S. Supreme Court was asked to review a recent Pennsylvania case, Hiller v. Fausey, involving grandparent visitation. (see How Appealing, whose editor represents Fausey, the parent who lost below)

The Fausey v. Hiller Petition asks the Supreme Court to clarify an issue left unresolved in its landmark grandparent visitation case Troxel v. Granville, 530 U.S. 57 (2000):

Whether the Fourteenth Amendment’s Due Process Clause is violated when a court orders grandparent visitation over a fit parent’s objection, where the grandparent has not proved by clear and convincing evidence that such an order is necessary to prevent harm or potential harm to the child.

Like any good petition for a writ of certiorari, the Fausey Petition has a useful summary of the split among the state courts and legislatures over whether and when the decision of a fit parent can be overridden by a court “in the best interests of the child.”  

  AARP’s Grandparenting webpage

If you would like more information on this topic, you should check out:  a) AARP’s Grandparent Visitation page, which includes suggestions for avoiding these issues down the road or resolving them out of court; b) the majority, concurring and dissenting opinions from the Pennsylvania Supreme Court in Hiller v. Fausey, linked at the FamilyLawProfs weblog, which give a summary of the issues and policies involved — looking at the rights of parents, grandparents and children; c) a recent summary at the California Family Law Blog; and d) the Sept. 12, 2006 USA Today article, “Recent rulings favor grandparents.”

 Some court self-help websites may also help you to understand the law as it exists in a particular state.  And, as always, your law or public librarian should be able to help you find relevant materials on grandparent visitation.

A $15,000 grant by the Foundation of the State Bar of California will help to expand a program that helps grandparents who want to be named guardians for their grandchildren.  The grant is going to the Superior Court of California’s Self Help Assistance and Referral Program (SHARP).

According to an article in the Oroville [CA] Mercury-Register, “Grant funds grandparent guardianship program” (Dec. 20, 2006), court staff have observed “a recent dramatic increase in grandparents seeking completion of the legal guardianship process. The 2000 California Census showed that 6.8 percent of all children under 18 years of age in California lived in grandparent-headed households.” 

“The approved grant allows the [s]elf-help program to provide informational seminars and presentations by local practitioners (judges/attorneys) to grandparents seeking guardianship. Additionally, SHARP will frequently offer a slower-paced three-hour workshop given by a local attorney geared specifically towards grandparents. The award funds production of a video and written material on grandparent guardianship to be shared with other community organizations, self-help centers, and governmental agencies. 

You can learn more about SHARP programs (including Kinship Care assistance and guardianship clinic) at the website of the Glenn County Superior Court.  As we noted in a prior post, SHARP serves self-represented litigants in three rural Calirfornia counties via videoconferencing workshops. “The centers offer procedural help with certain legal issues, as well as self-help resources and computers.  SHARP’s managing attorney conducts topical workshops by videoconference so that clients at all of the centers can participate simultaneously.” 

• update (2 PM): You can find information on the kinship foster care policies (concerning grandparents or other relatives) of each state, and other issues affecting grandparents, through this Grandparenting Fact Sheet page from AARP.

David Lat at Above the Law (Dec. 15, 2006) and Ted Frank at Overlawyered.com (Dec. 18, 2006) scooped their journalistic competition over the past few days with the fascinating tale of Ward v. Arm & Hammer, the “whacky,” “most frivolous ever” pro se  lawsuit by a federal prisoner in New Jersey.  Fark.com picked up the story from Lat’s legal tabloid on Dec. 16, and their blurb has already been clicked on almost 14,000 times.

   The case is indeed bizarre:  Lat has posted the entire complaint, and gives this summary: “Pro se litigant George Allen Ward is suing Arm & Hammer and its corporate parent, Church & Dwight, for $425 million. His theory of liability: failure to warn. The company failed to warn him that if he cooked up their product, baking soda, with cocaine, he might end up serving a 200-month prison sentence on crack cocaine charges.” 

What is even more bizarre, perhaps, is the fact that the decision in Ward v. Arm & Hammer, 341 F.Supp.2d 499, was issued by the Federal District Court in NJ on Oct. 21, 2004. and the granting of in forma pauperis status to Ward for his appeal by the Third Circuit — which was the point that so irked Ted Frank in the original version of his post — is dated Dec. 15, 2004.   That’s right: two years ago.  My Grandpa Bart might call this revisiting of an old wound Anniversary Agita.  Grandma Bettina might have prescribed some baking soda for that upset stomach.

Click to take ATL‘s “most frivolous lawsuit ever” poll.

Despite the staleness of their covereage of Ward, I agree with Overlawyered.com that the case clearly never should have been filed.  It wasted a lot of resources.  It is, nonetheless, as Lat surely knows, fun to contemplate in theory and would have made a creative hypothetical complaint, perhaps to be used by irreverent webloggers, or as another Urban Legend lawsuit.  A few serious points are also worth making:

Here are a few items discovered over the weekend:

•  (update: 1 PM): The New York Times real estate section had a useful article yesterday titled “How Not to Scare Off Buyers (Dec. 17, 2006).  The thematically consistent Overlawyered.com stressed how “evil lawyers” can sabotage deals.
• Tim Benton, the technology director at the Superior Court of San Mateo County, California, was awarded the Presiding Judge’s Service to Justice Award last week.  According to the Court’s Dec. 15th press release, Benton is “best known for his invention and development of “EZLegalFile,” an interactive program that assists in filling out forms necessary to request or respond to papers for a variety of legal issues.”  Presiding Judge George A.Miram noted that EZLegalFile covers family law, small claims, domestic violence, and guardianship issues, and has been adopted by 40 counties in California and. “It helps bring justice into the homes of self-represented litigants through their home computer.” (see cbs5 BayCityNews Wire)
• [update: Dec. 19, 2006: see AG’s Office jumps the gun, C-JOnline, which explains that there is no final Supreme Court order yet, but merely the findings of one judge, which may be challenged by respondents before final action.] The Kansas Supreme Court declared on Friday that “three Topekans and their associates at Pro Se Advocates were involved in unauthorized practice of law.” (The Capital-Journal, “Topekans fined $5,000 for unauthorized practice of law, ” Dec. 16, 2006) According to the Kansas Attorney General, the investigation of David Martin Price, Rosemary D. Price, Janice King and Pro Se Advocates began earlier this year in response to concerns from Kansas judges.  The respondents “collected money to write legal arguments that were filed in Kansas courts by others,” a practice that also violated the Kansas Consumer Protection Act.  They were ordered to cease and desist, to make restitution, and to pay fines and expesnses to the AG’s office.  
•  Having recently pointed our readers to verse reditions of various statutory schemes, we’d be remiss if we missed the chance to tell you about “The School of Rock: Learn Criminal Law by Listening to the Radio“, by U. Washington law lecturer Sarah Kaltsounis, from the Kent County (WA) Bar Association Bar Bulletin, Nov. 2006.  At her main gig, Trial Ad Notes, shlep’s Mary Whisner tells us the article offers “a light review of criminal law — from possession of controlled substances to escaping from custody — by quoting lyrics from popular music and relating them to Washington law.”  [More than ever, we remind you that shlep cannot guarantee the accuracy of materials to which we link.] 

   There are lots of folks making lists as the year comes to an end.  The American Tort Reform Foundation has just released its always-controversial annual list of Judicial Hellholes — naming jurisdictions that are purportedly “America’s worst jurisdictions in which to face a lawsuit,” because they are so plaintiff-friendly.  The Hellhole report has provoked the usual (and, often well-deserved) denunciations from strong detractors.  (via Legal Blog Watch) 

Pro Se Potholes 

That got us thinking, yesterday, while we composed our somewhat tardy Christmas Wish List   If we had deep-pocket financial backing, like ATRA‘s (from the insurance industry, the Chamber of Commerce, etc.), we could do a judiciary survey of our own.  The attitude of judges and court administrators is often crucial to whether pro se litigants, on either side of the aisle, can receive fair and effective justice.  (e.g., see here and there) If we had the resources, we would turn shlep‘s burning spotlight on Pro Se Potholes — on court systems in counties or states that put obstacles in the way of litigants appearing in court without counsel, or which have failed to promulgate or put into effect guidelines or adequate training for judges and court staff, regarding the treatment of pro se parties.

 Being even-handed, a financially flush shlep might even create a list of jurisdictions that are just too darn nice to pro se litigants.  Other course, we’d call it our Self-Help Special Ed Awards, in honor of former Massachusetts Bar President Ed Ryan, who believes courts are giving far too much help to the self-represented.   We’re gonna backburner this idea for now, however.

Until Santa fills our e-Stockings with holiday cash, we’ll have to work on an ad hoc basis, keeping our eyes peeled for likely Pro Se Pothole candidates, and relying on our readers to make (well-documented) suggestions.

Judge Sloop gets Honorable Mention  

For example, thanks to a blurb in today’s HALT eJournal (Dec. 15, 2006), we learned about Judge John R. Sloop, of the County Court in Seminole County, Florida.  He surely belongs on a permanent Pro Se Pothole Honor Roll, despite having been removed from the bench by the Florida Supreme Court .  Inquiry Concerning Judge John R. Sloop (No. SC05-555, Dec. 7, 2006; 26 pp pdf., via SunEthics, Dec. 11, 2006)  After displaying a major anger management problem on several occasions (which he tried to justify by claiming an undiagnosed attention deficient hyperactivity disorder), Judge Sloop outdid himself on December 3, 2004, when, according to a Count against him:

[Y]ou issued arrest warrants for approximately 11 traffic defendants who had not answered your docket call, but who were in fact, properly in an adjoining courtroom pursuant to their summonses or the direction of the judicial deputy sheriffs or bailiffs. You were informed of the circumstances, but nevertheless proceeded to have the arrest warrants carried out, and these defendants arrested, and you initially declined to release them. As a result, these traffic defendants remained in jail until their release was considered by another judge. 

The defendants (who all apparently appeared without counsel) were handcuffed and chained by approximately 15 officers and transported to the jail where they were processed and strip searched.   Sloop admitted the facts and the Florida Supreme Court concluded — against the recommendation below — that he deserved to be removed from the bench.  We like what they had to say, including:

• “Judges stand at the pinnacle of the justice system, and each judge in this State represents the face of justice. This is particularly the case in county court, a ‘people’s court’ where ordinary citizens come to resolve minor disputes and transgressions, often without counsel.”  And, 
• “. . . . we explained that ‘[a] judgeship is a position of trust, not a fiefdom. Litigants and attorneys should not be made to feel that the disparity of power between themselves and the judge jeopardizes their right to justice.’ In re Graham, 620 So. 2d 1273, 1277 (Fla. 1993).”

 We reported two months ago that Albany [NY] City Court Judge William A. Carter was censured by the state Commission on Judicial Conduct, for an incident in which he left the bench, dropped his robes on the floor, and — while rushing toward a criminal defendant who was seeking to drop his public defender and appear pro se — inquired “do you want a piece of me?“.  Ten weeks later, the defendant Talib Alsaifullah, 46, is appearing pro se as plaintiff in a civil rights suit filed in U.S. District Court in Albany.  He’s “suing Carter for $2 million, claiming pain, suffering and a lasting fear of the judiciary” (emphasis added).  He [Alsaifullah, not Carter] is serving a sentence for assault at Albany County Correctional Facility. (Albany Times Union, “Judge’s outburst brings lawsuit,” Dec. 13, 2006; and see North Country Gazette, “Albany Judge sued for confronting defendant,” Dec. 13, 2006)

This morning, the Canadian Judicial Council issued a Statement of Principles on Self Represented Litigants and Accused Persons (2006, 12 pp. pdf), with the goal of fostering equal access to justice and equal treatment under the law for those who appear in court without a lawyer (per CNW Group press release, Dec. 12, 2006).  The Statement emphasizes that all participants in the justice system — judges, court administrators, the self-represented, and members of the bar — have important roles to play and responsibilities.  

   Honourable Marc Monnin, Chief Justice of the Court of Queen’s Bench of Manitoba, and Chairperson of the drafting committee, pointed out that “the Principles are advisory in nature and are not intended to be a code of conduct. However, judges and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, whether or not they have legal representation.”  It is clear that CJC prefers that all parties be represented by lawyers, but it offers principles to follow if attempts to find representation for all are not successful.

Below are highlights from the Statement (including guidance for the Bar), which contains many more suggests and comments.     

New York Law Journal columnists Lisa Bebchick and Elana F. Sinensky are right, the Holiday Season is a good time for lawyers and law firms to be thinking about “The gift of pro bono” (Dec. 1, 2006).   The term “pro bono” is short for the Latin phrase meaning “for the public good.”

 Although some lawyer groups have tried to stretch its meaning (see pro bono publico relations, at f/k/a), “pro bono” activity has traditionally meant “legal services rendered to poor persons or to public interest organizations dedicated to serving poor persons . . . or improving the availability or quality of legal services to such persons.”  Those who believe that self-help law is the most practical or efficient way to assure “justice for all” also consider services related to “simplifying the legal process for poor persons,” or to helping them to present their cases in court without (or with limited) lawyer assistance, to be solidly within the meaning of pro bono.  In addition, some would include in the definition of pro bono volunteer legal assistance to “organizations involved in social causes such as environmental, consumer, minority, youth, battered women and education organizations and charities” (while others might retort that one person’s “public interest” or reform cause can be viewed by another as simply politics, pet projects or pro malo publico).

Whatever your definition of pro bono legal services, there has been good news recently for anyone wanting to see an increase in such activities.  For example, Robert Ambrogi pointed last week to the article “Pro Bono Net Unveils New Pro Bono Manager Software” (probono.NetNews, Nov. 2006).  In it, Adam Licht, Pro Bono Net’s Director of Product Management, reports on the Gates Foundation funded initiative to develop a web-based platform (expected to be operational in early 2007) that will help law firms better manage and promote their pro bono work.   Similarly, the NYC Pro Bono Center was launched online recently.  As explained in the probono.NetNews article “NYC Pro Bono Center Makes Volunteering Easier Than Ever” (Nov. 2006), the website provides a full range of targeted support to young associates interested in volunteering (from info on organizations, to training and practice manuals). 

A Christmas Carol (1984) (with George C. Scott)   

If things are going so well, you might ask why this post mentions the fictitious law firm Scrooge & Scrooge in its title.   The first (and obvious) reason is to identify law firms that do not have an active pro bono “program” (including solos and other micros) with the character Ebenezer Scrooge, from Dickens’ A Christmas Carol.  The miser Scrooge is not only oblivious to the suffering of the poor.  His greed also affects the work environment of his employee Bob Cratchit, who clearly is on the verge of burnout as the story begins. (see Arnie Herz’s “The new law firm environmentalist,” at legal sanity weblog, and the article New York Magazine article, “Can’t Get No Satisfaction,” Dec. 4, 2006; via Legal Blog Watch)

But, I’ve also mentioned both Scrooge and Scrooge, because I’m wondering which Scrooge is behind the push within law firms to increase pro bono activities — is it the pre-enlightened Scrooge? or the loving, generous Scrooge after he’s been visited by the Three Angels?  (Or, more aptly, what combination of the two is it?)  The question came to mind because there seems to be such a great deal of effort to convince law firms that pro bono will somehow be good for their bottom line. 

My local paper, the Seattle Times has been investigating courts’ practices in sealing records in a series called “Your Courts, Their Secrets.” The latest focus of investigation is the guardianship system. Articles this week have discussed some horribly frustrating interactions when family members (often unrepresented) have tried to monitor the care professional guardians are providing their disabled loved ones. (See my post on Trial Ad Notes.)

That led me to look for some more information about guardianship (of adults, not children)…

 A recent article makes the pro bono approach of South Africa’s biggest law firm look pretty good, and another suggests we can learn from the structure of employment law enforcement in the South African judicial system. 

   According to today’s West Virginia Record, a recent trip to South Africa “surprised a couple of Charleston attorneys with a few ideas on how to operate a legal system smoothly.”  (“Firm wowed by South African trip,” Dec. 6, 2006)  The article notes:

Ironically, one of those ideas was keeping the attorneys out of it as long as possible.

Roger Forman and Jason Huber, partners in the firm Forman & Huber, traveled with the group People to People, in an effort to learn about the country’s employment law.   Forman discovered that, just twelve years after the founding of a new, post-apartheid constitution, South Africa has shown “mediation can be extremely effective when dealing with employment cases.”  The Record continues, quoting Forman:

“I like the idea of mediation and arbitration as the first place you have to go, because the lawyers are not permitted in that. And they said 95 percent of the disputes dissolve there. Pretty amazing, isn’t it?”

He also stressed that the people are “taking active roles” in using the judiciary as a final check on the government.  He noted, for example, that “he stopped to watch a pro se case where the litigant was ‘beating the heck’ out of the other side.”

   Meanwhile, according to the latest edition of ProBono.netNews,  South Africa’s largest law firm, Edward Nathan Sonnenbergs [domain name: problemsolved.co], is “Setting the Pro Bono Pace” (Nov. 2006).   The author of the piece is Lourens Ackermann, coordinator of the ENS pro bono program.  According to Ackermann, the Cape Law Society, for the first time in South Africa, now requires that all of its members provide 24 hours of pro bono services a year.   He notes that “this initiative has been met with varying degrees of enthusiasm,” but “No one has condemned it outright.”  However, most firms are “sitting back and waiting for it to happen. But happen it won’t, not without effort.”

ENS has decided to “commit each of our attorneys to 32 hours per attorney per calendar year.”   More important, Ackerman asserts that ENS believes it is “building a model for pro bono that is unique, in that:

• “[E]veryone, from the chairman to the most junior member of the firm, does pro bono in the Cape Town office. Hours cannot be traded, nor is there a person or a committee who discharges the obligation on behalf of others, as happens in some firms. We have a clear policy; everyone rolls up their sleeves and mucks in.”

In order to organize its pro bono efforts, ENS made a striking strategic decision to set up a dedicated office in a poverty-stricken community:

If you’re interested in what’s happening in the realm of unbundled lawyering, you’ll want to read “Two Massachusetts Courts Unbundle: System hopes to reduce problems from pro se litigants,” in the Dec. 1, 2006 issue of ABAJournal eReport.  In addition to discussing the new Massachusetts pilot project in some detail (see our prior post), the article quotes several experts in the field of limited representation (including weblogger and ABA ethics expert Will Hornsby), covers activities in several states, and ends with two interesting points from unbundling guru Forrest Mosten:

“In fact, because of unbundling’s success, Mosten says that in Indiana and other states, legal malpractice insurance carriers are looking to write policies for lawyers to unbundle and are hoping to give lower rates for lawyers trained and competent in the area.

” ‘Unbundling is everywhere,’ says Mosten, a lawyer-mediator in Los Angeles. ‘The key issue is that the public needs to know that they can go to lawyers for this limited-scope service, and lawyers need to know how to make it available and deliver it’.”

Amen.