shlep: the Self-Help Law ExPress

   A week ago, we reported that a New Jersey federal court had barred the undisclosed use of “ghostwritten” pleadings [that is, a pleading filed by a pro se litigant, but written in whole or part by a lawyer].  Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643.  On March 21, 2007, the New Jersey Law Journal/Law.com had an article focusing on the Delso case and U.S. Magistrate Judge Tonianne Bongiovanni, who wrote the decision.  “‘Ghostwriting’ Lawyer Effaced From ERISA Case on Ethics Grounds,” by Charles Toutant.  At Legal Profession Blog, Alan Childress continued his coverage of Delso, getting to the nub of the NJLJ article:

“Notice that the N.J. decision seems to rest on the lack of authorization in N.J. rules for such discrete-task or ‘limited’ representations, and thus may extend beyond undisclosed ghostwriting.  The judge wrote, ‘This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC [in New Jersey], ghostwriting is antithetical to the public interest’ .” 

Alan also pointed to Prof. Andrew Perlman’s discussion of Delso at Legal Ethics Forum. [In our prior post, we disagreed with the judge’s worry about unfairly helping the pro se litigant who has undisclosed assistance from a lawyer in drafting a pleading.]

• A few days ago, we collected a number of major resources on the topic of the judicial treatment of the pro se litigant.  See Californa judges get benchbook for handling pro se litigants (March 23, 2007)  

 On an unrelated but haunting topic, a couple days ago, I noticed an excellent example of the problems with pro se nomenclature that I fretted over last November.   After coining a rule of thumb in the body of the post:  “If it’s Latin, it’s probably not Plain English,” I added a Comment explaining:

   March 18 – 24, 2007, is Mediation Week in California. The judiciary is celebrating with informational events across the state.  (See YubaNet.com) The California Courts ADR events page says: “The third week in March is traditionally recognized as Mediation Week. During this week, many California courts, local governments, community dispute resolution programs, and private mediation organizations hold events to inform the public about the availability and benefits of mediation programs and to acknowledge the mediators and others who make those programs successful.”  Click here for the Courts’ Alternative Dispute Resolution Homepage, to learn more about mediation and the programs available in California.

After seeing and experiencing a lot of resistance to mediation from the bar over the past two decades, I am pleased to see that the Board of Governors of The State Bar of California issued a proclamation Recognizing Mediation Week.   Here are a few excerpts from the Proclamation:

• Whereas mediation is a dispute resolution process in which a neutral third person facilitates communication between disputants to help them reach a mutually acceptable agreement;
•  Whereas mediation offers many potential benefits to litigants, the courts, and the public,including increasing the interested parties’ satisfaction with the litigation process and the courts and voluntary compliance with the terms of resolution, while reducing pretrial motions and trials, the time from the filing of an action to disposition, future disputes between the parties, recidivism, litigants’ costs, and court workloads;
• Now, therefore, be it resolved that the Board of Governors of the State Bar of California recognizes the week of March 18 through 24, 2007, as Mediation Week, commends the efforts of all those who make mediation and mediation programs available to the citizens of California, and encourages the local bar associations to recognize those individuals and publicize local mediation programs during Mediation Week.

       This morning’s TVC Alert warns both investigating firms and consumers of the dangers in doing superficial, low-cost criminal records checks. (“Caveat Emptor: Cheap Background Checks,” March 20, 2007)  The TVC Alert blurb points to a recent posting at legal investigator Mike Coffey’s Imperative Information weblog, “The Danger of Selling Cheap Backkground Checks” (March 14, 2007).

  Coffey cites a lawsuit discussed in a recent The Fort Worth Star Telegram article, concerning the alleged rapist of a 77-year old Alzheimers’ patient, who had been hired after a private criminal records search failed to uncover that he is a registered sex offender (plaintiff’s original petition).  Coffey asks: “Can the screening firm be held legally liable for giving the customer what they asked for, however inadequate it might be?”  And he answers: “Prior cases suggest that the outcome may depend on the efforts undertaken by the screening firm to educate the client on the risks associated with undue reliance on the database report.”  Coffey offers additonal thoughts on the topic.

• For further information see: “Pinching Pennies in a Background Check Might Cost You,” by Lynn Peterson, The Virtual Chase, 24 August 2005; also, our prior post, “researching public records.”

       Over the weekend, Law Librarian Blog reported that a sophisticated, web-based bankruptcy software program was determined by the Ninth Circuit appellate court to be practicing law without a license — because it made too many decisions to be considered a mere clerical tool.  Frankfort Digital Services, LTD v. Kistler (Ninth Circuit, No. 04-17190, Feb. 27, 2007; 15 pp. pdf)  Wired Magazine has a good description of the case in “AI Cited for Unlicensed Practice of Law” (March 5, 2007) “At issue were two websites maintained by entrepreneur Henry Ihejirika — Ziinet.com and 700law.com — which offered automated bankruptcy assistance.”

There is an interesting article in the St. Petersburg Times this morning about non-lawyer stores that provide help with filling in standard legal forms, at a price much lower than an attorney’s charge.  “DIY stores walk fine line between law help, outlaw: They can offer document prep but not advice,” March 19, 2007.  I was quoted because I’m a contributor to shlep.  I believe that competent consumers can benefit from unbundling some legal services; that is, hire an attorney for part of a task, such as legal advice and drafting of a Small Claims Statement of Claim, but attendance at hearings by yourself.

The document preparation services are more dangerous, because they carry the risk of non-lawyers giving advice, and because it is often not possible for a layman to determine when a standard form won’t do. The Internet is making it easier for consumers and document preparation services to perform some legal tasks. Lawyers need to use technology to show consumers when a lawyer’s advice is beneficial, and we need to use technology to make our advice cost effective, if we are going to compete. 

      A good self-helper, like a good librarian, needs perseverance and follow-through.  So, I’d be obliged to follow up our prior post about the Law Librarian Hotties Contest at Above the Law, even if it weren’t a fun way to remind the world that old stereotypes about librarians need to be amended (or even repealed).  After a month of reader polling, David Lat announced the winners on March 15, 2007:

Who is America’s Hottest Female Law Librarian?  

• Joy Hanson, Research Librarian, United States Supreme Court, Washington, DC. Formerly Reference Librarian, Duke Law School

 Who is America’s Hottest Male Law Librarian?

• Larry Reeves, Adjunct Associate Professor of Law & Coordinator, First-Year Legal Research Program, Fordham Law School.

If you’re curious about the field of Law Librarian Hottie contestants, click to see and read about the Female Nominees and Male Nominees.  I hope it goes without saying that your shlep Editor in no way condones the puerile, mean-spirited comments found at the Above the Law website.

• If you want some self-help substance regarding law librarians, see our post “trust your online virtual reference librarian,” to learn about LiveHelp and other online virtual/chat reference services provided by librarians.

  We don’t know if Above the Law will ever hold a Hottie Contest for Anonymous Webloggers.  We do know, when it comes to follow-through, that nobody beats the Editor of Blawg Review.  The anonymous BR Editor [“Ed”] scours the “blawgiverse” every week in search of the best weblog offerings by lawyers, law professors and law students.  He is assisted each week by a few hearty associate editors and a Guest Host, who posts the results on his or her host weblog each Monday. 

We want to congratulate “Ed” for his perseverance, as demonstrated by the unveiling today of Blawg Review #100 (March 18, 2007- yes, a very unlawyerly day before his deadline).  Blawg Review 100 focuses on the 90 or so weblogs that have hosted its law-weblog carnival, picking a recent posting of note from each site.  Because f/k/a hosted Blawg Review #52, Ed was kind enough to point his readers to my recent posting there, “no professional courtesy? shark bites lawyer,” which may interest lawyer-phobic (and shark fearing) self-helpers.   The early posting gives you a chance to peruse it at your leisure on the late-winter Sunday. [Disclaimer: Yes, we do have a soft spot in our hearts for Blawg Review, as it named shlep the Best Law Blog in the Public Interest, in the Blawg Review Awards 2006.]

  According to a summary in Freivogel on Conflicts (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that “undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”  The case is Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643. (via Carolyn Elefant at LegalBlogWatch and Alan Childress at  Legal Profession Blog)  A ghostwritten pleading has been drafted in whole or part by a lawyer for a party who is appearing pro se in a court proceeding; the document is filed by the party without attributing it to the attorney.   Writing the pleading is an “unbundled” service provided by the lawyer to the unrepresented litigant.

According to Freivogel:

 “The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.”

If you have access to the court’s opinion in Delso, please share the relevant parts with us.

As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06 (July 2005).  The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona [pro se].”  The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog)

My perspective (as stated today in a Comment at LegalBlogWatch):  In general, if a judge gives a pro se litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial.  The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer.  Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.  Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post discusses and links to sources on the proper role of judges dealing with unrepresented litigants]

     “Collaborative law” has been gaining in popularity over the past decade, as an option for clients who want lawyer assistance in negotiating a resolution to a legal conflict (often a divorce or other family law matter), while keeping control of the situation to the extent possible and making the process as civilized as possible.  At the request of their clients, the opposing lawyers agree never to take the particular case to court — thus motivating the lawyers to work at creating a settlement of the dispute.  The clients do not give up their rights to litigate later, should the negotiations fail.  As lawyer Gini Nelson explained at her Engaging Conflicts weblog, just one week ago (March 6, 2007):

 “Collaborative Law is a form of lawyering that is, to some degree, a hybrid of an unbundled practice approach that uses a mediative negotiation style. It seeks to integrate non-adversarial and cooperative strategies, and relies heavily on the empowerment of the clients as informed decision-makers.

The Colorado Bar Association’s ethics committee recently took a big step backwards towards infantilizing clients and militarizing all lawyers, when it declared that collaborative law is always unethical for the lawyers involved, because the attorneys have agreed with eachother that they will not litigate the matter.  Ethics Opinion 115: Ethical Considerations in the Collaborative and Cooperative Law Contexts (Feb. 24, 2007). 

Prof. Alan Childress contrasts and compares collaborative law with unbundling: “The goal is to stay out of court.  In this sense it is very different from typical “limited representations,” which are often used to facilitate court matters by prepping witnesses and ghost writing briefs.  But it certainly limits upfront the goals and scope of this particular lawyer-client representation.” He explains the Colorado Opinion:

“The problem is perceived as one where the lawyer has agreed in advance to look out for the other client’s interest and is not in a position to urge litigation where that is what may be best for his or her own client.  The opinion’s focus is on the pre-agreement that the lawyers sign and the ways they are limiting themselves in advance, said to be violating the Rule 1.7 duty not to allow third party interests (the other client’s) to materially limit what they would be doing with their own client (like filing a motion in court). “

At The Family Law News Blog, John Crouch has this apt reaction: 

“In my opinion … this ruling violates clients’ right to hire the counsel of their choosing, and their freedom of contract. It treats clients like children. In the long run, it cannot stand. Divorce is a dismal business for most divorce clients, and collaborative law is the single biggest thing that has come along to offer serious hope of making divorce less harmful.”

 There has been a lot of discussion in lawyer weblogs on this Colorado ethics opinion.  As usual, Robert Ambrogi has done a good job summarizing the opinion and gathering links to weblogs participating in the (one-sided) debate.  See ‘Collaborative Law Per Se Unethical’, Legal Blog Watch, March 12, 2007.

     Both HALT and shlep believe that increasing the dollar limits at Small Claims courts is a most-promising strategy for achieving broader access to justice in the United States. At the main webpage of its Small Claims Reform Project, HALT states that small claims courts “have tremendous promise as a means of empowering ordinary people to take charge of their own routine legal needs,” and that significant increases in dollar limits “would be the most meaningful reform to increase consumer access to the small claims courts.”  HALT has a national campaign to increase the dollar amounts, and would like to see $20,000 case limits.  Unfortunately, consumers in most states still face limits of $5000 or less.  [Find out the small claims rules and dollar limits in your state, at this HALT page.] 

  Back in August 2000, long before launching shlep, I wrote “Supersize Small Claims” for the now-defunct PrairieLaw.com. [reproduced at Crime & Federalism, as part of the guest post “fedLabs 101: small claims, big potential“] The article asserts that “[Our lawmakers could give a big chunk of the civil justice system back to the people by simply increasing the dollar limits allowed in small claims courts.”  And, the C&F post preaches:

Do you want to give power back to individuals?  Would you prefer to do so on a broad scale, at the local level, and without waiting for federal constitutional amendments, programs or court precedent?   Whether you’re a liberal or libertarian, a lawyer, legislator or law student, I have a suggestion: start working to increase the dollar limits in small claims courts in your state.  I can’t think of anything that could so quickly, and at so little cost, increase access to justice — especially, if coupled with other modest reforms that have been shown to work well in several states (e.g., from adopting Plain English forms and evening hours, to exploiting digital technology — as with California’s Small Claims Self-Help Center).

The newest HALT eJournal (March 12, 2007) reminded me today of this prior advocacy and of the continued need for ATJ advocates and all citizens to lobby for more effective small claims courts.  The main piece in HALT’s March 12 eJournal focuses on bills pending in four states that would increase the small claims dollar limits:

• New Hampshire: Senate Bill 32-FN, introducted by Sen. Joseph Foster would increase the state’s small claims dollar limit from $5,000 to $10,000. 
•   Kentucky: House Bill 198 was introduced by Rep. Tom Burch in January, would increase the state’s small claims dollar limit from a miserly $1,500 to a paltry $3,000.  [If you live in Kentucky, please press hard for evern higher limits.]
• Michigan: Representative John Pastor reintroduced Michigan House Bill 4160, which would increase the small claims dollar limit from $5,000 to $7,500. 
• Oregon: House Bill 2316 has passed and would increase the state’s small claims dollar limit from $5,000 to $7,500.  It is now awaiting a reading in the Senate’s Judiciary Committee.  A little legislative jawboning would sure help.

Self-helpers don’t need any further nudging to contact their state legislators.  Or, do they?

  p.s.  I can’t promise you more access to legal justice, but I can assure you better, timely access to law-related commentary, if you head every Monday to both Blawg Review and the The Barrister Blog‘s Weekly Review.  Today’s Blawg Review #99 is hosted by Matt Barr at Begging to Differ.  Our thanks to Matt for listing shlep‘s post last week on Family Court Civil Gideon.

Just yesterday, in our post on Family Court Civil Gideon, I noted that the American who is non-poor (but not rich) very often cannot realistically afford a lawyer, but is not helped by the Civil Gideon movement.   By coincidence, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, warned on Thursday that the middle class in her country is also often denied effective access to justice due to the high cost of retaining counsel.  See “Access to justice is critical for Canadians: chief justice,” National Post/Canada.com and “Top judge sounds alarm on trial delays,”  The Globe and Mail,  (March 9, 2007)

   The Chief Justice warned: “Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to.. . Hard hit are average middle-class Canadians.”

According to the National Post:

      The 2007 Equal Justice Conference will be taking place at the Hyatt Regency in Denver, Colorado, on March 22 through 24, 2007.  The conference is co-sponsored by the American Bar Association and the National Legal Aid and Defender Association and it “brings together all components of the legal community to discuss equal justice issues as they relate to the delivery of legal services to the poor and low-income individuals in need of legal assistance. The emphasis of this Conference is on strengthening partnerships among the key players in the civil justice system.” 

This year’s theme is “Justice In A Changing, Diverse World: Preserving the rule of law through inclusive, high quality legal services to the disadvantaged.”  Pro bono and legal services program staff, judges, corporate counsel, court administrators, private lawyers, paralegals, and many others attend this event — including many self-representation practitioners and advocates.

 Richard Zorza of SelfHelpSupport.org has gone through the Conference’s Workshop Preview to find Sessions of Particular Interest to Self Represented Litigation Practitioners.  Included are many topics that should be of interest to shlep readers.  If you click the links below, you’ll find information on the presenters and participants for each session and a short description of the contents. I hope related materials will be available for those who cannot make the Conference.  If you do attend, feel free to share your experiences with shlep.   

• How People Really Use Technology: Current Research on People, the Media, and the Message
• Self Represented Litigation: Attorney, Court and Legal Aid Leadership Responses to the Access Revolution
• Limited Scope Representation: New Opportunities for Recruiting and Engaging Volunteers
• Pushing the Limit Beyond Advice: Techniques for Providing Brief Services and Pro Se Assistance in a Hotline Setting
• AmeriCorps: Using National Service Resources to Develop New Programs and Increase Organizational Capacity
• Limited English Proficiency: Self Help Services as a Tool for Access 
• Access to Justice: Leveraging Law Students and Technology 
• Hotlines and Ethics: The Latitudes and Limitations
• Collaborative Websites: Innovations in Meeting Client and Pro Bono Needs
• Techonology in Self-Represented Litigation Innovation: The Promise of Access for the Disadvantaged