shlep: the Self-Help Law ExPress

q.s. for those who need self-help on Valentine’s Day

 A Valentine from Sperm-Donor Dad: Today’s New York Times tells the moving story of Jeffrey Harrison, a very popular donor at the California Cryobank in the 1980s. “Sperm donor father ends his anonymity” (NYT, Feb. 14, 2007) Mr. Harrison decided it was time to find his donee children (some of whom had been looking for him).  Now, 50 years old, and living in a recreational vehicle with four dogs, Harrison says: “It’s a short life and these children need to have some kind of resolution. I thought I could send a little valentine, kind of, to everyone, just saying hello.”   Because this is a quickie blurb, I haven’t done research on the state of the law relating to the anonymity rights of sperm donors, donees and their children.  However, donors loss the right to anonymity in Britain in 2005 (see BBC article), and Canadian legislators have been considering how to handle the Controversy Over Sperm-Donor Anonymity. 

 Lat’s Looking for Hotties Again:  We thought shlep‘s readers with curious minds would want to know that the latest “hottie” contest at David Lat’s Above the Law tabloid is aimed at finding the Hottest Law Librarian.  Contestants must be current, genuine law librarians and may be at any library or legal workplace.  Please feel free to tut-tut.

 Unsure about Unscrewed:  A couple days ago, Laura Orr mentioned the book Unscrewed: The Consumer’s Guide to Getting What You Paid for, by Ron Burley, at her Oregon Legal Research Blog.  Burley’s website has an excerpt from the book (its introduction), and says its

“Five easy-to-learn principles and a collection of simple techniques win satisfaction in virtually any business negotiation without the hassle of writing letters, arguing, screaming, making threats, or going to court.” 

The book is new to me, and I hope that visitors who have read it will share their thoughts about its value to consumer self-helpers.  I’m a bit reluctant to endorse it blindly, because the article “Don’t get mad, get what you want” (USA Today, Nov. 13, 2006) says “Some of Burley’s ‘Unscrewed Solutions’ . . . could be interpreted as a deliberate action to damage a business” in some states, and that “A few tactics seem a little shady.”  Also, a customer review at Amazon.com notes “In fact, some of the things Mr. Burley advises people to do could land them with a defamation lawsuit, a punch in the jaw or worse.”   Unscrewed lists for $14,95, and sells for $11.66 at Amazon.com.  [For $.01 plus shipping, you can get the 1993 book Getting Unscrewed and Staying That Way: The Sourcebook of Consumer Protection (Hardcover) Henry Holt & Co; 1st ed edition (July 1993), by David Klein et al.] 

   Disbarred & Pro Se:  We might make this a recurring topic here at shlep.  The latest example is ex-lawyer George R. Leach, a 1975 graduate of W&M’s Marshall-Wythe School of Law,  who “filed a federal lawsuit to force the school to return the Wren Cross permanently to the historic chapel on the Williamsburg campus.  “W&M graduate files lawsuit seeking return of Wren Cross,” Richmond Times-Dispatch, Feb. 14, 2007.  The suit names the college President Gene R. Nichol and the Board of Visitors as defendants. According to the Times-Dispatch, Leach says in the suit that Nichol’s decision last fall to remove a 2-foot-tall brass cross from the chapel “deprives the plaintiff and others of the free exercise of religion.”  I could be wrong, but Leach’s argument that President Nichol is “an active agent of the ACLU” seem a little bit unlawyerly (or at least irrelevant to the legal merits).  An article in the Hampton Roads Daily Press (Feb. 13, 2007, via Religion Clause) points out:

“[A] suit filed against the college would be frivolous and unsuccessful, said Charles Haynes, senior scholar at the First Amendment Center, a group that promotes First Amendment freedoms.” 

Despite being in the Valentine spirit, I have to agree with Haynes that ex-lawyer Leach has not filed a winner.

  As we noted in our post “understanding antitrust law,”  the American Antitrust Institute website is a major source of information for anyone wanting to learn about antitrust law and competition policy.  This morning, AAI unveiled its new-look website, at the same URL.  Along with AAI’s Current Activities, it’s easier to locate Upcoming Events and Recent Working Papers on the homepage.  The link antitrust resources brings you to AAI’s Antitrust Directory and Gateway to Anititrust Resources.

Click Fair Fight in the Marketplace for a great antitrust video.   

• update (5 PM): a) Robert Ambrogi has collected a list of valentine-related materials by lawyers on the web, at his LegalBlogWatch forum. b) haikuEsq has an array of (real) haiku and senryu that seem relevant on Feb. 14th, in valentine matchmaking at f/k/a.

   The UK’s 5,000-member Association of Personal Injury Lawyers [“APIL“] has been waging a campaign to prevent an increase in the personal injury limits in the UK’s small claims courts (“small claims track”).  See, e.g., “Support Grows for Retention of Small Claims Limit for Injury Victims” (APIL Press Release, Dec. 11, 2006); and Response to the Better Regulation Task Force (APIL/DCA, May 2004; 18 pp. pdf.).  (via PIBLJ, Jan. 27, 2007)

The dollar limit for most small claims matters in UK courts is £5,000, up from £3,000 in 1999, and £1,000 in 1996.  However, the limit on personal injury and housing repair matters is still £1,000.  Because of that lower limit, almost all p/i matters are heard in the upper tracks of the judicial system.  In 2004, the Better Regulation Task Force produced a report titled “Better Routes to Redress” (48 pp. pdf.), which recommended (in Sec. 4.2, at p. 25), that:

[T]he Government carry out research into the potential impact of raising the limit under which personal injury can be taken through the small claims track. The research should establish a limit which best balances the benefits to the claimant and society against the costs.”

The Task Force noted that keeping the lower limit is supported by lawyers, who argue that p/i matters were too complex to be handled without a lawyer, and that the small claims track offered only limited recovery of costs, which was unfair to claimants in p/i cases, which can be very expensive.   The Task Force suggested that rules be changed to allowed recovery of reasonable medical expenses, and concludes that “allowing more personal injury claimants to go through the small claims track process will increase access to justice for many as it will be less expensive, less adversarial and less stressful.”  Its reasoning can be found in an excerpt provided at the foot of this posting, below the fold.

 You may recall from our posting last week on personal injury self-help, that both the legal reform group HALT (in its p/i Consumer Alert) and self-help pioneer Nolo.com have stated that small claims court here in the United States can be an excellent place to bring p/i claims for relatively small amounts of money.  In addition, HALT’s small claims reform project has been advocating long and hard for increases in the small claims jurisdictional limits (hoping to someday reach $20,000).

It its campaign against raising the small claims limit, APIL makes the arguments noted by the Task Force (complexity, inability to recover costs), and stresses surveys showing that the public is reluctant to go to court in a p/i case without a lawyer.   In addition, it frets that “In the small claims court, a claimant either has to pay for legal representation out of his own pocket, which many people can ill-afford, or stand up in court against the defendant without the benefit of a lawyer’s representation.”  This suggests that p/i lawyers won’t use contingent fees (which APIL calls “CFAs” — Conditional Fee Agreements) in small claims court, but I do not understand that position (and would welcome an explanation; update (Feb. 20, 2007): in this Comment I again ask for help understanding the differences in the UK from the American system, listing more questions). 

 This is a good time of year to let people who make your life fuller or easier know that their efforts are appreciated.  Although I’m not exactly a secret admirer of SelfHelpSupport.org, I often take the website and the folks behind it for granted — forgetting to tell them and you how helpful their services and information are for the self-help legal community.

SelfHelpSupport.org is funded by the State Justice Institute and describes itself as a “Network for Practitioners of Self-Help Programs as well as an online Clearinghouse of information relating to self-representation.”   I check out the SHS home page daily to look for new Announcements or Releases by the Network, and to see what’s new in their Library or what they have found in the news media that I’ve missed. 

This past week, I discovered:

• A link to Montana House Bill 60: “Access to Justice Civil Act, Self-Help Program”, which was introduced by J. Parker and would provide for “state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services.”  If passed, the law would fulfill  the self-help goals of the State’s Chief Justice, discussed by Orijit Ghosal in this post last month.  A hearing on the Bill was held on Feb. 7, 2007.
• A Small Claims Court Self Help Video–from the 12th Judicial Circuit Court in Florida.
• 20 TIG Conference presentations (made to the annual LSC Technology Initiative Grants Conference, Feb. 2007) — on topics such as evaluating statewide websites and non-web projects, online community building, innovative case management systems, hot docs service delivery, thwarting cyber piracy, Live Help programs, etc.

  If you’re an active self-help law practitioner, you are surely already a member of the Self-Help Support Network — or have no excuse not to join right now.   I’d like to urge other readers who have a professional, organizational or academic interest in assisting self-represented litigants to join — especially, those who would like to become active in their local courts, community or school, by starting, lobbying for, or volunteering to help, a self-help center or project.  Membership is free and brings with it access to the voluminous information in the SHS Library, the services offered through the site, and the nearly 2000 network members.  

For example, if you were a member, you could take advantage of:

• the SHS Networking/Mentoring Service, which connects you with assistance from self-help programs around the country, by finding “the right person to help you think through and get ideas for how to launch or improve your self help program.”
  (see our prior post)  
• their February webinar, A Guide to Selfhelpsupport.org, where you can “Learn about the many programs, services, and resources offered by selfhelpsupport.org.” It is on Feb. 22, 2007 from 3-4pm (Eastern). Madelynn Herman will be presenting.
• the materials from the January Webinar on Self Help in Rural/Small Court Settings–with Frances Thompson, Eleanor Gerlott, and Mary Boudreau.

Note: The SelfHelpSupport.org site is for the self-help practictioner or advocate, and is not geared to the individual pro se litigant.   If you are a person who needs legal help or pro se assistance, or wants to find an attorney, you should consult the extensive materials described on the SHS webpage Resources for Self-Represented Litigants, or visit www.lawhelp.org to find legal resources in the state in which you live.  (Of course, your friendly shlep weblog is here for you, too.)

 I’m not going to get gushy about SelfHelpSupport.org.  I do want to thank all the people and groups that make it possible and keep it timely.  Consider yourselves hugged.

    Justice Talking, npr’s “public radio show about law and American life,” has created Talking Justice, a mega-collection of weblogs and discussion forums, that invites you “to get on your soapbox and join the conversation about the tough, provocative issues you care about.   From the war on drugs to the war on terror, the right to vote to the right to pray — share your views.”  If you’re willing to register and be civil, you can comment on the weblog posts and post or reply to messages.  As TJ explains on its Welcome page:

The Talking Justice Blogs include commentaries from a host of distinguished contributors who care passionately about law and justice issues.  There you can also find postings from some of the best legal blogs, websites and newspapers:  SCOTUSBlog, FindLaw.com, the National Law Journal and JURIST. 

     You can find their Latest weblog posts here; and the daily featured weblog here. There is also a full list, with links, to the 30+ weblogs contributing to Talking Justice. The commentary is written by individuals and groups with a broad array of viewpoints and values (from trial lawyers to tort reformers, from Cato Institute to Capitol Steps).   (via Carolyn at LegalBlogWatch)

The Talking Justice Discussion Forums   

The TJ Forums are structured into thirteen thematic groups, covering topics discussed on the Justice Talking radio show.  “It’s the place to give your thoughts on the issues and to tell us your ideas for new shows, what we got right and what we missed in the current ones.”   The themes are: The Supreme Court, Criminal Justice, Civil and Human Rights, The Environment, Economic Justice, Education, Elections and Campaigns, Freedom of Expression, Health Care Policy, Bombs, Borders and International Affairs, Religious Freedom, Science & Technology, and Miscellaneous Issues.  

• The topics covered at Talking Justice will surely interest many shlep readers.  TJ looks like a very good place to stay abreast and get things off your chest.

     Thanks to a reminder from the good folks at Self Help Support, I just took another look at the ABA Resource Center on Access to Justice Initiatives, which describes itself as bringing together in one place all of the American Bar Association’s “services to assist bench, bar and legal services leaders in creating effective civil legal services systems – help with structuring systems, analyzing needs, and finding resources.” SelfHelpSupport.org says it is “a content rich website that provides guidance to state Access to Justice commissions, as well as a links to key materials, links to ATJ programs and headlines.”

 Browsing the Center’s Headlines collection, I learned more about the Civil Access to Justice Pilot Project proposed by Gov. Schwarzenegger in California two weeks ago. (see our prior post, Jan. 20, 2007).  It appears to be based on a proposal made by California’s Chief Justice, Ronald George, to the Governor late last year.  The article “Chief justice seeks lawyers for poor in civil cases” (San Francisco Chronicle, Dec. 20, 2006) states that the Chief Justice “wants the state to provide lawyers for the poor in civil cases such as child custody disputes and evictions in which people often have to represent themselves,” and explains:

“Chief Justice Ronald George said he will ask Gov. Arnold Schwarzenegger to test the idea by funding a pilot project in three counties — one small, one medium-size and one large — to provide attorneys for low-income litigants in a limited category of cases, including family law and housing, in which important individual rights are at stake. He didn’t identify the counties.”

The Chronicle article notes that “Congress has limited the federal funding and restricted the types of cases that federally funded lawyers can accept.”  It adds that CJ George “may advocate another three-county pilot project to pay for court interpreters in civil cases that involve basic rights.”   Assemblyman Dave Jones, D-Sacramento, “is working on both issues with George, said the pilot programs would be a first step in addressing ‘a huge justice gap’.”   According to Jones,  California has one lawyer for every 240 people but only one Legal Aid attorney for every 8,737 poor people.  In addition, 7 million Californians could require interpreters if they appeared in court.
 

   February 4 – 10, 2007, is the ninth annual National Consumer Protection Week (Federal Trade Commission presss release, Feb. 5, 2007).  This year’s theme is “A Time to Read Up and Reach Out.”   Like shlep, the FTC encourages consumers “to arm themselves with knowledge. By gathering information – and sharing it with their friends and families – consumers can become more confident, savvy, and safe in the marketplace.”

 “[C]onsumer information can help people recognize a rip-off, smell a scam, or find a fraud. ”  It can help you avoid a consumer problem or find a solution to a consumer complaint on your own (by going to the seller or to the appropriate consumer adovcacy agency or group).   Here are some useful sources:

• At the NCPW 2007 website, you’ll find an extensive, annotated list of Consumer Info links and a short Business Info list.  
• At the federal government’s Consumer Action Website information can be found by topic, and you can order a copy of the free Consumer Action Handbook 2007 
• “Heloise” has put together a package of 15 consumer information brochures and booklets, and has an online order form.

 Here’s some info for the consumer of law-related weblogs: Diane Levin of the Online Guide to Mediation hosts Blawg Review 94 this week.  Her theme is win-win negotiation, and the comprehensive posting is structured around the “seven elements critical for negotiation success: interests, options, alternatives, objective criteria, relationships, communication, and commitment.”  Thanks to Diane for pointing her readers to this weblog today, and on numerous other occasions.

q.s.

• Carolyn Elefant has followed-up on her LegalBlogWatch posting (and ours) on the revolution being waged by Cisco General Counsel Marc Chandler with a piece at her solo-lawyer-oriented weblog, MyShingle. Carolyn asks What Do You Do If Your Clients Want to Lead A Revolution? Join Them, Of Course! (Feb. 1, 2007). She explains that all lawyers need to: “hear our clients’ desire to play a part in their matters, or to keep their case on a budget that they can afford (no, not what they want to pay, but what they can afford to pay).  Because otherwise, we may just find ourselves supplanted, rather than supported by technology.” [update: Feb. 5, 2007: Thanks to “127001” at Civil Gideon for pointing to this blurb and for being so willing to give this weblog a chance to make a good impression.]

• HALT reports in its newest eJournal (Jan. 29, 2007; available bi-weekly by email) that “Mendocino County in California now offers nighttime small claims court hours on the first Wednesday evening of every month. Designed with the goal of improving public accessibility, the court will offer five time slots per night for hearing cases, beginning at 5:30 p.m. The court operates from 8 a.m. to 4 p.m. Monday through Friday.  Offering nighttime hours is one of the model practices HALT has identified to reform small claims courts.”

• In Wisconsin, Ozaukee County Court Commissioner Darcy E. McManus is also trying to enhance off-peak services to pro se litigants.  (see The Third Branch, Jan. 2007) She wants to expand the Ozaukee County Family Law Assistance Center, which opened its doors about a year ago, to litigants who cannot get to the courthouse during the very limited hours when volunteer attorneys (from the Ozaukee County Bar Association) are available.  If you have ideas on how to achieve this goal, please contact Ms. McManus at (262) 284-8376 or darcy.mcmanus AT wicourts.gov.

     Faced with the need to reduce bloated legal fees from outside counsel, Mark Chandler, General Counsel of Cisco Systems is using information technology to make his in-house staff far more productive and independent of BigLaw firms, with their skyhigh hourly rates and cancerous billables.  See his speech “Cisco General Counsel on State of Technology in the Law,” at the Northwestern School of Law’s 34th Annual Securities Regulation Institute.

 At LegalBlogWatch (Jan. 31, 2007), Carolyn Elefant calls this a revolution and notes that Chandler has already “created an online contract builder so that its employees around the world can create NDAs and standard contracts. And Cisco is also working on a wiki with other Fortune 500 companies to allow direct access to firms’ knowledge management systems on securities regulatory compliance. Finally, Cisco “got tired of high billable hour rates from so-called global law firms,”  so it’s selected a firm (which isn’t a huge global firm, but open to new ideas) to help it address issues related to corporate secretarial matters. And while Cisco uses two large firms for M&A work and litigation, those firms operate on fixed fees.”  Carolyn sums up:

• The bottom line is that in an era where information wants to be free, corporations want access, and they don’t want to pay for every minute spent to find it.

Chandler is tasked with utilizing technology to streamline legal processes.  He notes that the legal industry sometimes seems to be ‘the last vestige of the medieval guild system to survive into the 21st century’.”  [It’s nice to see someone other than Your Editor deride the profession’s guild mentality; e.g., here and here.]

Peter Lattman of the WSJ Law Blog, “Law Firms: “The Last Vestige of the Medieval Guild System”“, Jan. 29, 2007, notes:

Chandler bemoans the law firm business model. “Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour.” 

The whole speech is worth reading.  Below the fold are a few select excerpts, in which Chandler tells of buying contract-builder software “off the shelf” and says that “counseling will be the next frontier.”   (If software can assist with complex corporate legal counseling tasks, let’s hope the advances will soon trickle down to all legal consumers.)

    As shlep demonstrates daily, technology has been helping the poorest members of our society to solve more and more legal problems without lawyers.  Now, clients with the most clout (and money) — such as Cisco — are taking advantage of information technology to become do-it-yourselfers, and to unbundle legal services, while insisting that law firms provide far better value.  Perhaps, then, we can hope that the vast, soft mid-section of the legal profession — those who serve the everyday needs of the average American, usually at unaffordable hourly rates — will soon embrace the benefits of the digital age and pass savings on to their clients.  As Rick Georges suggests, such lawyers may find themselves at a great disadvantage if they do not figure out a way to offer far greater value to their clients (in service, results and price), including the use of document-creation technology (see our prior post).

It will help, of course, if middle class Americans were better informed about such alternatives as sophisticated self-help products, pro se centers at courts, and unbundling of services.   Then, they can join in the revolution, with steady pressure for more options and competition from their Main Street lawyers.   

  Texas district court Judge Mark T. Price Judge was removed from a Witchita Falls gang control proceeding, yesterday, because of his demeanor toward defendants who were appearing pro se.   In the civil proceeding, the district attorney was seeking an injunction to require defendants, described as members or associates of the Varrio Carnales gang, “to abide by a set of rules in a specified part of town, known as a gang-free zone.  The rules include a curfew at night.”  Judge Price had presided over the case since it began last summer.  Witchita Falls [TX] Times Record News “Price recused from case,” Jan. 31, 2007.

The motion to have Judge Price removed was heard by Judge Bob Brotherton, who rejected several claims of impartiality, but focused on the treatment of the pro se defendants at a hearing for a temporary injuction in September.  According to the Times Record News, a number of attorneys (public defenders not connected to the case but present in the courtroom) testified in support of the Motion:

” ‘From what I saw, it appeared that the hearing was more of a formality,’ one testified. . .  

In his Order, Judge Brotherton noted that Judge Price also “appeared to those attorneys to be abrupt and impatient with the pro se defendants in a manner not exhibited to the State’s attorneys.” 

“Brotherton also pointed out that Price held a bench conference with the state’s attorneys and an attorney who represented two of the respondents in the injunction case. That bench conference did not include the defendants who did not have legal representation, the order stated.” . . .

In his order, Judge Brotherton explained the relevant rule of civil procedure, saying “The Court hearing a recusal motion must determine whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial.”  Looking at the evidence in Tuesday’s hearing, he concluded “that such a reasonable doubt does exist.”  

The newspaper article states that “Price did not sit in on the proceedings Tuesday and said he did not hear any of the evidence or testimony.  ‘I respect him. I respect him as a jurist,’ he said of Brotherton. ‘He’s a fine judge’.”  [Any bets on whether Judge Price has read the newspaper coverage yet?]

The case will go forward with another judge, but the district attorney and police are probably a bit anxious, as the temporary injunction runs out today, Jan. 31, 2007.  Nevertheless, when leaving the courtroom yesterday, the attorney who handled their motion for recusal told a group of young men sitting in the front rows, ‘Nothing changes, guys. You’re still under the injunction’.”

  Madam Justice Bonnie Wein of the Ontario Superior Court of Justice has decided that 72-year-old paralegal Joseph De Teresi belongs on the Ontario Vexatious Litigant list, after he brought 73 lawsuits in the past 10 years.  According to the Toronto Globe and Mail, De Teresi — dubbed “the king of vexatious litigation” — filed “a blizzard of legal paper that targeted everyone from clients and landlords to banks, law firms, credit agencies and computer companies.” “Judge gives the boot to the king of the suit,” Jan. 30, 2007.  De Teresi will now have to ask permission before before starting any sort of litigation in an Ontario court.  He says he’s too old to appeal or bring any more suits, and told the Toronto newspapear that:

“he has won about 60 of his lawsuits and settled 10 more in his favour. However, he said his admirable success ratio and the validity of his claims counted for nothing with Judge Wein.

” ‘Superior Court judges in Brampton do not like self-represented litigants,’ Mr. De Teresi said. ‘That is a fact. . . . She never read my [written] submissions, and she practically didn’t allow me to make any submissions in court’.”

The opinion is not yet available at the CanadaLII website, so I can’t tell you Justice Wein’s reasoning or the factual basis for the decision.  Apparently, this law suit involves the Brampton, Ontario, law firm Dale Streiman & Kurz, “which decided to fight back after Mr. De Teresi refused to pay its legal bill for $367.45. . . . Mr. De Teresi refused to pay his legal bill and sued DS&K for remitting the unpaid bill to a credit agency.”  DSK says it spent the equivalent of ten of thousands of dollars fighting De Teresi, in order to stop his practice of “persistently us[ing] the courts to harass opponents in an attempt to force settlements that are to his advantage.” 

 Vexatious litigation rules and laws are usually aimed at self-represented parties — probably because attorneys would face ethics discipline for similar practices on behalf of represented clients.  A good working definition is given in Wikipedia:

“Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary.   It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action.”

Current or former member states of the British Commonwealth seem especially likely to have vexatious litigation rules and lists.  One commentator notes that England has had such laws since at least 1896.  You can find the current list for the United Kingdom (England and Wales) here.  Victoria, Australia, appears to apply their rules sparingly: “As of 2006, only 13 people . . . had been declared vexatious litigants since the law was introduced in 1930.”

In the USA, California has a well-established system for tracking and controlling vexatious litigants. (Code of Civil Procedure, section 391(b))  Click for a useful FAQ about the California VL system.  Here are a couple of other resources on the topic:

• The Law Reform Commission of Nova Scotia issued a Report on Vexatious Litigants (April 2006), which explains the problems caused by VLs and the issues raised by trying to limit access to the courts.  It notes that the federal courts in Canada have rules against VL, as do seven Canadian provinces.
• Martin Frost, who had been deemed a vexatious litigant in Scotland, has collected a lot of information on the history of such laws, including articles, case law and legal arguments.  He writes, “It is my belief that in my case (which I regard as an abuse of process by the Scottish Executive against me) and no doubt in many others to come that vexatious proceedings will become common place for those that govern and judge us will seek to deny access to those of us that do not toe their particular mind set.”

    Paul Weinbaum lives in Las Cruces, New Mexico.  Although “las cruces” means “the crosses” in Spanish, Weinbaum believed the City and its public school district were violating the U. S. Constitution by depicting Christian crosses on their logos, buildings and vehicles.  He therefore filed pro se lawsuits against the City and the Schools of Las Cruces.  Last November, Weinbaum lost his case against the City (see Religion Clause weblog, Nov. 10, 2006) and, in December, 2006, he lost his case against the school district (see Religion Clause, Dec. 9, 2006).   His appeal of the school case is pending before the 10th Circuit Court of Appeals.

   The Las Cruces school district is not waiting for the appeal to be finalized to make its next move.  It has filed a motion asking for about $16,000 in legal fees from Weinbaum, claiming that the suit against the schools was clearly “frivolous,” once the City won its case.  Las Cruces Sun-News, “Crosses case may prove to be pricey,” Jan. 27, 2007 (click for LCPS motion to recover attorney’s fees and for Plaintiff’s response)  The District says it actually spent $53,000 on legal fees defending Weinbaum’s charges, but is only asking for fees accrued after the City’s case was decided.

Without more information and research, I can’t have a clear opinion on whether it was frivolous for the plaintiff to continue his lawsuit once he lost the case against the City.  (Remember, in legal terms, “frivolous” means without a colorable claim in fact or law.) It’s possible that different criteria might apply in the context of a school district (with young, impressionable minds) than for the City as a whole.  The points mentioned in the Sun-News article as Mr. Weinbaum’s defense against the frivolousness claim do not, however, appear to hold much water:

• He told the Sun-News, “We never asked for any money, which should be a sign,” the lawsuit is legitimate.  
• He told the Court: “The pro se plaintiff (Weinbaum) never wanted his concerns to reach the legal system as he believed, perhaps naively so, that the defendants would be open to ideas about equality this being the 21st century, they being elected individuals who swore an oath to obey constitutional laws.”  and,
• According to the news article, he continued that “he was open to settling the case before trial, but attorneys for the district wanted an ‘all or nothing. resolution which forced him ‘against the “wall of no compromise”.'”

We’ll let you know whether Mr. Weinbaum has to pay the School District’s legal fees.  If he does, it will be an important reminder that bringing a pro se lawsuit can be quite expensive, for defendant and plaintiff.  Common sense, and a good understanding of the law and of your adversary, are needed when deciding to bring or to continue any lawsuit.  

  In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.  Because she trusted him to be “objective” (having also had business dealings with him), Ms. Weiss asked “Can you help me make a will?”  Chavis agreed to help her with a simple will and “she directed [Chavis] as to how she wanted her property divided.”   His good deed resulted in a lawuit by her disgruntled heirs and, this week, in a finding that Chavis had engaged in the unauthorized practice of law [“UPL”].  See NYTimes/CNET, “Police blotter: Heirs sue over will-making software,” by Declan McCullagh, for News.com, Jan. 24, 2007; via Howard Bashman and Orijit Ghoshal)

What behavior, which was done without pay, won Chavis this condemnation?  According to the unanimous decision in Chavis v. Franklin (Supreme Court of South Carolina, Opinion No. 26251, January 22, 2007), he “used a ‘Quicken lawyer disk’ to generate a generic will on his home computer and he filled in the blanks.  He brought the will to Ms. Weiss on July 31 when he went to visit her in the hospital and she signed it.”  He also drafted a power of attorney for her (which the Court also deemed to be UPL). “The will names respondent as personal representative of Ms. Weiss’s estate but he is not a beneficiary.”    
 Quicken’s WillMaker Plus 2007    

Here’s the Court’s reasoning in declaring Chavis’ conduct to be the Unauthorized Practice of Law [emphases added]:

• “The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. [cite omitted]  Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence  . . . (“The amateur at law is as dangerous to the community as an amateur surgeon . . . .”).”
•   “The novel question here is whether respondent’s actions in filling in the blanks in a computer-generated generic will constitute the practice of law.  Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.  Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant.  There is no evidence Ms. Weiss reviewed the will once it was typed.  The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.” 
• “We construe the role of ‘scrivener’ in this context to mean someone who does nothing more than record verbatim what the decedent says.  We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

The Court also dropped a footnote [#5] emphasizing “The fact that respondent received no compensation is irrelevant.”  It went on to favorably cite a Connecticut decision that noted “a lack of compensation in fact makes the situation worse” — because “the public, through natural cupidity, are the more readily attracted to something which appears to be a ‘giveaway’ project or a chance to obtain ‘something for nothing. ”  Grievance Committee of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 351 (Conn. 1966).  How’s that for respecting consumers?

 Of course, it’s ludicrous to say that a nonlawyer volunteer who uses a proven product like Quicken (or a document preparation tool life LegalZoom), to help a friend with a simple will, is “as dangerous to the community as an amateur surgeon.”   Moreover, it is simply bad policy.  Rather than blindly apply old precedent to a modern context, this case would have been an excellent opportunity for the Court to bring the definition of the practice of law into the 21st Century.

As Villanova law professor Catherine J. Lanctot wrote in “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,” 30 Hofstra Law Review 811 (2002, 44 pp, pdf), those who wish to apply UPL enforcement against such software products or document preparers “must not lose sight of the broader implications.”  Not only are constitutional challenges likely, but :

“[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .

“In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service—basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.”

The Chavis opinion basically denies the benefits of digital technology to any consumer who needs assistance using the software or website.  (Note: the Court goes through the motions of looking at other factors, but then concludes that Chavis engaged in UPL because he played more than the role of a mere scrivener.)  In fact, Chavis would appear to apply equally to printed self-help books or forms.  So, forget about helping your old auntie or parent, the grumpy old man nextdoor, or your non-techie spouse or sibling — and don’t even think about volunteering down at the Senior Center.   It’s an outcome that could easily lead the public to conclude, as Prof. Lanctot says, that UPL is “yet another way for the legal profession to line its collective pockets at the expense of consumers”

  For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:

• “Nolo v. Texas — Self-Help Law and First Amendment Rights Protected” (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a decade ago to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [See Comment 2, below, for more details about Nolo v. Texas, as well as the battle over the ground-breaking bestseller How to Avoid Probate!, by Norman Dacey.]
• HALT’s UPL Project (where the legal reform group explains why the “unauthorized practice of law” should be limited to saying you are a lawyer when you are not.)
• The approach of the Federal Trade Commission and Department of Justice to defining the practic of law — Remarks to the ABA (2002)
• The postings and materials that are linked to f/k/a’s Unauthorized Practice page.

 California Gov. Arnold Schwarzenegger has included a civil right to counsel pilot project in his newly-submitted Budget 2007 – 2008.  Here’s how the California Budget website summarizes the proposal:

• Access to Justice Pilot Program – The Budget includes $5 million General Fund, on a three-year limited-term basis, to implement a pilot program in three Superior Courts to identify and provide representation to unrepresented litigants in a wide range of civil matters, including domestic violence restraining orders, family law, child support, paternity, unlawful detainer, and probate. This pilot program will improve the courts’ ability to handle its entire caseload and help relieve court congestion.
• Update (Feb. 6, 2007): Learn more about this Pilot Program in our follow-up post. 

The staff of the Brennan Center for Justice at NYU Law School says “The proposed $5 million pilot program would deliver funding on a three-year limited-term basis to provide counsel for pro se litigants in high stakes civil matters.”” (via Cyrus Dugger at TortDeform weblog, Jan. 19, 2007)  The civil right to counsel is a major focus of the Brennan Center’s Access to Justice program.  Last year, two staff members published “State Statutes Providing for a Right to Counsel in Civil Cases,” Clearinghouse Review Journal of Poverty Law and Policy, by Laura K. Abel and Max Rettig, July–August 2006 (26-pp pdf).  Here’s the introduction to that article:

“Over the past few decades, states have passed hundreds of laws and court rules guaranteeing the right to counsel in a wide variety of civil cases. These laws have received little attention and merit more. They are surprising in their number (in the hundreds) and in the many different types of cases they cover (family law matters, involuntary commitment proceedings, medical treatment, and many others). They also vary widely in the extent to which they ensure that the counsel provided is competent and effective.  In this article we give an overview of the statutes and rules.

“The genesis of state right-to-counsel laws varies. Some implement court decisions establishing a constitutional right to counsel in one or more types of proceedings.  Others implement federal laws requiring the provision of counsel to specific types of individuals, such as members of the military or Indian children facing removal from their parents. Still others flow from a legislature’s belief that providing counsel in a particular type of case is good social policy.

“Here we discuss the types of cases where a statute or court rule provides for a right to counsel and the extent to which state right-to-counsel statutes attempt to ensure that counsel is competent. A table of a cross-section of state right-to-counsel statutes follows.”

 Abel & Rettig put together a lengthy table showing state laws mandating (or giving discrection to appoint) civil counsel in many subject areas.  Of course, there may be additional laws or amendments since publication.
 

IN her biennial State of the Judiciary Address given to the 150 joint members of the State Legislature, Chief Justice Karla Gray called for the legislators’ help in “[meeting] our constituents’ needs for – and constitutional guarantees to – quality and reasonably timely justice.” (Newspaper Article, 1 page). Proposed items in the Judiciary’s 2007-2009 budget include:

$3.9 million to upgrade Information-Technology Systems across District Courts and Courts of Limited Jurisdiction

$1.6 million to address pay-equity issues amongst all court staff

~$400,000 for children’s advocacy programs

$300,000 to improve security in District Courts

$250,000 for additional staff to the Supreme Court

OF the $250,000 for additional staff, a portion would be used towards hiring a pro se law clerk who, along with an appelate mediator, would help “resolve a significant portion of [the Courts’] caseload.” House Bill 60 (HTML document, 2 pages) addresses the proposed Self-Help Law Program to be administered by the Supreme Court, enumerating a number of charges along with the bill’s purpose:

(1) providing all Montanans with user-friendly information about Montana’s civil law, courts, and legal system;

(2) providing state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services; and

(3) facilitating the efficient use of judicial resources in civil court proceedings that involve self-represented litigants.

THE bill details a $1 million appropriations note to provide education and resources for 2 years. Passed with unanimous, bi-partisan support by the 2006 Law and Justice Interim Committee which created the bill by order of 2005 Senate Joint Resolution 6 (HTML document, 2 pages); HB60 is yet to be heard by the House Judiciary Committee of the 60th Legislative Session. SJR6 coincided with the Legal Needs Survey of 2005 (PDF Document, 4 pages) conducted by the State Bar which concluded that approximately 83% of the 207,501 unmet legal needs of low-income Montanan Households receive no attention from an attorney. Chief Justice Gray was singing a very similar tune in her original testimony to the Law and Justice Interim Committee in 2006:

“Right and justice shall be administered without denial or delay. For families and low income people in your district, your constituents, my constituents, the people of the state of Montana, the need is huge. The access to justice community has leveraged every hour, every nickel, about ten times farther than anyone else anywhere in the country trying to address these issues. [Myself] personally, and the courts of this state, have nudged, cajoled, encouraged, and semi-coerced lawyers into meeting their professional obligation of rendering pro bono service and the Legislature can take it to the bank that the court will keep doing that, but the fact is, there are never going to be enough pro bono lawyers to represent every low income person in our great state who has legal problems and needs to get into court.”

SHE has given the people of Montana, and their legislators, time and time again her expert opinion on what the legal needs are for low-income Montanans. Chief Justice Karla Gray’s message of dire need has been championed repeatedly, only time will tell how many people in positions of power have listened; they have until April 27th.