Testimony of John S. Jenkins - Center for Professional Responsibility

Testimony of John S. Jenkins

AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON THE DELIVERY OF LEGAL SERVICES

 

Over the last several years, many entities of the American Bar Associa tion have addressed the question of how the profession could provide adequate legal services and equal justice to the American public. The Standing Committee on the Delivery of Legal Services is assigned the responsibility of encouraging the ABA, other bar associations and other legal groups actively to respond to the unmet legal needs of moderate income persons, to identity those unmet legal needs, and to develop mechanisms that better enable moderate income persons with legal needs to be served by practicing lawyers who are capable of meeting those needs in an affordable way. The Standing Committee has studied the needs of moderate income persons and has examined mechanisms for meeting those needs. The work of the Consortium on Legal Services and the Public has provided a great deal of background and information in this area. The work of the Consortium resulted in the publication of Agenda for Access: The American People and Civil Justice, Final Report on the Implications of the Comprehensive Legal Needs Study. This report was based in part on a major effort which is reported in the three volume Findings of the Comprehensive Legal Needs Study (Report on the Legal Needs of the Low-and Moderate-Income Public, Report on the Legal Needs of the Low-Income Public, Report on the Legal Needs of the Moderate-Income Public.) The major findings from the Comprehensive Legal Needs Study are reported in Legal Needs and Civil Justice, A Survey of Americans. The data have been collected and analyzed, and the major findings are well supported by the evidence collected. The findings are that most people facing situations that have a legal dimension do not turn to the civil justice system for help. The reason that people do not turn to the civil justice system are various, but concern about cost is certainly one of them. The kinds of legal problems most common among low-and moderate-income households are personal financial and consumer problems, housing and property issues, family and domestic matters, and community concerns. Households with incomes just above the line that qualifies them for publicly funded legal services report even more legal need than those with lower incomes.

The Agenda for Access suggested eleven steps that would make thecivil justice system more responsive to the public as it wrestles with legal problems. Among the steps are two which are particularly relevant here: 1. Increase the flexibility of the civil justice system, thereby expanding the options available to people seeking help with a legal problem, and 2. Develop better ways for people to obtain information about their options when facing a legal situation.

The Standing Committee has studied various means by which the legal needs of moderate income persons can be met. Some of these means take advantage of new technologies. One such mechanism is the telephone "hotline." The use of telephone "hotlines" - both for profit and not-for-profit - has provided a way to both "increase the flexibility ...of the system" and "expand the options available to people seeking help with a legal problem." It provides a way for "people to obtain information about their options... ."

A "hotline" is a Legal Advice and Information Service. It is a live interactive phone service in which callers can dial in and speak directly to a licenced attorney about their legal problems. There are many variations on "hotline" service, but, in oversimplified terms, it is a brief consultation about a specific legal issue.

There may or may not be a fee for the service from a not-for-profit hotline (one operated by a bar association or an organization such as AARP), and there is a fee with the for-profit hotline (a 900 phone number or credit card may be used.) The telephone hotline does, in fact, provide a method to meet the needs of moderate-income people.

Why, then, is there a still largely unmet need when such a vehicle exists for providing legal advice in situations where the hotline seems to be, at least in part, the answer? One of the reasons that many lawyers are unwilling to participate in a hotline program is the fear that they will subject themselves to bar discipline for providing the limited sort of legal advice that the hotlines are designed to provide.

The Standing Committee on the Delivery of Legal Services is of the view that hotline legal advice can be provided in a manner fully consistent with the mandate of the Model Rules of Professional Conduct. Model Rule 1.2 [c] provides that a lawyer may limit the objectives of the representation if the client consents after consultation. Providing legal advice via a telephone hotline clearly is not the same as providing advice in a more traditional setting. The objectives of the representation are very limited. The client is made fully aware of the limited nature of the representation and consents to it. The Standing Committee recommends that consideration be given to a recognition of the acceptable nature of the limited representation in the Rules and the Commentary. Such recognition would relieve lawyers of the concern that participation in the hotline program may result in charges of violation of the Rules and would provide moderate-income clients, and indeed all other clients, with an opportunity for affordable legal advice. It is suggested that Model Rule 1.2 [c] be amended by adding the following additional sentence: Limited objectives may be particularly appropriate in the case of moderate-income clients. The Comments under Rule 1.2 could also be amended under Services Limited in Objectives and Means by adding the following after the sentence dealing with representation through a legal aid agency: When providing representation to moderate-income clients, and to other clients, it may be appropriate, after consultation with the client, to limit the representation to providing brief advice such as that which may be available through a bar association, other not-for-profit, or for-profit telephone hotline service.

Such a change to the Rules and Comment would provide a recognition of the acceptability of the limited representation and would, the Standing Committee feels, encourage more lawyers to participate in providing hotline advice on both a pro bono and for profit basis. It would be fully consistent with Agenda Item #1 in Agenda for Access - increase the flexibility of the civil justice system and expand the options available to people seeking help with a legal problem - and would help meet the goal of Agenda Item #2 - develop better ways for people to obtain information about their options when facing a legal situation.

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