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Vol. 29, No. 2

New Approaches, Changing Rules : Help for the Moderate Means Client

by Robert J. Derocher

Texas District Court Judge Lora J. Livingston doesn’t keep statistics, but she has no trouble telling that the face of civil legal services is changing.

“I see more and more people representing themselves. I’ve had a case where both sides in a divorce were pro se,” she says. “Changes in our system will be necessary, even if nothing is done right away. More and more people can’t spend $300 an hour for a lawyer. People can’t afford lawyers.”

While millions of dollars are raised and budgeted annually for civil legal service programs for low-income individuals, the same can’t be said for those of moderate means. Their income is too high for many of the poverty thresholds set by state and federal programs, yet many are unable to afford the fees lawyers command.

But changes are beginning to take hold, Livingston and others say. At least six states have developed rule changes to allow attorneys to provide limited-scope representation—also known as unbundling of services—for clients willing to take on many legal chores themselves. Several other states have also looked at the issue.

Bar associations are among those examining limited-scope representation, from setting up committees to explore it to fostering programs designed to give those of moderate means better access to civil legal services.

As chair of the ABA Standing Committee on the Delivery of Legal Services, Livingston believes bar associations are “uniquely positioned” to provide an even greater leadership role in this area. Although questions of liability, ethics, and legal preparedness linger for some lawyers and judges, it’s time, Livingston says, for bar leaders to play a more active role in helping more people gain access to “the courthouse they’ve helped to build with their money.”

‘Gumming up the system’

“There’s certainly a problem out there [for moderate-income people],” says Tom Gordon, senior counsel for HALT, an organization dedicated to reforms in the legal system. “The best that many moderate-income people can hope for is a sliding-scale discount from their attorneys.”

Studies over the last five years in states such as New York, California, Texas, Maine, and Massachusetts all show the demand for civil legal services for people of moderate means. Those reports also show one of the prime responses to that demand has been the growth of pro se litigation. A combination of frustration with the legal system and the rise of the Internet has given many people an avenue to get to court—especially in areas such as divorce, child custody, bankruptcy, and landlord-tenant issues.

But because many are unfamiliar with the court system and the law, pro se representation is “really a burden on the courts, particularly in family law,” says Denis Murphy, director of Civil Justice Inc., a program at the University of Maryland School of Law that links moderate-income residents with recently admitted lawyers. “It’s gumming up the system.”

The university is one of about 10 law schools in the country in a consortium that provides varying degrees of legal assistance to people of moderate means. In Maryland, Civil Justice serves as a hub for about 50 solo and small-firm practitioners who are willing to take on cases at a discount for people of moderate means. “They’re people whose incomes put them above the levels of free help but who don’t have the resources for representation,” Murphy says. Most referrals come from providers of services for low-income clients.

In exchange for negotiating lower-than-average fees with clients, the attorneys in the network receive mentoring and office assistance (discounted Lexis service, for example) from Civil Justice, while also networking on a regular basis and gaining valuable legal experience, Murphy says. The program is growing in Maryland, he notes, with 10 attorneys added in the last year and referrals running at an average of two to three a day. The hope is that other law schools will also see the benefit of the program and set up their own networks.

“I think we’re helping in some way,” Murphy says. “Our one problem is that we have a hard time figuring out what the impact is. Maybe if we did, we could get more funding. Anecdotally, the feedback has been very good.”

Unbundling it all

One of the keys in helping clear the bottleneck in pro se litigation, Livingston and others say, is the unbundling of legal services to allow attorneys to offer limited representation. Such services would not only reduce client costs, she says, but would also lead to fewer surprises for clients—and judges—in the courtroom.

“Attorneys who are assisting pro se litigants are able to catch potential problems long in advance,” Livingston says. “It benefits my docket, because things move more quickly through the system.”

While unbundling is not a new concept, according to Livingston, many states would need to make changes to their rules of practice in order to ease the ethics and liability concerns of many attorneys. Issues include how much work an attorney will do on a case, and what will happen if a client makes a mistake. “[Our standing committee] is working with a number of states to act as a resource to help promote changes in rules,” Livingston says. Besides the half-dozen that currently allow unbundling, at least 11 other states are examining the issue, she adds.

The committee is also appealing to bar leaders for help. “We’re trying to educate bar leaders about the work of our committee and promote the concept of unbundling,” she says. “We’re encouraging innovation in the delivery of civil legal services.”

Also calling for innovation, via unbundling of services or informing pro se litigants, is ABA President Robert J. Grey Jr. In a recent Bar Leader interview, Grey said guiding those who want to perform some legal tasks on their own is a way to free up the court system and also let the public know that when they do need assistance, they can trust lawyers to help them (see “An interview with Robert J. Grey Jr.,” September-October, page 19).

Help is on the line

One place where limited-scope representation has taken root is in California. And one bar that has embraced the concept is the Contra Costa County Bar Association, whose legal referral service was the first in the state to offer a moderate means program, as well as a program catering specifically to unbundled services. The programs helped the bar earn the Cindy A. Raisch Award, given by the ABA Standing Committee on Lawyer Referral & Information Service to recognize superior service in public service-oriented lawyer referral and information programs.

The CCCBA’s Moderate Means Program is limited to family law, which is by far the area with the most demand for such clients, says Lisa Graves Reep, the bar’s executive director. LRS screeners determine a caller’s eligibility and scope of problem and then make a referral to panel members who have agreed to take on cases for below-average fees. With the Unbundled/Limited Representation Program, callers are referred to family law attorneys willing to consult with clients or to offer limited legal services.

The programs, launched over a year ago, were nearly derailed when the bar’s liability insurance carrier threatened to drop coverage because of the risks involved. “Everybody got scared, but we decided that somebody needed to step forward to help, and we were willing to take the risk,” Reep says. “Fortunately, they didn’t drop our coverage or raise our rates.”

Since then, the bar has received several calls from other bar associations, seeking information on how they can set up similar services, she adds.

In Contra Costa County, judges have praised the programs for speeding up pro se cases, while clients have been mostly happy with the outcomes, Reep notes. Some lawyers on the unbundled panel have also reported that some limited-scope cases eventually led to full representation cases. And as additional encouragement for panelists, the bar has refunded fees for those who participate in a three-hour training program.

Mixed feelings

In addition to helping moderate means clients find limited-scope legal assistance, some bars also make information and forms available for those who want to go it alone. Wyoming is one state that has used both approaches, and results have been mixed, says Leigh Anne Manlove, executive director of the Wyoming State Bar Foundation. The state ethics rules have changed to offer more protection for attorneys taking limited-scope cases, and the state recently provided the public with access to pro se forms for family law cases. A committee that included lawyers, judges, and Manlove herself developed the plan to provide the forms.

“It was extremely upsetting to some of our members, who felt that we were literally taking food out of the mouths of their families,” Manlove says. “Attorneys are conservative here.”

Early indications show that while many citizens paid $10 to obtain the packets, a relatively small number of people have actually used the forms to pursue pro se cases, Manlove says.

In New York, a report by a New York State Bar Association committee offered mixed recommendations on unbundling. While the committee backed “simplified case resolution” that would allow limited-scope representation in transactional cases involving less than $75,000, the committee recommended against such representation in litigated matters.

The voluntary simplified case resolution would have “encouraged all parties to accelerate disclosure. We tried to remove the maneuvering,” says Frank Headley, the bar member who oversaw the committee report. “We thought attorneys should be permitted to prepare pleadings without appearing.”

But in its report issued in late 2002, the committee wrote that limited-scope representation in litigation matters “would raise too many risks of prejudice to the administration of justice, as well as invoking substantial competence concerns.”

The simplified case resolution proposal was endorsed by the bar, but has yet to make it out of committee in the state Legislature, due in part to opposition from many of the state’s trial lawyers, who, some say, fear a loss in business. No action has been taken regarding further unbundling of services, but Headley says pressure from the state’s judiciary may lead to further discussions. “Family law and housing matters are overwhelming the court system in New York,” he says. “We need to make more attorneys aware that [unbundling] is an issue on the table.”

Counting on the bar

While Livingston is pleased to see that the issue of unbundling is still on the table in New York and other states, she is also concerned that action might not come fast enough to address the continued explosive growth in pro se litigation, as well as the widening gap between a person’s resources and his or her ability to access the legal system. But she does see the tide changing.

“There are still courts and judges who want to see the lawyer who prepared the paperwork. They don’t have a lot of patience for people who aren’t as versed in the law as lawyers are,” she says. “But I think that attitude is changing. They’re seeing the benefits of assisted pro se programs.”

She also hopes bar associations play an increasing role in attitude shifts as well, whether it be lobbying state legislators for rule changes or promoting unbundling options to the public.

“There’s a lot of education that bar leaders can provide, in their speeches, in their workshops, and in the CLE programs they provide. Bar associations are great teaching venues,” she says. “We need to be creative about a comprehensive delivery of civil legal services.”

It is recognition, she says, that times have indeed changed in today’s legal system.