Vol. 40, No. 3

Old problem, new solutions: Improving access to justice through innovation, collaboration

by Robert J. Derocher

With the country’s second highest poverty rate and the 12th fewest lawyers, per capita, spread out across the fifth largest state, New Mexico is faced with some daunting access to justice issues that required some unorthodox thinking, according to Ed Marks, executive director of New Mexico Legal Aid.

Enter, Neota Logic, a software technology solutions firm that is working with NMLA and Pro Bono Net to roll out a client self-help program in the next few weeks that is “sort of like Turbo Tax for legal aid intake,” Marks says. “It will be a one-step way for clients to seek help, instead of going to 10 or 12 different places.”

There were times when promoting technology or other nonlawyer sources of legal assistance to bolster access to justice initiatives was considered off limits for legal service providers, as well as for state and local bar associations, Marks and others say. That was well before the time of soaring caseloads, drastic drops in IOLTA revenue, and state and federal budget cuts to legal aid and other access to justice providers.

NMLA’s partnership with Neota Logic—supported by the State Bar of New Mexico—is one of several new or unusual approaches to access to justice that are being led or backed by state and local bar associations. Pro se assistance, unbundling of legal services and leveraged technology are increasingly becoming a more prominent part of bar efforts to promote greater access to justice at a time when such access is in greater demand.

‘A nontraditional take on a traditional module’

With just 37 staff attorneys handling 20,000 applications a year statewide, New Mexico Legal Aid has often struggled to help low-income residents meet their legal needs, Marks says. By combining with the online reach of Pro Bono Net and the technology applications of Neota Logic, the NMLA has developed a triage program that directs Internet users to the right resources, from self-help content to finding an attorney.

“It would give the person in a small town the same level of resources as a person across the street from us in Albuquerque,” Marks says. “An attorney 200 miles away could draft an emergency pleading to prevent an immediate eviction.”

NMLA attorneys will maintain control of the intake process, he adds, and will ensure that cases that are deemed appropriate for non-pro bono lawyers—either due to complexity or income—will be properly routed to them. That will allay some concerns from lawyers, he says, who fear the profession would lose potential clients.

“We’ll route them to the state bar referral system,” Marks explains. “We’re not going to be another LegalZoom or RocketLawyer. Our staff is making all the legal decisions.”

The Neota Logic/Pro Bono Net partnership also fits in with other technology efforts in New Mexico that are addressing access to justice, according to Aja Brooks, Coordinator of NMLA’s Statewide Pro Bono and the Volunteer Attorney Program. The VAP has developed a “Skype Clinic” that allows residents in rural areas of the state to go to a nearby library or community center and work with an NMLA representative who provides access to a Skype-loaded computer. The residents can then Skype with volunteer attorneys who have been matched with clients on referrals.

“It’s a nontraditional take on a traditional module,” says Brooks, who works with the state bar, the New Mexico Access to Justice Commission and other pro bono organizations statewide on the program. “We’ve found it to be very helpful.”

Assistance for pro se litigants

The groups also work together on a Civil Legal Clinic in the state’s two largest cities, Albuquerque and Santa Fe, where residents come in to work with pro bono attorneys, as well as a similarly structured Family Law Clinic that was just launched in October in Albuquerque. A main component of the Family Law Clinic is to provide attorneys who can help residents fill out court-required forms for self-representation.

“It’s one of the areas where there is so much more pro se, and they need more assistance,” she says. “Most of the people we’re seeing can’t even pay for all of their food and shelter. They can’t afford an attorney.”

Monthly legal clinics that emphasize pro se assistance are also a staple at the Toledo Bar Association, says Pat Intagliata, director of the bar’s Pro Bono Legal Services Program. They include: two Family Law/Divorce clinics (with and without children/custody issues), a Juvenile Court Clinic, and an Expungement Clinic aimed at helping people to clear their criminal records to find jobs. The original Divorce Clinic, she says, has been held once or twice a month for more than 20 years.

In each clinic, Intagliata is assisted by attorneys and law students from the University of Toledo College of Law, who direct income-eligible residents on how to file paperwork and perform other necessary functions for pro se representation. She also works closely with state and local judges who refer clients and help develop the forms.

“The judges love these programs,” Intagliata notes. “When the papers are filed, the court knows they’re done right.” Currently, the bar is discussing possible new clinics that will deal with patent and intellectual property law and consumer finance/bankruptcy.

Bar members, for the most part, embrace the programs, Intagliata says, with many “nontraditional” lawyers getting involved in pro bono. “It’s not our goal to take money from attorneys,” she adds. “There’s not a lot of excess money out there,” she says. “There are just not enough attorneys out there who can handle all of this.”

Pro se assistance is also a key element in the work of the Delaware Supreme Court’s Access to Justice Commission, established a year ago. The Delaware State Bar Association has been working closely with the commission on several fronts, including coordinating increased pro se assistance, according to Mindy Clifton, the bar’s president-elect. The commission’s Pro Se Subcommittee is exploring improved technology, the use of libraries as “pro se centers” and possible unbundling of legal services as self-help tools for underserved state residents, Clifton says.

The commission, which is chaired by former DSBA presidents Yvonne Takvorian Saville and Gregory Brian Williams, has also established subcommittees looking at funding, fairness and lawyer representation issues affecting the poor in Delaware. Several public hearings have been held, with more planned.

“The bar needs to keep a close watch on these issues, both for the public and the members we serve,” Clifton says. “We have a duty to look for trends and find answers.” Recommendations for potential judicial and legislative changes are expected in the next year.

Another hot topic: Limited-scope/unbundled services

A similar statewide effort has been in focus in Ohio for more than a year after the Ohio State Bar Association and Ohio State Bar Foundation collaborated with the Supreme Court of Ohio on a Task Force on Access to Justice. The task force report, released earlier this year, recommended 11 steps to improve civil legal justice for the poor, including: increased funding, limited-scope legal representation, improved Internet/technology access for form filing and education, and the establishment and promotion of self-help centers to assist pro se litigants.

OSBA President John D. Holschuh, other state bar representatives and legal service providers have been holding panel discussions across the state, talking to local bar leaders, judges, lawyers and other stakeholders about the critical access to justice needs in the state and the recommendations outlined in the report.

“We’ve worked with our local bars. We’re asking them, ‘What are you doing to address access to justice?’, Holschuh says. “We’ve encouraged them to work with their trial court judges. They can see where the need is.”

In addition to educating Ohio attorneys about pro se and how assisting those litigants can help unclog many state court dockets, the OSBA also plans to actively discuss the benefits of unbundling legal services, says Angela Lloyd, executive director of the Ohio Legal Assistance Foundation. Unbundling is already allowed in the state, she says, but is rarely put into practice.

“There are so many people out there who are pro se,” she says, adding that limited-scope representation can help address their needs. “We’re just embarking on that conversation of what unbundled services can look like.”

A similar exploration of unbundling is also being promoted by the Maryland State Bar Association. Unbundled services there were approved in July 2015.

“It did have some heartburn associated with it from members, but more from the view that you can’t just leave a case hanging sometimes with limited-scope representation,” says Kathy Howard, an MSBA past president.

(Note: For more information specifically about unbundling, see "Unbundling: The bridge between going it alone and full representation," also in this issue.)

Bar involvement is critical

The MSBA will continue to be active in access to justice issues, Howard says, as a new statewide access to justice board with a new executive director is taking shape in Maryland.

Such bar involvement in access to justice issues is critical if such initiatives are to be successful, Howard and other bar leaders say.

“It’s in our communities’ best interests to make sure that people have the help they need to maintain themselves,” says the OSBA’s Lloyd. “[For bar associations], it’s going to take education. It’s going to take more pro bono work.

“It’s going to take a willingness to brainstorm about ideas that go back to unbundling and other innovative services. We have to keep talking to people.”