October 05, 2011

Oral Testimony of Wayne Moore - Center for Professional Responsibility

Oral Testimony of Wayne Moore,
Director of the The Legal Advocacy Group
for the American Association of Retired Persons (AARP)


The last speaker of the day was Wayne Moore, Director of the The Legal Advocacy Group for the American Association of Retired Persons (AARP). In charge of AARP’s legal programs he has been involved for the last 20 years with the issue of accessibility of legal services to low and moderate-income people. He recognized Joanne Garvey’s involvement with these issues over this same time. In the late ‘70s he was involved in establishing a pro bono program funded by a Legal Services Corporation that began the pro bono movement and he then got involved in legal hotlines. Today there are 20 statewide legal hotlines for seniors and many legal aid programs are converting to legal hotlines. His latest endeavor is a discount legal services program for AARP members. In his attempts to deliver legal services in ways that reach more people he has discovered that rather than the biggest problem being that people can’t find the lawyer they want or can’t afford the one they find it’s that people don’t look for lawyers in the first place when they have a legal problem. He discussed the 1994 ABA Legal Needs Survey that corroborated his earlier surveys of people age 45 and older in finding that people found the lawyer, the legal help they needed. The 1994 ABA Survey found that 88% of the time the moderate-income person and 82 % of the time the low-income person linked up with a lawyer. In the 1996 New York State Bar Association survey 91% reported that they never had a problem finding a lawyer when they really needed one. The other figures in the ABA survey tell the bigger picture - 61% of moderate-income and 71% of low-income people who could benefit from an attorney’s services did not consider using one - that people have opted themselves out of the market for lawyers. He identifies two reasons. One, they sometimes don’t see their problem as a legal one, and two, they balance the severity of the problem (for instance, a criminal vs. a consumer matter) against the cost and convenience of finding a lawyer. He sees a MDP as a useful approach to this bigger picture problem on two levels. If the person seeking advice goes to someone associated with a lawyer and it turns out to be a legal problem the referral is a very useful process. He used the example of going to Social Security where the client likely would not be told he or she needed a lawyer compared to going to a social or community worker who would more likely make that link to a lawyer. Also the 1994 ABA Survey indicated that in 12 percent of the cases a moderate income person, instead of going to a lawyer, went to a third party and in 10 percent of the cases they went to both a lawyer and a nonlawyer to resolve the problem, so the gateway function would provide an access to legal services that currently doesn’t exist. Another example of this is the legal hotline whose callers said 41 percent had had problems finding a lawyer (as compared to the 10 percent identified in the ABA survey) indicating the hotline was attracting people who weren’t getting in touch with lawyers in other ways. He used another example to explain how a person may be nervous about going to a lawyer’s office. AARP conducted a seminar on powers of attorney and their benefits that was originally presented to 3900 people that at the end gave out an 800 AARP number that would put the caller in contact with an attorney in his or her community who would agree to execute a power of attorney for $45. Over a two year period ten people called that number. The balancing of a simple service and going to a lawyer’s office with its possible entanglements almost always came out in favor of not calling. AARP added a second part to the seminar that consisted of a session with a lawyer on-site (with notary) walking the client through the document so for $15-$20 a client left with an executed document. Two to three thousand documents were easily prepared at these seminars. It was a simple change in the delivery mechanism - the seniors knew they would be with other people and would get what they came for at a cost they expected. The latest AARP initiative is really just a discount program that screens the lawyers who, in exchange for AARP recommending them to members, offer a discount - free initial consultation and 20 percent off the lawyers’ normal rates. AARP clients are asked two questions - 20 percent said they had needed legal help and couldn’t find a lawyer (a little higher than the ABA survey) and 60 percent said they had had a problem that would have benefited from a lawyer’s help but did not consult a lawyer. Again people who really could use lawyers but don’t were identified. A lot of these people, especially in the elderly community, go to other problem helpers. He gave as examples of industries that have emerged such as: case management/social work intervention services (they screen and make provisions for needed services for the elderly who have become incapacitated in some way), money management services, complaint letter writing or medical bill assistance. People’s tendency in the balancing act is to start cheap and eventually identify if there is a real legal problem needing a lawyer. Regarding safeguards Mr. Moore believes that confidentiality would need to be maintained and that unless the client waives confidentiality the attorney would need to keep secrets from his or her nonlawyer partners. He thinks conflicts is the more problematic issue, especially imputed conflicts. If the attorney doesn’t have information that was exchanged in the other advice transaction and proper efforts are made to ensure there is no conflict he thinks the hotline should be allowed to serve both sides. In legal services he says there is an identified need for a state plan by which providers coordinate intake to assure a client isn’t being bounced from Program A to B to C. However bringing intake together creates a bigger conflicts problem than separate referrals so he suggests some relaxation, some simplification, of the conflicts rule.

Professor Daly began by questioning the extent of the telephone advisement and was told they take the position that the hotline call establishes a traditional attorney/client relationship. Anything beyond a simple matter requiring minimal research gets referred out, possibly to another program or in-house staff attorneys, if available. Asked the husband/wife divorce hypothetical with the hotline being run by a law firm Mr. Moore responded that if the computer check identifies a conflict the firm or hotline refers out the second client because of the conflict rules. They would prefer to establish a conflicts hotline attorney on a segregated data base to handle these matters but uncertainty as to how the ethics rules might be interpreted has prevented that arrangement. Professor Haddon, recalling that Mr. Bolger said the Commission had not deeply enough explored the legal service delivery possibilities under the present ethics rules, asked Mr. Moore if he needed a fully integrated MDP (Model 5) or would a contract-affiliated arrangement (Model 4) suffice? He acknowledged that informal referral has been going on forever. His experience as an innovator in legal services has shown him that change involves bending the ethics rules and although her question comes down to half a loaf or a whole loaf he favors the broadest possible changes that protect clients. Asked how to make sure the client knows what he or she is getting, Mr. Moore talked about a joint data base and disclosure of the fact of a conflict and precautions being taken, if appropriate. He agreed that if the rules that otherwise protect people were relaxed it would be helpful to educate the client about an MDP and the kinds of confidences that might be protected with respect to a lawyer that might not be protected with respect to other people. Both Ms. Katz and Ms. Lamm extended appreciation for his innovation in providing legal services. Mr. Traynor asked if there wasn’t an analogy for the hotline conflict in the criminal defense area where the public defender’s office in the case of multiple representation refers a defendant to the conflicts panel. Mr. Moore said that’s actually how most pro bono started in legal services as the initial panels were all conflict panels. He explained they do refer people out but it is not very efficient to refer an advice only case to a private lawyer; because of the intake packaging involved it’s a very poor use of volunteer time. He responded it was a real guess on his part when asked by Mr. Rosner what led him to believe that the existence of multidisciplinary firms of professionals that include lawyers will increase the middle-income public’s use of lawyers when needed. It’s his belief that people with legal problems are seeking other avenues of redress either because they don’t know a lawyer can help or they’re afraid of lawyers. Evidence shows that people’s perceptions of lawyers are much worse then their experience when they actually go to a lawyer so the thought is a trusted third party to whom they go initially directing them to the lawyer might help. Mr. Moore thinks flexibility is a win-win, the client gets the right services that they need and the lawyer gets more business. He mentioned the lawyers charging $80/hour and willing to bill flat rates and the clients who would love those arrangements who are not connecting with each other. Judge Bradford referenced his home state of Maine and its legal hotline in his follow-up inquiry about the 60 percent of people who thought they could use a lawyer but decided not to and whether any referral mechanism for these people was possible. Mr. Moore (who helped in the initiation) said many of the people calling the Maine legal hotline are those who in the past wouldn’t go to a lawyer. He said he first realized when he came to AARP that when a member said "I need legal help" he had only two options - send them to legal aid if they were potentially eligible or to a lawyer referral; he said he wasn’t allowed at the time to make a referral to a specific lawyer. Assuming that whatever the Commission recommends is in error Dean Powell asked for Mr. Moore’s guidance on whether the Commission should err on the side of being too protective of AARP constituents or letting them take the risk. Mr. Moore would recommend flexibility in the delivery of legal services and would address the additional risks by ensuring other rules such as marketing or advertising rules or fraud provisions or disclosure requirements were met. Dean Powell said that confidentiality and conflict of interest rules have a certain paternalistic aspect to them in that they exist in large part to provide clients protection that they do not fully understand why they should have. Mr. Moore supports the confidentiality strictures but thinks the conflicts rules are really based on old delivery methods as they made sense when legal services were delivered by lawyers as law partners or solos (with nonlawyers working for them) and the changing constructs of free delivery of legal services in the last 20 years continually bump up against these rules. His example, however, came from the UPL arena where an AARP staff attorney claimed he couldn’t continue to provide free legal services to AARP members because AARP is a corporation and in representing third party members he was engaged in abetting the unauthorized practice of law; AARP had to get expert counsel on how to deal with this issue even though it was a nonprofit providing a free service. Mr. Moore explained to the Chair that the hotline is not limited to members (in fact some members are not eligible to use the hotlines) but is available to anybody 60 and older. The discount legal services program is only available to members.