ALAN W. HOUSEMAN
ON BEHALF OF
CENTER FOR LAW AND SOCIAL POLICY AND
THE NATIONAL LEGAL AID AND DEFENDER ASSOCIATION
ON LIMITED LEGAL ASSISTANCE
February 1, 2000
The National Legal Aid and Defender Association (NLADA) and the Center for Law and Social Policy (CLASP) present this testimony to address the ethical issues raised by various forms of limited legal assistance which are being provided by civil legal assistance programs throughout the country.
NLADA is the national membership association of legal aid and defender programs in the United States, which includes the civil legal assistance programs funded by the Legal Services Corporation and by other sources. CLASP is a public interest law firm which serves as counsel to NLADA and its member programs on ethical and other issues affecting those programs. Last year, NLADA and CLASP formed an Ad Hoc Working Group of legal services program directors and other legal services staff to focus on Ethics 2000. These comments generally reflect the thinking of that ad hoc group as well, although that group has not reached final resolution on all of the difficult ethical issues involved in limited legal assistance.
While we will comment specifically on proposed rules before the Commission, our testimony will begin with relevant background information about the limited legal assistance activities in which civil legal assistance programs participate and set out the framework and broad principles which help guide our specific recommendations.
The Director of the Civil Division of NLADA and many of the members of our Ad Hoc Working Group were members of the Working Group on Limited Legal Assistance that prepared recommendations at the Fordham Conference in late 1998. We have attached the recommendations of that working group. We generally agree with those recommendations, some of which provided a key framework for our thinking about limited legal assistance.
BACKGROUND AND CONTEXT
Over the past decade, in response to changing needs, resources, political pressures and technology, and in recognition of the need to increase access to legal assistance, advocates providing civil legal assistance to poor people have begun to experiment with a variety of legal services delivery innovations. These innovations, many of which use new technologies not previously available to this community, hold the promise of providing useful information and assistance to far more people than previously. These innovations include (1) centralized intake, (2) brief advice and referrals over the telephone, (3) client education and self-help materials provided over the internet and (4) pro se assistance projects at court houses and other locations.
When the Model Rules of Professional Conduct were adopted by the ABA, the prevailing model for providing civil legal assistance was the neighborhood legal services office that saw clients from a certain geographic area and under a certain income limit. A client would come to the office during a specified "intake" period to be interviewed by an intake worker (either an attorney or a trained paralegal), after which time the attorney or the program would decide whether to take the person's case. In many cases, the client would then undergo a second more extensive intake-style interview.
Since the 1980s, two fundamental changes have occurred in the delivery of civil legal assistance. First, neighborhood legal services offices are no longer the only source of legal assistance for low-income people. Facing various income cuts, many programs closed or were consolidated or other sources of assistance were developed, including pro bono programs, individual attorneys providing pro bono assistance, law school clinics, and other public interest law firms or organizations, and in many cities or states, "boutique" practices exist to assist clients with particular types of problems, such as domestic violence, public benefits, immigration or homelessness , disabilities and children. These developments have created a confusing patchwork of services for potential clients who face frustration in navigating this proliferation of often small programs to locate the right place to obtain assistance.
Second, the civil legal assistance community now recognizes that the means of delivery must change in order to begin to address the huge unmet need for civil legal assistance. Legal needs studies, including the ABA Legal Needs Study, recognize that less than 20% of the need for legal assistance is being met. While increases in funding would help narrow the gap between need and access, the ABA Study and other studies recognize that the traditional approach to providing civil legal assistance through a neighborhood law office system alone will not be able to address the need. This is due in part to multiple intake interviews, combined with the need to consider whether the client's case fits within office priorities, functions which are very staff and time intensive. Moreover, the traditional requirement that clients arrive in person to explain their problem significantly exacerbates the obstacles to locating the right program. Many low-income people have little access either to cars or to adequate or affordable public transportation, and also experience difficulty obtaining child care for appointment times.
The major set of delivery innovations gaining wide acceptance nationwide is the creation of telephone intake and brief advice and referral systems. These systems are often referred to as "hotlines." As long as the caller meets some basic income eligibility, the hotline serves every caller. In some cases, the hotlines serve the intake function, resulting in a situation where a client receives full representation from a staff program or pro bono attorney. In other cases, the hotline provides limited legal assistance, either providing one-time advice and information or a brief service, such as making a phone call or writing a letter on the client's behalf, without actually taking on further representation of the client. In the remaining cases, the hotline at the very least provides a referral to an organization that should be able to help.
A special kind of hotline is the centralized or statewide hotline. Under this model, a particular region -- generally a state, but in some cases a city or other region -- has one hotline that handles clients from across the region. Often, these programs operate just the hotline rather than also running a full service legal services program. The hotline program trains its advocates in all the laws applicable in that state or region and produces client information materials that apply statewide. In doing intake or even just referrals, the hotline is able to help the client locate the right program from which to obtain assistance.
In many cases, technological innovations play a large role in the success of the hotline model. Obviously, it is important to have telephone systems that can distribute calls efficiently and minimize hold time or at least give the client an estimate of hold time (while some hotlines are really "warm lines," in which clients leave messages and receive a call back, programs that take at least some live calls need to concern themselves with hold times). In addition, some telephone systems can enable advocates to take calls from anywhere, rather than from a centralized office. This enables programs to use advocates who need to work from home, pro bono attorneys who can work from their own office, and others who need flexibility regarding work location.
Similarly, internet technology is also critical to efficient staffing of hotlines. Hotline advocates all need access to a common set of materials, including practice manuals, referral guides, and other information. By putting this information on an intranet or extranet, the program can update everyone's materials at once; this enables electronic searches of the materials, and enables advocates to access the materials from other locations (such as the pro bono attorney's office or the computer of the attorney working at home).
Generally, these hotlines treat the information provided by and the advice given to the caller as confidential. They explain what the hotline will and will not do for the caller and proceed to provide specific information in response to the caller's request only after the caller agrees (orally) about the limits of the assistance that the hotline will provide. The hotlines do not execute a written retainer agreement with the caller for brief advice or brief assistance provided over the phone. If the assistance to be rendered to the caller will be more extensive than brief service or advice, the caller will be referred to the regular program office (for hotline housed in a program) or to another provider for assistance. If the caller seeks assistance from the regular program, the caller would then execute a retainer and/or engagement agreement with the provider. Hotlines do check for conflicts at least with those who have previously contacted the hotline. Some hotlines also check for conflicts with the clients of the parent program, but few hotlines check for conflicts with clients of other programs to which callers would be referred.
In addition to hotlines, various providers, including hotlines, have begun to use the internet to provide client education materials to their communities. Although most of the client-eligible population does not have internet access at home, many have access through public libraries, community technology centers, public housing facilities, or even their children's school. One program that has provided information by internet for a couple of years now, Maine's Pine Tree Legal Assistance Program, reports that the number of times that client information is downloaded from their web site exceeds by factors of ten or more the amount of information that the program was able to distribute in printed form, even after correcting for the number of downloads that come from out of state or from non-client-eligible people.
Finally, a number of civil legal assistance programs have been providing brief assistance to pro se litigants through projects operating in local courts and other locations. However, many do not check for existing conflicts. Often program staff and supervised volunteers help pro se litigants fill out the paperwork for various types of proceedings (such as divorce or family law, evictions, and the like), answer basic questions about court room procedures and provide some basic information about the law. Frequently, these programs do not provide specific legal advice about the particular issue facing the pro se litigant, but they might provide general information about the legal problem. Pro se assistance programs conducted by legal services providers do treat information provided by the pro so litigant as confidential. However, many do not check for conflicts with existing program clients while they are on site at the court house.
FRAMEWORK FOR OUR COMMENTS
The current rules when drafted did not envision the strong movement toward limited legal assistance the profession is experiencing. The drafts of proposed rules, on the other hand, reflect an attempt to provide clarifying standards to lawyers who are providing or would like to provide limited legal assistance.
As we have noted previously in our correspondence with the Commission, we are reluctant to create a dual system of justice and access to justice for low-income clients. To the degree practical, our suggestions on the ethical rules do not seek to establish lower or different standards of representation for low-income clients. Rather, we prefer modifications to accommodate the area of limited legal assistance that would apply to all attorneys, not just those who provide legal assistance to the poor.
We agree with the distinction made in Recommendation 60 by the Working Group at the Fordham Conference between two categories of limited legal assistance: brief specific advice and assistance requiring a diagnostic interview. The distinction is important because the practical applications of the various ethical rules would vary for each of the two categories. The first category, brief specific advice, is defined by the Fordham Working Group as "answering a specific question or limited set of related questions without follow up or exploration by the legal services provider." For this very limited legal assistance, the Fordham Working Group recommends that the obligations to preserve confidentiality and provide competent assistance should apply as well as the duty to avoid conflicts appropriate to the context. Thus, under this category, it would not be necessary for the attorney to conduct a diagnostic interview prior to providing assistance. For example, a caller may ask what the local law is for registering a car for property taxes. The attorney provides a brief answer and tells the caller where to find and file appropriate forms.
The second category, Assistance Requiring a Diagnostic Interview, is defined by the Fordham Working Group as including all other types of limited legal assistance. Because of the increased complexity of the various types of legal assistance under this category, application of the ethical rules would require the attorney to conduct a diagnostic interview. The interview would help determine the appropriate course of action and help ensure competent representation and the avoidance of conflicts.
Currently, none of the proposed rules issued for comment by the Commission functions solely as a limited legal assistance rule. Rather, already existing rules include proposed revisions that would clarify each particular rule's application to limited legal assistance. We would encourage the Commission to consider ways to either consolidate or cross reference rule provisions dealing with limited legal assistance for the benefit of the lawyer seeking clarity on this issue.
COMMENTS ON SPECIFIC PROPOSED RULES
Definition of Informed Consent . Informed consent is a term used in various ethical rules, including Rule 1.2(b), the provision that provides express authority for a lawyer to provide limited legal assistance. Rule 1.2(b) requires an attorney to get the informed consent of the client before providing limited legal assistance. We support including a definition of informed consent and prefer placing the definition in the terminology section of the rules. We also support accompanying the definition with a comment similar to Comment 5 included in Rule 1.4, Draft No. 2, December 1999. In order to clarify the application of the term to limited legal assistance, we recommend adding language to the definition that would clarify that the term course of conduct includes the scope and means of representation. We also suggest adding language to clarify that informed consent is not required to be in writing unless otherwise specifically required by the rules. This change is necessary because it recognizes that requiring a writing would be largely incompatible with hotlines and other emerging systems providing limited assistance. The comment could explain that, while all of the rules requiring informed consent do not require that it be in writing, it is generally advisable to do so; however, when circumstances are not conducive to having written consent, it would be useful to maintain some record or acknowledgment of the consent.
Rule 1.2(b): Limited Legal Assistance (Draft No. 3, December, 1999). Rule 1.2 generally deals with the scope of an attorney's representation of a client. Proposed revisions to paragraph (b) of Rule 1.2 would expressly authorize limited legal assistance provided the client gives informed consent and the limited representation is "reasonable under the circumstances." There is some concern, as articulated in the comment by the Standing Committee on the Delivery of Legal Assistance, that the "reasonable under the circumstances" standard suggests that an attorney would need to probe and assess the client's circumstances far beyond that envisioned in a particular method of delivering limited legal assistance. If this is true, we are concerned that an attorney would feel compelled to conduct an in-depth diagnostic interview for every caller on a hotline or every person seeking help filling out forms in a court based pro se project. Others have argued that the standard is too vague and does not explicitly incorporate the requirement of "competent representation" under Rule 1.1. We recommend consideration of these concerns in light of the standard's practical implications for various forms of limited legal assistance.
Because of the lack of clarity regarding how the rules may apply to emerging systems of providing limited legal assistance, we also recommend consideration by the Commission of including discussion in either proposed Comment [5] or [6] that would provide a safe harbor for representation done pursuant to an attorney's good faith interpretation of a rule's application to limited assistance. This would be consistent with a comment to Rule 8.4 that provides that "[a] lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists." For example, Comment 6 could be amended to add something like the following:
The rule permits the lawyer to provide brief specific advice and more extensive but limited legal assistance to a client if the lawyer in good faith believes that the advice or assistance is consistent with competent representation and protects confidential information consistent with Rule 1.6.
Rule 1.1 Competence (December, 1999) . Proposed new language in comments [1] and [5] notes the relevance of any agreement between the client and the lawyer limiting the scope of the lawyer's representation of the client in determining whether the attorney has the requisite knowledge and skill to adequately represent the client and whether the attorney has adequately prepared for the representation. These comments also cross reference Rule 1.2(b). We recommend retaining this language.
Rule 1.3 Diligence (December, 1999) . This rule requires an attorney to act with reasonable diligence and promptness in representing a client. Comment [3] to Rule 1.3 clarifies that diligence requires an attorney to finish all matters undertaken for a client. However, it also states that, if the attorney's representation is limited to a particular matter, the relationship between the attorney and client ends when the matter is resolved. We are concerned that the term "matter" does not refer to limited legal assistance. We recommend consideration of language that would clarify that the rule does apply to limited legal assistance. The comment could include a provision stating that when the client agrees to limit the scope or means of representation pursuant to Rule 1.2(b), the relationship between the attorney and client ends when the attorney provides the assistance agreed to.
Rule 1.6 Confidentiality of Information (March 23, 1999 Public Discussion Draft). Proposed Rule 1.6 requires an attorney to protect a current and former client's confidences unless otherwise permitted by the rule. Nothing in the rule or its comments make any reference to limited legal assistance. The proposed new rule regarding duties to a prospective client (Rule 1.18) does specifically deal with confidentiality but not specifically in the context of limited legal assistance. Read together, proposed Rules 1.6 and 1.18 could be interpreted as applying confidentiality requirements to prospective clients with respect to information learned in the consultation, even if no client-lawyer relationship ensues; and to current and former clients with respect to information related to the representation of the client. The coverage of confidentiality in these two rules may be sufficient to cover all types of limited legal assistance. Our concern is that this matter be clarified. It may be advisable to make a cross reference to Rule 1.2(b) in one of the comments to Rule 1.6 to clarify that confidentiality applies when an attorney provides limited legal assistance.
Rule 1.18. Duties to a Prospective Client (Nov. 1, 1999 Public Discussion Draft). Rule 1.18, a new proposed rule, clarifies the duties of an attorney to a prospective client in the areas of confidentiality and conflict rules. It applies to the consultation stage when the prospective client and the attorney are considering whether to form an attorney-client relationship. The rule's focus is to clarify how the confidentiality and conflict rules apply during this period. The rule would apply to limited legal assistance if, for example, the consultation stage includes limited advice or the attorney takes custody of the prospective client's documents or property. In addition, it can be inferred from this rule, that if certain confidentiality and conflict rules apply even before the attorney-client relationship is formed, they would also apply to most forms of limited legal assistance.
We recommend adoption of this rule. However, we suggest adding clarifying language to paragraph (d)(2) that would provide:
(2) the lawyer who received the confidential information took reasonable steps to avoid exposure to more information than was necessary to determine whether to represent the prospective client and that the lawyer avoids communication of any confidential information to others and is screened as provided in Rule 1.1.
Conflict Rules:1.7 (Conflicts, general), 1.9 (Conflicts, former client) and 1.10 (Imputed Conflicts) (March 23, 1999, Public Discussion Drafts. Rules 1.7, 1.9 and 1.10 do not specifically address limited legal assistance. We believe that the Commission should adopt a separate rule that would deal with conflict issues in the area of limited legal assistance. We understand that some Members of the Commission are working on drafting a separate rule and we support this effort. At least in the context of representation by legal services programs, we want to ensure the following modifications in the area of conflicts.
For Rules 1.7 and 1.9, we suggest an approach that would exempt an attorney from being personally subject to these two rules when providing limited legal assistance to low income and elderly clients, if the attorney does not know or have reason to know that a conflict exists and the limited representation is otherwise consistent with the requirements of Rules 1.1, 1.2 (b), 1.3 and 1.6. This approach would ease the burden on hotlines, which generally provide brief advice and service to a large volume of clients, but do not always have the capability to identify conflicts of interest of which the hotline attorney is unaware.
We propose a different approach in the area of imputed conflicts. We suggest that the Commission consider exempting at least some forms of limited representation where there is no expectation of continuing representation, such as brief specific advice, from being subject to Rule 1.10, on the ground that the limited nature of the services provided would reduce the risks normally associated with an attorney associated with a law firm. A condition for providing the exemption could be that adequate safeguards are in place, such as screening and confidentiality mechanisms and full disclosure to the clients. Under the exemption, a conflict of interest that would otherwise be imputed to an attorney because of the attorney's association with a firm (Including a civil legal assistance provider) would not preclude the attorney from representing a client in a limited services program. Nor would the attorney's limited representation preclude the attorney's firm ( or legal services provider) from representing clients with interests adverse to the clients in the limited services program.
We look forward to providing specific comments on any proposed rule that addresses conflicts for a limited legal assistance practice.
Ghostwriting. We urge the Commission to give serious consideration to the issue of ghostwriting, a form of unbundled legal assistance which consists of "drafting pleadings and other court documents by lawyers for clients who go on to represent themselves pro se." Ghostwriting implicates Rule 3.3 (duty of candor to the court); 8.4(c) and (d) (conduct involving misrepresentation or prejudice to administration of justice); and 1.16 (withdrawal prejudicial to client), and local court filing rules. Some civil legal assistance providers and pro bono attorneys serving low income clients are providing pleadings and other legal documents to assist such clients in their own representation. Unfortunately, conflicting opinions have been issued by state bars, federal courts and commentators about the propriety of this practice. Because ghostwriting raises unresolved issues, such as whether it constitutes a fraud on the court or whether the attorney who provides ghostwriting services must make an appearance on behalf of the client, there is a need for clarity in a rule.
Although we are convinced that the Commission should adopt a rule clarifying an attorney's obligations when involved in ghostwriting, we are not yet prepared to propose a definitive resolution concerning the scope of any proposed rule There are competing considerations that should be taken into account which are reflected in the discussions among members of our Ad Hoc Working Group. For example, some members have commented that civil legal assistance providers will be chilled from ghostwriting if they must disclose the names of their attorneys. Others have argued that there are dangers to the administration of justice in not requiring disclosure. There also may be a need to clarify what documents would come under the term "ghostwriting." One suggested remedy to these issues is to adopt a rule requiring disclosure only of the fact that an attorney had authored the document instead of disclosing the attorney's name. A recently adopted Colorado rule takes a different route be requiring disclosure of the attorney's name and a Rule 11 certification but states that disclosure does not constitute an appearance by the attorney unless the attorney in fact appears at a proceeding for the client.
CONCLUSION
Legal services programs and pro bono providers are using new approaches to provide "limited" civil legal assistance to low income families and others, including (1) centralized intake, (2) brief advice and referrals over the telephone, (3) client education and self-help materials provided over the internet and (4) court house pro se assistance projects. These new approaches are going to increase over the next several years and take new forms in response to rapidly changing information technology. The Ethics 2000 Commission must focus on changes in the rules that will advance such means of increasing access to civil legal assistance, protect recipients of limited services and define the ethical responsibilities of the provider of these services without creating unnecessary ethical burdens. We have proposed a number of suggestions to assist you in this effort. We stand ready to react more concretely to definitive proposals as they are developed by the Commission.