Happy New Year! Welcome 2014

It’s been a really good year for South Carolina Access to Justice! Below is our newsletter that highlights a few items we’ve been working on.

SCATJ Newsletter End of Year 2013

Happy New Year Everyone!

~rfw

Massachusetts Releases Interim Report on Access to Justice

Just last month, the Massachusetts Court System released its  Interim Report on Access to Justice Initiatives (Massachusetts), specifically initiatives in the Trial Court. This initiative is not to replace the work of their Access to Justice Commission, but to enhance it, as noted in the report itself.

Much of their work mirrors what we in South Carolina are doing.

They are reviewing progress in other states:

  • looking at developing forms and interactive websites for self-represented litigants;
  • reviewing implications and feasibility of limited scope representation aka unbundled legal services;
  • exploring ways to develop court service centers;
  • increasing access to the courts for those with Limited English Proficiency (LEP).

They are reviewing challenges within their current system:

Their consensus? Action toward providing:

  • services for court users with limited or no English language skills, including staff who can speak and read other languages,
  • instructional materials in other languages, and court forms in other languages;
  • technology, including wireless (internet) access in courthouses, MassCourts public access, and court forms that can be completed on-line;
  • self-help centers and materials; and
  • child care centers.

What’s fascinating? This came about through a survey to court personnel. Often we hear that the government is full of bureaucratic red tape.

What’s encouraging? That this very government is working to make the process easier for us to navigate – during a time of economic crisis.

Kudos Massachusetts! We’ll be watching your progress and wish you well throughout the process.

-RFW

12/10/09: Desa Ballard

Earlier I mentioned that I attended and spoke at the Lexington County Bar’s Annual Conference last Thursday. Among the presenters were The Honorable James O. Spence, Master-in-Equity; Desa Ballard, Private Attorney; The Honorable Richard C. Collins, Magistrate;  The Honorable Daniel R. Eckstrom, Probate Court; and me.

In a previous post were notes I made from Judge Spence’s presentation. This post will cover notes from Desa Ballard’s presentation.

Now, if you’re an attorney practicing in South Carolina, you’ve probably heard of Desa – via the Advance Sheets. A quick Google search turns up a good many instances in which Desa is counsel in Attorney Discipline cases. Often when Desa speaks, people listen. She offers good advice and ethical guidance.

After Judge Spence offered his words of wisdom, Desa referenced that when working with SRLs, we need only reference familiar material – the book “All I Really Need to Know I Learned in Kindergarten” by Robert Fulghum – specifically PLAY FAIR.

Of particular note, she mentioned that most of her discipline cases begin with a notion of fairness or lack thereof. In most instances, the aggrieved party alleges that they were not treated FAIRLY. And, if the attorney has no objective witness (i.e. court reporter) to substantiate what was said, the case becomes very complicated very quickly.

Desa noted that there are two standards for SRLs – criminal and civil. In criminal courts, there is an absolute right to represent oneself. In some instances, courts will appoint “stand-by” counsel. She noted that these appointments should not be entered into lightly. Point of reference – a 2007 ABA Advisory Opinion directly on point. The attorney owes a duty to the system, with very limited obligations to the “client.” In fact, the attorney is expressly prohibited from interfering with the SRL’s decisions of how to represent himself.

She referenced Rules 4.2 and 4.3; noting that attorneys should refer back to them to make sure we understand our role. Rule 4.2 is especially important when attorneys are representing ourselves or our friends. Rule 4.3 helps us clarify our role when we are representing our clients against self-represented litigants.

When Desa mentioned “ghostwriting,” a popular topic recently, she emphasized that we, the attorneys, are the ones who are supposed to be objective AND professional. Additionally, we can and should refer back to rules to ensure that we are acting appropriately within our ethical guidelines. After all, as attorneys, we are bound by ethics!

-RFW

M-States & SRLs: Montana & Massachusetts

DIY by any other name
DIY by any other name

In Massachusetts they call it Limited Assisted Representation or LAR.

In Montana they call it DIY Legal Assistance.

I call it good job.

From early on at the SC Access to Justice Commission, I’ve been exposed to pros and cons of having people represent themselves in court. For the most part both sides have presented thoughtful, articulate and well-reasoned arguments for their side.  And both sides have their share of passion; both positive and negative.

Some Commissioners and I have been accused of trying to take away business from hard-working attorneys because the Commission is working on self-represented initiatives.

On the other hand, the Commission received information during the public hearings that many people were already representing themselves – without success.

Regardless of which side you favor, the reality is that more people are showing up in court without legal representation.

For many, it’s because they simply cannot afford to hire an attorney or they cannot find an attorney willing to represent them.

For others, it’s simply their choice – for reasons unknown. 

  • Maybe they can afford an attorney but prefer to spend the money on a vacation or a new pair of shoes.
  • Maybe they believe they are as smart as any attorney, so why should they pay.
  • Maybe they had a prior bad experience when they hired an attorney and want to avoid that at all costs.
  • Maybe the issue is straightforward and they can represent themselves.
  • Maybe their neighbor told them that they had a positive SRL experience.

We may never know why.

But we can prepare our court system.

  • We can train judges and court personnel.
  • We can set reasonable expectations.
  • We can develop forms and videos to familiarize the public with the court system.
  • We can ensure that new form development reflects PLAIN LANGUAGE principles.
  • We can work with attorneys to develop innovative and affordable services as well as discuss effective ways to work with a self-represented litigant.

In the meantime, we can look at innovations and practice by other states. Other states such as Massachusetts and Montana.

-RFW

Latte and the Law

LATTE -n- LAW: legal assistance for middle class

java-and-justice-3

While many of the posts here have focused primarily on people living at, below or slightly above federal poverty guidelines, there are many more people unable to adequately access legal assistance or the civil court system due to prohibitive costs. And the numbers are rising.

According to a Los Angeles Times article “an estimated 60% of Americans find themselves in the gap between those poor enough to qualify for publicly funded Legal Aid and those wealthy enough to afford an uptown lawyer.”

And at storefront law offices like Santa Monica’s LegalGrind, a cafe-legal clearinghouse, those facing court dates to deal with divorce, custody matters, driving offenses and debt can find out for $45 how best to tackle their problems without plunking down a $5,000 retainer and $400 an hour for a lawyer.

One of the proffered solutions is unbundled legal services. Another is additional online resources. Yet another is more Pro Bono service.

Latte and the law – a solution for all of us?

-RFW

Unbundled/Limited Scope Rep picking up Traction

Information out of Downey, CA:

downey-ca-map2

On Friday, March 6, 2009, The Downey Patriot posted an article by Steve Lopez, an attorney licensed in California. Excerpts from the article:

With legal fees this high and unaffordable for some people it is not surprising that about 80 percent of people in California represent themselves in civil family law cases — such as divorce, custody and domestic violence cases — according to the Self-Represented Litigation Network. In San Diego alone, the number of divorce filings involving at least one person not represented by a lawyer rose from 46 percent in 1992 to 77 percent in 2000.

The result also leaves the Courts absolutely inundated with people who do not understand the procedures.

In an effort to protect people’s rights while keeping costs reasonable, unbundled or limited scope representation may offer a solution for some. Lopez addresses the need for communication, clear and direct communication between the client and the attorney.

The article is well worth reading, especially for us South Carolinians.

-RFW

It’s Time. Time to Talk about UNBUNDLED Legal Services.

Unbundled Legal Services

aka Limited Scope Legal Representation

If you’ve been watching the news lately, you’ve noticed we appear to be in somewhat of a fiscal crisis. A meltdown. A mess. A recession.

Sure, sure. But what does that have to do with the law? Well, it seems that with this financial hiccup, this financial blip, this financial snarfle has profound impact on the daily lives of individuals. The impact results in loss of jobs, loss of homes, loss of medical insurance, loss of transportation, destroying marriages in its wake, affecting many.

Much of the loss involves court action – unemployment actions, foreclosure actions, bankruptcy and collection filings, divorce actions, etc. In the past many of these individuals would seek assistance from attorneys who are well-versed in the laws affecting their clients.

This is NOT occurring in this era of Judge Judy, Judge Joe Brown and other DIY shows. Instead people are flocking into courtrooms themselves, without expert counsel. These individuals may be called Self-Represented Litigants (SRLs) or Pro Se Litigants or Pro Per Litigants. In this blog you’ve seen reference to SRLs.

Well, why is this worthy of a column?

  • Because unfortunately many of these individuals are heading into court thinking that they operate similarly to what has been shown on television and that is generally NOT how the court operates.
  • Because many are heading into court not understanding the consequences of the litigation.
  • Because many do not understand the court rules.
  • Because many do not know where to even FIND court rules.
  • Because attorneys have this knowledge and are not able to share their knowledge because of the perception of high costs.
  • Because this will lead to even more barriers to justice which will lead to greater perception that the courts only help people or companies with lots of money.

And that pains me. And it pains many of my attorney friends.

Sure, there’s always a greedy attorney joke out there. About an Ambulance chaser. About a Scheister/Shyster.

Go ahead. Tell the joke, even if it’s in your head. Laugh or chuckle a bit. Then come back to this blog.

Welcome back. Contrary to all you’ve read or heard, MOST, MOST, not all, but MOST attorneys enter the profession to help. It may be to help a specific person – maybe a family member. It may be to help a group of people. And, if you think about it, law and attorneys function precisely TO ASSIST.

Which leads to my attorney friends.

BIG DISCLAIMER: I AM AN ATTORNEY. MY HUSBAND IS ALSO AN ATTORNEY. MY COUSIN IS AN ATTORNEY. MY BROTHER HAS HIS LAW LICENSE.

I have many friends who are currently practicing law. Some are practicing in large firms. Others are solo practitioners. Yet others are government attorneys. And many of them work for non-profit legal service entities.

And we’re all talking. (ok, attorneys do love to talk) We’re all talking about the economy. We’re talking about most of us would not be able to afford to hire ourselves. This is where we all have the nervous giggle, no more of a titter.

It’s true. That’s why I say, it’s time to seriously consider UNBUNDLED LEGAL SERVICESThe term refers to a broad range of discrete tasks that an attorney might undertake such as: advice, negotiation, document review, document preparation and limited representation.

This will not abate the current fiscal crisis, but it may help people as they enter the civil legal system. Any other ideas? Anyone?

-RFW

To read about Unbundled Legal Service in Canada recently in the news, click here.