Monday, October 25, 2010

A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 4 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In the first three parts of this series of posts commemorating Pro Bono Week 2010, I described the extent of the unmet civil legal needs (Part 1) of low-income families in the U.S., the need for a stronger public+private partnership (Part 2) to address that need, and ways that you and your peers can help (Part 3).

This final post lays out a type of wish list of actions that can help private lawyers help more often and includes a new video (at the end). But first, let me tell you about one case I will never forget.

A Client Story

Some years ago, I took the application for legal aid from a couple of elderly women. They were the pastor and a decon of a small, poor, inner-city church located in a very low-income part of town and they had a bunch of documents with them. As I looked through their documents, I saw right away that the church had been sued by a carpet business to collect on its unpaid invoice and establish a lien on the church's only asset: its building and a half-acre of land.

The women looked at me and choked back tears. "We never ordered or received any carpet!" they said. It struck my inner-most sense of justice and I accepted their case on the spot.

When I contacted the business owner, his response made me even more determined. "So what?" he replied when I pointed out that no carpet was delivered or installed. "I got a contract and they owe me for the whole amount."

Well, he didn't have a contract; he had a quote that the minister never accepted. In a nutshell, a carefully drafted answer with counterclaims drove him into bankruptcy court and a quick and easy Adversary Proceeding not only declared his claims for a lien and debt invalid, but also that the church's fraud claims would not be discharged by his bankruptcy. And with that, it was over.

I thought that the result was deeply satisfying. In this case, I helped prevent a gross injustice and hopefully convinced this businessman to never try that again. I wrote a nice letter to the minister to explain the result and that they had nothing to worry about.

A few days later, the front desk called to tell me that the two women were in the lobby asking to see their lawyer. I was worried that they had another problem or didn't understand the outcome of their case. But when I got to the lobby, all I got were hugs, tears and thanks. "You saved our church!" they said. "You were the answer to our prayers." Those hugs and words were more valuable than any fee I had ever collected.

What We Need Now

Growing the ranks of volunteers and increasing donations to help fund pro bono programs will go a long way. We also need changes in our ethics rules and pro bono programs.

The American Bar Association added Rule 6.5, “Nonprofit and Court-Annexed Limited Legal Services Programs” to its Model Rules of Professional Conduct in 2002. That rule attempted for the first time to carve out a limited exception to some of the conflict of interest rules. The exception only applies when a lawyer:
>>>>>a. participates in a qualified “limited assistance” event,
>>>>>b. with no expectation of continuing representation in the matter presented,
>>>>>c. does not personally know of a conflict of interest with the person helped at the event, and
>>>>>d. does not personally know that another lawyer in his or her firm would have a conflict of interest with the person helped at the event.

In the wake of recent major hurricanes in the U.S., scores of prospective volunteer lawyers have shied away from providing legal assistance to disaster victims in large part because they were concerned about inadvertently violating applicable ethics rules or causing an imputed conflict of interest that hurt their firms. Another cause for hesitation to prospective pro bono volunteers, especially in areas near a state border, is the worry about inadvertently violating another state’s “unauthorized practice of law” restrictions.

Well-meaning lawyers need protection from these worries. Some pro bono programs have set up “anonymous” call centers and other systems for assisting people without the lawyer and client knowing the other’s names or the names of the parties involved, but some would argue that even that is not safe, as enough facts can often be inferred from the conversation to trigger a potential conflict of interest or disqualification.

The rules should clearly exempt from discipline any lawyer who:
 Provides:
>>>>>i. free, short-term legal assistance
>>>>>ii. in a setting where complete conflict of interest checking is not feasible,
>>>>>iii. has no plan to ever receive compensation for the work,
>>>>>iv. does not allow confidential information from the assistance to be accessed by anyone at his or her firm, and
>>>>>v. has no personal knowledge that he or anyone else in his firm would have a conflict of interest with the client being helped at the event.
 Provides only general assessment and guidance in urgent situations regarding matters involving state laws where he is not licensed, with appropriate admonitions that the client seek other guidance from a lawyer duly licensed in the other state.
 Provides limited, “unbundled” assistance to self-represented litigants, such as coaching before a hearing, reviewing proposed orders, or explaining court rules.
 Provides free limited answers to general legal questions in online forums (as long as he includes appropriate disclaimers).

Rules regulating the legal profession in each state should also clarify what information court personnel and other nonlawyers can provide, such as general procedural guidance, preprinted legal information and how to obtain legal assistance or report lawyer misfeasance to the governing body.

The ABA Ethics 20/20 commission is now reviewing the 2002 Model Rules and issues unaddressed in them. Hopefully, they will come up with more protections and the states will adopt them quickly.

Pro Bono Programs.
Lawyers today are more culturally diverse in many ways than ever before. And “culture” means a lot of things in addition to race, religion, national origin, gender and sexual orientation:

Urban, suburban or rural
Large, medium, small or solo firm
Specialist or generalist
High, medium, low or non-existent technological skills
Heavy, light or zero bar association involvement
These differences make our profession richer and stronger, but give Pro bono program directors challenges:
-> As more lawyers are concentrated in urban areas, fewer are available to provide significant pro bono assistance in rural areas.
-> Some lawyers only communicate by mobile phone and text messages, while others prefer email, faxes or messages left with their secretaries.
-> Younger lawyers tend to work easily with web-based systems, while more-experienced lawyers prefer to deliver aid in person.
-> Lawyers move from firm to firm more frequently, often forgetting to let their pro bono coordinators know of the change.
-> Clients with pre-paid mobile phones can change phone numbers faster than their addresses, yet busy volunteers do not have a lot of time to chase after them to complete a matter.

These and other challenges require program updates in many places to keep attracting new volunteers while retaining valued long-timers. Some pro bono program directors will need to use more online and electronic tools to help busy lawyers volunteer, deliver legal assistance, obtain mentoring support, and report on their results, even as some long-time volunteers still require a phone call to sell them on a new pro bono case. Even more, these tools can be used to connect rural clients with urban lawyers in many types of cases.

Others will have to expand “assisted pro se” projects in ways that require fewer volunteers or incorporate nonlawyers who can deliver legal information and pre-printed guidance. [1]

"Do It Anyway"

But do not let these gaps dissuade you from getting involved. Pro bono programs have existed successfully for many decades and their dedicated staff can accommodate almost every volunteer’s needs who regularly takes cases for them.

It is Celebrate Pro Bono Week. Take an extra case as part of the festivities!


[1] The Texas Office of Courts Administration recently produced informative guidelines [pdf here] for court personnel so they can know where the line is between "legal information" and "legal advice." It is a useful model and has apparently been well received by court personnel across the state.

Monday, October 18, 2010

A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 3 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In my earlier posts, I described the extent of the unmet civil legal needs of low-income families in the U.S. and the need for a stronger public+private partnership to address that need. This one focuses on action.

If you are a lawyer, paralegal, law student, court reporter, court clerk or legal secretary, ask yourself and your peers: is our firm/office/department doing all it can to help relieve the distress our neighbors feel when they cannot afford needed legal help? Some of you are. Thank you. For the rest, take the time to connect with your local pro bono program or look at their statewide website for opportunities to make a real difference. Use your special skills in new ways to help those unable to adequately help themselves through often simple legal problems.

Many paths; one mountain peak

Of course, depending on your present occupation, your volunteer opportunities may seem limited.

 Lawyers in private firms are a rich resource for pro bono programs. Whether sending younger associates to volunteer and build practical legal skills faster or actually co-counseling with staff legal services lawyers to bolster and mentor, firms traditionally have carried their pro bono service banners proudly. Lawyers in small and solo practice tend to have difficulty giving their time away with no one else to keep the revenue stream flowing, but still have traditionally supported pro bono projects either financially or through limited volunteer services. With more cases to place with volunteers than they have on their rosters, Pro bono coordinators sometimes provide CLE courses in partial compensation and always show their thanks openly.

 Corporate and government legal department lawyers have more restrictions on how they can participate, yet they continue to find new ways to help those in need and support legal aid as their “charity of choice.” Some volunteer in “advice-only” events, on speakers’ panels, with fundraising and to recruit other volunteers.

 Paralegals and unlicensed lawyers can be important and valuable volunteers, as well. Many para-professionals have the skills, experience and special knowledge of areas of the law that affect pro bono clients. These “subject matter experts” offer support to lawyers who may be venturing into a new area of the law or taking on several cases at once.

 Court reporters, too, are needed in pro bono programs and staff legal services. Discovery is expensive, but often unavoidable for the responding party. While some large law firms may donate the costs of discovery incurred in their cases, many small firms and solo practitioners cannot. Donated court reporter time helps keep the legal playing field level and the volunteer lawyer in the game.

 Other volunteers are key to successful pro bono programs in the areas of fundraising, communications, office management, volunteer recruiting and recognition, technology, and more. Whether earning community service hours for school or exploring the legal profession as a potential vocation, high school, college and law school students can easily find ways to help keep the program moving smoothly along.

Rest assured, there are plenty of opportunities for everyone. Lawyers and other legal professionals in private practice tend to provide more pro bono services than their counterparts in corporate and government legal departments. Government lawyers can provide pro bono services, despite some misconceptions on that. Corporate counsel can find opportunities tailored to their circumstances and skills at web sites such as this one by the ACC and this one at the Alliance for Justice,

Many ways to join the effort

Here are some ideas on how to make a difference that are specific to the legal profession:

Helping People. As any experienced volunteer lawyer will tell you, there is nothing in the for-profit side of our profession that comes close to the satisfaction we get from knowing we have helped someone resolve a personal legal matter. Very few pro bono cases are merely financial disputes, because legal aid is designed to address cases that are not lucrative for the private bar. These are compelling situations often filled with emotions such as fear, anger and depression. Even when you do not win 100% of the client’s goals, they are normally appreciative of the fact that someone helped them speak up, fight back or stand tall. (The smiles and hugs are hard to beat, too!)

Helping Groups. While some will debate whether or not free legal assistance to their local $10+ million symphony should qualify as “pro bono” work, the truth is that nonprofits need legal assistance, too. There are thousands of small nonprofit organizations in the U.S. Many of them were created by or primarily serve families eligible for free civil legal services, so their budgets are very thin. Helping them continue to help others without spending scarce funds on legal fees is one way to help many people in each legal matter. You may not meet all of your “clients,” but those you do work with are sure to let you know how grateful they are for your service.

Helping Pro Bono Programs. As with most nonprofit organizations, pro bono programs are under-funded, under-staffed and over-whelmed by demand for their assistance. Financial support is always needed, but so is emotional support and public recognition for volunteers and pro bono program staff. Those “in transition” can learn new skills, network with peers and keep their sanity by getting involved while they have the extra time to contribute. Anyone can send cookies, drop off supplies, commend staff in a blog or simply stop by to ask the program coordinator what is needed.

A New Pledge

So let’s make a new pledge together:

“I pledge my support, as a legal professional,
to my fellow citizens and less-fortunate neighbors.
And true to the people, for whom I now stand,
I’ll provide, and support, pro bono assistance
To help achieve Equal Access to Justice for All!”
(rest assured, no one will be jailed for NOT reciting it!)

Monday, October 11, 2010

A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 2 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In my earlier post, I described the size of the problem in the U.S., where, for every person who receives federally-subsidized free legal assistance, at least one more eligible applicant is turned away. (See “Documenting the Justice Gap in America” 2009 update, page 12 (PDF).) Other countries have similar unmet needs based on their levels of funding for civil legal assistance. Government funded programs and non-governmental organizations cannot solve the problem alone. They need your help.

Poverty is An Equal Opportunity Status

The unmet need for civil legal assistance to low-income families in our communities is growing. John G. Levi, Chairman of the Legal Services Corporation’s Board of Directors, estimated that nearly 57 million Americans now qualify for free civil legal assistance based on their very-low-income status. And that is just based on 2009 Census data. When the official 2010 results are in, those ranks will no doubt grow significantly.

The numbers are worse than that: although civil legal aid programs report assistance to many people each funding cycle, many of those clients did not receive all of the help they needed due to the lack of staff and volunteers. Go to any civil legal aid office and ask about the applications they have to turn down due to insufficient staff. Without exception, each will have its stories of eligible applicants with compelling needs that they sent away with either no help or insufficient help to resolve the matter.

The issue is nonpartisan, nondenominational and gender and race neutral:

• Federal funding for free civil legal services began as part of the “Office of Economic Opportunity,” an agency created by the Economic Opportunity Act of 1964. The LSC has a bi-partisan Board of Directors (no more than 6 of its 11 Directors can be from the same political party) and bi-partisan support in Congress.

• Most major religions encourage help to the poor. (See these commentaries: Christian, Jewish, Muslim, and Hindu.) Religious organizations have voiced their support for legal aid to the poor around the globe. (See, for example, this story from Jakarta.)

• The loss of over 8 million jobs in the past few years means that many families are now living at or near the poverty line who used to be well above it. Many more are very close.

At a time when most politicians are calling for budget cuts and many states face their own financial challenges, there is little hope that federal and state funding for civil legal assistance will ever rise to the point where all eligible families and senior citizens will receive help with wills, child custody, home repair fraud, family violence protection, or appealing wrongful denials of public assistance benefits.

The Founding Fathers wrote the current U.S. Constitution “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” They understood that each of these was essential to the new nation’s long-term success. They also understood what can happen when the citizens stop believing that their government’s institutions deliver justice fairly.

Toward a Better Public+Private Solution

Government funded programs cannot meet the need at present funding levels and more funding is unlikely in the current economic and political climate. While poverty and access to justice are issues for all Americans, those of us in the legal profession have the skills, interests and knowledge necessary to provide immediate help to our most vulnerable citizens.

We need more private individuals, firms and organizations to join the effort. Wherever you find pro bono programs, there are more eligible applicants than there are willing volunteers. Pro bono program directors have very limited staff and funds, but seemingly unlimited pleas for legal assistance. Applicants in rural areas face additional challenges because most lawyers are located in urban areas that can be hours away and those in urban areas overwhelm the service providers every month.

Legal professionals are in a unique position to help fill the gap. Justice Oliver Wendell Holmes once said that “of all secular professions, [the law] has the highest standards.” [1] Roscoe Pound, Dean of Harvard Law School from 1916-1936, observed that professionalism in the law “refers to a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.” [2] More recently, Justice Sandra Day O’Connor, after quoting Dean Pound, went on to say that “lawyers have in their possession the keys to justice under the rule of law—the keys that open the courtroom door. Those keys…are held in trust for all those who would seek justice, rich and poor alike.” [3]

The challenge is still there today. How will you rise to meet it?

There are efforts underway to address the needs. The American Bar Association’s Young Lawyers Division and the Young Lawyers Associations in California, Florida, New York, Maryland and other states focus on unmet legal needs in their communities. The Texas Young Lawyers Association specifically has focused on connecting corporate counsel to pro bono opportunities with its new "Partnering for Pro Bono" program. Some states have established web sites to match volunteers to opportunities of interest without them ever leaving their keyboards: Texas, Colorado, New York, and Minnesota are a few examples.

What will you do to support your local pro bono program or legal aid organization? Are you already active in your local program? If not, you can start with these links to some of the legal aid and pro bono organizations:

United States:
American Bar Association’s Center for Pro
Legal Services Corporation’s Map
of LSC-funded Programs

Texas "C-BAR" (assistance to qualified nonprofits)

Canadian Bar Association
List of links to Legal
Aid Programs in Canada

United Kingdom:

National Pro
Bono Resource Centre

(to be continued...)

[1] Suffolk Bar Assn. Dinner, Feb. 5, 1885, Speeches (1913), reprinted in Lerner, Max, The Mind and Faith of Justice Holmes 29 (1954).

[2] Pound, Roscoe, The Lawyer from Antiquity to Modern Times, 5 (1954).

[3] Remarks at the dedication of Anheuser-Busch Hall, Washington University School of Law, St. Louis, Missouri, on Sept. 26, 1997, as printed in 76 Wash. U. L.Q. 5, 12 (1998).

Sunday, October 3, 2010

A New Pledge – To Strengthen Pro Bono Legal Assistance (Part 1 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010 is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

“…with Liberty and Justice For All.”

School children recite the Pledge of Allegiance in the United States nearly every school day:

“I pledge allegiance, to the Flag,
of the United States of America.
And to the Republic, for which it stands.
One nation, under God, indivisible,
with liberty and justice for all.”

To help celebrate National Pro Bono weeks in various countries, I have written a brief series of posts proposing a similar kind of pledge for legal professionals.

Pro bono legal assistance has a long, rich history in nearly all “common law” legal systems. Lawyers have likely been providing free legal assistance to those who cannot afford to hire them since the legal profession began. The concept of providing free civil legal assistance to the poor in an organized fashion dates to the 1800s in the U.S. when legal aid societies were formed to meet the needs of their communities. Perhaps the best known type of pro bono legal assistance is court-appointed counsel for indigent defendants in criminal cases. Think of the American novel, To Kill A Mockingbird, for example.

In the U.S., there is a constitutional right to counsel for federal and most state criminal defendants when imprisonment is a potential punishment. (Most U.S. states also provide the right to representation when the State seeks to terminate their parental rights.) In the U.K. and Canada, people who are arrested may request an “Independent Solicitor” at the police station if they cannot afford their own representation.

But indigent defendants in civil cases have no such right to court-appointed representation. Even though depriving a person of a home, job, or marital property or suffering fraud by an unscrupulous business can be as traumatic and injurious as jail for most families, we have not elevated those problems to the same level as deprivation of liberty or life.

--When a relative wants to adopt an abused child who has been rescued by child protective services and placed in their care, the state will not pay for their legal assistance to complete the adoption.

--When an entire family is about to be homeless because a landlord with poor rent records or a sinister motive is evicting them on short notice, the eviction court will not appoint an attorney to represent them.

--When a judge intentionally or unintentionally refuses to correctly apply the law in a battered spouse’s divorce case, there is no right to counsel to avoid having our legal system used as yet one more weapon of abuse.

--When a working family needs to restructure their debts in bankruptcy to get back on their feet after a major illness or income disruption, the bankruptcy process is generally too complicated for them without legal guidance and legal fees can make the process cost more than they can pay.

--When an elderly widow needs title to her home cleared so she can obtain disaster relief funds or qualify for property tax reductions, no one at the tax office or property records office can represent her.

--When a legally-blind home owner who lives entirely on his Social Security retirement check is tricked into signing papers that give his home to a contractor he thought was trying to help him rebuild after a storm, the litigation required to nullify that contract is typically too complicated to handle alone.

--When a small neighborhood church for low-income families is sued by a carpet company for payment even though no carpet was ever delivered, no one can speak for the nonprofit group unless they can find a lawyer to defend them.
The Public Part of the Solution
Most western nations attempt to address this gap with legal aid in one form or another. There are a number of organizations who provide free civil legal help using full time staff. The Legal Services Corporation distributed over $400 million USD in 2009 to help fund over 136 programs across the U.S. and its territories, for example. Canadian governments contributed approximately $300 million CAD (48% of the total funding to civil and criminal legal aid programs). Standing government agencies and NGOs help millions of low-income people every year in many countries.

Yet the need is still there. The Legal Services Corporation in the United States calculated that, in 2009, almost one million eligible applicants were turned away due to insufficient funding. (See “Documenting the Justice Gap in America” 2009 update, page 9 (PDF).) According to the LSC, in the U.S., “for every client served by an LSC-funded program, at least one eligible person seeking help will be turned down.” (Id., at p. 12.)

This is not a small gap in our quest for “equal justice under the law” (Caldwell v. Texas, 137 U.S. 692, 697 (1891).) that only occurs in isolated cases. This is not merely a problem that plagues poorer states, counties and towns. The holes in America’s pledge to “justice for all” are everywhere. This is a national issue of grave importance in every nation. It is time for a new pledge: A Pledge To Strengthen Pro Bono Legal Assistance.

(to be continued...) Go to Part 2