Jim Greiner Asks “What is Access to Justice For?”

Jim Greiner, in a recent two part post for the Haarvard Law and Policy Review (here and here), urges that we need to decide what we are trying to achieve in our access work.

He points out that without a clear sense of goal, we are making strategic decisions without being guided by any sense of purpose.  He gives as an example the question why do we do debt collection work.

If the purpose of providing litigation defense to debt collection defendants is to keep the defendant from having to pay the debt, there’s a far, far, far cheaper way to do that:  Just buy the debt the plaintiff is suing on.  Buy the debt on the open market, and then forgive it by telling the alleged debtor that she’ll never have to pay.  You can probably do that for, say, five cents on the dollar.  So you can buy (and then forgive) a $2,000 debt for $100.  Is that more efficient than litigation defense?  It almost has to be.  When you think about what a litigator needs to function (computer, printer, IT support, office, transportation, salary, benefits, administrative support, etc.), it’s hard to think of how one can produce a functioning litigator for less than (this is a blind guess) $60,000 per year.  And how many $2,000 debt collection cases can that lawyer realistically defend in a year?  300?  400?  For $60,000, a legal aid office could buy and forgive 600 $2,000 debts.  So, the best thing to do for the legal aid office is not to hire a lawyer; rather, the best thing to do is to buy debts on the open market and forgive them.  You get twice the bang for the buck.

Acknowledging the incompleteness of that analysis, he goes on to discuss other possible goals such as changing the way the court system handles such cases, increasing peoples happiness, and public trust in the system — all valuable goals.  He also suggests strategic implications of such goals, including the possibility that some of these goals might not require the expensive systems of intake now in place.

Let me suggest a mode of analysis that might be quantified.  I think that most of us have a range of goals, but that the weighting of the goals varies with individuals and with institutions.  Some particularly value the anti-inequality impact of legal interventions, with some focusing on the individual impacts, and some the broader structural impacts.  Some value public trust and confidence.  Some focus on individual unfairness.  And so on.

It would be interesting, at least for research purposes, to find out the differing mix of values of stakeholders, and their estimates of the impact of the potential of individual types of cases or activities to achieve those goals.  A map of these “votes” would display a fascinating portrait of our community. (One that would not necessarily be comfortable to all.)

The next step would be to attempt to find ways to asses the impacts of potential groups of cases or activities, based on that map, to be used, in combination with an analysis of strategies and opportunity costs, in priority and triage decisions.  (After all, in a sense, that is what we already do in community-based legal aid priority setting, we just do it instinctively.)

Such a process of analysis would lay bare the broad differences in the legal aid coalition — but it would also allow for focus on commonalities, and for respect for the fact that different stakeholders and institutions can have different focuses, yet work together, particularly on certain strategies.  And it might lead to some surprises.  Maybe some of the banks that support access to justice do understand that too much inequality is a risk to stability!

Thanks, Jim, for getting this discussion started.

 

 

 

Posted in Funding, Research and Evalation, Systematic Change | Leave a comment

Please Help Mitigate Downside of Headline of Excellent Washington Post Article on NonLawyers

Robert Ambrogi has an excellent article in today’s Washington (DC) Post on the Washington State Limited License Legal Technicians initiative.  Anyone interested should read and share.

Nothing in this post should be read to undercut the conclusion that this is a very important initiative that is creating a new profession that will be able to provide extensive access to justice services and do so in the marketplace in a fully sustaining way.

However, sadly, the positive impact of the article is dramatically undercut by the headline: Who says you need a law degree to practice law?

The risk, perhaps obviously, is that the article is suggesting the full and complete de-regulation of the practice of law, which is not what is being talked about at all.  The perceived suggestion might ramp up anxiety in the bar, even though the concept is currently moving forward with general bar support — and indeed in Washington State is being administered by the Bar itself.

The article itself does explain the limits of the initiative:

There are some limits. Washington’s LLLTs will be restricted to family-law issues, though administrators may eventually expand the program’s purview. And they can’t represent clients in court.

And:

 But LLLTs won’t replace lawyers, who will still be needed when a client goes to court or confronts a particularly challenging legal issue.

In the context of the dramatic headline, it is perhaps useful, at least in conversations with those who are freaked out by the idea, that the limitations upon the activities which LLLTs are authorized to perform are significant.  As Rules 28 F  says:

. . .

If the issue is within the defined practice area, the LLLT may undertake the following:

    (1)  Obtain relevant facts, and explain the relevancy of such information to the client;

    (2)  Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding;

    (3)  Inform the client of applicable procedures for proper service of process and filing of legal documents;

    (4)  Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board, which contain information about relevant legal requirements, case law basis for the client’s claim, and venue and jurisdiction requirements;

    (5)  Review documents or exhibits that the client has received from the opposing side, and explain them to the client;

    (6)  Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client’s case;

    (7)  Perform legal research and draft legal letters and documents beyond what is permitted in the previous paragraph, if the work is reviewed and approved by a Washington lawyer;

    (8)  Advise a client as to other documents that may be necessary to the client’s case, and explain how such additional documents or pleadings may affect the client’s case;

    (9)  Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.

Moreover, the limiting language in Rule 28 H is very explicit.  For example it prohibits LLLTs from the following:

(4)   Represent or advertise, in connection with the provision of services, other legal titles or credentials that could cause a client to believe that the Limited License Legal Technician possesses professional legal skills beyond those authorized by the license held by the Limited License Legal Technician;

    (5)  Represent a client in court proceedings, formal administrative adjudicative proceedings, or other formal dispute resolution process, unless permitted by GR 24;

    (6)  Negotiate the client’s legal rights or responsibilities, or communicate with another person the client’s position or convey to the client the position of another party, unless permitted by GR 24(b);

    (7)  Provide services to a client in connection with a legal matter in another state, unless permitted by the laws of that state to perform such services for the client;

    (8)  Represent or otherwise provide legal or law related services to a client, except as permitted by law, this rule or associated rules and regulations;

As I read this, for better for worse, this means that LLLTs are very limited, at least compared to lawyers.   LLLTs can do legal research but in certain circumstances where is goes beyond the specific authorization above,  it has to be approved by a real lawyer.  LLLTs and they can not appear in court in any way, even under the in courtroom supervision of a real lawyer.

While some of these limits may well change over time, this is a long way from what most people would understand from the phrase “practicing without a law degree” — not to mention the very careful regulatory structure put in place to ensure the quality of the assistance given.  (The rule is described in much more detail here.(Please note that in a prior version of this post I incorrectly stated that “LLLTs can . . . not really help [people] with major strategic decisions.”  That is not correct.)

Moreover, regardless of the ultimate way we label this —  “limited legal practice,” for example, right now we need to co-emphasize both how much help for access to justice this provides, and that this is no way undercuts the traditional role of the bar.

So when folks ask you about the article, please do emphasize the limits of what is currently getting put into place — as well as the rigor of the educational program, which includes practice area courses taught by a consortium of the state’s law schools.  But do so in the context of how incredibly valuable this initiative is.  It is particularly exciting that it is being rolled out in cooperation with Bar and law schools.

The limits listed above do not mean that research and pilots could not show that many of these limits are not needed —  and indeed I have argued for as broad as appropriate a definition of the role.  But we are far from there yet.  The good news, however is that Public Welfare Foundation has funded deep research by the American Bar Foundation and the National Center for State Courts into this initiative and the New York Navigator Project.  When completed, we will know much more about their impact, and hopefully be in a position to both optimize and expand them.

Posted in Non-Lawyer Practice

Building the ATJ Communication Capacity While Enhancing Public Awareness of Issues of Law and Poverty

It occurred to me that the way that Voices for Civil Justice has responded to the recent Justice Department Report on Ferguson provides an opportunity to see how our access community is gaining in sophistication and effectiveness.

Those who are in the Justice Voices Network recently were invited to assist in developing the media follow-up strategy following the Report, with a focus on the role of legal aid (broadly defined) in protecting those subject to what might be called the “debtors’ prison railroad”, the process by which in jurisdictions such as Ferguson, courts use civil judgments or unpaid court fees to trigger warrants which result in incarceration because of inability to pay — a concept well familiar to Dickens, but not to those who take the Constitution seriously.

The idea is that legal aid programs will tell Voices of their efforts in this area, and that Voices will help the media find the stories and ideas in which the public will be interested.  Here is part of the solicitation e-mail:

.  .  .  [w]e know Ferguson isn’t the only place where people go to prison for being poor. We want to tell that story and how civil legal aid is involved.
So if your program, or a program you know of, is working on these issues, please reach out to us. We are interested in the full range of responses, including personal stories, new or pending legislation, creative collaboration with the courts branch – in general, any successful programs that are tackling the problem. Data showing prevalence and impact are a big plus.

The contact information on how to share this information, and also a link to join the JusticeVoices network, is here.

Sometimes, people have felt that the access to justice strategy for legal aid has tended to push aside the anti-poverty strategy.  I think this activity shows how untrue this can be.  Why, and how to integrate the two approaches, is a fascinating question.  I suspect that the key is understanding what the public as a whole thinks is an appropriate anti-poverty and anti-inequality strategy.

 

 

Posted in Communications Strategy, Legal Aid

Why the New Judicial Ethics Rules on SRLs are Unlikely to Increase Complaints About Judges

I have recently been involved in a discussion about whether rules authorizing judges to be more engaged with litigants in self-represented cases might increase complaints about judges, specifically for their failure to be more engaged.

These rules (or raher usually Comments to the Codes of Judicial Conduct (memo at link not necessarily up to date) vary from state to state, but make clear that judges “may” engage in certain forms of engagement, such as asking questions and making referrals, without being considered non-neutral.

Some people are fearful that such language will increase complaints because litigants will feel that judges should have done the things and failed to do so.

Probably the most important point to make in response to these concerns is that while many states have now passed some form of this language, we have heard of no such increases reported in any states.

Some have also made the excellent point that since these rules clarify that these practices, which most litigants find helpful, are permitted, it is likely that they may reduce, rather than increase the number of complaints.

Moreover, given that the language tends to the use the word “may” or equivalent, they tend to create discretion, rather than reduce it, thus making the chance of such complaints.

There is one caveat, which may be significant in some cases.  Since the rules/comment changes make clear that judges do have discretion to take such engaged steps, any judge who affirmatively refuses to consider the possibility that such steps would be appropriate in a case is engaging in an abuse of discretion.  “No, I am not allowed to do that.”  “The rules stop me doing that.” That is where the appellate cases are likely to come from.  Of course, a judge who explains why he does not think such a use of discretion in the circumstances of the case is appropriate will be well protected.  As always, transparency is best.

Posted in Judicial Ethics

Exciting Job Position at ABA on Access to Justice.

The ABA is listing the following job:

Director of the ABA Resource Center for Access to Justice Initiative

This position serves as the Director of the ABA Resource Center for Access to Justice Initiatives. The Resource Center, operating under the auspices and oversight of ABA Standing Committee on Legal Aid and Indigent Defendants, provides support to state supreme courts, state bar leaders and state civil legal aid leaders, to nurture the creation and expansion of state blue-ribbon commissions on access to civil justice. The position provides support for 38 state blue-ribbon commissions, and their chairs, members and staff.

Its obviously a job that can have huge impact on the ATJ movement. With the Commissions playing a larger and larger role, and the networking among them starting to have more and more impact and leverage, and with national leadership building capacity, this is a great moment for anyone interested in taking on this role and exerting leadership.

The job listing states “Job Type/Location: Full-Time; Chicago.”  Given the importance of the job, and speaking strictly personally, I hope that those responsible will interpret this flexibly.  The fact is that this is a national job, with a lot of travel, as well as the need for integration with the ABA.

 

Posted in Uncategorized | 1 Comment

Nice Development for Incubators

The International Justice Center for Postgraduate Development at Touro Law Center and Lexis have announced an arrangement by which lawyers in incubator and residence type programs will get a year’s free access to Lexis tools.

This is obviously good news for the lawyers who are working with and in these programs.  It suggests that other content providers of all kinds should think of similar ways to help the incubator movement, which is spreading very fast.

Indeed, I understand that there are 160 people right now at the Incubator Conference in San Diego.

From looking at the impressive agenda for the conference, I am hopeful that it will help keep the incubator movement focused on access to justice, rather than serving the interests of law schools.  I would hate to see the movement become focused on academics or legal jobs for their own sake.  The focus on technology is particularly interesting.

 

Posted in Incubators, Meetings | 1 Comment

Tomorrow, Fri Feb 27, is Early Registration Deadline for EJC, Scheduled Just After SRL Pre-Conference

Tomorrow, Friday February 27 is the early registration deadline for the EJC Conference in Austin this May.  The SRL Pre-Conference is May 6,  and the SRL Pre-Conference May 7-9.  In addition to a full day of information, engagement, and networking with other expects, the Pre-Conference will feature an early evening reception at the Travis County Law Library self-help center which will include light refreshments and be open to all EJC attendees.  I strongly encourage STL folks to use this opportunity to invite their delegation colleagues to the reception, to give them a sense of what a self-help center can be like.  The Austin program is truly a national model.

The Pre-Coference itself will include segments on:

  • Judicial Engagement: the necessary ingredient for the success of SRL services and innovations
  • SRLN Update: working groups, research, projects and new initiatives
  • Ignite sessions on forms & technology, discussion to follow
  • The continuum of services & significance of partnerships
  • Problem solving

Katherine Alteneder has done a wonderful job putting the Agenda together, and this will be very worthwhile for all, including those who are coming to the ATJ Chairs meeting on Friday and Saturday.

There will, of course, also be a significant number of SRL/ATJ sessions at the main conference.

Registration link here.

See you there!

Posted in Meetings, Self-Help Services | 2 Comments