After Turner, emphasizing due process requirements for cases involving the self-represented, there is an urgent need to think of better ways to decide who needs what services in order to get access to justice, and not just in the civil contempt area.
Here is a new idea for how courts could deal with their responsibilities under Turner to make sure that people get what they need for access. Its not just legal aid that now has to be involved in making smart and cost effective decisions about who should receive a free lawyer and who should receive other forms of assistance that can help to make our courts more accessible. (Special thanks to David Udell, of the National Center for Access to Justice at Cardozo Law School, who has helped me improve and refine this whole idea.)
The general idea is that following a preliminary review for financial eligibility and to determine if the matter is contested, a screening attorney would make a recommendation for or against appointment of counsel, taking into account the nature of the case, the merits and the stakes for the litigant. An appropriate decision maker such as a retired judge would make a final decision. In cases in which counsel is not provided, the attorney would provide unbundled services, or refer the person elsewhere for unbundled services or self help, thus ensuring that lower-cost forms of assistance would be provided.
Here are the four proposed steps in more detail.
I. Screener (Court Clerk or Person at Self-Help Center or Other Setting) Determines if Case is Contested, if Person is Financially Eligible, and Whether to Charge for Screening. When an unrepresented person takes an initial action in a case, a screener would determine if the case were contested and would evaluate the person’s financial eligibility status. If the case were contested, the initial screener would offer to refer the person to a diagnosing attorney, and, for those non-indigent, would also set a price for that service based on financial criteria established by the jurisdiction. If the person were found ineligible to meet with the diagnosing attorney, or declined the interview at the price offered, if any, the person would be provided access to the self-help resources available.
II. Attorney Diagnoses the Person’s Needs and May Recommend that Counsel be Appointed, Provide Unbundled Services, or Refer the Person for Self-Help or Brief Unbundled Service. The diagnosing attorney:
- Screens for categorical eligibility – The screening attorney would first screen for certain forms of pre-determined categorical eligibility to receive a lawyer, such as child-custody with domestic violence cases, tenants over 65 (other categories to be determined).
- Screens for individualized eligibility – For persons not categorically eligible, the attorney would make an individualized determination as to whether the person needed counsel to obtain access to justice. The attorney would apply a set of standards and would consider i) the facts of the case, ii) the complexity of the governing procedural and substantive law, and, iii) the parties’ particular capacities (including literacy, linguistic capacity, and amenability to negotiation, case complexity, and, arguably particularly important, whether opposing party has counsel).
- Screens for merit and stakes – For all persons diagnosed as potentially eligible for appointment of counsel, the screening attorney would determine, also applying appropriate standards whether the case were non-frivolous and, whether there were sufficient significance of the matter at issue for the person.
- Recommends to decision-maker (retired judge, sitting judge, or other as selected by jurisdiction), provides direct unbundled assistance, or refers elsewhere. If the attorney diagnosed that an attorney were needed, the attorney would complete a Recommendation Form for review by the selected decision maker). If the attorney recommended against appointment of an attorney, then the attorney would give unbundled assistance, and could also refer the person elsewhere for self-help, legal and non-legal assistance, discrete services, and other appropriate assistance.
III. Decision-maker (Retired Judge, Sitting judge, or Other as Selected by Jurisdiction) Decides to Appoint or Deny Counsel – The decision maker would review the attorney’s recommendation and make the final decision ex parte, on the papers, as to whether counsel would be appointed. The decisional materials would confidential and not open to discovery. A second decision maker would reassess denials. Ideally, retired judges would serve in this role pro bono. (Having retired judges perform this role preserves the decisionmakers’ independence, while maintaining a judicial perspective.)
IV. Decisions to Appoint Counsel are Implemented – Once appointment of counsel is approved, counsel would be provided in one of the following ways: i) by an attorney in a non-profit program under contract, ii) by an attorney on a list of counsel who met certain criteria, and would be paid, or iii) by a pro bono attorney. The assigning authority, which would not be the judge, would confirm that contact is made between the lawyer and the client.
The approach should appeal to a variety of funding, bar, court and service delivery constituencies since it offers the following benefits:
- Financial Efficiency and Incentives –The approach promotes cost effectiveness by appointing counsel for those who need it most. It also creates incentives for communities to establish funding for its functions, primarily by making conspicuous the need for counsel and the consequences for justice. It also builds in long-term incentives for developing the most cost-effective alternatives.
- Financial Viability – Because communities can adjust the financial and substantive screening standards, this approach thus does not commit communities to an uncontrollable entitlement system
- Broad Legitimacy – As the approach becomes increasingly grounded in research-based knowledge of the effectiveness of attorney and non-attorney forms of assistance, and since decisions are made by lawyers and confirmed by judges, it will be perceived as broadly legitimate and as supporting the efficiency of court operations.
- Middle-income Options – The approach anticipates that some communities might determine to offer services to a middle-income population on a partially subsidized basis, while charging others nothing, and still others full cost. It also allows communities to determine to fund diagnostic screening for all through a flexibly waived enhanced filing fee (with a simple formula to determine financial eligibility).
- Flexibility – The approach is flexible, allowing for state-by-state variations and for changes in categorical eligibility, in the standards governing the screening process, in the ways that existing non-profit providers can participate in the provision of services, in how court processes can be made more effective, and in the relationship to other players in the system.
In a subsequent post, I will explore in Q. and A. format more details about how a system like this would work.
If you like this idea, do please spread it around.
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I rarely disagree with you, but I think you are glossing over the very real practical implications of your proposed plan. South Carolina Supreme Court Chief Justice Jean Toal at the state’s last Bar convention announced measures she’s taking to help make up for the close to $9 million shortfall in the court system’s budget. SC’s court system has enacted a hiring freeze, courts are working at “skeleton” staff levels, there have been layoffs, and judges are only authorized to travel in emergency situations (leaving SC’s rural areas with essentially no judiciary). A system such as you propose simply wouldn’t work in areas where the courts are faced with extremely limited means to conduct the business already required. Any additional procedures for assessing indigent applicants for counsel and assigning an already overburdened Bar with more bodies in the pool of non-paying clients would bring the court system to a halt. As a member of the SC Bar, at one time employed by a small firm, I can attest to the true hardship forced representation of indigent clients presents to small firm and solo practicioners (the majority in SC). We are the only profession (maybe doctors as well in some situations) required to attend to those who cannot pay for our services. I have no problem with this in theory, it’s just that this cannot be sustained in the real world. Just think about it – you are an attorney in rural SC, in a mostly indigent community, you will have to work extra hard just to obtain the cases, with paying clients, necessary to support your practice. Now, because you practice in a low-income area with few attorneys (because low income areas can only support so many), you now, in addition to the appointments you get on myriad criminal and post-conviction relief matters, also have civil appointments. For all of these appointments, you receive a truly nominal fee and often have to pay out of your own pocket for experts and other expenses. It just can’t be done.
Additionally, the whole point of civil contempt is to encourage parties to follow the court’s orders, and this would be lost if a party thought he could get out of his obligation through (free!) assistance from an attorney. If you remember the facts of Turner, he would make payments toward the owed child support after each jail sentence. If a civil appointment system were in place, why on earth would Turner make any payments at all? Turner would just wait until he was significantly in arrears, and then his lawyer would argue that he has made best efforts to find employment, etc., and the mother and child would be left with nothing (thus further perpetuating the cycle of poverty). At least when Turner was jailed, he would get out and try and find work to satisfy his obligations. And finally, I do have a problem with someone obtaining free counsel that could potentially assist with shirking a legal and moral responsibility to a child – especially when Ms. Rogers, and the child, don’t have access to representation as well.