Maybe a Good Time to Approach Philanthropy

Posted on April 9, 2016 by richardzorza

Now might be a particularly good time to approach foundations and other philanthropists.  We all know about the incredible work that the Public Welfare Foundation has done to support access to justice. (Disclosure: including by helping me.)

Now, President Mary McClymont has an opinion piece in the Chronicle of Philanthropy on Philanthropy Must Step Up for Fairness in Civil Justice.

The good news is that the resource crisis in civil legal aid has led to an array of innovations to help serve more people, including new approaches like licensed legal technicians (people who have legal training but are not lawyers), self-help services, automated standardized forms, and technology tools. The Public Welfare Foundation has tried to do its part to foster such innovations. And while these creative new approaches have drawn some welcome attention, they need greater and more sustained financial backing  .  .  .  Philanthropy is uniquely suited to help meet this need by catalyzing innovations and supporting proven efforts to offer more and better service.

At the same time, philanthropy can also benefit by embracing civil legal aid as part of its tool kit to advance housing, education, economic security, and other causes central to fairness and prosperity in our nation. Foundations have started to hear the call to action on criminal justice and have stepped up. Now, we must do the same to advance needed reforms in civil justice.

The Chronicle is simply the go to place for funders, so far more people in that world right now know what we are up to.  So a perfect time to reach out and make the reference and connection.  And, of course, the Resolution and follow-up strategy process, makes this a particular moment of opportunity for leverage for any funder.

 

Posted in 100% Access Strategy and Campaign, Funding, Systematic Change | 1 Comment

Study on Legal Service Providers in the UK Operating as Alternative Business Structures

Posted on April 6, 2016 by richardzorza

In the UK, there is now a system in which lawyers and non-lawyers can co-own and can have outside investors in legal service providing organizations.  They are called ABS (Alternative Business Structures handbook here).  A recent research report on pricing of routine legal matters appears to challenge the hope/expectation that such systems will reduce prices. (Here is Richard Moorheads’s comment)

Specifically, the report asserts that: “There were no significant differences between the prices of Alternative Business Structures and other firms.”  I suspect that careful additional study might suggest that in some areas there are such pricing impact, but in any event, the supporters of this approach should not be too discouraged.

Above all, we do not know what might have happened to prices had ABS not become available as competitors.  (Prices seemed to go up, but we do not have the comparison).  These were not comparisons with non-lawyer entities, rather those with flexibility on ownership and investment.  We do not know, this early in the experiment whether there is a long term impact.

Notwithstanding these caveats, the research does suggest that any magic bullet in ABS is not automatic.  Without knowing much more, I would want to know how much flexibility has actually been taken advantage of, and particularly whether this has led to new serve delivery mechanisms.  This might e exceptionally useful as we move forward on the design of changes in our system.

More generally, the conclusions from the study as a whole may be of interest:

  • Prices vary significantly for some common legal services showing that it pays consumers to shop around.
    • 17% of firms display their prices on their websites; firms who do display prices on their websites are generally cheaper than those who do not.
    • Legal service providers adopting a fixed fee approach to charging tended to offer the lowest price on average when compared with those charging in other ways.
    • Fixed fees predominate for less complex matters (conveyancing, wills, power of attorney and for simpler uncontested divorces). As the services sought became more complex, providers were more likely to say they would charge either an hourly rate or estimate the total cost.
    • The majority of firms (67%) stated that their prices had stayed about the same over the last 12 months. However, amongst those reporting a change, the balance was very much in favour of a price increase (29% reported that prices had increased and just 4% that they had decreased).
    • There were no significant differences between the prices of Alternative Business Structures and other firms.
    • There was no clear pattern when looking at how prices varied by size of firm.
    • Firms based in the South East of England charged significantly higher prices across each of the services tested compared to firms located elsewhere. Firms based in England typically charged higher than those based in Wales.
    • Firms quoted lower prices in deprived areas when compared with the more affluent areas, across all scenario groups.
    • The majority of firms believed that in most cases services were not likely to cost customers more than initially quoted.
Posted in Alternative Business Structures, International Models, Metrics, Research and Evalation | Comments Off on Study on Legal Service Providers in the UK Operating as Alternative Business Structures

Get a Webinar Preview of the Resource Guide on Remote Services for Self-Represented

Posted on April 6, 2016 by richardzorza

On April 27, 1-2pm EST, under the auspices of SRLN, John Greacen and others will be presenting a webinar on the new Guide to Remote Services for the Self-Represented.

Given the new focus on strategic planning, for 100%, as called for in the Chiefs’ Resolution, and supported by the new Justice for All program, the upcoming release of this guide is critical. Here is the description of the session and Guide in the announcement.

The guide describes remote services such as telephone, text messaging, email, chat, video conferencing, co-browsing, and customer relations management software.  It discusses different business practices followed in the eight sites studied in detail  – Alaska, California (Butte, Tehama, and Lake Counties and Orange County), Idaho, Maryland, Minnesota, Montana, and Utah – including how they integrate in-person and remote services, and identifies the equipment and staffing components of each program. 

The Guide also describes the outreach efforts of each site to involve justice system and community entities in meeting the needs of SRLs and how the programs provide feedback to their courts to simplify and improve court processes for SRLs.  The webinar will include an overview of the Resource Guide and detailed descriptions of two of the eight sites studied.

 For many states, the only practical way to 100% may well be through significant use of such remote services, and learning about pros, cons, and deployment strategies will be critical.

I would simply urge every state to make sure that at least one person is at the webinar, and takes responsibility for engaging their leadership with its conclusions and resources.

Register here for the Webinar.

 

Posted in Access to Justice Generally, Court Management, Self-Help Services, Technology | Comments Off on Get a Webinar Preview of the Resource Guide on Remote Services for Self-Represented

We Lose a Special Giant, Pro Bono Pioneer Esther Lardent

Posted on April 5, 2016 by richardzorza

The Pro Bono Institute, which she founded, has announced the death of Esther Lardent.

It is with profound sorrow that the Board of Directors of the Pro Bono Institute marks the passing of our beloved friend and founder Esther F. Lardent. Under Esther’s inspired leadership since its founding 20 years ago, PBI has been a leading voice in the cause of equal access to justice and an important agent in the transformation of pro bono legal services.

For many years, I had felt this special kinship with Esther.  Somehow we both felt this utter impatience with what I experienced as (and I think she did too) the needlessly slow pace of change in our field, and the unwillingness to move faster with the obvious.  We would sit next to each other at meetings, at the same time both whipping up each others’ frustration, and calming each other down.  She was a great and needed comfort.

It was only in the last few years that I learned at least some of why there may have been this resonance.  While both her parents were survivors of the Holocaust, and only one of mine was, and while my father was probably never formally under Nazi occupation, we both, I like to believe, absorbed a sense of urgency and obligation from that unique history.

She was able to take that history of pain and loss and use it to drive transformative institution building.  It was never enough for her to be key in creating the pro bono movement and then rest on those laurels.  On the contrary, she saw at once the inadequacies of what had been built, and created new and more ambitious possibilities.

This was the story of her life, and we are all, including millions who never met her but were helped or will be helped by the institutions she built, forever in her debt.

 

Posted in History, Pro Bono, Vocation | 3 Comments

Thoughts For Federal Agencies and ATJ Commissions Building on the White House LAIR Meeting

Posted on April 3, 2016 by richardzorza

I am not sure that the ATJ Community fully appreciates the scope of the implications of the recent Legal Aid Inter-agency Round-table inaugural meeting, about which I first blogged here.  Nor, I suspect do all Federal agencies yet realize the scope of the potential help that the ATJ community can provide in ensuring that the agencies fulfill their varied missions.

So, I thought it might be helpful if I laid out some of the questions that such agencies might be asking themselves as they move forward in response to the marching orders from the meeting, and also some of those that state and national ATJ organizations might together and individually be asking about how they can help agencies in both planning and substantive activities.

Questions for Federal Agencies

  1.   Participation in Agency Decisions — Adjudicatory and Rule-Making.  If, as most do, your agency either conducts decision-making that should include input by low and middle income individuals, or if your agency funds or has the ability to assist in supporting or structuring such activities conducted by states, do you have in place systems to ensure the accessibility of such processes.  Many, but not necessarily all, of such decision-making processes will administrative initial determinations or appeals.  In addition, however, much rule making, as currently structured, may also be far less accessible to such populations than it might be.  There are already a wide range of models developed in the state courts for helping in access to adjudicatory process  situations, some, but not all of which are highlighted in the recent state Conference of Chief Justices 100% Access to Justice Resolution, about which I blogged here.  Examples are self-help services, already extensively funded by HHS through the IV-D program.
  2.  Funding Streams.  Has your agency done all it can to ensure that all appropriate funding streams that might be used to improve accessibility to justice are in fact available to the groups that could make sure use of them.  Given that increasing accessibility not only improves justice, but also increases efficiency (often of many agencies), the legitimacy of government, and assists with fulfilling almost all of the substantive goals of the Federal government, I suspect that almost all funding streams would be appropriate for such consideration, unless explicitly dedicated to some other non-overlapping purpose.  Obviously, the LAIR Toolkit helps provide models and ideas.  Equally obviously, sometimes eligibility can be made clear in forms of gjidance, at other times regulations may need to be changed.  At yet others, budget language may need long term attention.  More and more agencies are seeking that descriptions of services fundable under Federal grants can include such services (See the LAIR Toolkit, and this list published by the ABA).
  3.  Breadth of Eligibility of Funding Streams.  Has it been made clear that that these streams are appropriate not only for traditional advocacy and representation assistance, usually provided by community based legal aid programs funded by LSC and IOLTA, but also for other forms of services or tools or systems improvements, many also listed in the Chief’s Resolution, such as self-help services, automated forms, referrals, triage tools, and non-lawyer informational services, which can be provided by neutral entities such as the courts or agencies themselves, because of their inherent non-advocacy neutrality when made available to all.  Often a combination of all these capacities are needed to move toward 100% access, which should surely be the goal of Federal agencies, as much as the state courts.
  4.   Development of Systems and Procedures to Identify and Assess Barriers to Access.  Does the agency have in place systems and procedures to identify barriers to those seeking the services it provides, particularly, but not only, the decision-making associated with those services.  Does it make use of outside perspectives on such barriers, and does it have mechanism for planning to remove those barriers.
  5.   Development of Systems and Procedures to Minimize the Creation of Additional Barriers to Access.  Does the agency have something like an “access to justice impact statement” requirement, that would ensure that changes in processes, either conducted by the agency, or funded by them, do not result in additional barriers.
  6.   Removing Access-Barrier Construction By the Agency in Court Positions.  Does the agency have a system to ensure that its court positions are access-friendly, even if that might increase the risk of loss in the case itself?  In other words, a court position that attempts to obtain non-merits dismissal, such as by motion to dismiss, may have the effect of making the whole system less accessible.  (Such motions are appropriate when needed to protect the integrity of the process, but not when designed for tactical advantage notwithstanding the merits.)
  7.   Obtaining Input on Needs, Priorities and Potentials.  Has the agency put in place a system for getting ideas and information from state partners, and those who deal with those state partners, about needs and potentials?

Questions for Partnering Between State Access to Justice Entities and Federal Agencies

  1. Gathering the ATJ Perspective on Federally Impacted Processes.  Does the Commission (or other responsible entity) have a mechanism for identifying all the areas of access to justice that are impacted by Federal activity, and for identifying the ways that Federal action might be structured to increase access.
  2.   Systems of Communication.  Are there systems of communication between ATJ entities and Federal agencies about these opportunities?  Does, indeed, either side have any idea who to talk to in the other group in order to seek or communicate these concerns and possible solutions?
  3.   National Networking.  Are there systems by which the ATJ groups on the one hand, and the individual Federal agencies, or groups of agencies, can coordinate this information flow so that overlap is minimized, patterns identified, and solutions are designed with as broad a range of perspectives and experiences as possible.

I am sure that others will have many more ideas, and I would urge that you share them here and elsewhere.  But above all, I would urge that we take advantage of the time between now and early next year to move as far as we can to institutionalize these perspectives throughout state and federal government.

Posted in Access to Justice Boards, Administative Proecdure, Dept. of Justice, Federal Agencies, Federal Courts, Funding, LAIR, White House | Comments Off on Thoughts For Federal Agencies and ATJ Commissions Building on the White House LAIR Meeting

The Key to Making “Uber for Lawyers” Work

Posted on April 2, 2016 by richardzorza

A recent blog post by a professor at Albany Law School explores whether an “Uber for Lawyers” would work.  (Longer paper, which includes triage and continuum of services, here). His argument:

By offering technology-enabled legal services through an internet- or mobile-based interface, what a sharing economy approach to the delivery of legal services can do is allow consumers of legal services a clearinghouse from which to access services easily and conveniently. Such a clearinghouse could connect the consumer quickly and conveniently to a lawyer who could offer a range of services depending on the client need. Like with other sharing economy platforms, this “Uber for Lawyers” would tap into the latent supply of lawyers while serving the overwhelming majority of low- and moderate-income Americans who do not have access to one. The services would be easy-to-access and could be offered at a reduced rate or on a sliding-scale basis, with profit margins maintained by the increased volume of services offered. By making such services both less expensive and easier-to-access than traditional legal services, consumers could utilize them earlier in the life cycle of a legal problem, catching them before they spiral out of control, meaning such problems would likely be less costly to address.

Yes, but.

The problem is that people are deeply reluctant to hire a lawyer without feeling that they “know” them.  Thus personal referrals are trusted far far more than websites or other sources.

I think the reason for this is the deep ambivalence that all of us (including perhaps many in the profession) feel about lawyers.  It is summed up for me by a phrase I heard in a focus group uttered by one woman, and immediately endorsed by the group: “Bad, but good to have on your side when you have a problem.”  So if anything we start distrusting anyone who is a lawyer and trying to “sell” themselves to us.  In particular, we fear that the lawyer will add rather than reduce conflict, particularly, but not only when the lawyer has an economic incentive to increase conflict.

So the question becomes how such a “Uber for Lawyers” would feel more like a personal referral than an advertising driven hunt.  How can we transcend that tension so that people feel that they trust the “law driver” they are choosing.

One way, obviously, would be to put up the kind of content that would give the person seeking a service the kind of information that would give them comfort.  Here are some thoughts (although without expressing any view as to the extent to which these would currently be allowed under varied state ethics codes.)

Providing videos in which potential clients can see the lawyer engaging in the kinds of activities that show their approach — client interview, negotiation, court appearance, explaining a difficult concpt, etc.

Similar videos in which the lawyers talk about their philosophy, perhaps with clients (and even opposing clients!) describing how it felt to engage with that lawyer

User feedback systems that focus on the things that people care about, and that would be customizable, so that any person looking for a lawyer could indicate which factors are most important.

Case examples with total fees as predicted and as they came in at the end.  Listings of average total fees.  Same with times to resolution.

Two concluding thoughts:

Perhaps the Commission on the Future of the Profession should look at how the ethics rules could be changed to encourage that kind of outreach generally.

And, is there any way to leverage the need for such systems, and indeed the huge benefits to the profession of providing them, to assist access to justice?  Maybe a percentage of membership fees in such a system should go to an “access to justice lockbox” that would fund or subsidize the costs of the referred services for low and middle income folks.   Perhaps Access to Justice Commissions could operate these systems, and use the profits to fund ATJ activities.

An exciting time.

Posted in Access to Counsel, Access to Justice Boards, Funding, Technology, Triage | 2 Comments

Does the Concept of “Entity Regulation” Provide an Entry Point for Access Contribution Requrements

Posted on April 2, 2016 by richardzorza

The ABA Commission on the Future of Legal Services has just released for comment an Issues Paper Concerning Unregulated LSP Entities.  The basic idea is that currently unregulated legal services provider entities, such as online document assembly services, might be subject to regulation at the entity level, rather than, as law firms are, at the lawyer level.

The idea is that such groups are very different from law firms, indeed almost by definition they are not providing traditional lawyer services, and that it would be easier and fairer, and help create better internal conduct incentives, to regulate the entity itself, as the real actor.  (In this post I am setting aside for now the real risk that such regulation could provide a fig leaf for much more aggressive and anti-competitive behavior by some bar associations of activities that are far from appropriate regulation by the bar.)

One of the interesting potentials is for such regulation to make imposition of real access to justice requirements on such entities, and then perhaps ultimately on the traditionally regulated profession of lawyers themselves.  I have previously blogged both about the craziness of how little we expect from lawyers in return for the highly valuable monopoly professional membership they enjoy, and about the idea of granting a limited practice license to tech-based entities, but only in return for concessions such as highly reduced pricing for low and middle income people.

Lets play this out a bit more.  As the Issues Paper puts it:

.  .  .  [W]e know that these unregulated LSP entities offer a range of services, including automated legal document assembly for consumers, law firms, and corporate counsel; expert systems that address legal issues through a series of branching questions and answers; electronic discovery; legal process outsourcing; legal process insourcing and design; legal project management and process improvement; knowledge management;online dispute resolution; data analytics; and many others.

To the extent that these entities feel constrained or at risk by current regulatory structures, they might be willing to accept access to justice conditions in return for regulatory authorization and protection.  Given that many of these services are delivered at essentially zero marginal cost, this might be only a small burden on these entities.

While the conditions might vary with the type of service, here are some examples:

Free or very reduced cost access to services such as document assembly and expert systems.

Development those tools in areas that many entities might avoid because of lower demand or return.

Making available to access to justice organizations that serve poor and middle income people, pro bono capacities such as those listed above, that are not zero marginal cost.

Transparency in certain data analytics perceived as needed for full access to justice for all.

Use of data and inter connectivity  standards so that these systems can integrate seamlessly with courts, with each other, and both community-based nonprofit and traditional lawyer providers.

Provider taxes dedicated to access to justice equalization.

All in all, an opportunity to explore broader solutions for access to justice.  And, indeed, the possible intellectual structure for such a direction is there in the proposed ABA Regulatory Objectives, which explicitly includes access to justice.

 

Posted in 100% Access Strategy and Campaign, ABA, De-Regulation, Document Assembly, Incnetives, Metrics | 2 Comments

What the 100% Access Movement Can Learn From the Cancer Moonshot

Posted on April 1, 2016 by richardzorza

Earlier this week, I was at the Johns Hopkins Hospital launch of their Institute for Cancer Immunotherapy.   This is part of the Obama Administration’s Cancer Moonshot, led by Joe Biden.  The PR was brilliantly handled, and Joe Biden spoke from the heart.

What they packaged so wonderfully was not just the importance and the emotions, but the sense that things could fundamentally change in the next five or ten years.  As one of the speakers said “Now, when you ask me which cancers this approach is going to impact, I answer ‘all of them'” (reconstructed quote.)

At our best, that’s what we can do with the 100% Access to Justice /Justice for All Movement.

The approach of the CCJ Resolution offers the hope of 100%, the breakthroughs in delivery that if properly used can get us there, and the allocation of responsibility for leadership (in the Commissions.)  Just like the Cancer Moonshot, it transforms a long slog with little progress into a goal-oriented, and hopefully achievable  target.

So lets keep the focus on the goal, and always talk about the specifics in the context of the goal.  Indeed, is there any media mention that should not comment on how an innovation or change does or does not contribute to the goal.

Posted in 100% Access Strategy and Campaign, Medical System Comparision | Comments Off on What the 100% Access Movement Can Learn From the Cancer Moonshot

Towards a “Long Term Impact” Component for Triage Systems

Posted on March 31, 2016 by richardzorza

We have long recognized that triage systems designed for access maximization may have different algorithms for what to do with a case than those designed for poverty minimization, as those deployed by community-based advocacy organizations might choose to develop.

One factor that might be taken into account in such a poverty minimization algorithm might be the risk that the failure to provide services would result in a person falling deeper into poverty, or that the provision of services might result in removing someone from poverty.  Moreover, both long and short term risk might be considered.

Now there comes a tool that, while using only the factors of race, education, marital status and age, is designed to help calculate the risk of being in poverty in the short, medium, or long term.  The tool is described by its developers here.  Maybe one day it might be converted into an API (applications programming interface) that would show the risk of falling into poverty for people being served by various agencies or systems, to the extent desirable and appropriate.

The current tool, while far from a triage tool, or even anything like the complex kind of predictor that might be needed for a triage component, already highlights the long term possibilities of data to take such factors into account and to make decisions based on inputing those factors into algorithms.  The tool may also help us think about the complexities and difficulties that such systems would raise.

 

 

Posted in Technology, Transparency, Triage | 1 Comment

Legal Aid Interagency Roundtable Inaugural Meeting is Springboard for Federal ATJ Initiatives

Posted on March 28, 2016 by richardzorza

The Federal Government Legal Aid Inter-agency Roundtable met for its inaugural meeting on February 29.  The Roundtable is under the White House Domestic Policy Council and DOJ.

As Co-Chair Attorney General Loretta Lynch put it:

“The consequences of limited access to justice reverberate far beyond the courtroom.  It hampers our ability to do critical work: to prevent domestic violence and human trafficking; to combat homelessness and predatory lending; to help those in need secure health care and other vital government benefits; to keep kids in school; and to help those with criminal records gain a second chance to succeed.”

That 21 agencies came together to discuss the Federal role in access to justice is nothing short of miraculous.  In its own way, this is just as momentous as the State Chiefs 100% Resolution.  Taken together, they two are the foundations of a revolution.

This is what a photo of a revolution looks like in America (photo from DOJ website).

A bit of a sense of what this might mean can be gleaned from the Talking Points of the presentation given at the meeting by Rebecca Sandefur, which is attached here.

Among the points made to the over 20 agencies, and endorsed at the very highest level, were the frequency of legal problems, the extent to which they are often not recognized as such, their tendency to cascade into even worse problems, and the value of legal aid intervention, broadly defined.

As agencies think about the implications for their own work of this important government wide focus, it surely makes sense for state and Federal access players to think about the intersections of their planning.  After all, every step taken by the Feds should make state ATJ planning easier, and every state ATJ plan should be a resource for Federal agency planning.  Similarly, as each Federal agency moves forward, that agency’s work should inform that of all the others.  Indeed, planners and advocates might want to look at the list of member agencies, and consider how to move toward communication. Similarly, Federal agencies might look at the list of state level activity and think what might be a resource or an indicator of need or potential.  Of course, the broader information streams, such as here and here, also offer more such information.

 

Posted in Access to Justice Generally, Dept. of Justice, LAIR, White House | 2 Comments

ABA Commission Paper on Legal Check-Ups Could Offer Opportunity to Integrate Private Providers Into ATJ Triage Movement

Posted on March 25, 2016 by richardzorza

A few days ago, the ABA Commission on the Future of Legal Services, fresh from a major step forward in getting House of Delegates approval for their Model Regulatory Objectives, issued for comment a draft Issues Paper Concerning Legal Checkups.

While, it is important to note that this is NOT ABA policy, merely a draft for comment, nonetheless, it represents another important step forward for the Commission and the profession.

The draft paper, in addition to describing the concept, sadly probably very important for many members of the bar, sets out proposed Model Guidelines for such check-ups.  Extracts and topics appear below.

  1. Consumer Protection: “legal checkup tools must be designed to protect and benefit those who use them.”
  2. Candor and Transparency: “must not be false, misleading, or deceptive.”
  3. Substantive Quality: “should be created in consultation with individuals who are competent in the applicable law.”
  4. Communication: “communicate to users that . . . depends on the users providing full and accurate information.”
  5. Limits of Checkup: “notice that a legal checkup is primarily designed to identify legal issues, not to solve them, and is not a substitute for the advice of a lawyer.”
  6. Resources: “direct the user to appropriate resources, such as lawyer referral services, social services, government entities, or individual practitioners.”
  7. Accessibility: “should be accessible to all users, including people who do not speak English and people with disabilities.” “to the public in a wide variety of venues.” “Web-based legal checkups should be available on a wide variety of electronic platforms”, “accessible, written in plain language, and easy to navigate.”
  8. Jurisdiction:
  9. Compliance with Law:
  10. Privacy and Security of Personal Information:
  11. Provider Information:
  12. Dating of Material:

To me, however, the idea that providers and web based organizations might develop and offer tools to identify peoples legal problems, and make referrals to appropriate services, has great potential.

If such tools were deployed in compliance with the emerging standards for data and data communication for triage systems, then the check-ups envisioned by the paper could become one of the front ends into integrated triage systems.  The check up tells you of the problems you have that might involve legal issues, and the triage system assesses what kind of help would be sufficient to solve the problem.

My own view is that lawyer providers, and hopefully other providers, have a general ethical obligation, deriving from the duty to protect their clients interests, to point our the extent to which there may be cheaper alternatives than to using the lawyer directly. To the extent that the triage system (perhaps with the lawyers assistance) suggests that such alternatives would be appropriate, and the client chooses, then the triage system can make needed referrals.

Moreover, I would note that the paper uses careful language about the role of professional expertise in the development of the check-up:

Legal checkups should be created in consultation with individuals who are competent in the applicable law that the checkup addresses.

The paper also uses the general word “provider” to describe the entity that is providing the check-up.

In any event, the encouragement of such tools will surely increase appropriate usage of appropriate legal services, regardless of what type of provider makes them available.  This could happen both from showing people which needs have legal components, and by helping make sure that those components are provided in the most cost effective way.  As I assume the Commission intends, such Guidelines provide an important test of the sufficiency and appropriateness of the Model Regulatory Objectives now adopted by the ABA.

On a different topic, I think we need to explore whether the algorithms should be publicly available.  On the one hand, there are likely to be claims that such algorithms are proprietary.  On the other, without knowing what algorithms are being applied, how can the fairness and accuracy of the system be assessed by the public and potential users. It may be that requirements of transparency are one of the ways that some of the benefits of deregulation can be obtained, without the worst of the risks of profit-maximization.  See my blogs on use of incentives in deregulation and on a code of ethics for coders.

I urge all to read and comment on the paper, as suggested in the document itself.

Posted in ABA, Access to Counsel, Attorney-Client, Bar Associations, De-Regulation, Incnetives, Non-Lawyer Practice, Technology, Triage | 2 Comments

Recommending the Weekly SRLN Twitter Trends List — Showing Just How Much Innovation is Spreading

Posted on March 22, 2016 by richardzorza

I thoroughly recommend SRLN’s recently launched Access to Justice Twitter Trends.

Originally developed for SRLN Working Group members, the weekly listing is now available to all through the new SRLN website (itself massively redesigned from the old one.)

Based on constant monitoring of Twitter and key sources, the weekly listing, in my opinion, is particularly useful for highlighting developments that the ATJ community, through our tweeting behavior, has already identified as of particular interest to all of us.

Looking through a week’s listing shows the huge range of innovative things happening.  I used to think that I heard of, and was hopefully able to blog about, most of the important things happening.  I no longer have that delusion, or even that goal!

Here, for example, is the most recent listing:

Congratulations to SRLN, and indeed all who are creating and telling the story of this movement.

Of course, you can also get much of this through the SRLN Twitter feed, which is accessible on the SRLN website (bottom left).

 

Posted in Access to Justice Generally | 2 Comments

A Reassuring Thought During Hard Times For Those Who Believe in Facts, Fairness, Reason and Rules

Posted on March 18, 2016 by richardzorza

I think it is fair to say that those of us who are working for access to justice believe in “facts, fairness, reason, and rules” for resolving disputes at both the individual and societal level.  The access to justice movement is about making sure that all have meaningful access to those processes.

The intentional destruction of our political system through the use of contempt for others, incitement to violence, and threats of violence makes this a hard time for those who have tried to hold fast to that ideal.

I want to share with you how I try to hold on to the belief that this will all work out OK.

For years, I have been asking people who are old enough to remember World War II what was the point at which they were sure the Allies had won.  I get every answer imaginable, all the way through to “not till the very end.”

But the answer I find most amazing, as well as most reassuring for our current turmoil, is the reply of my Holocaust-surviving aunt, who found us only in 1994, 53 years after last seeing her brother, my father, and after almost 20 years of searching.

Her answer — and this from one who saw the absolute height of Nazi power and evil — “It never even crossed my mind that we would lose.”

Now, my aunt had already become an atheist (“my God was murdered in the Ghetto”).  But, when I asked why she had not even considered the possibility of the Allies losing, she replied:  “I just could not believe that the human race was that evil.”  That’s surely the ultimate in humanistic faith of good over evil.

So, that’s what I believe now about the choices America is being faced with.  I just do not believe that we are so bad as to go down the wrong path.

I hope that helps.  And, I hope we all  manage to find the wisdom and skill (and in the case of those left behind by one party, the needed courage) to do the right thing.

Posted in Access to Justice Generally, Political Support | 4 Comments

Jim Sandman’s Comment on the Nomination of Judge Garland and Access to Justice

Posted on March 17, 2016 by richardzorza

Many of us have been wondering about the potential implications of the nomination of Judge Garland for access to justice.

Well, here is one very important clue, a comment by LSC President Jim Sandman.  Jim is, of course, a former partner of the Judge at Arnold & Porter, and also a friend.

I do not know a finer person than Merrick Garland, nor can I imagine a better qualified person for the Court.   He gave a magnificent speech at the LSC reception at the Supreme Court last April, and he has attended every one of our White House forums on Increasing Access to Justice.  He is deeply commited to the rule of law and access to justice.  I know Merrick well, and I am thrilled to see him nominated.

It is worth pointing out that the Court not only plays a role in the deciding of cases that impact access, but also has huge rule making and Federal Court administrative responsibilities.  While it may be that it is inappropriate for a judge with a pending nomination to comment on pending or specific future cases, there may be less inhibitions about talking about management of the Federal Courts, at least in general terms.

Attention is surely needed.

Posted in Access to Justice Generally, Federal Courts, Supreme Court, White House | Comments Off on Jim Sandman’s Comment on the Nomination of Judge Garland and Access to Justice

DOJ Dear Colleague Letter on Fines and Forfeiture is Another Game Changer

Posted on March 14, 2016 by richardzorza

As the Times reports, DOJ has issued and sent to all the state chief  justices and state court administrators a Dear Colleague letter on the subject of court fines and fees.  The helpful and positive tone of the letter is emphasized by the first paragraph of explanation.

In December 2015, the Department convened a diverse group of stakeholders—judges, court administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted individuals—to discuss the assessment and enforcement of fines and fees in state and local courts. While the convening made plain that unlawful and harmful practices exist in certain jurisdictions throughout the country, it also highlighted a number of reform efforts underway by state leaders, judicial officers, and advocates, and underscored the commitment of all the participants to continue addressing these critical issues. At the meeting, participants and Department officials also discussed ways in which the Department could assist courts in their efforts to make needed changes. Among other recommendations, participants called on the Department to provide greater clarity to state and local courts regarding their legal obligations with respect to fines and fees and to share best practices. Accordingly, this letter is intended to address some of the most common practices that run afoul of the United States Constitution and/or other federal laws and to assist court leadership in ensuring that courts at every level of the justice system operate fairly and lawfully, as well as to suggest alternative practices that can address legitimate public safety needs while also protecting the rights of participants in the justice system. (Bold added.)

Some highlights (with italics representing quotes from the letter itself) — which I urge all to read in full.

Prohibition of incarceration without inquiry into indigency and finding of ability to pay.

Under Bearden, standards for indigency inquiries must ensure fair and accurate assessments of defendants’ ability to pay. Due process requires that such standards include both notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the defendant to be heard on the question of hisor her financial circumstances. See Turner, 131 S. Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent unrepresented parties from being jailed because of financial incapacity).

Requirement of Consideration of Alternatives to Incarceration.

Neither community service programs nor payment plans, however, should become a means to impose greater penalties on the poor by, for example, imposing onerous user fees or interest.

Prohibition of Conditioning of Hearing Upon PrePayment.

This unconstitutional practice is often framed as a routine administrative matter.

Requirement of Notice and, in certain cases Counsel.

Further, courts must ensure defendants’ right to counsel in appropriate cases when enforcing fines and fees. . . . Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to prevent incarceration for inability to pay). (A footnote in the Letter draws attention to Turner’s distinction of the situation when the opponent is the state.)

Prohibition of Arrest Warrants and License Revocations to Obtain Payment, without procedural protections.

If a defendant’s driver’s license is suspended because of failure to pay a fine, such a suspension may be unlawful if the defendant was deprived of his due process right to establish inability to pay.

Prohibition of Bail and Bond Practices that result in incarceration solely as a result of inability to pay.

When indigent defendants are arrested for failure to make payments they cannot afford, they can be subjected to another independent violation of their rights: prolonged detention due to unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount. (Bold added.)

Obligation to protect against staff or contractor abuse.

Additional due process concerns arise when these designees have a direct pecuniary interest in the management or outcome of a case—for example, when a jurisdiction employs private, for-profit companies to supervise probationers. In many such jurisdictions, probation companies are authorized not only to collect court fines, but also to impose an array of discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to the company itself rather than to the court.

This is obviously powerful stuff.  It is particularly encouraging that this letter has been issued after an extensive process involving stakeholders, and that this approach is moving forward in close parallel with the Task Force of the Chiefs and COSCA to develop resources and best practices in this area.  Indeed, the work of the task force is partially funded by BJA, as well as by SJI, and BJA will soon be making grants to assist in solving this problem.

Indeed, the scope of the Task Force is Broad.  This are the tasks listed in the above linked release:

  • draft model statutes, court rules, written policies, processes and procedures for setting, collecting and waiving court-imposed payments;
  • compile and create suggested best practices for setting, processing and codifying the collection of fines and fees and bail/bonds;
  • review and revise suggested guidelines for qualifications and oversight of judges in courts created by local governments or traffic courts, including reviewing and updating state codes of judicial conduct and the jurisdiction of judicial conduct commissions to ensure their applicability to all judges;
  • sponsor a court “hackathon” designed to develop innovative technological solutions that ensure courts are providing 21st century customer service through mobile applications and software platforms; and
  • develop an online clearinghouse of information containing resources and best practices.

I very much hope that access to justice commissions will think about the relationship of this initiative to their ever expanding work.

Posted in Access to Justice Generally, Bail, Chasm with Communities, Court Fees and Costs, Funding, Judicial Ethics | 2 Comments