Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I spoke for a bit less than an hour. You can watch the presentation HERE. I used a power point, which isn’t visible on the video. If you’d like it, please e-mail me and I will send it to you.
Over the next few days, I’m going to use this space to share the ideas that I shared at VLS. The ideas are limited to how the Rules of Professional Conduct can be used to increase access to legal services. Many other ideas exist and are worth discussing. However, they are beyond the scope of the ethics rules and, therefore, beyond the scope of this column.
Cognizant that several readers have informed me that shorter posts receive more attention, I will break this series into 5 posts:
- Increasing Access: It Must Be Ethical
- Limited Licenses
- Limited Representation/Ghostwriting/Flat Fees
- Emergency Financial Assistance to Clients
- Non-Lawyer Ownership & Management of Law Firms
Increasing Access: It Must Be Ethical
I’ll start as I did at VLS: stop reading this blog and go volunteer an hour of your time. For years, we’ve held fanastic seminars aimed at devising solutions to solve the justice gap. That’s great, but at some point it’s just lawyers being lawyers. Most of you know that my background is in basketball. Basketball players & teams don’t get better by sitting around and talking about getting better. They get better by playing basketball. To that end, talking about the justice gap won’t help to reduce it. Reducing it will reduce it.
As a profession, we excel at forming committees, holding hearings, and drafting, re-drafting, and issuing reports. Too often, those reports sit on shelves or today’s electronic equivalent. Absent action, the hours devoted to the reports would have been better spent volunteering at a rent escrow clinic or taking a pro or low bono case.
And there’s plenty to do.
For those of you not aware of the numbers, Judge Davenport conducted a study in 2012. The studied revealed a staggering number of self-represented litigants:
- Active parentage cases: 84%
- Tenants: 90% (vs 24% of landlords)
- Collections Defendants: 84% (vs 2% of the plaintiffs)
- Foreclosure Defendants: 74% (vs 1% of the plaintiffs)
- Divorce: 54%
These five types of cases accounted for 72% of the civil docket.
Don’t get me wrong: many lawyers are providing top-notch work to clients who have little or no ability to pay. Among them, the staff attorneys at Vermont Legal Aid, LawLine of Vermont, and the Defender General’s office. Further, there are several excellent programs that are up & running. At the risk of excluding some, I’ll list a few off the top of my head:
- VLS Clinics
- Vermont Volunteer Lawyers’ Project
- Chittenden Rent Escrow Clinic
- Vermont Bar Foundation
- VBA Modest Means Programs
- VBA Pro Bono & Low Bono Programs
Further, many of you have donated time and money: the VBF’s Access to Justice Campaign comes to mind, as do the regular and generous donations from the Rutland County Bar Association.
Finally, Dan Richardson’s tireless efforts with the Vermont Commission on the Future of Legal Services resulted in a report that includes several recommendations that, if adopted, would only help to increase access to justice.
But I don’t think the numbers have improved since Judge Davenport’s study.
So, to the Rules of Professional Conduct we go.
Don’t let anyone tell you that the rules prohibit or impede lawyers from participating in programs designed to increase access. That is pure BS. Here are a few quotes from the Preamble,
- “A lawyer is a public citizen having special responsibility for the quality of justice.”
- “A lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.”
- “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”
- “Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”
Hmm. Seems rather clear to me that the rules do not impede ensuring access to justice. Quite the opposite.
For me, it comes down to this: what do the rules prohibit? Yes, we have lots of rules, many of which are written in perfect legalese. But, I’ll never forget something that a Vermont attorney for whom I have the utmost respect told me shortly after I’d been named disciplinary counsel in 2000: “the rules are great, but remember, it’s lawyers who lie, cheat, or steal who you should focus on.”
Isn’t that exactly it? No lying, no cheating, no stealing.
Oh, I hear you thinking right now: “but Mike! what about diligence? or conflicts?” My response: a lack of diligence is a form of lying. A conflict is cheating.
From there, it’s simple. Helping those in need is not lying, cheating, or stealing. I don’t know how else to say it. For those of you who need a cite, here’s something that the Louisiana Supreme Court said in 1976 and to which I will return in a follow-up post:
- “no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.” La. State Bar Ass’n v. Edwins, 329 So. 2d 437 (1976).
In sum, the Rules of Professional Conduct do not impede lawyers from helping those in need to access legal services.
With that out of the way, I will use the next 4 posts in this series to discuss ways that the rules can be used to increase access.